text:
    Richard Christy GEMMELL, Appellant, v. STATE of Florida, Appellee.
    No. 81-287.
    District Court of Appeal of Florida, Second District.
    Sept. 18, 1981.
    Jerry Hill, Public Defender, and Kathe Kates Davis, Asst. Public Defender, Bar-tow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

After granting the state attorney’s motion to mitigate appellant’s sentence on a charge of trafficking in cocaine pursuant to section 893.135(3), Florida Statutes (1979), the trial judge sentenced appellant to three years incarceration to be followed by twelve years probation. Appellant now appeals his sentence claiming that the trial judge erred in refusing to hear additional mitigating evidence offered by the defense and also claiming that section 893.135 is unconstitutional.

Because we find appellant’s points on appeal to have no merit, appellant’s conviction is affirmed.

Although appellant has not raised this point, the sentence imposed herein may be illegal under the doctrine of Villery v. State, 396 So.2d 1107 (Fla.1980). Accordingly, this affirmance is without prejudice to appellant seeking resentencing by raising the Villery issue in a motion filed in the trial court pursuant to Florida Rule of Criminal Procedure 3.850.

BOARDMAN, Acting C. J., and RYDER and CAMPBELL, JJ., concur.


source: Caselaw Access Project

author: HOBSON, Judge.

license: Public Domain

text:
    STATE of Florida, Appellant, v. Ransey R. HARVEY, Appellee.
    No. 81-317.
    District Court of Appeal of Florida, Second District.
    Sept. 18, 1981.
    Jim Smith, Atty. Gen., Tallahassee, and James S. Purdy, Asst. Atty. Gen., Tampa, for appellant.
    Robert E. Jagger, Public Defender, and William G. Sestak, Asst. Public Defender, Dade City, for appellee.
   HOBSON, Judge.

Appellee was charged by a two-count information with I) attempted burglary of a conveyance pursuant to sections 810.02 and 777.04, Florida Statutes (1979), and II) possession of burglary tools. Appellee filed a Rule 3.190(c)(4) motion to dismiss Count I, attempted burglary of a conveyance. The State did not traverse the factual allegations contained in the motion and the trial court dismissed Court I.

Subsequently, appellee filed another Rule 3.190(c)(4) motion to dismiss Count II, possession of burglary tools, on the ground that the charge would be sustained only where there was evidence that the tools were used to commit or attempt to commit a burglary or trespass. The trial court dismissed Count II and the State appeals both orders. We reverse.

The undisputed facts, as set out in appel-lee’s motion to dismiss, show that appellee was observed underneath a car by a deputy sheriff. The hood had not been opened; the doors and windows were shut and had not been disturbed. The deputy found that the bolts holding the starter in place in the engine compartment had been loosened. Appellee admitted to the deputy that he had attempted to remove what he referred to as the alternator, but which was in fact the starter.

The State argues that these facts constitute an attempted burglary under section 810.02, because appellee had “entered” the conveyance within the meaning of the burglary statute. We agree and reverse on the basis of Bragg v. State, 371 So.2d 1082 (Fla. 4th DCA 1979), which held that opening the hood of the engine compartment intending to remove a battery is burglary. We see no distinction as to whether appellee came from underneath the engine compartment, from the top, or from the side; he is still guilty of attempted burglary. Here, appel-lee unlawfully entered a conveyance (by attempting to take a portion thereof), the property of another, with the intent to commit larceny therein. See Von Edwards v. State, 377 So.2d 684 (Fla.1979).

Accordingly we reverse the order granting the motion to dismiss Count I and Count II. The trial court granted the dismissals on the ground that a charge of possession of burglary tools can be sustained only where there is evidence that the tools were used to commit or attempt to commit a burglary. Here, there is such evidence. We remand the case for further proceedings not inconsistent with this opinion.

REVERSED and REMANDED.

SCHEB, C. J., and CAMPBELL, J., concur.


author: PER CURIAM.

text:
    PALM BEACH COUNTY, et al., Appellants, v. TOWN OF PALM BEACH, a municipal corporation; City of West Palm Beach, a municipal corporation; City of Boca Raton, a municipal corporation; and the Village of North Palm Beach, a municipal corporation, Appellees.
    No. 81-1553.
    District Court of Appeal of Florida, Fourth District.
    Sept. 28, 1981.
    Robert L. Nabors of Nabors, Potter, McClelland, Griffith & Jones, P. A., Titus-ville, and Charles F. Schoech, West Palm Beach, for appellants.
    John A. Devault, III, Jacksonville, for appellee Town of Palm Beach.
   ON MOTION FOR REVIEW OF CONDITION IMPOSED ON STAY

PER CURIAM.

Palm Beach County seeks review of an order of the trial court setting a condition for stay of the final judgment presently pending on appeal.

We have considered the motion and response and heard oral argument thereon and, finding no abuse of discretion, the order being reviewed is affirmed.

AFFIRMED.

DOWNEY, HERSEY and GLICKSTEIN, JJ., concur.


author: WATSON, Justice. MARCUS, Justice BLANCHE, Justice DENNIS, Justice, MARCUS, Justice LEMMON, Justice, BLANCHE, Justice

text:
    BATON ROUGE COCA-COLA BOTTLING COMPANY, LTD. v. GENERAL TRUCK DRIVERS, WAREHOUSEMEN AND HELPERS, LOCAL UNION NO. 5, Affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America.
    No. 80-C-2700.
    Supreme Court of Louisiana.
    June 22, 1981.
    Rehearing Denied Sept. 28, 1981.

      Lawrence R. Anderson, Jr. and William Hardy Patrick, III of Anderson, Anderson & Steffes, Baton Rouge, for defendant-applicant.
    G. Michael Pharis, Tom F. Phillips and Louis M. Phillips of Taylor, Brooks, Porter & Phillips, Baton Rouge, for plaintiffs-respondents.
   WATSON, Justice.

The issues are: (1) whether LSA-R.S. 23:844, the “Little Norris-LaGuardia Act,” governs the issuance of an injunction in a labor dispute; and (2) whether a preliminary injunction was issued in compliance with the Act.

Plaintiff, Baton Rouge Coca-Cola Bottling Company, Ltd., filed a petition for a temporary restraining order. Named as defendant was General Truck Drivers, Ware-housemen and Helpers Local Union No. 5, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. The trial court granted the temporary restraining order, which prohibited the defendant Union from engaging in certain activities and imposed limitations on the location and number of pickets at the entrance to plaintiff’s plant. The Union filed a motion to dissolve the temporary restraining order and asked damages, alleging that the order was wrongfully issued. Alternatively, it sought an increase in the $1,000 bond which Coca-Cola had been required to provide. The court denied the motion to dissolve, granted a preliminary injunction and increased the bond to $2,500. The court of appeal affirmed and a writ was granted to review the decision. 394 So.2d 1246 (La., 1980).

Coca-Cola’s petition stated that the Union had been recognized by the NLRB as the bargaining representative for employees at Baton Rouge Coca-Cola. Because negotiations were unsuccessful, some of these employees had gone on strike. Defendant had established picket lines at the two employee entrances to the plant.

Coca-Cola’s petition alleged that:

“. . . mass picketing and congregation of pickets have occurred, intimidation of persons seeking lawful ingress to and egress from the plant has occurred, said picketers have used threatening, vile, and abusive language, ingress to and egress from said plant has been obstructed and hindered. ...” (Tr. 5)

Additionally, Coca-Cola contended that participants in the picket line had spit upon those entering and leaving the plant and had disrupted traffic on U.S. Highway 61 (Airline Highway).

Plaintiff’s petition asserted that the mass picketing violated its constitutional rights, posed a continuing threat to peace and interfered with operation of its business.

The restraining order issued by the district court provided in pertinent part, as follows:

“. . . Teamsters Local No. 5, and all persons in active concert or participation with the said Teamsters Local No. 5, be, and they are hereby, temporarily restrained, enjoined and prohibited from all of the following:
“A. Threatening, intimidating, cussing, using vile, indecent and vulgar language, molesting, restraining, coercing, committing acts of violence and compulsion against, or in any way interfering with petitioners, their agents or employees as they enter or leave or work about the Baton Rouge Coca-Cola plant in East Baton Rouge Parish, Louisiana, or as they make their deliveries or perform their services in the Greater Baton Rouge area. “B. Massing or congregating within four hundred feet (400’) of the entrances to the Baton Rouge Coca-Cola plant in East Baton Rouge Parish, Louisiana, or in any way interfering with or obstructing the free access of Baton Rouge Coca-Cola’s employees, suppliers, and deliverymen at said plant.
“C. Engaging in any picketing, patrolling or congregating, forming a physical barrier of any kind whatsoever at or near the Baton Rouge Coca-Cola entrances to the Baton Rouge Coca-Cola plant, except that defendants may station not more than three (3) persons at each entrance to the plant, on public property, for the purpose of picketing or other peaceful activities not prohibited hereby except that no picket shall remain stationary but shall continuously walk in a straight line the entire width of the roadway, an interval of ten feet (10') shall be maintained between walking pickets.
“D. Spitting, kicking or striking the vehicles or persons of petitioners agents or employees as they enter, leave or work at the Baton Rouge Coca-Cola plant or as they make their deliveries or work in the Greater Baton Rouge area.
“IT IS FURTHER ORDERED by this Court that the Sheriff of East Baton Rouge Parish and all law enforcement agencies shall enforce this order and require compliance by defendants with the terms hereof. ...” (Tr. 10-11)

The preliminary injunction differs in some respects from the temporary restraining order. The injunction reduces the area of restriction from 400 to 200 feet, prohibits picketing within 25 feet of U.S. Highway 61, and omits the provision which directs law enforcement agencies to enforce the order.

The trial court found that this was not a case of peaceful picketing. The trial court concluded that:

“. . . there is an extreme possibility that violence will be provoked and intimidation will be engendered.” (Tr. 448)

The Union contends that the lower courts failed to apply the provisions of LSA-R.S. 23:844, the “Little Norris-LaGuardia Act,” to the facts of this case. The allegations and findings of fact which that statute requires before an injunction can be issued in a labor dispute were not made. In particular, the Union maintains that Coca-Cola failed to allege and prove that local law enforcement officers were unable to furnish adequate protection.

