author: MARCUS, Justice. DENNIS, Justice,

text:
    STATE of Louisiana v. David Eugene LEWIS.
    No. 59714.
    Supreme Court of Louisiana.
    Nov. 14, 1977.

      James J. Gleason, III, Public Defender, Covington, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Woodrow W. Erwin, Dist. Atty., Julian J. Rodrigue, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

David Eugene Lewis was indicted by the grand jury for first degree murder of Earl L. Alfred in violation of La.R.S. 14:30(1) and (2) (1973). After trial by jury, he was found guilty as charged and was sentenced to life imprisonment at hard labor, without benefit of parole, probation or suspension of sentence for twenty years. On appeal, defendant relies on eighteen assignments of error for reversal of his conviction and sentence.

The record reflects that about 8:00 a. m., August 13, 1975, defendant allegedly drove his black and white Buick automobile to a shopping center in Slidell and parked it behind a jewelry store. He then entered the store and found Betty Graves, a salesclerk, alone. Defendant spoke with Ms. Graves, who recognized defendant as one who had been in the store a few days earlier to inquire about a purchase. Defendant grabbed Ms. Graves and stabbed her with scissors. While defendant was taking some items of jewelry, Ms. Graves was able to Rigger the burglar alarm. Defendant attempted to strangle Ms. Graves and then exited at the rear door of the store, where he encountered Police Officer Earl Alfred, who had been sent to investigate the alarm. Officer Alfred took defendant’s gun and attempted to arrest him. A struggle ensued, during which defendant obtained Officer Alfred’s gun and fatally shot the officer three times. Defendant then got into his parked car and drove away. Police investigators were able to make a composite likeness of the suspect and obtain a description of his car from the accounts of various witnesses.

ASSIGNMENT OF ERROR NO. 1

Defendant contends the trial court erred in denying his request to hold in camera hearings on certain pretrial motions. Defendant argues that the hearings should have been held in camera to avoid extensive pretrial publicity.

Defendant offers no authority to conduct pretrial hearings in camera. Moreover, defendant made no showing to the trial court that in camera hearings were necessary; nor does he make any allegations on appeal that prejudicial publicity actually resulted from the public hearings.

Assignment of Error No. 1 is without merit.

ASSIGNMENTS OF ERROR NOS. 2 AND 4

Defendant contends the trial court erred in sustaining the state's objections to two questions defendant asked state witnesses at a suppression hearing. Both questions were asked during testimony concerning the voluntariness of statements made by defendant during police interrogation.

Assignment of Error No. 2 concerns defendant’s inquiry of a police officer as to what times he had entered and exited the room in which defendant was being questioned. Defendant stated that the purpose of this inquiry was to show that the witness had not been present in the interrogation room at all times and may not have seen some relevant occurrences. The state objected to the question on the ground that it was irrelevant; the trial judge sustained the objection. However, later during the testimony of the same witness, defendant asked him how long he had been absent from the interrogation room. The state again objected; but the trial judge overruled the objection finding the inquiry relevant. The witness then answered the question.

Assignment of Error No. 4 concerns defendant’s inquiry of assistant district attorney, Pat Berrigan, as to whether or not he felt he should have cleared the interrogation room before asking defendant if he had been mistreated by the police. The obvious purpose of the inquiry was to imply that defendant’s answer may have been influenced by the mere presence of his interrogators. The state objected to the question on the grounds that it dealt with procedure and was irrelevant; the trial judge sustained the objection. However, later during Mr. Berrigan’s testimony, defendant asked him if it was his custom to ask a defendant about mistreatment in the presence of those persons who had interrogated the defendant. The state again objected, but the trial judge overruled the objection and allowed the witness to answer the question.

Assuming, without deciding, that errors were committed by the trial judge in sustaining the state’s objections to defendant’s questions, the alleged errors were harmless in view of the fact that in both instances defendant secured answers to similar questions thereby achieving his purpose. La. Code Crim.P. art. 921; State v. Keys, 328 So.2d 154 (La.1976).

Assignments of Error Nos. 2 and 4 are without merit.

ASSIGNMENTS OF ERROR NOS. 5, 6 AND 17

These three assignments of error concern the voluntariness of three statements made by defendant during police interrogation and the admissibility of physical evidence which was recovered pursuant to information given in one of those statements. Defendant contends the trial court erred in ruling that the statements were freely and voluntarily made, in denying defendant’s motion to suppress the physical evidence, and in admitting that physical evidence at trial.

Four police officers, an assistant district attorney, and two physicians were state witnesses at the suppression hearing. The testimony of these witnesses reflect the following circumstances surrounding the interrogation.

About 12:00 p. m., August 13, 1975, defendant entered the Slidell Police Department, accompanied by his mother and a friend. Officer Edwards testified that defendant resembled the composite picture of the suspect. Defendant informed Officers Edwards and Drennan that he had heard the police were looking for a car in connection with the murder of a police officer and that his own car fit the description. Defendant said that he wished to clear himself regarding the matter. Officer Drennan testified that he immediately informed defendant of his Miranda rights. The officers also told defendant that he was not under arrest, that he was only a suspect, and that he could leave if he wished to do so. Defendant then reiterated that he wished to clear himself of any suspicion and said that he was willing to answer any questions the police might ask.

Defendant was then taken to Lt. Humphrey’s office, a room about 10 X 12 feet. His mother stayed in the outer office during most of the interrogation. Defendant’s friend had left at some undetermined point. Defendant was given coffee, candy and iced water and was allowed to go to the restroom. He was not handcuffed or shackled in any way; his movement was not restricted.

Assistant district attorney, Pat Berrigan, testified that he received a telephone call about 1:00 a. m., August 14, 1975, asking that he go to the police station to act as an impartial observer of the interrogation. He arrived at Lt. Humphrey’s office about 1:30 a. m., at which time he asked defendant if he had been mistreated. Defendant had no complaints. Later that morning, Mr. Berri-gan repeated the inquiry. Defendant replied: “No, I am fine.”

Lt. Humphrey, chief of criminal investigation, was called in at this time. He felt that defendant would feel more at ease if questioned by one officer alone. Lt. Humphrey testified that he selected Officer Pen-ton to talk with defendant because he was the oldest and most experienced man on the force.

Officer Penton testified that he spoke with defendant alone about 4:00 a. m., after again advising defendant of his Miranda rights. Defendant told Officer Penton that the murder weapon, the jewelry, and the clothing he had worn the previous morning could be found in a woody area near defendant’s residence. Defendant then signed a waiver of rights form in the presence of four officers, again being advised of his Miranda rights. He was placed under arrest for murder and booked at 4:30 a. m. The physical evidence was recovered about 5:00 a. m., pursuant to defendant’s directions.

Mr. Berrigan testified that he informed defendant of the charges against him and again advised him of his Miranda rights. Mr. Berrigan further testified that he asked defendant if he wished to talk or to remain silent. In response, defendant asked to see his mother, which was allowed. Shortly thereafter, defendant made an oral inculpa-tory statement which was later typed. Defendant’s statement to Berrigan was made about 5:30 a. m. Defendant, after again having been advised of his Miranda rights, made another confession which was taped about 6:30 a. m. by Lt. Humphrey.

About 8:00 a. m., Dr. John Epling examined defendant. Dr. Christy Graves of Ochsner Foundation Clinic made an independent examination of defendant about 8:50 a. m. Both doctors testified that they asked defendant if he had any complaints and that defendant complained only of a few minor medical problems totally unrelated to this case. Both doctors further testified that they specifically examined defendant for signs of physical abuse but found none. It was also the opinion of both doctors that physical abuse would definitely result in visible indications thereof.

Defendant’s testimony at the suppression hearing differs in many respects from that of the state’s witnesses. Defendant testified that the outer door to the police building was locked immediately upon his entrance and that he never felt that he was free to leave. He stated that he was physically abused and that the police threatened to arrest his mother and girlfriend if he did not confess to the murder. Defendant also testified that he was given the impression that he would receive only a short sentence if he confessed. Defendant further alleged that he asked to leave or to obtain counsel but was not granted either request. However, defendant did admit that he did not mention any complaints about his alleged mistreatment to either Dr. Epling or Dr. Graves. Defendant’s mother, who testified at the trial on the merits, was not called as a witness by defendant at the suppression hearing.

Before a confession can be introduced in evidence, the state has the burden of affirmatively proving that it was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements, or promises. La. R.S. 15:451; La.Code Crim.P. art. 703(C). It must also be established that an accused who makes a confession during custodial interrogation was first advised of his Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602,16 L.Ed.2d 694 (1966). A confession need not be the spontaneous act of the accused and may be obtained by means of questions and answers. La.R.S. 15:453; State v. Adams, 347 So.2d 195 (La.1977); State v. Ross, 343 So.2d 722 (La.1977); State v. Cotton, 341 So.2d 355 (La.1976). The admissibility of a confession is in the first instance a question for the trial judge. His conclusions on the credibility and weight of the testimony relating to the voluntariness of a confession will not be overturned unless they are not supported by the evidence. State v. Adams, supra; State v. Ross, supra; State v. Demourelle, 332 So.2d 752 (La.1976); State v. Sims, 310 So.2d 587 (La.1975).

