author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Warren HARRIS, Jr.
    No. 64775.
    Supreme Court of Louisiana.
    March 3, 1980.

      Clyde D. Merritt, John M. Lawrence, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry P. Con-nick, Dist. Atty., Louise S. Korns, Dennis J. Waldron, Asst. Dist. Attys., for plaintiff-ap-pellee.
   CALOGERO, Justice.

Defendant Warren Harris, Jr. was charged by grand jury indictment with four counts of first degree murder in violation of R.S. 14:30. He was tried jointly on all four counts. After jury trial defendant was found not guilty on the first count and guilty as charged on counts two, three and four. The jury after a sentencing hearing recommended that defendant be sentenced to life imprisonment without benefit of probation, parole, or suspension of sentence. The trial court sentenced defendant in accordance with the jury’s recommendation to three life sentences, the sentences to run consecutively. For reversal of his convictions and sentences, defendant relies upon eighty-six assignments of error grouped into forty-six arguments. Because only four of these arguments raise serious issues, we will here discuss only arguments three, four, nine and twenty-six. The remaining assignments and arguments which involve well-settled principles of law and facts which are of interest only to the parties will be discussed in an appendix, not published with this opinion.

At trial the state adduced the following facts: During an eight week period between February 13 and April 6, 1977 four murders occurred in the French Quarter in New Orleans. Investigation revealed that the victims were robbed and stabbed to death after engaging or attempting to engage in homosexual activities.

When the police learned through a confidential informant on April 12, 1977 of defendant’s possible involvement in an unrelated armed robbery and shooting, defendant was taken to the First District Police Station the next day where he made an inculpatory statement implicating himself in the unrelated armed robbery. Defendant was then transferred to the Juvenile Bureau. When it was learned that defendant had been an acquaintance of one of the murder victims, he was questioned as to whether he frequented the French Quarter and associated with homosexuals. Shortly thereafter defendant made oral statements in which he admitted the four murders. Subsequently three written statements were taken in which defendant admitted to killing each of three of the four victims. A written statement as to the fourth killing was not taken because defendant’s mother requested that the questioning be discontinued on account of defendant’s fatigue.

ARGUMENT III

(Assignments of Error Nos. 3, 14, 15, 16, 17, 18, 19, 22, and 52)

In these related assignments defendant argues that the trial court erred in denying defendant’s motion to suppress the confessions. He contends that the confessions were the result of an illegal arrest and that they were not freely and voluntarily made. Additionally defendant contends that the trial court erred in overruling certain of his objections made during the hearing on the motion to suppress. (Only assignments 15 and 18 which relate to the trial court’s rulings on objections are argued in brief.)

Voluntariness Issue

In support of his argument that the confessions were not voluntary, defendant contends that the state failed to rebut defendant’s allegations that his inculpatory statements were made under duress and that the state therefore did not carry its burden of proving the confessions to be free and voluntary. Furthermore defendant argues that the confessions should have been suppressed because the state failed to adhere to standards announced in State in the Interest of Dino, 359 So.2d 586 (La.1978) concerning confessions of juveniles.

At the hearing on the motion to suppress defendant testified that although he was not struck, kicked or otherwise physically abused, his statements were not voluntary. Harris testified that during the course of the questioning, the officers threatened to “take me off and kill me, throw me in the river. . . Telling me that if I didn’t confess to the murders, . . . they was going to kill me, you know, beat me.” When asked whether he signed the waiver of rights forms bearing his signature, Harris stated that he “was forced to sign them.”

In brief defendant contends that the state failed to rebut defendant’s allegations that he was threatened and coerced into making the inculpatory statements and signing the waiver of rights forms. He contends that the state may not rely upon general testimony that the defendant was not threatened but must specifically rebut the allegations in defendant’s testimony.

The record indicates that the state did in fact introduce rebuttal testimony that specifically refuted defendant’s claims of threats and coercion. After the defense rested the state presented the testimony of Officer Pascal Saladino, Detectives Thomas Woodall, Frank McNeil, Gerald DeRose, and Officer Michael Dunn. Officer Saladino testified on rebuttal that neither he nor any one else in his presence threatened to kill the defendant and throw his body into the river if he did not cooperate. The officer also stated that no one forced the defendant to sign the waiver of rights forms. The testimony of Detectives Frank McNeil, Gerald DeRose, and Officer Michael Dunn was that no one threatened to kill the defendant and no force was used to make him sign the waiver of rights forms. The testimony of each of these officers specifically refuted defendant’s testimony that he was threatened to make the inculpatory statements and coerced into signing the waiver of rights forms.