The trial court held that the Little Norris-LaGuardia Act is not applicable where injunctive relief is sought to prevent violence. The Court of Appeal affirmed, relying primarily on Douglas Public Service Corp. v. Gaspard, 225 La. 972, 74 So.2d 182 (1954).

In Douglas plaintiff sought injunctive relief against its striking employees. Defendants filed exceptions based on plaintiff’s failure to comply with the provisions of LSA-R.S. 23:844. The statute was declared “illegal and ineffective.”

Douglas concluded, without supporting reasons, that compliance with the statute denied due process. As Justice Hawthorne noted in dissent, any due process infirmity in our statute is shared by the federal act. In fact, neither law denies due process.

Both acts are legislative determinations of how the conflicting interests of employers and employees should be accommodated. Rather than denying due process, LSA-R.S. 23:844 insures it by providing reasonable notice and an opportunity for workers to be heard prior to the granting of injunctive relief. The declaration of policy in LSA-R.S. 23:843 recognizes that injunctive relief “. . . is peculiarly subject to abuse in labor litigation.”

The statute is not an unconstitutional infringement on the courts’ jurisdiction to grant injunctive relief. Injunctions are not prohibited in labor disputes, but preclusive procedures and guidelines must be followed before that relief is available.

The legislature has the power to define the substantive and procedural rights of citizens. The Code of Civil Procedure articles on injunctions are representative examples of the exercise of this power. The Little Norris-LaGuardia Act is no less valid than the Code articles. Because of the special considerations present in labor disputes, it establishes a set of special rules. Neither the Code of Civil Procedure articles on injunctions nor LSA-R.S. 23:844 limit the courts’ jurisdiction in granting injunc-tive relief. Both are valid legislative provisions.

Coca-Cola argues, in reliance on Douglas, that LSA-R.S. 23:844 deprives a judge of his constitutional power to issue “all other needful writs, orders and process in aid of the jurisdiction of his court.” LSA-Const. Art. V, § 2. However, requiring courts to find certain facts and follow certain procedures before issuing injunctions in labor disputes does not infringe on this constitutional authority. The challenged statute does not prohibit the courts from issuing temporary restraining orders and injunctions; it merely imposes restrictions with regard to notice, delay, findings of fact, and opportunity for hearing.

The legislature has seen fit to regulate injunctive relief in other areas. One example is LSA-C.C.P. art. 3601 which prohibits an injunction in some cases involving the expenditure of public funds. In Wall v. Close, 201 La. 986, 10 So.2d 779 (1942) the constitutionality of LSA-R.S. 13:4431, which allows suspensive appeals in certain cases where an injunction has been issued, was upheld against a challenge identical to that made in the present case.

Courts in other states have concluded that the legislature may regulate such proceedings. The Wisconsin Supreme Court held that its Little Norris-LaGuardia Act did not diminish the jurisdiction of its constitutionally created courts but simply changed the substantive law. American Furniture Co. v. I.B. of T.C. and H., Etc., 222 Wis. 338, 268 N.W. 250 (1936). In Goldfinger v. Feintuch, 276 N.Y. 281, 11 N.E.2d 910 (1937) the New York Little Norris-La-Guardia Act was upheld against constitutional attack. A New Jersey court has rejected the contention that procedural requirements for the issuance or labor injunctions breach the constitutional equity jurisdiction of the courts. U.S. Pipe & Foundry Co. v. United Steelworkers, 59 N.J.Super. 240, 157 A.2d 542 (1960). In Fenske Bros. v. Upholsterers’ International Union, 358 Ill. 239, 193 N.E. 112 (1934) the Illinois Supreme Court held that forbidding the enjoining of peaceful picketing does not curtail the inherent power of equity courts.

Laws which limit or regulate the courts’ power to issue injunctions are not unconstitutional limitations upon a court’s power to do what is necessary to aid or preserve its jurisdiction. LSA-R.S. 23:844 is not a restriction on the jurisdiction of the courts. Rather it is a modification of substantive law and serves to protect the rights of laborers to engage in certain types of picketing free from the threat of abusive use of injunctions.

Since LSA-R.S. 23:844 is not constitutionally defective, it must be applied to this proceeding. This is a ease “involving or growing out of a labor dispute.” The statute requires that testimony be presented and findings of fact be made in six areas.

The Union asserts that Coca-Cola failed to allege and prove the sixth requirement of LSA-R.S. 23:844, which is:

“(6) That the public officers charged with the duty to protect complainant’s property have failed or are unable to furnish adequate protection.”

A review of Coca-Cola’s petition and of the transcript of the preliminary injunction hearing supports this contention. Coca-Cola’s petition fails to allege that public officers charged with the duty to protect the company’s property (i. e., city police and the sheriff’s department) have failed or are unable to furnish adequate protection. The transcript of the hearing on the preliminary injunction reveals that Coca-Cola failed to undertake proof of this element.

LSA-R.S. 23:844 requires allegations and proof of public officers’ failure or inability to furnish protection before an injunction may be issued in a labor dispute. Because of failure to comply with this statutory requirement, the preliminary injunction was improperly issued. It must be dissolved.

For the foregoing reasons, the judgment of the court of appeal is reversed. The preliminary injunction issued by the district court is vacated and dissolved. The case is remanded for disposition consistent with this decision.

REVERSED AND REMANDED.

MARCUS, J., concurs and assigns reasons.

BLANCHE, J., dissents for reasons assigned.

MARCUS, Justice

(concurring).

While I agree with the majority that La.R.S. 23:844 does not restrict the constitutional power of the courts to issue “all other needful writs, orders, and process” but merely provides a special procedure that should be followed before issuing injunctions in labor disputes, I do believe that in a given situation where it is clearly shown that violence to persons or property is imminent and time to comply with the procedure set forth in the statute is not possible, the courts may exercise their constitutional grant of authority without requiring compliance with this statute. However, I do not consider that such a showing was made here. Hence, the trial judge erred in granting a temporary restraining order and preliminary injunction without requiring compliance with La.R.S. 23:844. Accordingly, I respectfully concur.

BLANCHE, Justice

(dissenting).

I respectfully dissent from the majority opinion for the following reasons. In my view, despite the provisions of R.S. 23:844, a Louisiana court has the jurisdiction and authority under the Constitution of this state to enjoin non-peaceful labor picketing. I further disagree with the majority’s overruling of Douglas Public Service Corp. v. Gaspard, 225 La. 972, 74 So.2d 182 (1954).

I note at the outset that the doctrine of federal preemption operates in the labor relations area to preclude a state’s exercise of its jurisdiction. However, as the United States Supreme Court noted in Lodge 76, International Association of Machinists and Aerospace Workers, AFL-CIO, et al. v. Wisconsin Employment Relations Commission, et al., 427 U.S. 132, 96 S.Ct. 2548, 49 L.Ed.2d 396 (1976):

“ ‘The national . . . Act . . . leaves much to the states, though Congress has refrained from telling us how much. We must spell out from conflicting indications of congressional will the area in which state action is still permissible.’ Garner v. Teamsters, Chauffeurs and Helpers Local Union, 346 U.S. 485, 488, 74 S.Ct. 161, 164, 98 L.Ed. 228 (1953). Federal labor policy as reflected in the National Labor Relations Act, as amended, has been construed not to preclude the States from regulating aspects of labor relations that involve conduct touching] interests so deeply rooted in local feeling and responsibility that ... we could not infer that Congress had deprived the States of the power to act.’ San Diego Building Trades Council, Millmen’s Union v. Garmon, 359 U.S. 236, 244, 79 S.Ct. 773, 779, 3 L.Ed.2d 775 (1959). Policing of actual or threatened violence to persons or destruction of property has been held most clearly a matter for the states. ” (96 S.Ct. at 255)

The Court has apparently recognized the strong interest a state has in regulating such activities and sanctions the exercise of state injunctive powers to restrain these picket line tactics. However, a state court may not enjoin the peaceful aspects of picketing although accompanied by non-peaceful picketing, merely because of the existence of some non-peaceful picketing, unless there is established a pattern of violence which would inevitably reappear in the event picketing were later resumed. Youngdahl, et al. v. Rainfair, Inc., 355 U.S. 131, 2 L.Ed.2d 151, 78 S.Ct. 206 (1957), citing Milk Wagon Drivers Union v. Meadowmoore Dairy, Inc., 312 U.S. 287, 85 L.Ed. 836, 61 S.Ct. 552, 132 ALR 1200.

After the trial of the motion for a preliminary injunction, the trial judge emphasized that “The court has not before it an incidence where an injunction is being sought to prevent a peaceful picket. This is not what is before the court.” Based upon the testimony and affidavits which were admitted in evidence, the court specifically found that in the course of the picketing activities, there were acts of violence, or threats of violence, and threats of intimidation as well as property damage. The court further found that there was mass picketing and “an extremely enormous amount of vile and abusive language directed to and toward the employees of Coca-Cola.” The judge concluded that “given these acts under the given circumstances, [and] . . . this particular picket line, the Court finds that there is an extreme possibility that violence will be provoked and intimidation will be engendered.” The court found that there were incidents where abusive language was used to and/or toward employees of Coca Cola which language the court considered to be “calculated to cause violence.” In the judgment of this trial court, there were incidents where employees were denied freedom of ingress to and egress from the Coca Cola plant in incidents where picketers stood in front of a vehicle and would not move. The court viewed this particular picket of the Coca Cola plant as a “unique situation” in that the plant was located just off of U.S. Highway 61, which is a heavily travelled thoroughfare. According to the court, there had been incidents where employees of Coca Cola had not been able to make exits safely from the highway “inasmuch as they had to stop because of the location of the pickets.” After making these findings of fact, the court issued the above described injunction.

The court of appeal affirmed, ruling that the “findings of the trial court that the picketing was not peaceful, and that there were threats, violence and intimidation by the picketers, are clearly substantiated by the record.” My review of the record shows that these findings of fact of the trial court are not clearly erroneous. In light of these findings of fact, I would further hold that the trial court was not preempted by the federal system from exercising its jurisdiction to enjoin the non-peaeeful picketing occurring at the Coca Cola plant. In a factually similar case, the United States Supreme Court affirmed the jurisdiction of a state court to enjoin threats, intimidation or coercion of employees of the picketed employer by the union, and obstruction or attempts to obstruct the free use of streets adjacent to the employer’s place of business, and the free ingress to and egress from employer’s property. Youngdahl, supra.