In the instant case, defendant’s allegations that he was promised leniency on pending charges if he confessed to the crime and that he was physically abused during interrogation are uncorroborated. The testimony of four police officers and the assistant district attorney directly conflicted with defendant’s version of the alleged coercive and abusive tactics used to induce him to make the confessions. Two physicians testified that defendant exhibited no signs of physical abuse and had no relevant complaints.

After reviewing the record, we are convinced, as was the trial judge, that the state satisfied its burden of affirmatively proving that the statements were freely and voluntarily made after defendant had been fully advised of his Miranda rights. State v. Adams, supra; State v. Ross, supra; State v. Demourelle, supra; State v. Sims, supra. Accordingly, the trial judge did not err in ruling that defendant’s statements were freely and voluntarily made.

It is conceded that the admissibility of the physical evidence is dependent upon the voluntariness of defendant’s statement to Officer Penton in which defendant told where he had hidden the evidence. Having found that this statement, as well as the other two, was freely and voluntarily made after having been fully advised of his Miranda rights, the physical evidence was admissible. Hence, we find the trial judge did not err in denying defendant’s motion to suppress the evidence nor in admitting the evidence at trial.

Assignments of Error Nos. 5, 6 and 17 are without merit.

ASSIGNMENTS OF ERROR NOS. 7, 10 AND 11

Defendant contends the trial court erred in denying his motion to quash the indictment and his motion in arrest of judgment and also in imposing an illegal sentence. Defendant argues that, since the death penalty for first degree murder under La.R.S. 14:30 (1973) was declared unconstitutional, the entire statute is invalid.

In Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), the United States Supreme Court declared Louisiana’s mandatory death penalty for first degree murder unconstitutional. The Court reaffirmed its position in Roberts v. Louisiana, 431 U.S. 633, 97 S.Ct. 1993, 52 L.Ed.2d 637 (1977), by declaring Louisiana’s mandatory death penalty for first degree murder unconstitutional even when predicated upon the murder of a police officer. According to decisions of this court under the mandate of Roberts (1976), the appropriate sentence is the most severe penalty established by the legislature for criminal homicide at the time of the offense. State v. Jenkins, 340 So.2d 157 (La.1976); State v. Clark, 340 So.2d 208 (La.1976), cert. denied, 430 U.S. 936, 97 S.Ct. 1563, 51 L.Ed.2d 782 (1977). In the instant case, the crime was committed on August 13, 1975. The most severe valid penalty for criminal homicide applicable on that date was the penalty for second degree murder, life imprisonment at hard labor without eligibility for parole, probation or suspension of sentence for twenty years. Moreover, this court has held that the unconstitutionality of the penalty provision of La.R.S. 14:30 (1973) does not render the entire statute invalid. State v. Abney, 347 So.2d 498 (La.1977); State v. McDaniel, 340 So.2d 242 (La.1976). Hence, the trial judge did not err in denying defendant’s motion to quash the indictment and motion in arrest of judgment nor in imposing a sentence of life imprisonment at hard labor without benefit of parole, probation or suspension of sentence for twenty years.

Assignments of Error Nos. 7, 10 and 11 are without merit.

ASSIGNMENT OF ERROR NO. 8

Defendant contends the trial court erred in denying his motion to quash the grand and petit jury venires from which the juries were drawn which indicted and tried defendant. Defendant argues that women were systematically excluded from the jury venires, thereby denying him the right to be indicted and tried by a fair cross-section of the community.

In support of his motion to quash the jury venires, defendant stipulated to and relied solely upon the statistical evidence introduced on the identical issue in State v. Taylor, 347 So.2d 172 (La.1977). In Taylor, this court found that the defendant failed to prove a systematic exclusion of women from the jury venires. Since defendant in the instant case offers no further evidence of systematic exclusion of women from the jury venires, Assignment of Error No. 8 is without merit.

ASSIGNMENT OF ERROR NO. 9

Defendant contends the trial court erred in denying his motion for a new trial on the grounds urged in assignments of error on appeal. For reasons previously and hereinafter assigned, we find no merit to Assignment of Error No. 9.

ASSIGNMENT OF ERROR NO. 12

Defendant contends the trial court erred in denying his motion for a change of venue.

At a hearing on various pretrial motions, the trial judge reserved his ruling on the motion for a change of venue until the day of trial. No evidence on the venue issue was offered at this hearing. Some four months later before a different judge, trial commenced without any ruling on the motion. After the first day of trial, the court noted that there had been no ruling on defendant’s motion for a change of venue. Defense counsel stated that the matter had “slipped [his] mind.” He also stated that the only basis for his request for a change of venue was that the victim was popular and the pretrial publicity was so widespread that many of the jurors knew of the case. Defendant offered no evidence at this time nor did he request a recess to subpoena news representatives and other witnesses or to present other evidence of extensive publicity.

The grounds for a change of venue are set forth in article 622 of the Code of Criminal Procedure as follows:

A change of venue shall be granted when the applicant proves that by reason of prejudice existing in the public mind or because of undue influence, or that for any other reason, a fair and impartial trial cannot be obtained in the parish where the prosecution is pending.
In deciding whether to grant a change of venue the court shall consider whether the prejudice, the influence, or the other reasons are such that they will affect the answers of jurors on the voir dire examination or the testimony of witnesses at the trial.

To warrant a change of venue, the burden is upon the accused to establish that he cannot obtain a fair trial in the parish where the prosecution is pending. Article 622 requires a showing of more than mere knowledge by the public of facts surrounding the offense. It requires, in addition, proof of such prejudice in the public mind that a fair and impartial trial cannot be obtained in the parish. State v. de laBeckwith, 344 So.2d 360 (La.1977); State v. Berry, 329 So.2d 728 (La.1976); State v. Stewart, 325 So.2d 819 (La.1976); State v. Dillard, 320 So.2d 116 (La.1975); State v. Flood, 301 So.2d 637 (La.1974), cert. denied, 421 U.S. 916, 95 S.Ct. 1577, 43 L.Ed.2d 782 (1975); State v. Richmond, 284 So.2d 317 (La.1973).

The granting or denial of a motion for a change of venue rests within the sound discretion of the trial judge, and his ruling denying the motion will not be disturbed unless the evidence affirmatively shows that the ruling was erroneous and an abuse of judicial discretion. State v. de laBeckwith, supra; State v. Berry, supra; State v. Dillard, supra.

In the instant case, defendant offered no evidence in support of his motion for a change of venue. He merely alleged that the motion should be granted because the victim was popular and many of the jurors knew about the case due to pretrial publicity. Even were defendant able to prove his allegations, such proof would not have been sufficient to warrant a change of venue. La.Code Crim.P. art. 622; State v. de laBeckwith, supra. In any event, absent a showing that a fair and impartial trial could not be obtained in St. Tammany Parish, defendant was not entitled to a change of venue. No such showing was made. Hence, the trial judge did not abuse his discretion in denying defendant’s motion for a change of venue.

Assignment of Error No. 12 is without merit.

ASSIGNMENT OF ERROR NO. 13

Defendant contends the trial judge erred in admitting in evidence two photographs of the deceased victim. In brief, defendant argues that the photographs were so gruesome that any probative value was outweighed by their prejudicial effect upon the jury.

The first photograph depicts the deceased at the scene of the alleged murder. The second photograph shows the location and nature of the wounds inflicted. Defendant objected to the introduction in evidence of both photographs but failed to state any basis for his objection at that time.

Article 841 of the Code of Criminal Procedure provides that an irregularity or error cannot be availed of after verdict unless defendant has made known to the court his objection and the grounds therefor. It is well settled that defendant must state the basis for his objection when he makes it so that the trial judge has an opportunity to rule on it and prevent or cure an error. An objection stating no basis presents nothing for this court to review. State v. Burnette, 337 So.2d 1096 (La.1976); State v. Sosa, 328 So.2d 889 (La.1976). In any event, it is well established that the test of admissibility of allegedly gruesome photographs is whether their probative value outweighs the possible prejudice that may result from their display to the jury. State v. Williams, 343 So.2d 1026 (La.1977); State v. Cooper, 334 So.2d 211 (La.1976); State v. Smith, 327 So.2d 355 (La.1976). Photographs of the body of a deceased victim have generally been held relevant to prove the corpus delicti; to corroborate other evidence of the manner in which death occurred; to establish the location, severity and number of wounds; and to establish the identity of the victim. State v. Williams, supra; State v. Cooper, supra; State v. Beach, 320 So.2d 142 (La.1975).