Defendant in brief also argues that this Court’s decision in State in the Interest of Dino, supra, should be applied retroactively in this case. In Dino we held that a confession of a person under seventeen years of age is not admissible unless the juvenile actually consulted with an attorney or an adult before waiving his right to remain silent; that the attorney or adult consulted was interested in the welfare of the juvenile; and that if an adult other than an attorney is consulted, the adult also must be fully advised of the rights of the juvenile. However, this Court in State v. Collum, 365 So.2d 1272 (La.1978) determined that because the rule announced in Dino does not go to the integrity of the fact finding process, the additional safeguards announced in Dino would not apply to cases in which the trial began before the effective date of that decision — June 15, 1978. Because the confessions in this case were in April of 1977 and the trial begun in October of 1977, Dino is not applicable and under Collum the admissibility of defendant’s confessions is to be determined by the “totality of circumstances” surrounding them:

“Proper application of the totality of circumstances test requires that the State sustain the burden of affirmatively proving that the waiver of rights was made freely and voluntarily, with understanding of the conseqúences which might flow from such a waiver. La.Rev. Stat. 15:451; State v. Hills, 354 So.2d 186 (La.1977). Age of the defendant is a factor which requires this Court to give closer scrutiny to the confession of a juvenile than would ordinarily be required of an adult confession. State v. Sylvester, 298 So.2d 807 (La.1974).
******
“There is no litany of factors to be considered in applying the test. Each case is to be judged on all of the facts and circumstances in that particular situation. . . . ” 365 So.2d at 1278.

At the time of his confessions defendant was sixteen years old and had completed the seventh grade. Psychiatric evaluations indicated that his I.Q. was estimated to be between 75 and 100 and that he was well-oriented to time, place, person and situation. Two of the reports noted that although defendant was not well-educated, he spoke in a very deliberate manner and had a “surprisingly elegant” spontaneous vocabulary.

Testimony at the hearing on the motion to suppress indicated that defendant’s first contact with police officers was at the Top of the Duke Motel after the officers had learned from a confidential informant that one of the persons involved in the robbery and shooting of a seaman was in Room 18 of that motel. Patrolman Fricke testified that he and his partner identified themselves as policemen, told defendant that he was a suspect in the shooting and robbery, and advised the defendant of his Miranda rights. The officer testified that because defendant was a juvenile and it was department policy to have parents present during interviews with juveniles, he requested that defendant accompany them to the First District Station. Defendant voluntarily accompanied them to the station. He was again advised of his constitutional rights and asked whether his mother or father could be contacted. Officers attempted to contact defendant’s mother at work but were unsuccessful at this time. Defendant then volunteered the information that he was involved in the robbery but had not shot the French seaman. Defendant was then again advised of his Miranda rights and signed a waiver of rights form. Defendant was then formally arrested for armed robbery and attempted murder of the French seaman and was taken to the Juvenile Bureau.

Approximately 2Vá hours after he was initially brought to the police station, defendant was questioned as to whether he frequented the French Quarter and associated with homosexuals. He then volunteered that he was a witness to the stabbing death of one of the four murder victims. Defendant identified the victim’s assailant as “Cliff” and picked out a photograph of one Clifton Meeks as the perpetrator of the crime. It was after the officers had failed to locate Meeks and had inquired whether defendant could give any more information about Meeks’ whereabouts that the defendant volunteered that he and not Meeks had done the stabbing. Defendant was then again read his rights. The officers continued to question defendant and he then orally confessed to killing each of the four victims. At this time defendant’s mother who had finally been contacted arrived at the station. Defendant was again advised'of his rights and in the presence of his mother (and his grandfather a part of the time) defendant gave the three written statements (one not fully completed) used at trial.