The more difficult issue presented to this Court in this case is not whether a Louisiana court can exercise its jurisdiction to enjoin non-peaceful picketing, but whether the court could issue the particular injunction in this case under existing state law based upon the above indicated findings of fact.

Relator-union contends that the grant of the preliminary injunction in favor of Coca Cola was erroneously affirmed by the court of appeal for several reasons. The union’s main contention is that both lower courts failed to apply the provision of R.S. 23:844, of the “Little Norris LaGuardia Act” to the facts of this case and, consequently, did not make findings of fact that are a prerequisite to the issuance of an injunction in a labor dispute in Louisiana.

This statute is almost identical to 29 U.S.C. § 107 of the federal “Norris LaGuar-dia Act”, which was adopted two years pri- or to Louisiana’s adoption of its own “Little Norris LaGuardia Act”. A related statute appearing in both “Norris LaGuardia Acts” specifically precludes the courts’ “jurisdiction” (in the federal act) or “authority” (in the state act) to issue injunctions or restraining orders to prohibit certain acts. One such protected activity in the state statute (R.S. 23:841(5)) is “Giving publicity to and obtaining or communicating information regarding the existence of, or the facts involved in, any dispute, whether by advertising, speaking, patrolling any public street or any place where persons may lawfully be, without intimidation or coercion, or by any other method not involving fraud, violence, breach of the peace of threat thereof.” (emphasis added)

Part 5 of R.S. 23:841 inferentially seems to authorize the issuance of an injunction or temporary restraining order in instances where the publicizing of a labor dispute is accompanied by “intimidation, coercion, or by any other method involving fraud, violence, breach of the peace or threat thereof.” Under this interpretation of this provision, in the same factual situations where the United States Supreme Court has ruled our state court may act to issue an injunction (threats, intimidation or coercion of employees by union picketers, obstruction of the free use of streets adjacent to an employer’s place of business and free ingress to and egress from employer’s plant, Youngdahl, supra), our court would be allowed, under our state statutory law, to issue an injunction or restraining order. However, the provisions of R.S. 23:844 would seemingly prohibit the exercise of a court’s power to issue an injunction, despite such findings of fact. R.S. 23:844 mandates that the court make the enumerated factual findings prior to the issuance of an injunction, which required findings are practically identical to those in the federal version of the “anti-injunction” statute. (There is no specific mention of factual finding (5) of the state statute in the federal statute.)

The trial judge ruled that the “Little Norris LaGuardia” provisions were not applicable where injunctive relief was sought to prevent acts or threats of violence, intimidation, coercion, to the extent that the public’s health, safety and general welfare is at stake.” The court of appeal affirmed this ruling, citing Good Hope Refineries v. Oil, Chemical, etc., 386 So.2d 378 (La.App. 4th Cir. 1980); Douglas Public Service Corp. v. Gaspard, 225 La. 972, 74 So.2d 182 (1954); Godchaux Sugar v. Chaisson, 227 La. 147, 78 So.2d 673 (1955).

Article 5, § 2 of the Louisiana Constitution provides that “A judge may issue writs of habeas corpus and all other needful writs, orders and process in aid of the jurisdiction of his court . . . ”. This provision establishes the court’s power to issue all needful writs, orders and process in the exercise of its jurisdiction (which jurisdiction, in the case of a district court, extends over all civil and criminal matters; La. Const. Art. 5, § 16). This Court has previously recognized a conflict between the provisions of the Little Norris LaGuardia Act and the prerogative of a court to grant injunctive relief as authorized by the Louisiana Constitution.

In Douglas Public Service Corp., et al. v. Gaspard, et al., 74 So.2d 182 (La.1954), this Court adopted the reasoning of a court of appeal opinion, which differentiated between the constitutionality of the federal “anti-injunction statute” as opposed to the Louisiana counterpart:

“In a recent well-considered opinion, the Court of Appeals for the Parish of Orleans pointed out that Congress, under the authority specifically granted it by the Constitution of the United States to create and regulate the jurisdiction and powers of all inferior federal courts, was well within its right to effectively prohibit these courts from issuing injunctions in labor disputes by the enactment of the Norris LaGuardia Act, 29 U.S.C.A. § 101 et seq., while the power and jurisdiction of the courts of this state flows from constitutional grants and the legislature is powerless to interfere with their prerogatives except as specifically authorized by the constitution, concluding that ‘The powers granted to the trial judge by the Constitution must take precedence over any provisions of any sort of legislation which runs counter thereto, whether such legislation pertains to capital, labor, or any other subject.’ The decision in that case — Twiggs v. Journeymen Barbers, etc., La.App., 58 So.2d 298, 302 — received the approval of this court when we refused the writs sought for its review with the comment that ‘The judgment is correct’.”

The wording of 29 U.S.C. 107(e) of the Norris LaGuardia Act expresses an obvious intent on the part of Congress to take away the jurisdiction of a federal court to issue an injunction where a labor dispute is taking place, until the party seeking the injunction can prove that state institutions have failed to protect his rights. As noted above, this limitation in no way violates any federal constitutional provisions since that constitution does not specifically grant powers to the federal courts but, instead, authorizes Congress to create and regulate the jurisdiction and powers of all inferior federal courts. The limitation on jurisdiction is not only legally justifiable but is also a valid and logical one.

Again, the United States Supreme Court has recognized that the policing of actual or threatened violence to persons or destruction of property is a matter for the states, and a state may appropriately regulate such “conduct touching] interests so deeply rooted in local feeling and responsibility.” San Diego Building Trades Council, supra at 779.

In Kohler Company v. Sheet Metal Workers International Association, 486 F.Supp. 1016 (1979) at 1018, the court held that “A purpose of the Congress, in adopting the Act, undoubtedly was to leave in the hands of state and local authorities those problems of public order which they [are] capable of handling ... ”, Cimarron Coal Corp. v. District 23, United Mine Workers, C.A. 6th (1969), 416 F.2d 845 at 847, cert. den. 397 U.S. 919, 90 S.Ct. 928, 25 L.Ed.2d 100 (1970). “This Court will not act precipitately to enforce private property rights hindered by a labor-management dispute while there is hope that the state judicial and law enforcement institutions may enforce the decrees of the state courts . . . ”.

However,. according to the majority in this case, when the Louisiana Legislature adopted the Little Norris LaGuardia Act the local state courts were stripped of their power or authority to issue such decrees in a labor dispute until there was proof of a breakdown of police law enforcement protection. The practical problem with such a requirement was addressed by the Supreme Court of Washington in 1936 in Blanchard v. Golden Age Brewery Co., 63 P.2d 397 at 407, and is discussed below. That court pointed out that one whose rights are being invaded is not required to seek the grace or await the pleasure and consequent delay of police intervention nor is he required to argue his case to a policeman. The proper forum for such matters is a court (emphasis added).

I also find legal problems with the majority position. Aside from a possible violation of constitutionally mandated separation of powers, a statute which precludes a Louisiana state court from issuing an injunction in a labor dispute setting infringes upon the constitutional authority granted a Louisiana court in Art. 5, § 2 to issue all needful writs, orders and process in aid of its jurisdiction.

The Douglas majority accurately perceived this infringement in 1954 and consequently did not apply the provisions of § 844 of the Little Norris LaGuardia Act, ruling them unconstitutional. Douglas was correct in recognizing that a state court should have the authority to enjoin certain activities incident to a labor dispute and in holding that a statutory limitation on this authority could not be sanctioned. In my view, the majority erred in overruling Douglas.

The Douglas opinion stipulated that:

“[8] For the courts to function in an orderly manner, and with equal protection to all, the Constitution not having provided otherwise, it became necessary for the legislature to establish the rules and regulations that would govern the procedure to be followed by those seeking this guaranteed protection, including the issuance of all needful writs and processes. Such procedural statutes will be upheld in our courts so long as they do not violate our basic law. However, any act of the legislature, whether procedural or substantive, that infringes or trenches upon the constitutional prerogatives of the courts, cannot stand. 74 So.2d at 187.

In that case, this Court affirmed that grant of a temporary restraining order against certain union actions incident to picketing although, according to the dissent, the plaintiff seeking the restraining order "made no effort to comply with the procedural requirements set out for obtaining injunctive relief in a labor dispute.” In Godchaux Sugars, Inc. v. Chaisson, et al., supra, this Court again refused to require the listed findings of fact in R.S. 23:844 prior to the issuance, in that case, of a preliminary injunction in a labor dispute. I am aware of no Louisiana case in which R.S. 23:844 was applied to make these statutory findings of fact a prerequisite to the issuance of a restraining order or injunction in a labor dispute.

R.S. 23:844 is not merely a statute which sets out a procedure for seeking an injunction in order to promote the orderly and efficient administration of justice. Rather, the wording of the statute ties the hands of the court, forbidding it to issue an injunction unless six specific factual findings are made. As noted at 29 Tulane L.Rev. 791 at 793, the provision constitutes a partial withdrawal of the jurisdiction of a court to issue an injunction in a labor dispute. I recognize that it is within the power of the legislature to create new substantive rights. Had the legislature chosen to do so, it could have established substantive rights for labor unions to express their views and grievances in certain manners. This Court would have then had a duty to abide by legislative determination of a substantive right if the exercise of that right did not infringe on the constitutional protections or rights granted to others. Instead, the legislature attempted to limit the courts’ constitutional authority to issue injunctions. I cannot place a seal of constitutional approval on a limitation on a court’s authority to issue an injunction when, as in the instant case, non-peaceful picketing occurs.

In Blanchard v. Golden Age Brewing Co., 188 Wash. 396, 63 P.2d 397 (1936), the Supreme Court of Washington struck down an “anti-injunction” statute practically identical to our own (that statute, like the federal counterpart, also did not include a provision parallel to (5) of our statute). That Court noted that:

“. . . by the Constitution, and independently of any legislative enactment, the judicial power over cases in equity have been vested in our courts, and, in the absence of any constitutional provision to the contrary, such power may not be abrogated or restricted by the legislative department. Any legislation, therefor, the purpose or effect of which is to divest, in whole or in part, a constitutional court of its constitutional powers, is void as being an encroachment by the legislative department upon the judicial department.” 63 P.2d at 405.