After examining the photographs in question, we do not consider that they are gruesome. Moreover, both photographs were relevant to prove the identity of the murder victim and to corroborate the testimony concerning the manner in which the victim was killed; and the first photograph, taken at the scene of the alleged murder, was also relevant to corroborate the testimony concerning the location of the crime. Since the probative value of the photographs outweighs any possible prejudicial effect, the trial judge did not err in admitting them in evidence.

Assignment of Error No. 13 is without merit.

ASSIGNMENT OF ERROR NO. 14

Defendant contends the trial judge erred in denying his motion for a mistrial on the ground that a state witness referred to “a jail card” during his examination by the state. He argues that this constituted an indirect reference to another crime committed by defendant as to which evidence was not admissible.

At trial, the state asked a police officer what action he had taken in response to certain information he had received. The witness answered: “I went to the City Police Department and pulled a jail card to check.” Defendant objected and moved for a mistrial. The trial judge denied the motion but admonished the jury to disregard the witness’ last response, without repeating the reference to the jail card.

A direct or indirect reference to another crime committed or alleged to have been committed by defendant, as to which evidence would not be admissible, made within the hearing of the jury by the judge, district attorney, or a court official, during trial or in argument, would require a mistrial on motion of defendant. La.Code Crim.P. art. 770(2). First, a police officer is not a “court official”; therefore, article 770 does not apply. Rather, article 771 of the Code of Criminal Procedure would be the applicable article. State v. Hardy, 344 So.2d 1018 (La.1977); State v. Jones, 332 So.2d 466 (La.1976); State v. Lepkowski, 316 So.2d 727 (La.1975); State v. Clark, 288 So.2d 612 (La.1974).

La.Code Crim.P. art. 771 provides in pertinent part:

In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
(2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770.
In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.

We do not find, nor does defendant claim, that the allegedly impermissible remark was deliberately obtained by design of the prosecutor to prejudice the rights of defendant. The police officer’s answer was unsolicited and unresponsive to the prosecutor’s question and was not deliberately uttered by the witness to prejudice defendant. Unsolicited and unresponsive testimony is not chargeable against the state to provide a ground for the reversal of a conviction. State v. Hardy, supra; State v. Jones, supra; State v. Luneau, 323 So.2d 770 (La.1975); State v. Lewis, 315 So.2d 626 (La.1975); State v. Gabriel, 308 So.2d 746 (La.1975). No further mention was made of the jail card during trial; the trial judge was careful even in his admonition to the jury to avoid mention of the jail card. Under the circumstances, we do not find that the isolated reference to the jail card by this witness was of any consequence. We consider that the admonition was sufficient to assure defendant a fair trial. Hence, the trial judge did not err in denying defendant’s motion for a mistrial. Recently in State v. Hardy, supra, this court also found that the trial judge did not err in denying a motion for a mistrial where the detective, under circumstances similar to those presented here, made a reference to “jail cards.”

Assignment of Error No. 14 is without merit.

ASSIGNMENTS OF ERROR NOS. 15 AND 16

Defendant contends the trial court erred in accepting Ms. Linda Reel as an expert in the fields of serology and fiber analysis and in allowing her to express an opinion as an expert in fiber analysis. Defendant argues that Ms. Reel had insufficient qualifications in these fields.

La.R.S. 15:466 sets out the guidelines for the qualification of expert witnesses:

The test of the competency of an expert is his knowledge of the subject about which he is called upon to express an opinion, and before any witness can give evidence as an expert his competency so to testify must have been established to the satisfaction of the court.

We have consistently held that the competence of an expert witness is a question of fact to be determined within the sound discretion of the trial judge. His rulings on the qualifications of expert witnesses will not be disturbed in the absence of manifest error. State v. Madison, 345 So.2d 485 (La.1977); State v. Marks, 337 So.2d 1177 (La.1976); State v. Vassel, 285 So.2d 221 (La.1973). The record discloses that Ms. Reel holds a Bachelor of Science degree in biology from St. Mary’s Dominican College and a Master of Science degree in biology from Tulane University. She attended two specialized courses at the FBI Academy in Quantico, Virginia, one in criminalistics and the other in biochemical and serological methods in blood stain analysis. She has been employed as a criminalist at the Jefferson Parish Sheriffs Office crime laboratory for three years, specializing in serology and carrying the responsibility for all body fluid analyses and all hair and fiber analy-ses in the laboratory. Ms. Reel also teaches criminalistics and biology at St. Mary’s Dominican College. She has been accepted as an expert witness in other courts in Louisiana. We cannot, therefore, find that the trial judge abused his discretion in overruling defendant’s objection to Ms. Reel’s qualifications as an expert nor in allowing Ms. Reel to give an opinion as an expert in fiber analysis.

Assignments of Error Nos. 15 and 16 are without merit.

ASSIGNMENTS OF ERROR NOS. 18 AND 19

Defendant contends the trial court erred in overruling his objections to two questions which the state asked defendant under cross-examination.

During trial on the merits, defendant elected to testify on his own behalf. On two separate occasions during cross-examination, the state asked defendant to comment upon the veracity of other witnesses. The first question was: “Pervis Weeden was wrong when he said you had on a white shirt, wasn’t he?” Defendant objected on the ground that the question called for a conclusion which the jury should make. The trial court overruled the objection. The second question occurred as follows:

Q. You heard Mr. Berrigan say he never promised you anything, didn’t you?
A. I heard him say that.
Q. So he was lying too, wasn’t he?

Defendant objected to the question on the ground that it was an improper question, invading the province of the jury. The trial court overruled the objection.

In State v. Richardson, 337 So.2d 210 (La.1976), this court dealt with a similar issue. In Richardson, the prosecutor asked the defendant if the state’s witnesses were perjurers and liars. This court stated:

Such crude efforts at cross-examination are not be be encouraged, but we are not convinced that there has been such an abuse of the trial judge’s discretion that a reversal is appropriate.

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, a conviction will not be reversed. State v. Moore, 344 So.2d 973 (La.1977); State v. Kaufman, 331 So.2d 16 (La.1976), cert. denied, 429 U.S. 981, 97 S.Ct. 495, 50 L.Ed.2d 591 (1977). We find no such abuse of discretion in the instant case.

Assignments of Error Nos. 18 and 19 are without merit.

DECREE

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

DENNIS, J., concurs and assigns reasons.

DENNIS, Justice,

concurring.

While I concur with the result reached in the first assignment of error, i.e., that an in camera hearing of pre-trial motions is not warranted under the facts presented by this case, the majority opinion should not be read to foreclose the possibility of conducting such hearings pursuant to a request made by the defendant.

Section 3.1 of the American Bar Association Project on Standards for Criminal Justice, Fair Trial and Free Press (Approved Draft 1968) discusses the possibility of conducting pre-trial hearings in camera to insure a defendant of his right to a fair trial by an impartial jury:

“It is recommended that the following rule be adopted in each jurisdiction by the appropriate court:
“Motion to exclude public from all or part of pretrial hearing.
“In any preliminary hearing, bail hearing, or other pretrial hearing in a criminal case, including a motion to suppress evidence, the defendant may move that all or part of the hearing be held in chambers or otherwise closed to the public, including representatives of the news media, on the ground that dissemination of evidence or argument adduced at the hearing may disclose matters that will be inadmissible in evidence at the trial and is therefore likely to interfere with his right to a fair trial by an impartial jury. The motion shall be granted unless the presiding officer determines that there is no substantial likelihood of such interference. With the consent of the defendant, the presiding officer may take such action on his own motion or at the suggestion of the prosecution. Whenever under this rule all or part of any pretrial hearing is held in chambers or otherwise closed to the public, a complete record of the proceedings shall be kept and shall be made available to the public following the completion of trial or disposition of the case without trial. Nothing in this rule is intended to interfere with the power of the presiding officer in any pretrial hearing to caution those present that dissemination of certain information by any means of public communication may jeopardize the right to a fair trial by an impartial jury.”

In the present case the defendant made no showing to the trial judge that an in camera hearing was warranted. There is no mention in the record that newspaper reporters or other representatives of the press were present in the courtroom when the pre-trial hearings were conducted nor did defendant make any allegations concerning the extent of pre-trial publicity up to that time. Under these circumstances the trial judge did not abuse his discretion in denying defendant’s motion. Cf., Nebraska Press Association v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976), at n.8; State v. Rittiner, 341 So.2d 307 (La.1976).

      .La.R.S. 14:30 (1973) provides in pertinent part:
      First degree murder is the killing of a human being:
      (1) When the offender has a specific intent to kill or to inflict great bodily harm and is engaged in the perpetration or attempted perpetration of aggravated kidnapping, aggravated rape or armed robbery; or
      (2) When the offender has a specific intent to kill, or to inflict great bodily harm upon, a fireman or a peace officer who was engaged in the performance of his lawful duties;

      For the purposes of paragraph (2) herein, the term peace officer shall be defined and include any constable, sheriff, deputy sheriff, local or state policeman, game warden, federal law enforcement officer, jail or prison guard, parole officer, probation officer, judge, district attorney, assistant district attorney or district attorneys’ investigator.
      Whoever commits the crime of first degree murder shall be punished by death.