We can not conclude from this record that the state failed to meet its burden of showing that defendant freely and voluntarily waived his rights with an understanding of the consequences which might flow from such a waiver. According to the testimony presented at. the suppression hearing, defendant was advised of his Miranda rights on six different occasions and signed three rights of arrestee forms (two of which were signed in the presence of his mother or grandfather) in which he waived those rights. The officers who questioned defendant testified that he seemed to comprehend each of his rights each time he was advised of them. The psychiatric reports included in the record indicate that defendant is of average or slightly below average intelligence, but that his vocabulary and speech are rather sophisticated for someone of his educational background. And although defendant claims that he was threatened and coerced into giving the statements and signing the waiver of rights forms, the state presented sufficient evidence for the trial court to conclude that the statements were freely and voluntarily made.

Arrest Issue

Defendant next argues that the confessions were inadmissible as the fruit of an illegal arrest made without probable cause. Defendant contends that defendant was unlawfully arrested at the Top of the Duke Motel when the officers questioned him about the armed robbery and shooting of the French seaman.

The testimony as to whether the defendant was “arrested” at the Top of the Duke Motel is conflicting. Officer Fricke testified that when he and Officer Brinke discovered that defendant was a juvenile he requested that he accompany them to the police station so that he could be interviewed in the presence of one or both of his parents in accordance with standard police procedure. Fricke testified that the officers did not draw their guns nor did they handcuff defendant. He was allowed to take his radio with him and played it while he voluntarily accompanied the officers.

Defendant’s testimony however was different. He testified in effect that he was arrested at gun point, then taken by the arm and led to the police car. Defendant stated that he did not know whether he was free not to accompany the officers. He contended that had he known that he was not required to go with them, he would not have.

The trial court after hearing this testimony apparently found the officers’ testimony more credible than defendant’s. Although there is conflicting testimony as to whether the defendant was “arrested,” the trial court’s apparent conclusion that defendant was not arrested and voluntarily accompanied them is supported by the record. Defendant’s argument that the confessions were the fruit of an illegal arrest is therefore without merit.

Other Issues in Argument III

Defendant next makes reference to assignment fifteen which is based on a defense objection at trial during the cross-examination on the predicate relative to the issue of voluntariness of defendant’s statement. The defense objected and later moved for a mistrial due to the following question by the state:

“Q. That was when you were arrested?
“A. No. I was arrested when I was taken from the Top of the Duke Motel.
“Q. What were you arrested for there?
“MR. MERRITT:
Objection, Your Honor.
“THE WITNESS:
I have no idea.
“THE COURT:
Wait.
“MR. CAPITELLI:
They opened the door, Your Honor. I objected to that. There was only two questions—
“THE COURT:
No, no, don’t say any more. I’m sustaining the objection.
“MR. LAWRENCE:
Your Honor, we would like to reserve our right for further objection.”

The defendant claims this question constituted reversible error since it had made reference to other crimes. The record reveals that the state’s question was not answered in a manner- that was prejudicial to the defendant. The trial court sustained the objection, and thereby excluded any prejudicial statements from reaching the jury. The question, in itself, did not indicate to the jury that the defendant had committed another crime within the meaning of La.C.Cr.P. art. 770. In the absence of a showing of prejudice the trial court acted within its discretion in denying the request for the drastic remedy of a mistrial.

Defendant next assigns error (No. 18) to the trial court’s ruling which denied the defense request to call defendant’s mother to testify on the predicate relative to the admissibility of the confessions. It must be noted that the defense was allowed to call the defendant’s mother to the stand during the presentation of the defense casein-chief. The court’s refusal to allow defendant’s mother to testify during the predicate on the confession is apparently in conformity with the normal order of trial. La.C.Cr.P. art. 765. The defendant has not established any substantial prejudice from his inability to call the defendant’s mother during the predicate on the confession.

Defendant’s arguments under these assignments of error are without merit.

ARGUMENT IV

(Assignments Nos. 4 and 5)

By these assignments defendant contends that the trial court erred in denying his motion to sever the trial of the four offenses. He further assigns error to the numerous rulings of the trial court on this motion for a mistrial and severance made during trial.

Prior to trial defendant filed his motion to sever the four counts. It was denied by the trial court, and defendant applied to this Court for review. We granted writs (349 So.2d 875 (La.1977)) and ordered severance and trial on one count or alternatively that the state appear to show cause to the contrary on September 22, 1977. The state appeared on that date and after the matter was argued and submitted, the writ grant of September 19, 1977 was recalled in a per curiam opinion, with two dissents:

“Writ recalled. We can not conclude at this stage that the trial judge erred in determining that severance is not required to assure a fair determination of defendant’s guilt or innocence of each offense.” 350 So.2d 1164 (La.1977).