The court distinguished the “anti-injunction statute” from reasonable regulations governing court procedure, stipulating that the courts will always recognize reasonable regulation prescribed by the legislature, but the courts are not required to recognize a legislative restriction which has the effect of depriving them of a constitutional grant of one of their inherent powers. The Washington court particularly attacked certain areas of the Washington “anti-injunction statute”, including the counterpart to Louisiana’s R.S. 23:844(6), which required a finding that public officers charged with a duty to protect complainant’s property are unable or unwilling to furnish adequate protection:

“One whose rights are invaded and who is faced with an irreparable injury is not required to seek the grace, or to await the pleasure and consequent delay, of public officers. He is not required to argue his case or to address his importu-nities to a policeman, nor is such officer to be expected to determine the civil rights of a litigant. The proper forum for such matters is a court.” 63 P.2d at 407.

In Busch Jewelry Co. v. United Retail E. Union Local 830, 281 N.Y. 150, 22 N.E.2d 320 (1939), the Court of Appeal of New York made the observation, in dicta, regarding the New York anti-injunction statute that, if the intent and effect of the anti-injunction statute was to deprive the court of its jurisdiction to enjoin dangerous, illegal acts which constitute disorderly conduct and breach of the peace “it is to that extent unconstitutional and void as an attempt to abridge the jurisdiction of the court.” 22 N.E.2d at 322.

Chapter 2 of Title I of Book VII of the Code of Civil Procedure sets out procedural rules for the issuance of injunctions in Louisiana. The last article in this chapter specifically recognizes that “The provisions of this Chapter do not limit the issuance by a court of any writ, process, or order in aid of its jurisdiction.” C.C.P. art. 3613. This is an apparent legislative recognition of the broad powers granted to Louisiana courts by Art. 5, § 2 of the Louisiana Constitution to issue all needful writs, orders and process in aid of its jurisdiction.

In 1959, the Louisiana Supreme Court ruled that R.S. 26:304 was unconstitutional. Roksvaag v. Reily, 237 La. 1094, 113 So.2d 285 (1959). That statute sought to deprive the courts of jurisdiction to enjoin the withholding, suspension or revocation of liquor licenses. This Court found that the statute was in contravention of Art. 7, § 2 of the Louisiana Constitution (now Art. 5, § 2), the same constitutional provision at issue in this case, citing Twiggs, Douglas and Godchaux Sugar (all cases dealing with the constitutionality of the “anti-injunction statute”, and all cited supra).

Once again, we emphasize that the United States Supreme Court has specifically recognized the overriding interest of a state court in preventing threats, intimidation or coercion of employees, obstruction of the free use of streets adjacent to an employer’s place of business and free ingress and egress to and from employer’s plant, Youngdahl, supra, and where such situations are found to exist, allows the state to act despite federal preemption in the area of labor relations. As discussed above, one of the provisions of the Little Norris La-Guardia Act itself seems to contemplate the issuance of injunctions where picketing is non-peaceful. The trial court found such a situation to exist and granted employer’s request for a preliminary injunction to prevent such actions. As I have noted above, the court rightfully exercised its jurisdiction and, in view of its findings of fact, I would hold that the court had the power to issue an injunction against the non-peaceful picketing. A review of the terms of that injunction shows that it is reasonably designed to prohibit only “non-peaceful” picketing. I would affirm the court of appeal ruling upholding this injunction.

In reaching this result, I would rule that the provisions of R.S. 23:844 are unconstitutional insofar as they limit a court’s power to enjoin non-peaceful picketing. In my view, the court was authorized to issue the injunction in the instant case, and an injunction against non-peaceful picketing is indeed “needful” in view of the fact that our courts have been specifically authorized by the United States Supreme Court to act in instances of non-peaceful picketing, that one of the statutes of the “Little Norris LaGuardia Act” itself seems to recognize that unions only have a right to picket peacefully, and because of the importance of rights which are threatened by non-peaceful picketing. For example, where an employee’s right to choose to work at his occupation, an employer’s right to operate his business, and the physical safety and property of members of the public and of persons seeking ingress to and egress from an employer’s plant are threatened by non-peaceful picketing, a court should have the authority to enjoin such activities for the protection of these rights.

I fully recognize the vitally important right of an individual to join a labor union and for that individual and union to pursue legal channels for the expression of its views and of grievances it may have with a particular employer. I further recognize that picketing is a valid, legal means for the communication of union grievances. However, I do not recognize a right to engage in non-peaceful picketing which threatens the physical safety and property of persons seeking to enter or exit an employer’s plant, the property of the employer, or the safety and property of the public.

I would not, however, sanction the grant of an injunction in a labor dispute without proof of recurrent and serious, rather than isolated and minor, instances of non-peaceful picketing. The record shows that instances of non-peaceful picketing in the present case were recurrent and serious. I would, therefore, affirm the terms of the injunction as did the court of appeal.

DENNIS, Justice,

concurring in denial of rehearing.

I respectfully concur in the denial of a rehearing.

Although I am inclined to believe that the “Little Norris-LaGuardia Act’s” mandatory requirement of the forty-eight hour delay before a temporary restraining order may be granted is an unwarranted restriction upon the court’s power to grant a conservatory writ of injunction in a case in which all other statutory requisites have been met, that issue is not presented in this case; nor do I think that the invalidity of that provision would prove fatal to the remainder of the statute.

MARCUS, Justice

(concurring in denial of rehearing).

I concur in the denial for rehearing for reasons assigned in my concurring opinion.

LEMMON, Justice,

concurring in denial of rehearing.

I concur for the reasons stated by Justice Dennis. While the 48-hour delay is a statutory rule that should be adhered to in almost every case, the Constitution authorizes issuance of needful writs in an exceptional case.

BLANCHE, Justice

(dissenting from denial of rehearing).

This writer would grant a rehearing for reasons stated in his dissent, and further notes that, henceforth, our citizens will be unable to protect their property rights in a labor dispute for a period of 48 hours, and then only after a showing that the police have not acted to protect these rights.

Non-peaceful picketing is all this case is about. It is wrong and we should not limit our right to enjoin it at any time.

      . Coca-Cola attached to its petition the affidavits of eighteen persons, mostly employees. These affidavits cited various instances of verbal abuse, spitting, and striking of automobiles by picketers.

      . So named because it is patterned after the provisions of 29 U.S.C.A. § 101 et seq., the Norris-LaGuardia Act.

      . LSA-R.S. 23:844 provides:
      “No court shall issue a temporary or permanent injunction in any case involving or growing out of a labor dispute, as herein defined, except after hearing the testimony of witnesses in open court, with opportunity for cross-examination, in support of the allegations of a complaint made under oath, and testimony in opposition thereto, if offered, and except after findings of fact by the court to the effect:
      “(1) That unlawful acts have been threatened or committed and will be executed or continued unless restrained;
      “(2) That substantial and irreparable injury to complainant’s property will follow unless the relief requested is granted;
      “(3) That as to each item of relief granted greater injury will be inflicted upon complainant by the denial thereof than will be inflicted upon the defendants by the granting thereof;
      “(4) That no item of relief granted is relief that a court has no authority to restrain or enjoin under R.S. 23:841;
      “(5) That complainant has no adequate remedy by ordinary legal procedure; and
      “(6) That the public officers charged with the duty to protect complainant’s property have failed or are unable to furnish adequate protection.
      “Such hearing shall be held after due and personal notice thereof has been given, in such manner as the court shall direct, to all known persons against whom relief is sought, and also to those public officers charged with the duty to protect complainant’s property.
      “If a complainant shall also allege that unless a temporary restraining order is. used before such hearing can be had a substantial and irreparable injury to complainant’s property will be unavoidable, such a temporary restraining order may be granted upon the expiration of such reasonable notice of application therefor as the court may direct by order to show cause, but in no case less than forty-eight hours.
      “Such order to show cause shall be served upon such party or parties as are sought to be restrained and as shall be specified in said order, and the restraining order shall issue only upon testimony, or in the discretion of the court, upon affidavits, sufficient, if sustained, to justify the court in issuing a temporary injunction upon a hearing as herein provided for.
      “Such a temporary restraining order shall be effective for no longer than five days, at the expiration of which time it shall become void and not subject to renewal or extension; provided, that if the hearing for a temporary injunction shall have been begun before the expiration of the said five days the restraining order may, in the court’s discretion, be continued until a decision is reached upon the issuance of the temporary injunction. “No temporary restraining order or temporary injunction shall be issued except on condition that complainant shall first file an undertaking with adequate security sufficient to recompense those enjoined for any loss, expense, or damage caused by the improvident or erroneous issuance of such order or injunction, including all reasonable costs, together with a reasonable attorney’s fee, and expense against the order or against the granting of any injunctive relief sought in the same proceeding and subsequently denied by the court.
      “The undertaking herein mentioned shall be understood to signify an agreement entered into by the complainant and the surety upon which a decree may be rendered in the same suit or proceeding against the said complainant and surety, the said complainant and surety submitting themselves to the jurisdiction of the court for that purpose. But nothing herein contained shall deprive any party having a claim or cause of action under or upon such undertaking from electing to pursue his ordinary remedy by suit at law.”

      . 74 So.2d 188. The holding of Douglas was criticized by commentators. See e. g., C. Rey-nard, “Work of the Louisiana Supreme Court, 1953-54 Term — Labor Law,” 15 La.L.Rev. 324 (1955); Note, 29 Tul.L.Rev. 791 (1955).

      . 74 So.2d 187.

      . See Reynard, supra, 15 La.L.Rev. at 326.

      . See LSA-C.C.P. art. 3601 et seq. The legislature has regulated the issuance of injunctions by prescribing the grounds for issuance, art. 3601; the requirements of notice and delay, art. 3602; the quantum of proof required, art. 3609; and the procedure for appeal, art. 3612.