      . Defendant has neither briefed nor argued Assignment of Error No. 3. Therefore, we consider this assignment of error to have been abandoned. State v. Blanton, 325 So.2d 586 (La.1976) and State v. Carlisle, 315 So.2d 675 (La.1975).

      . La.Const. art. 1, § 16 guarantees every person charged with a crime the right to a public trial.


source: Caselaw Access Project

author: SANDERS, Chief Justice.

license: Public Domain

text:
    STATE of Louisiana v. Delvin DARDAR.
    No. 59932.
    Supreme Court of Louisiana.
    Dec. 19, 1977.

      Charley J. Schrader, Jr., Houma, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Norval J. Rhodes, Dist. Atty., Alexander L. Doyle, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

The State charged the defendant, Delvin Dardar, with three counts of simple burglary, violations of LSA-R.S. 14:62. A jury found him guilty as charged on Count 2 and guilty of attempted simple burglary on Counts 1 and 3. The court respectively sentenced him to four, six, and four years imprisonment, running concurrently.

The defendant appeals, relying on two assignments of error. As we find reversible merit in Assignment of Error No. 1, we pretermit treatment of Assignment of Error No. 2.

We adduce the following context facts:

The defendant suggested to three juveniles that they take a boat ride to some Bayou Travis fishing camps. En route, the defendant committed attempted simple burglary of a boat (Count 3). While at two camps, he kicked the doors down and committed simple burglary of one (Count 2), and attempted simple burglary of the other (Count 1).

ASSIGNMENT OF ERROR NO. 1

The defendant complains of that portion of the jury charge concerning the intent necessary for a simple burglary conviction. The relevant sections of that charge are as follows:

<< * * sfc
“The defendant in this case is charged with having committed the crime of simple burglary, which offense is defined by the Louisiana Revised Statute, Title 14, Section 62, as follows:
“ ‘Simple burglary is the unauthorized entering of any dwelling, vehicle, watercraft or other structure, movable or immovable, with the intent to commit a felony or any theft therein other than as set forth in Article 60.’ . Article 60 dealing with aggravated burglary with which we are not concerned.’
« * * *
“The third element [of simple burglary], the matter of intent to commit a felony or a theft, relates to and includes the question of law about which you must be instructed. . . . The definition of theft applicable to this case is that it is the misappropriation or taking of anything of value without the owner’s consent and with the intent to deprive him of it permanently.
“The intent referred to by the statute defining theft is the specific criminal intent defined in Revised Statute, Title 14, Section 10, Paragraph 1, as follows:
“ ‘Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed consequences to follow his act or failure to act.’
“That highly technical definition may be said to mean that there is specific criminal intent when the circumstances indicate that the offender actively wished for the consequences of his forbidden act.
“The law presumes that the defendant intended the natural and probable consequences of his act and that presumption stands until it is overcome by rebutting evidence.
“Though intent is a question of fact it need not be proven as a fact, it may be inferred from the circumstances of the transaction, and no farther proof of intent is required than that the accused voluntarily or knowingly did the act.
“Actions generally disclose and indicate intent and, hence, intent can be inferred and determined from actions. The facts and circumstances surrounding an occurrence generally indicate whether it was deliberate or accidental, intentional or unintentional.
“In order to find the intent referred to in this case it is merely necessary for you to determine from the facts and circumstances shown whether the act of the defendant was intentional or unintentional.
U * * *
“To review briefly, the State must prove, one, that the defendant entered two structures and/or a boat; two, that such entries were unauthorized, and three, that the defendant intended to commit a felony or a theft therein.” [Emphasis added.]

The defense asserts:

“The trial judge correctly observed that specific intent is required in this case, the crimes charged being simple burglary. Thereafter, in his charge he confused, changed and explained away ‘that highly technical definition’ until no substance was left in it and ‘specific intent to commit a felony or theft therein’ was reduced to the general intent language of ‘intended the natural and probable consequences of his act’ and ‘voluntarily did the act’ and whether the act of the defendant was ‘intentional or unintentional.’ ”

The thrust of this argument is that the charge relieved the State of proving an essential element of the crime, specific intent.

In reviewing an objection made to a jury charge, we must consider the charge as a whole and construe particular expressions in context. This Court will not disturb a trial judge’s ruling unless the disputed portion, when viewed in light of the entire instruction, is erroneous and prejudicial. State v. George, La., 346 So.2d 694 (1977); State v. Walker, 204 La. 523, 15 So.2d 874 (1943); State v. Davis, 154 La. 295, 97 So. 449 (1923).

One guilty of simple burglary must have had “the intent to commit a felony or any theft therein [a structure].” LSA-R.S. 14:62. The requisite intent is specific intent. State v. Anderson, La., 343 So.2d 135 (1977); State v. Walker, La., 328 So.2d 87 (1976); State v. Lewis, La., 288 So.2d 348 (1974).

Specific criminal intent exists when the defendant “actively desired the prescribed criminal consequences to follow his act . .” Whereas, general criminal intent exists when the defendant, “in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act . . . .” LSA-R.S. 14:10. [Emphasis supplied.]

In State v. Elzie, La., 343 So.2d 712 (1977), we stated:

“In summary, specific intent is present when from the circumstances the offender must have subjectively desired the prohibited result. On the other hand, general intent exists when from the circumstances the prohibited result may reasonably be expected to follow from the offender’s voluntary act,-irrespective of any subjective desire on his part to have accomplished such result.” [Emphasis supplied.]

Initially, the trial judge properly gave the statutory definition of simple burglary. See LSA-R.S. 14:62. In addition, he correctly explained that specific intent exists when one actively desires the prescribed consequences, and that intent may be inferred from the circumstances. LSA-R.S. 14:10(1), 15:445; State v. Elzie, supra. Ultimately, however, the trial judge diluted these instructions so as to require only that the defendant voluntarily and knowingly did the act and that the act was intentional, rather than unintentional, or accidental.

In State v. Anderson, La., supra, we affirmed a burglary conviction despite the fact that the trial judge included a definition of both general intent and specific intent in his charge to the jury. See also State v. George, La., 346 So.2d 694 (1977).

Here, however, rather than having an alternate instruction on general intent, the instruction misstated the meaning of specific intent. Moreover, in the present case, the defendant introduced evidence of intoxication to negate specific intent, thus increasing the importance of a correct instruction. See LSA-R.S. 14:15; State v. Anderson, supra.

We hold that the instruction as to specific intent is fatally defective and prejudicial to the defendant.

For the reasons assigned, the convictions and sentences are reversed. The case is remanded to the district court for a new trial in accordance with law and the views herein expressed.


author: TATE, Justice.

text:
    STATE of Louisiana, Appellee, v. John ALEXANDER, Appellant.
    No. 59990.
    Supreme Court of Louisiana.
    Dec. 19, 1977.

      Elizabeth W. Cole, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Robert L. Simmons, Asst. Dist. Atty., for plaintiff-appellee.
   TATE, Justice.

The defendant Alexander was convicted of simple burglary, La.R.S. 14:62, and sentenced, as a second offender, La.R.S. 15:529.1, to serve nine years imprisonment at hard labor.

The defendant’s appeal urges a total absence of evidence that he committed the burglary charged. The evidence at most proves, he contends, a criminal trespass into the fenced yard of the victim or an attempted (but unsuccessful) burglary.

La.R.S. 14:62 defines simple burglary as “the unauthorized entering of any dwelling, vehicle, watercraft, or other structure, movable or immovable, with the intent to commit a felony or any theft therein * *

The evidence proves an unauthorized entry into a fenced yard of a business premise, with intent to steal some property in a shed within the yard. It does not show any entry into the shed itself.

The central issue presented is whether the defendant’s climbing the fence into the yard constituted an unauthorized entry of a “structure,” within the meaning of La.R.S. 14:62.

This issue is raised by defendant’s Assignment of Error No. 4. It questions the trial court’s denial of a motion for a new trial. The motion’s ground is that no evidence at all proves the unauthorized entry of a “structure”, an essential element of the crime charged.

In denying the motion for a new trial, the trial court in its per curiam stated that it would have granted the motion, except that the evidence presented a jury issue as to whether the accused was guilty of attempted simple burglary.

If indeed the evidence does not prove an unauthorized entry of a “structure”, then the motion for new trial should have been granted, because then no evidence at all proves this essential element of the crime of burglary charged. That the evidence may have been admissible to prove a responsive lesser verdict (attempted simple burglary) is irrelevant to the decision of the issue posed by the motion for new trial, after the accused was convicted for the greater crime but without any proof of one of its essential elements.