      . See Justice Hawthorne’s dissent in Douglas, 74 So.2d at 189.
      LSA-R.S. 47:1575 prohibits the issuance of an injunction restraining the collection of taxes. LSA-R.S. 47:1993 forbids an injunction prohibiting the depositing of assessment roles in the office where the records of the parish are kept. LSA-R.S. 13:4432 allows for a suspen-sive appeal, without bond, in certain cases where an injunction has been issued. LSA-R.S. 17:2188 prohibits an injunction enjoining the payment of principle or interest on obligations of indebtedness issued by the Board of Supervisors of Louisiana State University. LSA-R.S. 26:106 forbids an injunction restraining the Alcoholic Beverage Control Board before it has made a decision on a permit application, suspension, or revocation. LSA-R.S. 26:304 forbids the courts to enjoin the action of the Collector of Revenue and the Board of Tax Appeals in certain instances. LSA-R.S. 39:834 prohibits an injunction enjoining the payment on obligations of indebtedness issued by political subdivisions of the state. LSA-R.S. 30:13 forbids the courts to enjoin enforcement of a statute relating to conservation of oil and gas, except under certain conditions. LSA-R.S. 30:218 prohibits the enjoining of exploration for minerals on state lands. LSA-R.S. 23:1635 forbids the issuance of an injunction enjoining the payment of unemployment compensation benefits awarded by the Board of Review.

      . LSA-R.S. 23:844.
      LSA-R.S. 23:821 provides, in pertinent part, as follows:
      “(3) The term ‘labor dispute’ includes any controversy concerning terms or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, or concerning employment relations, or any other controversy arising out of the respective interests of employer and employee, regardless of whether or not the disputants stand in the proximate relation of employer and employee.”

      . LSA-R.S. 23:844 provides, in pertinent part, as follows:
      “No court shall issue a temporary or permanent injunction in any case involving or growing out of a labor dispute, as herein defined, except after hearing the testimony of witnesses in open court, with opportunity for cross-examination, in support of the allegations of a complaint made under oath, and testimony in opposition thereto, if offered, and except after findings of fact by the court to the effect:
      “(1) That unlawful acts have been threatened or committed and will be executed or continued unless retrained;
      “(2) That substantial and irreparable injury to complainant’s property will follow unless the relief requested is granted;
      “(3) That as to each item of relief granted greater injury will be inflicted upon complainant by the denial thereof than will be inflicted upon the defendants by the granting thereof;
      “(4) That no item of relief granted is relief that a court has no authority to restrain or enjoin under R.S. 23:841;
      “(5) That complainant has no adequate remedy by ordinary legal procedure; and
      “(6) That the public officers charged with the duty to protect complainant’s property have failed or are unable to furnish adequate protection.”

      . The Union also asserts that Coca-Cola failed to prove the first five requirements of the statute. However, because the failure to allege and prove the sixth element alone necessitates a reversal, this contention will not be considered.

       “Thus, International Union, United Automobile, Aircraft and Agricultural Implement Workers v. Russell, 356 U.S. 634, 78 S.Ct. 932, 2 L.Ed.2d 1030 (1958), upheld state-court jurisdiction of a common-law tort action against a union to recover compensatory and punitive damages for malicious interference with the plaintiffs lawful occupation by mass picketing and threats of violence that prevented the plaintiff from entering the plant and engaging in his employment; Youngdahl v. Rainfair, Inc., 355 U.S. 131, 78 S.Ct. 206, 2 L.Ed.2d 151 (1957), sustained state-court power to enjoin striking employees from threatening or provoking violence or obstructing or attempting to obstruct the free use of the streets adjacent to the struck plant, or free ingress and egress to and from the property; International Union, United Automobile, Aircraft and Agricultural Implement Workers v. Wisconsin Emp. Rel. Board, 351 U.S. 266 [76 S.Ct. 794, 100 L.Ed. 1162] (1956) sustained state authority to vest jurisdiction in a state labor relations board to enjoin violent union conduct; United Constr. Workers v. Laburnum Constr. Corp., 347 U.S. 656, 74 S.Ct. 833, 98 L.Ed. 1025 (1954), held a state court not precluded from hearing and determining a common-law tort action based on conduct which, although an unfair labor practice under federal law, constituted threats of violence and intimidation that forced an employer to abandon all its projects in the area. In short, a State still may exercise ‘historic powers over such traditionally local matters as public safety and order and the use of streets and highways,’ Allen-Bradley Local v. Wisconsin Emp. Rel. Board, 315 U.S. 740, 749, 62 S.Ct. 820, 825, 86 L.Ed. 1154 (1942), for '[p]olicing of such conduct is left wholly to the states.’ International Union, U. Automobile Workers v. Wisconsin Emp. Rel. Board, 336 U.S. 245, 253, 69 S.Ct. 516, 521, 93 L.Ed. 651 (1949).” (96 S.Ct. at 2551-52)
      * * * * * *

      . Although the wording of the particular constitutional article (former art. 7, § 2) has changed slightly since the issue was addressed by our Court, there has been no essential change in the meaning of the article. Good Hope Refineries, Inc. v. Oil Chemical & Atomic Workers International, Local 4—447, 386 So.2d 378 (4th Cir. 1980).

       “Under the constitution of 1921 the district courts are vested with original jurisdiction in all civil matters, Section 35 of Article VII, and may ‘issue writs of mandamus, certiorari, prohibition, quo warranto, and all other needful writs, orders and process’ in aid of their jurisdiction. Section 2 of Article VII."
      * * * * * *


author:
LEMMON, Justice.

      CALOGERO, Justice,

text:
    STATE of Louisiana v. George TOMPKINS.
    No. 80-KA-2372.
    Supreme Court of Louisiana.
    June 22, 1981.
    Rehearing Denied Sept. 28, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Eddie Knoll, Dist. Atty., Jeanette T. Knoll, Asst. Dist. Atty., for plaintiff-appellee.
    Donald R. Wilson, Gaharan & Wilson, Jena, for defendant-appellant.

      . The jury was instructed that the state had to prove that defendant acted with specific intent to kill or inflict great bodily harm and that the killing was committed in sudden passion or heat of blood. The jury, by virtue of the guilty verdict, apparently found these factors proved beyond a reasonable doubt. See State v. Byrd, 385 So.2d 248 (La.1980). That finding is reasonably supported by the evidence. Although defendant denied that anger played any part in a conscious decision to shoot Keller, the prosecution directed the jury’s attention to the victim’s boisterous, pugnacious misbehavior at the lounge (both the day of the shooting and two days earlier), and the jury could reasonably have found that such conduct provoked defendant into an impatient rage toward his unruly customer.

   LEMMON, Justice.

This case involves an unfortunate incident outside of a barroom which left one man dead and resulted in a manslaughter conviction and a 15-year prison sentence for another. The primary issues raised on appeal are insufficiency of evidence, error in refusing a special jury instruction, and ex-cessiveness of sentence.

Facts

The victim (Keller) and another barroom patron (Turner) became embroiled in an altercation at a lounge operated by defendant. The two initial antagonists went outside to fight, but Turner soon fled back inside to get a pool cue, claiming that Keller was armed with a knife. Defendant, apparently bent on disarming Keller, secured a pistol and went outside to confront him.

Conflicting versions of ensuing events were presented at trial. Defendant testified that he encountered Keller outside the door, where Keller was waiting for Turner, and asked Keller to drop the knife (which all agreed was not being pointed at defendant). Defendant claimed that he was then struck from behind by a door, causing the pistol in his hand to discharge and kill Keller. Defendant thus explained the shooting as accidental and unintentional.

On the other hand, two eyewitnesses testified that defendant cocked his pistol, pointed it at Keller, advised him thrice to drop the knife, and then shot Keller dead when he failed to heed the command. After the shooting defendant turned himself in to the police and surrendered the pistol and knife.

Defendant was charged with manslaughter. The jury returned a non-unanimous verdict of guilty, obviously disbelieving defendant’s assertion of an accidental shooting.

Sufficiency of Evidence

Defendant’s principal argument on appeal is that the state produced insufficient evidence of the essential elements of manslaughter. He contends the state did not prove (1) that defendant had the specific intent to kill or inflict great bodily harm, (2) that defendant shot Keller without justification, or (3) that defendant committed the homicide in sudden passion or heat of blood.

The evidence, viewed in the light most favorable to the prosecution, was clearly sufficient to convince a reasonable juror beyond a reasonable doubt that defendant specifically intended to kill or to inflict great bodily harm. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Defendant’s version that he accidentally shot the victim simply was not accepted by the jury, which apparently chose to believe the two witnesses who testified that defendant pointed the pistol at Keller and fired when Keller did not drop the knife. The choice not to believe defendant was one based on the resolution of conflicting testimony, and that choice cannot be upset by this court on the basis that the conflicting version constituted insufficient evidence. La.Const. Art. V, § 5(C) (1974).

As an alternative to the defense of accidental shooting, defendant asserted the defense of justification. See R.S. 14:20 and 22. These defenses are somewhat inconsistent, in that an accidental shooting will not usually occur when one undertakes to protect or defend another person. Nevertheless, defendant’s own testimony defeats the defense of justification in this case.

Defendant’s testimony established that Keller was outside the bar and that Turner was still inside when defendant fired the fatal shot. Furthermore, although Keller had a reputation as a dangerous person and had shortly before the shooting pulled a knife during the fight with Turner, no witness (including defendant) stated that Keller, at the time the shot was fired, was threatening to attack Turner or defendant or was taking any action which would place Turner or defendant in any apprehension of immediate attack. The uniform evidence simply showed the Keller, while Turner was inside the bar, held his knife by his side after defendant, with cocked pistol, ordered him to drop it and that defendant then shot him without further warning.

We conclude the evidence is sufficient to establish lack of justification. See State v. Patterson, 295 So.2d 792 (La.1974).

As to defendant’s contention that the evidence does not establish he acted in a “heat of blood” and “sudden passion”, defendant perhaps is arguing that those factors are essential elements of the crime of manslaughter. Nevertheless, this court on several occasions has stated that “heat of blood” and “sudden passion” are not elements of the offense of manslaughter, but rather are factors in the nature of mitigating circumstances which may reduce the grade of homicide. State v. Temple, 394 So.2d 259 (La.1981); State v. Peterson, 290 So.2d 307 (La.1974); State v. McAllister, 366 So.2d 1340 (La.1978).

Manslaughter, under subsection (1) of R.S. 14:31, is a specific intent killing. The culpable state of mind required for manslaughter under subsection (1) as an element of the offense is the specific intent to kill or inflict great bodily harm. Since the evidence supports a finding of that culpable state of mind, defendant may not avail himself of any alleged lack of proof that he acted in a “sudden passion” or “heat of blood”.

We conclude that the evidence adequately supports the jury verdict of guilty of manslaughter.