An unauthorized entry into a fenced yard is not within the legislative intention, “the unauthorized entering of any . structure.” La.R.S. 14:62. The statutory history clearly so indicates.

The codification of our criminal law in the Louisiana Criminal Code, Act 43 of 1942 (now Title 14, La.R.S.), combined several burglary and breaking-and-entering statutes into Articles 60-62, now La.R.S. 14:60 (aggravated burglary) and 62 (simple burglary). The statutes so consolidated all concerned building-type structures, in addition to vehicles and watercraft. In the ordinary meaning of language, a building is usually roofed and walled, at least partially. Cf., State v. Baggett, 292 So.2d 201 (La.1974).

The Official Revision Comment to Article 60, in explaining the scope of the burglary offense, explains: “The crime extends to buildings, vessels, and movables as well as dwellings. ... In cases involving a structure, watercraft, or movable, however, . [i]f no one is present in such cases the crime can only be simple burglary. In the case of dwellings, inhabitation is all that is necessary; whether someone is actually there at the time of the crime is unimportant.”

Thus, the historical antecedent and the doctrinal commentary of the legislation both connote that the felony of burglary is committed by unauthorized entry of a “structure” in the nature of a building, but not by an unauthorized entry of a fenced yard.

The articles of the criminal code “cannot be extended by analogy so as to create crimes not provided for” by it. La.R.S. 14:3. If interpreted in its statutory context and in the ordinary usage of language, see La.R.S. 1:3, the term “structure” does not include a yard, even though it is fenced; therefore, one who enters it without authorization may not be convicted of the statutorily-defined offense of burglary.

The trial court erred in denying a new trial.

Accordingly, we reverse the conviction and sentence, and we remand for a new trial in accordance with law.

REVERSED AND REMANDED.

      . The defendant is charged with burglary of an auto wrecker’s premises. The premises consists of an office, a large shed in which parts and tools are stored, and a yard in which partially dismantled old automobiles are situated. The entire premises is surrounded by a tin fence ten feet high.

      . By Act 285 of 1948, Articles 60 (burglary in the nighttime) and 61 (burglary in the daytime) were combined into the present aggravated burglary offense. La.R.S. 14:60. However, no change in language or intent is reflected insofar as the present issue as to what “structures” are intended to be included for purposes of the offense of burglary.

      .See official revision comment to Article 60, Criminal Code of 1942. The following statutes are listed: Act 47 of 1890 (steamboats, vessels, railroad cars); and a series of 1926 enactments, mostly amending earlier statutes: Act 6 (“any building, whether inhabited or not”); Act 20 (“dwelling house or outhouse ... or any shop, store, office, courthouse, church, bam, rice or sugar house, cotton gin, warehouse, bank, building” [and appurtenant outhouses] . . . “or any building, house or tent occupied for any purpose whatsoever, or any vessel”); Act 21 (“a dwelling house, dwelling tent, or any other place used as a dwelling”); Act 71 (“a dwelling house or dwelling tent, or other place used as a dwelling”); Act 72 (an itemization similar to that of Act 20).

      . Webster’s Third New International Dictionary, verbo “building,” p. 292 (1961); Webster’s New Collegiate Dictionary, verbo “building,” p. 145 (1975).


author: SUMMERS, Justice.

text:
    LOUISIANA POWER & LIGHT COMPANY v. LOUISIANA PUBLIC SERVICE COMMISSION et al.
    No. 60257.
    Supreme Court of Louisiana.
    Dec. 19, 1977.

      Andrew P. Carter, Eugene G. Taggart, Monroe & Lemann, New Orleans, for plaintiff-appellant.
    Boren & Holthaus, C. Frank Holthaus, Baton Rouge, for intervenor-appellee.
    Marshall B. Brinkley, Gen. Counsel, Baton Rouge, for defendants-appellees.
   SUMMERS, Justice.

In a letter dated March 21, 1975 Claiborne Electric Cooperative, Inc., complained to the Louisiana Public Service Commission alleging that Louisiana Power and Light Company had made or was in the process of making electrical line extensions north of the city of Minden which were clear violations of the Commission’s General Order of March 12, 1974 relating to the duplication of electrical facilities. Claiborne also charged that Louisiana Power had extended its lines to provide service to a customer within 300 feet of Claiborne’s existing lines contrary to proscriptions contained in Section 123 of Title 45 of the Revised Statutes. Furthermore, according to the complaint, Louisiana Power had extended its lines and proposed to extend others into areas in which Claiborne’s existing lines could provide service economically and efficiently. The line extensions and those proposed into the area by Louisiana Power were said to be needless duplications of electrical facilities. Louisiana Power should not, therefore, be permitted to provide service to this area, and Claiborne requested that Louisiana Power’s lines be removed. Upon being apprised of this complaint Louisiana Power discontinued service to the customer within 300 feet of Claiborne’s existing lines.

Nevertheless, on June 2, 1975 Claiborne filed a petition before the Commission alleging that Louisiana Power had constructed lines in the Garrison Addition of Minden, Louisiana, and had cleared rights of way for future lines in that addition. Plats made part of the petition delineated the location of the recently constructed and proposed lines of Louisiana Power and the existing lines of Claiborne.

Historically, according to the petition, the area involved was served by Claiborne and their lines had existed for a number of years prior to Louisiana Power’s extensions. Claiborne alleged that it could economically serve the additional load resulting from development of the Garrison Addition without delay.

By its extensions and proposed extensions into the Garrison Addition Louisiana Power was alleged to be duplicating service in the area in violation of the Commission’s General Order of March 12, 1974 and the spirit and letter of Section 123 of Title 45 of the Revised Statutes relative to extending service to a point of connection which is within 300 feet of an electric line of another electric public utility.

Claiborne prayed that Louisiana Power be permanently restricted and enjoined from duplicating the electric lines and facilities of Claiborne in the Garrison Addition.

Louisiana Power answered, denying generally Claiborne’s allegations and alleged that it has for many years served customers in the area and has owned electric facilities in the area since 1948. Louisiana Power further answered that it had complied with the provisions of Section 123 of Title 45 of the Revised Statutes and that the customers who had applied to it for service in the area could be served from its existing facilities or extensions thereof in an economical and justifiable manner.

After a hearing the Commission rendered its order finding

“that the purpose of its General Order dated March 12, 1974, entitled ‘Duplication of Electric Service’ was to effect economies in the service of electricity and thus keep rates within reasonable bounds. Uneconomic and wasteful practices are prohibited. The extension of facilities by one electric utility to serve customers readily accessible by facilities of an electric public utility already providing service in the immediate area is not in the public interest and such practices ultimately lead to wasteful competition and unwise expenditures. The facilities constructed by Louisiana Power and Light Company clearly indicate a wasteful practice since the existing facilities of Claiborne can serve the prospective customers at lesser cost and by simple extensions of the existing facilities.”

On these findings Louisiana Power was ordered to dismantle the facilities constructed to serve Garrison Addition and that electric service to this subdivision be provided by Claiborne.

After its application for rehearing was denied, Louisiana Power petitioned the Nineteenth Judicial District Court under appropriate authority for an appeal from, and judicial review of, the Commission’s order, praying that its execution be enjoined pending final determination of the appeal. La.Const, art. IV, § 21(E); La.Rev. Stat. 45:1191-95.

The Commission answered, Claiborne intervened and the parties stipulated that the efficacy of the Commission’s order would be stayed until final judgment on the appeal. A pretrial conference resulted in a stipulation that the pleadings established that Louisiana Power had not served any customers in the Garrison Addition whose point of connection was within 300 feet of any line of the electric co-op.

On these stipulations and the record made before the Commission the district court rendered judgment in favor of the Commission, affirming its order, and dismissing Louisiana Power’s demands at its cost.

In its appeal to this Court Louisiana Power contends that the Commission’s decision is unsupported by its General Order of March 12,1974, “In re: Duplication of Electric Services”, and the Commission’s decision cannot be supported by and is contrary to Section 123 of Title 45 of the Revised Statutes and this Court’s holding in South La. Electric Coop. Ass’n v. La. Public Service Com’n, 309 So.2d 287 (La.1975).

I.

The Commission’s General Order of March 12, 1974, which Louisiana Power asserts does not support the decision in this case, purports to require the most economical and least wasteful utilization and development of electric public utility facilities. The order was promulgated to effect economies in the service of electricity, maintain rates within reasonable bounds, and prohibit uneconomic and wasteful practices. Paralleling and duplication of existing transmission or distribution lines or the extension of either by electric public utilities to serve customers readily accessible to like facilities of an electric public utility already providing service in the immediate area is not in the public interest according to the order. Such practices ultimately lead to wasteful competition and unwise expenditures and investments burdening the rate payer.

The order recognizes that in some areas there is no clear line of demarcation between the service area of public utilities, and finds that the service area of an electric public utility is that area which, as a result of the existence of transmission and distribution lines, is readily accessible by economically feasible extensions from such existing facilities, including customers already receiving service.