Denial of Requested Special Instruction

Defendant also argues that the trial court erred in refusing to give a requested special instruction regarding the elements of negligent homicide. See State v. Marse, 365 So.2d 1319 (La.1979).

We note first that the proposed instruction was not “wholly correct” and needed further explanation. See C.Cr.P art. 807; State v. Lovett, 359 So.2d 163 (La.1978). Defendant’s instruction strongly implied that defendant could be later tried for negligent homicide or some other lesser offense following the jury’s acquittal of defendant on the manslaughter indictment. Defendant does not cite any authority for this implication, and his requested instruction invites jury speculation as to the effect of an acquittal on a subsequent prosecution. Such matters are of no concern to the jury. It is their duty to return a verdict of not guilty (without regard to double jeopardy consequences) if the state’s ease fails to prove every element of the offense charged or of a lesser responsive offense.

Furthermore, as in State v. Marse, above, and State v. Matthews, 380 So.2d 43 (La.1980), the trial judge in this case adequately instructed the jury regarding the elements which they must find in order to convict defendant. The judge enumerated the elements of the offense and clearly told the jury that the failure of the state to prove each and every element must result in a verdict of not guilty. Thus, the instruction given was complete and accurate, and while the trial judge might have added that a finding of accidental shooting required a verdict of acquittal, the instruction emphasizing the necessity of finding an intentional shooting implicitly required a finding that the shooting was not accidental. Since the only verdicts given the jury for consideration were guilty and not guilty, it was not necessary to give defendant’s requested instruction in order to convey to the jury that a finding of an accidental shooting must result in a verdict of not guilty.

Defendant also argues on appeal that the trial court erred in refusing to give a requested jury instruction on justifiable homicide. However, at trial defendant failed to object to the refusal to give this requested instruction, and he cannot avail himself on appeal of any error in this respect. See C.Cr.P. art. 841; State v. Marmillion, 339 So.2d 788 (La.1976).

Defective Indictment

Defendant moved to quash the indictment on the ground that it was returned by a grand jury in which only two of the 12 jurors were black. Citing 1970 census statistics which reveal that 29% of the parish was black, defendant urges that this mathematical disparity (29% to 16% renders the grand jury panel constitutionally defective. Defendant also contends the notation of race on the cards from which the grand jury was selected.

One who challenges jury composition on the ground of racial discrimination must show that there has been a systematic exclusion of a class of persons in the selection process or that the state has failed to comply with the statutory procedures for selection. State v. Western, 355 So.2d 1314 (La.1978); State v. Taylor, 347 So.2d 172 (La.1977); Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972). Thus, defendant has the burden of establishing a prima facie case of discrimination. State v. George, 371 So.2d 762 (La.1979). The court in George, above, further stated, at 764:

“While a defendant has a constitutional right to be indicted by a grand jury and tried by a petit jury chosen from a fair cross-section of the community, he is not entitled to juries reflecting with mathematical precision the composition of the community.”

One of the members of the jury commission testified and explained the procedure by which the jury lists are compiled. Initially, the names are chosen at random from a wheel by the members of the commission. One of the five jury commissioners is black. Some 2500 card names are randomly chosen for the general jury venire lists. From this general venire list, names are pulled for the individual civil and criminal jury lists. Though the cards which are initially pulled from the wheel contain designation of race, no such notation is made on the general jury venire or at any other stage of the proceedings.

As noted by the United States Supreme Court in Alexander v. Louisiana, above, the racial designation on the name cards provides an easy opportunity for racial discrimination. See also Avery v. Georgia, 345 U.S. 559, 73 S.Ct. 891, 97 L.Ed. 1244 (1953). However, unlike either of the above cases, there is no evidence presented to suggest that discrimination actually occurred. In Alexander the race notation appeared at each crucial stage of the selection process, and statistics showed that at each stage the percentage of negroes chosen was drastically reduced. In Avery no such statistics were presented, but no negroes sat on the final jury. In the instant case two of the grand jurors were black. No evidence was presented establishing the number of blacks chosen for the general jury venire list or the grand jury venire from which this particular grand jury was chosen, and there was no showing that individuals were excluded from these lists because of race. Thus, the trial court did not err in denying the motion to quash.

Excessive Sentence

Taking a human life without justification, even if provoked, is a very serious matter. Although the victim was hardly blameless regarding the events of the evening, the jury found that defendant unlawfully took his life. Nevertheless, the sentence imposed here was “apparently severe”, as we have construed that concept in State v. Jones, 381 So.2d 416 (La.1980), and this court has demanded adherence to C.Cr.P. art. 894.1’s sentencing guidelines when the sentence is apparently severe.

At the sentencing hearing in this case the trial court merely named two aggravating circumstances, without stating the factual basis for his conclusions as required by C.Cr.P. art. 894.1 C, and did not even mention any consideration of possible mitigating circumstances, many of which appear in the record or the presentence investigation report. Since there is not an adequate record for appellate review, the sentence must be vacated and the case remanded for resentencing.

Decree

The conviction is affirmed, but the sentence is vacated for non-compliance with C.Cr.P. art. 894.1, and the case is remanded for resentencing.

DENNIS, J., concurs.

CALOGERO, Justice,

concurring in rehearing denial.

Relator’s application for rehearing is without merit. The conviction was properly affirmed.

The majority opinion, however, is mistaken insofar as it suggests that double jeopardy would bar reprosecution for negligent homicide and insofar as it relies on State v. Stanford, 15 So.2d 817 (La.1943) in that regard.

Double jeopardy does not bar reprosecution for negligent homicide after an acquittal for manslaughter. “[E]ach provision requires proof of a fact which the other does not. . . ” Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

       Judges Pike Hall, Jr., Charles A. Marvin and Jasper E. Jones of the Second Circuit Court of Appeal participated in this decision as associate justices ad hoc, joined by Associate Justices Calogero, Dennis, Blanche and Lemmon.

      . The judge, without objection by the state or the defense, instructed the jury concerning only this section of the statute, mentioning that the other section was not applicable in this case. R.S. 14:31(1) provides:
      “Manslaughter is:
      “(1) A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed”.

      . External circumstances constituting “provocation sufficient to deprive an average person of his self control and cool reflection” may be responsible for generating a specific intent to kill or inflict great bodily harm. That degree of provocation may reduce the homicide to manslaughter if the culpable state of mind arises while the sudden passion is still in effect.

      . Moreover, R.S. 14:5 provides that “[a]n offender who commits an offense which includes all the elements of other lesser offenses, may be .. . convicted of one of the lesser and included offenses”. The redactors’ comment states that “it should never be a defense for an offender to assert that an added criminal element was present, making him guilty of a more serious crime.” Any contention by defendant that evidence of a “cold blooded” killing can be a defense to manslaughter, because he is guilty of the more serious crime of second degree murder (which was then defined as a killing in which the offender acted with a specific intent to kill or inflict great bodily harm), seems contrary to the redactors’ intent. See State v. Malmay, 24 So.2d 869 (La.1946), in which this court rejected defendant’s contention that his negligent homicide conviction must be set aside because the evidence showed that he intentionally struck the victim with a fatal blow.

      . The instruction submitted was as follows:
      “Negligent homicide is defined as homicide resulting from the criminal negligence of the defendant. Criminal negligence under Louisiana law exists when although neither specific nor general intent is present, there is such disregard of the intereset [sic] of others that the offender’s conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably caregul [sic] man under like circumstances. “While negligent homicide is classified under Louisiana law as a grade of criminal homicide, it is not a responsive verdict to this indictment. Therefore, I charge you that if you, the jury, conclude that the defendant’s conduct amounts to no more than criminal negligence, you must acquit the defendant. If you do so acquit, the prosecutor may, in his discretion, take this matter up at another time and place, before another jury.”

      . An acquittal bars prosecution for lesser and included offenses, whether responsive or not. C.Cr.P. art. 596(1).

      . Negligent homicide is a lesser grade of the offense of manslaughter, even though it is not legislatively responsive. C.Cr.P. art. 814 does not list negligent homicide as a verdict responsive to manslaughter, but prior to the enactment of C.Cr.P. art. 814 (and its predecessor R.S. 15:386) negligent homicide was held to be a responsive, lesser grade of the offenses of murder and manslaughter. See R.S. 14:5, official revision comment; State v. Stanford, 15 So.2d 817 (La.1943).

      . See Louisiana Judges Benchbook, Vol. II, Jury Instructions-Criminal, Manslaughter (La. Judicial College 1978).

      . The trial court did not err in refusing to read the proposed instruction for the reasons stated. However, there is an additional problem not presented here. The state prosecuted the case on the theory that defendant committed manslaughter under R.S. 14:31(1), a specific intent killing in the heat of passion. The jury instructions and argument of counsel focused attention on whether the shooting was intentional or accidental. However, some “accidental” (i. e., unintended) killings may be manslaughter under R.S. 14:31(2), if the killing is committed during the perpetration or attempted perpetration of certain felonies or an intentional misdemeanor directly affecting the person. Thus, for example, if a defendant assaults his victim and accidentally kills him, he is guilty of manslaughter (even though he did not intend to produce the criminal consequence of death). See State v. Statum, 390 So.2d 886 (La.1980) (Lemmon, J., concurring).
      In a case in which the “misdemeanor” or “felony” manslaughter provisions of R.S. 14:31(2) are relied on by the state, a requested negligent homicide instruction should be approached with great caution, because such an instruction may not accurately advise the jury of the law applicable to the case. Presumably the sound admonitions of State v. Marse, above, and State v. Matthews, above, would not be applicable in such case.

      . Mitigating circumstances urged by the 41-year old defendant include lack of prior criminal record, prior good work record (he held jobs as a janitor and bartender and also farmed 10 acres), and family responsibility for wife and four minor children, as well as an abandoned niece and a retarded brother whom he supports. Defendant also pointed out that the victim was armed and had displayed provocation and aggressive conduct.


author: CALOGERO, Justice.

text:
    MISSOURI PACIFIC RAILROAD COMPANY v. LOUISIANA PUBLIC SERVICE COMMISSION.
    No. 81-CA-1756.
    Supreme Court of Louisiana.
    July 23, 1981.
    Marshall B. Brinkley, Baton Rouge, for appellant Louisiana Public Service Commission.
    B. Roy Liuzza,' Hudson, Potts & Bernstein, Monroe, for appellee.
   MOTION TO DISMISS

CALOGERO, Justice.