Insofar as pertinent to the case at bar, and based on the foregoing findings, the order mandates

“[t]hat no extension of electric transmission or distribution lines shall be made by an electric public utility that will duplicate the transmission and distribution lines (as defined in Louisiana Revised Statutes 45:123) of another like utility, nor shall extensions be made to serve customers that could be served from such electric public utility facilities already in existence in an economic and justifiable manner.”

The record before the Commission reflects that in this territorial dispute Claiborne seeks to abate Louisiana Power’s intrusion into the Garrison Addition east of the Germantown Road, an area involving 120 acres, measuring approximately three-fourths of a mile east and west and one-fourth of a mile north and south. Testimony and data contained on plats reflect that since 1958 Claiborne has maintained a distribution line along the east half of the south line of the subdivision, and a connecting line along a parish road bisecting the subdivision in a north-south direction. From these lines Claiborne served those customers in the subdivision requesting service.

In 1974 and 1975 Louisiana Power constructed extensions into the subdivision. These began at its transmission and distribution line which ran nearby through the city of Minden. The beginning point was about 1,900 feet northwest of the northwest corner of the Garrison Addition. This extension ran easterly along the north line of the subdivision to a point approximating half of its length and thence southward into the subdivision approximately 300 yards. Additional extensions to this line are proposed by Louisiana Power which would involve another branch running southward into the subdivision permitting Louisiana to serve another segment of the subdivision.

From a distribution line it had constructed in 1966 along the east line of the subdivision, Louisiana Power constructed an extension in 1975. This line ran along the north line of the subdivision from its northeast corner in a westerly direction approximately 260 yards. In addition, Louisiana Power intends to extend this line roughly the same distance to the south forming, with other shorter extensions, a “C” shaped pattern of electric distribution lines. These north-south lines run along the back of the subdivision lots and parallel Claiborne’s north-south line which runs along the road which the lots face.

While none of Louisiana Power’s lines presently serve customers within 300 feet of Claiborne’s previously existing lines, they do plan to serve, contrary to the General Order, “customers that could be served from . . . [Claiborne’s] electric public utility facilities already in existence in an economic and justifiable manner.”

While no clear line of demarcation between the service areas of these two utilities had been established, the subdivision is an area which, “as a result of the existence of [Claiborne’s] transmission and distribution lines, is readily accessible by economically feasible extensions from such existing facilities.” Moreover, this Court finds that the effect of Louisiana Power’s 1974 and 1975 extensions, and its proposed extensions, is to parallel and duplicate Claiborne’s pre-existing lines. Louisiana Power’s extensions will, therefore, lead to wasteful competition and unwise expenditures and investments which become a burden upon the rate payer, a practice reprobated by the General Order and by acceptable principles supporting regulation of utilities.

On the basis of these findings it is concluded that the Commission’s order, requiring Louisiana Power to dismantle the facilities constructed to serve Garrison Addition and that electric service to this subdivision be provided by Claiborne, is reasonably supported by the General Order.

II.

The contention that the Commission’s order in the case at bar is contrary to Section 123 of Title 45 of the Revised Statutes and this Court’s holding in South La. Electric Coop. Ass’n v. La. Public Serv. Com’n, 309 So.2d 287 (La.1975) is also without merit.

In the factual context of the instant case the pertinent part of Section 123 provides:

“No electric public utility shall construct or extend its facilities, or furnish, or offer to furnish electric service to any point of connection which at the time of the proposed construction, extension, or service is being served by, or which is not being served but is located within 300 feet of an electric line of another electric public utility, except with the consent in writing of such other electric public utility .

In South La. Electric Coop. Ass’n v. La. Public Serv. Com’n, supra, this Court interpreted Section 123 and held that although a portion of one lot in a subdivision being served by an electric utility was located within 300 feet of an existing line of another utility, Section 123’s prohibition against furnishing of electric service to “any point of connection” which is located within 300 feet of an electric line of another utility was not violated, where there was no meter connection on the lot in question and all connections to other lots within the subdivision were located beyond 300 feet of the existing line.

The facts giving rise to the suit in South Louisiana Electric Coop. Ass’n v. La. Public Service Com’n occurred in 1973 before the promulgation of the Commission’s General Order of March 12, 1974. The General Order, therefore, was inapplicable to that decision and the court was solely concerned with the narrow question presented — the interpretation to be given “point of connection" as used in Section 123.

Here, however, the posture of the case is different. The facts giving rise to this litigation occurred after the effective date of the General Order. Under these circumstances both Section 123 and the General Order are applicable, Section 123 for its specific prohibition, and the General Order for its broad proscription against duplication of electric service within the immediate area of facilities readily accessible to those to be served.

In La. Power & Light Co. v. La. Public Service Commission, 343 So.2d 1040 (1977), this Court considered the March 12, 1974 General Order. We held then that the broad regulatory power of the Commission includes within its scope the issuance of a general order inhibiting the duplication of utility facilities. Section 123,. though more limited in application, was not considered to be in conflict with the general order also aimed against duplication. La.Const. art. IV, § 21(B) (1974); La.Rev.Stat. 45:1163-64.

Because the legislature addresses itself to a part of the problem within the constitutional authority of the Commission to regulate was no reason, the Court, held, to deprive the Commission of its constitutional power to issue regulations concerning broader aspects of a problem with which the legislature concerned itself only in part. No authority was cited to support a contrary result.

It may be seen from this analysis of the relevant authority that the Commission’s decision is not contrary to Section 123 or this Court’s decision in South La. Electric Coop. Ass’n v. La. Public Service Com’n. Since there is a finding in this record that Louisiana Power is not violating Section 123, the Commission decision is based upon the broader March 12, 1974 General Order proscribing duplication of facilities within the immediate area of existing facilities.

For the reasons assigned, the judgment of the district court is affirmed.


author: PER CURIAM.

text:
    STATE of Louisiana v. Melvin JOHNSON.
    No. 60299.
    Supreme Court of Louisiana.
    Dec. 27, 1977.

      Alan James Boudreaux, Staff Appeals Atty., 24th Judicial District Court, Indigent Defender Board, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John Mamoul-ides, Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Division, Gretna, for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Lionel FIELDS and George Thornton.
    No. 60307.
    Supreme Court of Louisiana.
    Dec. 27, 1977.
    Maurice Hattier, Orleans Indigent Defender Program, New Orleans, for defendants-appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Dist. Atty. Gen., Harry F. Connick, Dist. Atty., Nick Noriea, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. James DARK.
    No. 60424.
    Supreme Court of Louisiana.
    Dec. 27, 1977.
    S. C. Sundbery, Gaidry & Sundbery, Hou-ma, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty., Gen., Norval J. Rhodes, Dist. Atty., James L. Alcock, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Defendant James Dark was charged by bill of information with the crime of armed robbery, a violation of La.R.S. 14:64. After pleading not guilty, he was tried before a twelve person jury and found guilty as charged. Thereafter, on November 24, 1975, the trial court sentenced him to serve fifteen (15) years at hard labor, “without benefit of parole, probation or dimunition (sic) of sentence." The record has been submitted to us on appeal without formal assignments of error for an inspection of the pleadings and proceedings pursuant to La.C.Cr.P. art. 920(2).

We find no errors which might bear upon the validity of defendant’s conviction.

However, we note, under the authority of La.C.Cr.P. art. 920(2), that the sentence imposed was illegal. See, State v. Jones, 341 So.2d 3 (La.1976).

La.R.S. 14:64 prescribes the following penalty for the crime of armed robbery:

“Whoever commits the crime of armed robbery shall be imprisoned at hard labor for not less than five years and for not more than ninety-nine years, without benefit of parole, probation or suspension of sentence.”

This provision does not authorize the imposition of a sentence which renders the defendant ineligible for diminution of sentence.

A recent amendment to La.R.S. 15:571.3 does provide that a convicted armed robber, sentenced as an habitual offender under La.R.S. 15:529.1 before September 9, 1977, shall not be entitled to diminution of sentence for good behavior, if so ordered by the sentencing court. Acts 1977, No. 633, § 1. However, this provision was inapplicable to defendant, who was not sentenced as an habitual offender under La. R.S. 15:529.1

Accordingly, defendant’s conviction is affirmed, but the sentence imposed is vacated and set aside, and the matter is remanded to the district court for resentencing in accordance with law.


text:
    STATE of Louisiana v. Cepha Lee CUNNINGHAM.
    No. 60554.
    Supreme Court of Louisiana.
    Dec. 27, 1977.
    Lewis Weinstein, Richard C. Goorley, Shreveport, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Charles B. Bice, Dist. Atty., Kermit M. Simmons, Douglas H. Allen, Asst. Dist. Attys., for plaintiff-ap-pellee.
   PER CURIAM.