Appellant, LOUISIANA PUBLIC SERVICE COMMISSION, through its undersigned counsel, moves the court to dismiss its appeal; Appellee, MISSOURI PACIFIC RAILROAD COMPANY, appearing through undersigned counsel, has filed no answer to the appeal or other formal action, and concurs in this motion to dismiss.

ORDER

CONSIDERING THE FOREGOING joint motion,

IT IS ORDERED that this appeal is hereby dismissed.


text:
    Raymond E. HANKAMER, et al., Plaintiffs-Appellants, v. TEXACO INC., Defendant-Appellee.
    No. 80-C-1531.
    Supreme Court of Louisiana.
    July 24, 1981.
    Plauche, Smith, Hebert & Nieset, A. Lane Plauche, Reid K. Hebert, Andrew L. Plauche, Jr., Lake Charles, for plaintiffs-appellants.
    William J. Conrad, Patrick J. Butler, New Orleans, and Bailey & Hollier, Lafayette, for defendant-appellee.
   JOINT MOTION FOR DISMISSAL

To The Honorable Chief Justice and Associate Justices of the Supreme Court, State of Louisiana:

COME NOW, through their respective counsel, RAYMOND E. HANKAMER, ET AL., Plaintiffs-Appellants, and TEXACO INC., Defendant-Appellee, and jointly move the Court for an order to summarily dismiss the pending captioned litigation, La.App., 387 So.2d 1251, and for cause of motion show that all of the parties to this litigation have entered into a compromise and settlement of the lawsuit under Docket No. 55377, before the Sixteenth Judicial District Court, Parish of St. Mary, State of Louisiana, and desire that the captioned proceedings before this Honorable Court be dismissed with prejudice at the cost of Defendant-Appellee.

WHEREFORE, movants pray that this motion be granted.


text:
    In re GRAND JURY SUBPOENA Of John DOE.
    No. 81-K-1924.
    Supreme Court of Louisiana.
    July 31, 1981.
   In re: John Doe, applying for writs of Certiorari, Prohibition and Mandamus, Parish of Orleans, Number.

The writ is denied in part and granted in part.

The relator is entitled to no relief for most of the grounds alleged in his complaint. However, he does allege that his life is in danger because of the occurrence he witnessed, and about which he will be asked to testify before the Grand Jury.

The trial judge gave no reasons for denying relator’s motions, which sought to quash the subpoena or, in the alternative, to obtain a protective order which would maintain the secrecy of his identity.

If relator’s fears that his life is in danger are well founded, he is entitled to whatever protection can be afforded him. Therefore, a hearing should be held, at which, if possible, relator’s identity should not be made public, in order to determine the truth of his allegations. If the trial judge finds that there is a real danger to relator’s safety, he should order that reasonable measures is taken to prevent the identity of the relator from becoming known to any except those who must know his identity in order for the Grand Jury to function.


author:
BLANCHE, Justice.
     LEMMON, Justice, REDMANN, Justice, Pro Tem.,

text:
    STATE of Louisiana v. Clarence Everett WILKERSON.
    No. 80-KA-2386.
    Supreme Court of Louisiana.
    Sept. 8, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Lowen B. Lof-tin, Dist. Atty., William R. Coenen, Jr., Asst. Dist. Atty., for plaintiff-appellee.
    James W. Berry, Rayville, for defendant-appellant.
   BLANCHE, Justice.

A Richland Parish jury tried and convicted defendant Clarence Everett Wilkerson and a co-defendant, Bobby Joe Fabian, of the June, 1970 aggravated kidnapping of a Delhi, Louisiana town marshall and a state trooper. The jury returned a verdict of guilty without capital punishment and on October 22, 1970, the court sentenced defendant to life imprisonment at hard labor. At that time, defendant indicated to -the court that he did not desire to appeal his case, but on November 4, 1970, defendant made a motion for an appeal which the court denied. Defendant motioned through retained counsel for an out of time appeal on November 16, 1979 and the court also denied this motion. Defendant reurged the motion in the summer of 1980, the court granted defendant’s request on July 25 and the case is now before this Court on an out of time appeal. Defendant assigns four specifications of error on appeal and for the following reasons, we find no merit to these assignments and affirm defendant’s conviction and sentence.

Evidence produced at trial shows that shortly after midnight on the morning of June 5, Wendell Lewis of the Louisiana State Police and Jasper Curry of the Delhi Police pursued and stopped a vehicle in Richland Parish which they believed to be recently stolen. The occupants of the car, identified as the defendant and his co-defendant, drew handguns and disarmed the law enforcement officers when they approached the car. They forced the policemen into the back seat, drove around for a while, then stopped in a bean field. The officers were ordered out of the vehicle and then shot several times each by both defendant and his co-defendant. (Both officers survived the shootings.)

Defendant and co-defendant then fled. The automobile they were operating was later found abandoned with a flat tire, and they were tracked and discovered hiding in a thicket by law enforcement officials.

Assignment of Error Number 1

Defendant first alleges that the trial court erred in failing to grant his October 7, 1970 pre-trial motion for a change of venue. That motion alleged that the Richland Parish public was prejudiced against him and that he could not receive a fair and impartial trial in that venue, largely due to publicity surrounding the capture and arrest of defendants in connection with the alleged June 5,1970 kidnapping of law enforcement officers. At the October 8 trial of this motion, the defense called as witnesses twenty-three Richland Parish residents who were potential jurors for the fall term, the time defendant was scheduled for trial, and three members of the media. Defendant introduced three exhibits at this hearing: a June 11, 1970 “Delhi Dispatch” newspaper; excerpts from KNOE radio news copy for June 5 and 6, 1970; and films of television broadcasts (the latter is not included in this transcript). A review of this evidence shows that the trial judge’s ruling was not erroneous and there was no abuse of judicial discretion in denying defendant’s motion for a change of venue.

Louisiana Code of Criminal Procedure art. 622 provides that:

“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.”

The burden is on the defendant in a motion for a change of venue to establish that he cannot obtain a fair trial in the parish where the prosecution is pending. C.Cr.P. art. 622; State v. Monk, 315 So.2d 727 (La.1975). Defendant must prove that there exists such prejudice in the collective mind of the community that a fair trial is impossible, and it is not sufficient to show a mere knowledge by the public of facts surrounding the offense. The judgment of the trial court will not be disturbed on review in the absence of an affirmative showing of error and abuse of discretion. State v. Adams, 394 So.2d 1204 (La.1981).

At the hearing of defendant’s motion for a change of venue the testimony of potential jurors for the fall term when defendant was scheduled for trial was overwhelming in establishing the fact that the defendant could receive a fair trial in Rich-land Parish. Defendant’s evidence fell far short of showing that there existed in the collective mind of the community such prejudice that a fair trial was impossible. Although a few of the witnesses testified that they had formed an opinion in the case and it would take evidence to convince them otherwise, no witness testified that, in their opinion, the defendant would be unable to get a fair trial. We also note that the witnesses’ knowledge of the offense and of defendant’s alleged involvement in the offense was not detailed nor common to all witnesses. In fact, three witnesses had never heard of the offense for which defendants were to be tried. We have reviewed the nature of the publicity surrounding the offense and have found it neither inflammatory nor sensational.

The June 11 article in the Delhi Dispatch was entitled “State Trooper-Deputy Marshal Shot”. It was a one-column front-page story in this publication circulated in Rich-land Parish, and was no more prominent in text or title than other local news stories which shared the front page. The article contained a fairly detailed factual account of the kidnapping of the two officers, the shooting and the capture of the men identified as Bobby Joe Fabian and Clarence Everett Wilkerson, the eventual defendants in this case. The article stated that these individuals were wanted in several states on numerous charges. Kenneth O’Neal, publisher of the paper, testified that coverage of the event was no different from any other where someone was shot.

The KNOE radio news copy dated June 5 and June 6 briefly related that the two named individuals were wanted in connection with the shooting of a state trooper and a town marshall. There were also statements in the copy that when the men were apprehended they were armed with hand grenades and a Browning rifle and that they were also wanted for questioning in connection with an Arkansas bank robbery. The copy was apparently read several times on June 5 and 6 over KNOE radio, reaching audiences in Richland Parish.

The television film was shown four times on KNOE television. There is no indication in the record of what the film portrayed.

Defendants later filed two more motions for a change of venue, one just prior to the selection of the jury in the case and another following jury selection and prior to the actual trial of the case. Both motions were denied by the trial judge. The bases for these motions were allegedly prejudicial publicity just prior to defendants’ trial date and during jury selection, and the contention that the amount of jurors excused for cause indicated prejudice against the defendants. Defendants introduced four Monroe newspapers as exhibits in connection with these motions.

Exhibit D-4 is a copy of the Monroe Morning World circulated October 12, 1970, one day before defendant’s trial began. A front page article entitled “Dixie Mafia Link Found in Area Jail” appeared in the newspaper. The article states that Bobby J. Fabian, co-defendant of appellant Wilkerson, claimed to be a trigger man in the pistol slaying of a Memphis businessman. Practically the entire article dealt with Fabian, his possible link with the Dixie Mafia, and his involvement in the Memphis shooting. The article specifically stated that Wilkerson was not believed to be connected with the slaying and no connection with Wilkerson and the Dixie Mafia was implied. There was a very brief account of the capture of defendants following the kidnapping and a statement that defendants were wanted in connection with robberies in Arkansas and Mississippi.

Exhibits D-5 and D-6 were published respectively the day before and the day of trial. These small articles simply stated when the trial began and gave a very brief actual summary of the case. The last two exhibits were papers dated the afternoon of the first day of trial and the next morning. Again, the status of the trial was discussed and there was a brief summary of the capture of defendants and of the charge against them. These articles also referred to the fact that defense attorneys had requested a change of venue and that the judge had denied the request.

Finally, in support of defendants’ motion for a change of venue on the day of the trial, counsel orally alleged that prejudice was apparent since 20-25 of 82 or 83 jurors testified they were prejudiced against defendants. In defendant Wilkerson’s current argument before this Court, he alleges that 35 prospective jurors were excused for cause on voir dire. There is no indication of which potential jurors were excused for cause because of prejudice against defendant and no evidence, other than counsel’s allegations, that 20-25 jurors stated on voir dire that they were prejudiced against defendant. In any event, the cumulation of evidence does not prove the requisite community prejudice or undue influence or any other reason which would entitle defendant to a change of venue.