Affirmed.


text:
    Charles COLEMAN v. Janice Marie Coleman, separated wife of Charles COLEMAN, et al.
    No. 61135.
    Supreme Court of Louisiana.
    Dec. 14, 1977.
   In re: Charles Coleman, applying for cer-tiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 352 So.2d 710.

Writ denied.


text:
    STATE of Louisiana v. Willie HARRIS.
    No. 61269.
    Supreme Court of Louisiana.
    Dec. 23, 1977.
   In re: Willie Harris, applying for remedial writs. E. Baton Rouge Parish.

Writ granted. Preliminary examination ordered forthwith by the trial judge to whom this case is allotted or another judge of the 19th Judicial District Court assigned by the Chief Judge.


text:
    STATE of Louisiana ex rel. Enoch F. McQUEEN, Jr. v. 9th JUDICIAL DISTRICT, PARISH OF RAPIDES.
    No. 61291.
    Supreme Court of Louisiana.
    Dec. 28, 1977.
   In re: Enoch F. McQueen, Jr. applying for writ of mandamus. Parish of Rapides.

Writ denied. Based upon return from assistant attorney general, relator’s bond has been reduced to $10,000 and he has been released on bond and is no longer incarcerated. Insufficient showing is made on other contentions to warrant requested relief.


author: ELLIS, Judge. PER CURIAM.

text:
    James F. PIERSON, Jr., et al. v. PARISH OF EAST BATON ROUGE.
    No. 11497.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 17, 1977.
    On Rehearing Dec. 28, 1977.
    Writ Refused Feb. 17, 1978.
    Ashton L. Stewart, Baton Rouge, of counsel for James F. Pierson, Jr., et al., plaintiffs-appellees.
    Fred G. Benton, Jr., Joseph F. Keogh, Baton Rouge, of counsel for Parish of East Baton Rouge, defendant-appellant.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   ELLIS, Judge.

Plaintiffs herein are owners of parcels of land abutting Sunset Boulevard in Baton Rouge. They bring this suit against the Parish of East Baton Rouge to have declared invalid assessments levied against their various properties for the paving of Sunset Boulevard. From a judgment declaring the assessments invalid, the Parish has appealed.

The paving project was carried out under the provisions of R.S. 33:3301 et seq., and covers a number of streets in University Acres Subdivision. All of the streets in the subdivision as improved are 23 feet wide from curb to curb, except Sunset, which has two 22 foot roadways divided by a 30 foot neutral ground.

The notices of intention, and the resolutions ordering the paving in University Acres, were done for each street separately; that is, nine separate notices were published and nine separate resolutions were adopted. However, when bids were asked, all of the streets were combined into one project with nine different sections, one of which consisted of the divided portions of Sunset.

The bids received for the project were itemized by sections so that the cost of paving and drainage for each section was ascertainable. After receipt of the final engineering report on the project, the Parish Council determined its participation in the project, and assessed the properties abutting on the divided portions of Sunset Boulevard at $11.00 per front foot. Properties fronting on the other, single streets, were assessed at the rate of $6.00 per front foot. It was determined by the Council that these properties had benefitted no less than the amount of their respective assessments as a result of the paving project. It is- clear that the assessments levied were determined substantially on the basis of the actual cost of paving each street, and that the assessments on Sunset were larger because it is a divided double street.

Plaintiffs claim that the method used in computing their assessments is in violation of the following provisions of R.S. 33:3306, which states in part:

“C. After thirty days has elapsed from the date of the mailing of said notice of the proposed assessments, the governing authority shall adopt an ordinance levying a local or special assessment on each lot or parcel of real estate abutting the street, road, sidewalk, or alley to be improved, including such lots or parcels of real estate as may be located wholly or partly outside of the municipal limits or boundaries, in proportion that its frontage bears to all the abutting lots or parcels of real estate to be improved in accordance with the contract awarded or in accord with the cost of improvements, when undertaken by the municipality. The total of all such local or special assessments shall represent the total cost of the improvement, including street intersections, engineer’s and attorney’s fees, and all other costs incidental to the work, after deduction therefrom of the amount of participation, if any, made by the municipality as hereinafter provided in R.S. 33:3318.”

The total cost of the University Acres project was $1,065,303.87, and the Parish participated in the project to the extent of $834,586.62, leaving $230,717.25 to be assessed to the property owners. The total front footage assessed in the entire project was 38,802.71.

Plaintiffs contend that under the language of R.S. 33:3306, above quoted, each property owner should be assessed an amount per front foot derived from dividing $230,717.25 by 38,802.71, or $5.94. They argue that, since the provisions of the law were not strictly followed, the ordinance is invalid as to them.

The Parish argues that, since the contract itself is broken down into a detailed explanation of the costs applicable to each street in the contract, it should not be considered as a lump sum contract, but rather one in which the cost for each unit of work is separately itemized. It is further argued that to follow the method of assessment argued for by plaintiffs would result in an unfair advantage to the property owners on the boulevard, who would bear proportionately less of the cost of the improvement in front of their property while realizing a greater benefit therefrom.

Article 13 of the Civil Code provides: “When a law is clear and free from all ambiguity, the letter of it is not to be disregarded, under the pretext of pursuing its spirit.”

As we read R.S. 33:3306, supra, it is clear that it is susceptible of only one interpretation if the words thereof are given their “usual signification” as required by Article 14 of the Civil Code. We find that the total assessment to be made must be prorated among all of the properties which benefit from the contract, and not on a street by street basis.

We recognize that the assessment as originally made by the Parish is certainly fairer to the property owners, and in line with the benefits received by them. However, we can sustain the validity of the assessment only by ignoring the clear and specific language of the statute.

The judgment appealed from is therefore affirmed. The Parish shall pay all costs for which it may be liable under the law.

AFFIRMED.

ON REHEARING

PER CURIAM.

After reconsideration of the issue herein presented, we are convinced that our original opinion is correct. For the reasons therein set forth, the judgment rendered therein is reinstated.


author:
CHIASSON, Judge.
      COVINGTON, J.,

text:
    COLONIAL PIPELINE COMPANY v. Joseph N. TRAIGLE, Collector of Revenue.
    No. 11531.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 17, 1977.
    Rehearing Denied Nov. 21, 1977.
    Writ Refused Jan. 20, 1978.
    John V. Parker, Baton Rouge, of counsel, for plaintiff-appellee Colonial Pipeline Co.
    Whit M. Cook, II, Baton Rouge, of counsel, for defendant-appellant Joseph N. Trai-gle, etc.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   CHIASSON, Judge.

The Collector of Revenue of the State of Louisiana (Collector) appeals judgments of the District Court denying his demands for attorney fees against Colonial Pipeline Company (Colonial) under the provisions of La.R.S. 47:1512.

Colonial had paid franchise taxes for successive years as provided for by La.R.S. 47:601 under protest and thereafter filed these suits for refunds. On April 28, 1975, the United States Supreme Court affirmed the Louisiana Supreme Court and held La. R.S. 47:601 constitutional in Colonial Pipeline Company v. Traigle, 421 U.S. 100, 95 S.Ct. 1538, 44 L.Ed.2d 1. Thereafter, Colonial voluntarily dismissed its claim for refund in each of these consolidated actions.

On May 8, 1975, the Collector filed a reconventional demand in three of these consolidated cases for attorney fees under La.R.S. 47:1512. At the same time, the Collector substituted private counsel in suits number 11,531 and 11,533. In suit number 11,532 private counsel had filed the original answer. The fourth suit number 11,534 was initiated by the Collector against Colonial for attorney fees.

The matters were submitted to the Trial Court on stipulations of facts which included a stipulation that the Collector had employed private counsel to represent him in each of these cases. The stipulations further provided:

“The sole issue presented to the court is one of law, that is:
‘Whether pursuant to R.S. 47:1512, the tax debtor is liable for an additional charge for attorney fees, in the amount of ten per centum (10%) of the taxes, penalties and interest remitted to the collector under protest pursuant to R.S. 47:1576.’ ”

The Trial Court dismissed the reconven-tional demands of the Collector in suits number 11,531, 11,532 and 11,533 and sustained the peremptory exception of no cause of action in suit number 11,534. We affirm.

La.R.S. 47:1512 provides:

“The collector is authorized to employ private counsel to assist in the collection of any taxes, penalties or interest due under this Sub-title, or to represent him in any proceeding under this Sub-title. If any taxes, penalties or interest due under this title are referred to an attorney at law for collection, an additional charge for attorney fees, in the amount of ten per centum (10%) of the taxes, penalties and interest due, shall be paid by the tax debtor.”

La.R.S. 47:1576 provides a method for payment under protest of a disputed tax and further provides a remedy at law for recovery of such amounts paid where the application of the disputed tax to that particular taxpayer is invalid.