In State v. Bell, 315 So.2d 307 (La.1975), this Court set out certain factors to be considered in determining whether a change of venue is warranted. An application of these factors to the facts of this case confirms that the trial judge did not abuse his discretion in denying defendant’s motion. According to Bell, some relevant factors in determining whether to change venue are:

(1) The nature of pretrial publicity and the particular degree to which it has circulated in the community.

Again, the nature of the publicity in this case was not inflammatory or prejudicial but mainly involved factual accounts. The degree of circulation may have been somewhat widespread (Richland Parish is a small parish), although some did testify they heard nothing of the event. The publicity surrounding the event was apparently limited to only a few days after the perpetration of the crime.

(2) The connection of government officials with the release of publicity.

There is no proof of any connection of government officers with the release of publicity. Kenneth O’Neal of the Delhi Dispatch indicated his news reports were based on conversations he initiated with members of local law enforcement agencies, and there was no evidence of police press conferences or news releases.

(3) The length of time between the dissemination of the publicity and the trial.

There was a relatively short period of time between the publicity of the crime and the trial (about four months).

(4) The severity and notoriety of the offense.

The severity of the offense is great (kidnapping of law enforcement officers), and it was also publicized that the officers were shot. These factors also contributed to the notoriety of the offense.

(5) The area from which the jury is to be drawn.

The area from which the jury was to be drawn is relatively small. These former three factors, alone, however, do not indicate defendant could not receive a fair and impartial trial in Richland Parish.

(6) Other events occurring in the community which either affect or reflect the attitude of the community or individual jurors toward the defendant.

There was no proof of any events in the community which would affect the attitude of the community toward defendants. For example, in the case of State v. Felde, 382 So.2d 1384 (La.1980), the Court felt that a change of venue should have been granted to a defendant on trial for the first degree murder of a policeman, due to extensive publicity of subsequent police shootings and the trial of the accused in those cases. No such events occurred in this case.

(7) Any factors likely to affect the candor and veracity of the prospective jurors on voir dire.

The defense proved no factors likely to affect the candor and veracity of the prospective jurors on voir dire. For the above reasons, we hold that defendant did not meet his burden of proof on his motions for a change of venue, and there was no showing of error or abuse of discretion in the trial judge’s denial of those motions.

Assignment of Error Number 2

Defendant contends in this assignment of error that the trial judge erred in denying defendant’s motion for the appointment of a sanity commission. Defendant filed this motion prior to trial on September 25, 1970, the same day that he withdrew his prior plea of not guilty and entered a plea of not guilty and not guilty by reason of insanity. Defense counsel alleged in his motion that the defendant was extremely confused and depressed, had no clear recollection of the crime he was charged with, and had suffered four severe blows to the head within the last two years. Defendant’s counsel also alleged that defendant had been sent to the Arkansas State Mental Hospital in Little Rock, Arkansas on one previous occasion for observation. Defendant was alleged to be unable to understand the proceedings against him, or to assist in his defense as a result of his mental condition. Defendant also argues on appeal that it was error for the trial court to deny his motion without first conducting a hearing.

According to C.Cr.P. art. 643 (as it read at the time of defendant’s motion ):

“The Court may order a mental examination of the defendant when it has reasonable ground to doubt the defendant’s mental capacity to proceed.”

The appointment of a sanity commission to inquire into the mental condition of the accused is addressed to the sound discretion of the trial judge, and his ruling will not be disturbed on appeal absent a clear showing of an abuse of discretion. State v. Nix, 327 So.2d 301 (La.1975), reh. den. 1976.

The accused bears the burden of establishing by a clear preponderance of the evidence reasonable grounds for the judge to believe that he is mentally defective or was at the time of the offense. State v. Vincent, 338 So.2d 1376 (La.1976). Mental incapacity to proceed exists when, as a result of mental disease or defect, a defendant presently lacks the capacity to understand the proceedings against him or to assist in his defense. C.Cr.P. art. 641. Where the issue is presented by bare allegations without supporting evidence, the exercise of discretion conferred on the trial judge will not be disturbed. Vincent, supra.

Defendant applied to this Court for a writ to review the trial judge’s ruling prior to trial but this Court denied that writ, State v. Wilkerson, 256 La. 890, 239 So.2d 544 (1970), on the ground that “There is no showing to warrant the exercise of our supervisory jurisdiction.” A review of that writ application and the transcript of the argument of the motion shows that the trial judge denied the motion based upon his observance of defendant and a reading of the motion. The judge stated that he could change his mind, but that he saw no reason at that time to appoint a sanity commission. Although counsel for defendant objected to the judge’s ruling in the course of his argument on the motion, he made no effort to introduce evidence in support of his allegations, and did not request a hearing on his motion. Under these circumstances we hold that defendant did not meet his burden of proof and did not attempt to do so by any means other than unsubstantiated allegations in his motion, and we will not disturb the trial judge’s exercise of discretion in denying that motion.

Assignment of Error Number 3

By this assignment, defendant complains that the trial court erred in overruling defendant’s objection to testimony concerning events which transpired after the police officers were kidnapped, shot and released. The testimony at issue was that of Madison Parish Deputy Sheriff John Cupit, Carl Williamson of the Tallulah Police Department, and Madison Parish Sheriff Roland Mitchell and concerned the flight and eventual capture of the defendant and his partner. Defendant contended at trial and reurges on appeal that this testimony was irrelevant to proof of the charged offenses and served only to inflame and prejudice the jury against him.

Revised Statute 15:441 provides:

“Relevant evidence is that tending to show the commission of the offense and the intent, or tending to negative the commission of the offense and the intent.
“Facts necessary to be known to explain a relevant fact, or which support an inference raised by such fact, are admissible.”

In State v. Davies, 350 So.2d 586, 588 (La.1977), this Court stated:

“Evidence of flight, concealment, and attempt to avoid apprehension is relevant. It indicates consciousness of guilt and therefore, is one of the circumstances from which the jury may infer guilt. This rule applies notwithstanding that the evidence may disclose another crime. State v. Brown, La., 322 So.2d 211 (1975); State v. Graves, La., 301 So.2d 864 (1974); State v. Nelson, 261 La. 153, 259 So.2d 46 (1972). See also State v. Lane, La., 292 So.2d 711 (1974); State v. Johnson, 249 La. 950, 192 So.2d 135 (1966); State v. Goins, 232 La. 238, 94 So.2d 244 (1957); 29 Am.Jur.2d, Evidence, §§ 280 et seq., pp. 329 et seq. A court may admit a wide range of evidence to prove flight, concealment, and attempt to avoid apprehension. State v. Nelson, supra.”

In the case at bar, the evidence of flight was certainly relevant to the issue of guilt and was admissible. The circumstances of the arrest were also relevant to prove the identity of the kidnappers. A description of the perpetrators’ flight and arrest was necessary to link their arrest in the open country with the automobile abandoned on the highway.

This assignment is without merit.

Assignment of Error Number 4

Defendant contends in his last assignment that the trial judge erred in permitting the defendant to be handcuffed in the presence of the jury.

At 5:20 p. m. on October 15, trial was adjourned for the day. Before the jury was able to file out of the courtroom, a member of the sheriff’s office handcuffed the defendant and his co-defendant. More than one-half of the jury passed within three or four feet of the defendant and, defendant argues, saw that he was handcuffed. On this basis, defense counsel moved for a mistrial.

Ordinarily, a defendant before the court should not be shackled or handcuffed or garbed in any manner destructive of the presumption of his innocence and of the dignity and impartiality of judicial proceedings. Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970); State v. Clark, 340 So.2d 208 (La.1976); State ex rel. Miller v. Henderson, 329 So.2d 707 (La.1976). However, exceptional circumstances may require, within the discretion of the trial court, the restraint of the prisoner for reasons of courtroom security or order or where the prisoner’s past conduct reasonably justifies apprehension that he may attempt to escape. State ex rel. Miller v. Henderson, supra; State v. Daniel, 297 So.2d 417 (La.1974).

If the handcuffing is objected to at the time of trial, for a finding of reversible error the record must show an abuse of the trial court’s reasonable discretion resulting in clear prejudice to the accused. State ex rel. Miller v. Henderson, supra.

In the instant case, the defendant’s apparent disregard for the authority and lives of police officers would suggest that some security measures were in order. Further, the defendant and his co-defendant were not handcuffed during trial. They were handcuffed solely for purposes of transport to and from the courtroom. Under the circumstances, the possibility that on one occasion several jurors may have seen the defendant in handcuffs does not appear to have so prejudiced the defendant as to warrant relief on appeal.

This assignment is without merit.

Accordingly, defendant’s conviction and sentence are affirmed.

AFFIRMED.

LEMMON, J., concurs and assigns reasons.

REDMANN, J., pro tem., dissents with reasons.

LEMMON, Justice,

concurring.

The trial court erred in not conducting a hearing on defendant’s pretrial motion for appointment of a sanity commission. However, during the course of the trial defendant’s conduct demonstrated that he was fully aware of the nature of the proceedings and that he was able to assist in his own defense. The error is therefore harmless.

REDMANN, Justice, Pro Tem.,

dissenting.

This Court is unconstitutionally constituted and an accused is denied due process of law by his or her case’s being referred to it instead of to the Louisiana Supreme Court as constituted by La.Const. Art. 5 §§ 1, 3 and 4, to which this Court should order this case referred.

See the writer’s dissent, State v. Petterway, La.1981, 403 So.2d 1157, 1161.

       Judges William V. Redmann and Thomas J. Kliebert of the Court of Appeal, Fourth Circuit and Judge Cecil C. Cutrer of the Court of Appeal, Third Circuit, participated in this decision as Associate Justices Pro Tempore, joined by Associated Justices Calogero, Dennis, Blanche and Lemmon.

      . This article was subsequently amended by Acts 1975, No. 325, § 1 to require the trial court to order a mental examination of the defendant when it has reasonable ground to doubt the defendant’s mental capacity to proceed.

      . The standard for judging harmless error arguably should be relaxed when an out-of-time appeal is considered ten years after the conviction.