In Parish of Calcasieu, Calcasieu Par. Pol. J. v. Traigle, La.App., 296 So.2d 418 (1st Cir. 1974) (hereinafter referred to as Calca-sieu ), the Court held:

“ ‘To arrive at the intent of the Legislature in enacting R.S. 47-1512, said statute must be construed in pari materia with R.S. 47:1576, the payment under protest article. Pertinent also is La. Const. Art. 10, Sec. 18, which provides:
‘The Legislature shall provide against the issuance of process to restrain the collection of any tax and for a complete and adequate remedy for the prompt recovery by every taxpayer of any illegal tax paid by him.’ ” (Emphasis Added.)
“From this constitutional mandate, R.S. 47:1576 came forth affording:
“ ‘. . .a legal remedy and right of action . . . for a full and complete adjudication of any and all questions arising . . . as to the legality of any tax accrued or accruing or the method enforcement thereof.’ ”
“Payment under protest was envisioned as a method by which a person could contest any assessment of taxes against him and have access to prompt recovery of any illegal tax paid by him.”
“ ‘Herein, the Collector would have a taxpayer who pays under protest be adjudged liable for attorney fees the same as a recalcitrant taxpayer who refuses to pay in any manner whatsoever the taxes found due by the Collector, forcing the Collector to sue “for collection” of such assessments.’ ”
“ ‘In this case, certain sums have been paid under protest; it is argued by the Collector that they are not “paid” but only conditionally “paid under protest.” Perhaps, but when La.R.S. 47:1576 is comported with the purposes and policies inherent in La.R.S. 47:1576, it is a salutary conclusion that the wording “for collection” in La.R.S. 47:1512 equates the absence of a payment under protest.’ ”
“ ‘Buttressing such conclusion is the fact that the attorney fees provided for in La.R.S. 47:1512 are, as regards the pertinent taxpayer, an imposition of penalties. It has long been held by the Courts of this State that penalties in civil matters are not favored and should not be imposed except in cases which are clear and free from any doubt.’ ” (Citations Omitted.) “ ‘It has further been recognized, in Quality Contractors Inc. v. State Licensing Board for Contractors, 206 So.2d 738 (La.App. 1st Cir. 1968), that:
“ ‘. . . it is the law of this state that statutes imposing penalties must be strictly construed and all doubt must be resolved against the imposition of the penalty. Tichenor v. Tichenor, 190 La. 77, 181 So. 863 (1938).' ” “206 So.2d at 740.”

The Collector contends that the Calcasieu case was decided on a finding of fact and that, therefore, the above quoted portion of the case is dictum. Assuming that the Collector is correct, we agree with the quoted rationale of that case and with the case of L. A. Frey & Sons v. Lafayette Parish School Board, La.App., 262 So.2d 132 (3rd Cir. 1972).

The Collector further contends that we should follow the decision on attorney’s fees as was reached in Chicago Bridge & Iron Company v. Cocreham, Collector of Revenue, La.App., 303 So.2d 750 (1st Cir. 1974). However, the Louisiana Supreme Court subsequently reversed the judgment of the Court of Appeal, held that the tax was not owed by the taxpayer, and thereby rendered nugatory the Court of Appeal decision regarding attorney fee. 317 So.2d 605. The United States Supreme Court denied certiorari, Collector of Revenue v. Chicago Bridge & Iron Company, 424 U.S. 953, 96 S.Ct. 1427, 47 L.Ed.2d 359 (1976).

Contrary to what the Collector contends, “payment under protest,” albeit a qualified payment, is nevertheless, a payment. The taxpayer relinquishes his right to the use and control over his money and retains only a contingent interest in obtaining a refund of it in the event that the tax is subsequently declared illegal. Further, the term “payment,” by definition, precludes any “collection.”

It is also relevant to note that the Collector asserts no claim for interest on the amount of the disputed assessment. La. R.S. 47:1601 provides in part as follows:

“When any taxpayer fails to pay any tax, or any portion thereof, due under the provisions of this Subtitle on or before the day when it shall be required by law to be paid, there shall be added to the amount of tax due, interest at the rate of one per centum per month from the due date until paid, . . . Such interest shall be an obligation to be collected and accounted for in the same manner as if it were part of the tax due and can be enforced in a separate action or in the same action for collection of the tax, and shall not be waived or remitted.”

However, in these cases, all parties apparently agree that interest could not be exacted from a taxpayer who chooses to exercise the remedy of payment under protest to contest the legality of a tax imposed upon him. The Collector apparently considers “payment under protest” as provided for in R.S. 47:1576 as sufficient “payment" for purposes of R.S. 47:1601, but not “payment” for purposes of R.S. 47:1512. The same “payment” should be treated alike for both R.S. 47:1601 and R.S. 47:1512. If they are not so treated, then R.S. 47:1576 would be a meaningless provision and the legislative intent to provide a taxpayer with a remedy to contest the legality of a tax as mandated now by Article 7, Section 3 of the Louisiana Constitution of 1974 would be defeated.

While it is true that R.S. 47:1576 provides a procedure for judicial review of the legality of the assessment, it cannot be disputed that R.S. 47:1576 also specifically provides a method by which a taxpayer can satisfy his tax obligation to the state by payment. We believe the legislature has specifically provided that, under R.S. 47:1576, the taxpayer in special circumstances may satisfy his tax liability with a qualified payment which will stand in the place of a payment in full until the legality of the tax has been determined. And only in that sense is it not a payment in full without strings attached. A taxpayer should not be penalized for the exercise of his legally permissible right as mandated in our own constitution and laws.

The legislature enacted R.S. 47:1576 as the solution of an important problem arising from the conflict between the necessity of the State having an efficient unhampered tax collection system while at the same time affording to the taxpayer a remedy to contest the legality of the tax which is assessed against him without penalizing him.

Finally, as found in Calcasieu and supported by the weight of the jurisprudence, imposition of attorney fees is penal in nature, is not favored and should not be imposed except in cases which are clear and free from any doubt.

We, therefore, hold that a taxpayer who has paid a tax under protest pursuant to R.S. 47:1576 can not be liable for attorney’s fees and that R.S. 47:1512 has no application to such a situation.

The judgment dismissing the reconven-tional demand of the Collector is affirmed.

AFFIRMED.

COVINGTON, J.,

dissents for reasons set forth by this Court in Chicago Bridge & Iron Company v. Cocreham, La.App., 303 So.2d 750.


author: CHIASSON, Judge. COVINGTON, J.,

text:
    COLONIAL PIPELINE COMPANY v. Joseph N. TRAIGLE, Collector of Revenue.
    No. 11532.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 17, 1977.
    Rehearing Denied Nov. 21, 1977.
    John V. Parker, Baton Rouge, of counsel, for plaintiff-appellee Colonial Pipeline Co.
    Whit M. Cook, II, Baton Rouge, of counsel, for defendant-appellant Joseph N. Trai-gle, Etc.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   CHIASSON, Judge.

For the reasons set forth in our opinion in “Colonial Pipeline Company v. Joseph N. Traigle, Collector of Revenue,” No. 11,531, 353 So.2d 728, the judgment of the Trial Court herein is affirmed.

AFFIRMED.

COVINGTON, J.,

dissents for the reasons set forth by this Court in Chicago Bridge & Iron v. Cocreham, La.App., 303 So.2d 750.


text:
    COLONIAL PIPELINE COMPANY v. Joseph N. TRAIGLE, Collector of Revenue.
    No. 11533.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 17, 1977.
    Rehearing Denied Nov. 21, 1977.
    John V. Parker, Baton Rouge, of counsel, for plaintiff-appellee Colonial Pipeline Co.
    Whit M. Cook, II, Baton Rouge, of counsel, for defendant-appellant Joseph N. Trai-gle.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   CHIASSON, Judge.

For the reasons set forth in our opinion in “Colonial Pipeline Company v. Joseph N. Traigle, Collector of Revenue,” No. 11,531, 353 So.2d 728, the judgment of the Trial Court herein is affirmed.

AFFIRMED.

COVINGTON, J.,

dissents for the reasons set forth by this Court in Chicago Bridge & Iron v. Cocreham, La.App., 303 So.2d 750.


text:
    Shirley McNAMARA, Secretary, Department of Revenue and Taxation, State of Louisiana v. COLONIAL PIPELINE COMPANY.
    No. 11534.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 17, 1977.
    Rehearing Denied Nov. 21, 1977.
    Whit M. Cook, II, Baton Rouge, of counsel, for plaintiff-appellant Shirley McNamara, Secretary, Department of Revenue and Taxation, State of La.
    John V. Parker, Baton Rouge, of counsel, for defendant-appellee Colonial Pipeline Co.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   CHIASSON, Judge.

For the reasons set forth in our opinion in “Colonial Pipeline Company v. Joseph N. Traigle, Collector of Revenue,” No. 11,531, 353 So.2d 728, the judgment of the Trial Court herein is affirmed.

AFFIRMED.

COVINGTON, J.,

dissents for the reasons set forth in Chicago Bridge & Iron v. Cocre-ham, La.App., 303 So.2d 750.