To determine whether these offenses were properly joined and whether the denial of the motion to sever was error, we must restate some of the factual details of the crimes. Each of the four murder victims lived alone in the French Quarter of New Orleans, within a seven or eight block area. Defendant met each of the victims on the bus or the street and was invited back to their apartments. Homosexual activity was either performed or attempted prior to each of the murders. All of the victims were stabbed to death, and items of the victims’ property were taken during the crimes.

Offenses may be joined under Article 493 of the Code of Criminal Procedure as follows:

“Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan; provided that the offenses joined must be triable by the same mode of trial.”

Because all four counts of murder are plainly “of the same or similar character,” join-der of these offenses did not violate Article 493.

At the time of trial Article 495.1 of the Code of Criminal Procedure provided for the severance of offenses as follows:

“The court, on application of the prosecuting attorney, or on application of the defendant shall grant a severance of offenses whenever:
(a) if before trial, it is deemed appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense; or
(b) if during the trial upon consent of the defendant, it is deemed necessary to achieve a fair determination of the defendant’s guilt or innocence of each offense. The Court shall consider whether, in view of the number of offenses charged and the complexity of the evidence to be offered, the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense.”

Thus to determine whether severance should be granted, the trial court must decide whether, in view of the number of offenses charged and the complexity of the evidence, the finder of fact can distinguish the evidence and apply the law intelligently to each offense. State v. Coleman, 369 So.2d 1286 (La.1979); State v. Proctor, 354 So.2d 488. (La.1977). When the offenses are joined on the basis of the “same or similar character,” the court must also resolve whether each offense would be admissible as similar acts within the contemplation of R.S. 15:445 and 446. Under our holding in State v. Carter, 352 So.2d 607 (La.1977) a determination that multiple counts of the same or similar character may be simultaneously tried requires that the counts be mutually admissible as legitimate “other crimes” evidence under State v. Prieur, 277 So.2d 126 (La.1976).

Because introduction of evidence of other acts of misconduct involves substantial risk of prejudice to a defendant, evidence of crimes related to the offense with which a defendant is charged is inadmissible except under special exceptions. State v. Prieur, supra, The general rule is that the prosecution may not introduce evidence of other crimes unless the evidence is substantially relevant for some purpose other than to show a possibility that defendant committed the crime with which he is charged because he is a man of general criminal character. State v. Sutfield, 354 So.2d 1334 (La.1978). Aside from related offenses admissible as part of the res gestae and convictions admissible for impeachment purposes, Louisiana statutes provide for only three exceptions — acts relevant to show intent, knowledge, or system. R.S. 15:445, 446. Admission of another crime committed by the same “system” as the offense charged might also be relevant to show the identity of the defendant as the offender. See State v. Waddles, 336 So.2d 810 (La.1976).

One of the purposes for which such evidence may be relevant is to show by similar offenses that the act for which the defendant is on trial was not inadvertent, accidental, unintentional, or without guilty knowledge. See McCormick on Evidence § 190 at 450 (Cleary ed. 1972). However for such evidence to be admissible to prove intent, there must be a real and genuine contested issue of intent at trial, State v. Monroe, 364 So.2d 570 (La.1978); State v. Nelson, 357 So.2d 1100 (La.1978), and the probative value of the evidence must outweigh its prejudicial effect. State v. Prieur, supra. For an analysis of the underlying reasons for the exception for proof of intent when genuinely at issue and the prerequisites for its application, see 2 Wigmore on Evidence, § 302 (3 ed. 1940).

The question of whether defendant possessed the requisite criminal intent to murder these victims was a serious issue at trial. Defendant did not take the stand. The defense argued that Harris attempted to defend himself only after he was sexually assaulted by each of his victims. The issue of self-defense was raised; the state had the burden of proving that the killings were not in self-defense. There was, therefore, a real and genuine issue as to defendant’s specific intent to kill. The evidence of the four acts which were strikingly similar had great probative value to show that defendant most probably did not act in self-defense in stabbing each of the four victims within an eight week period. While a single instance of a killing in self-defense may rationally and hypothetically be occasioned by an act in self-defense, four similar killings by the same person in an eight week span under peculiarly similar circumstances are not nearly as likely to be in self-defense.

Because these “other crimes” would be admissible under R.S. 15:445 and 446 and Prieur to show that the defendant possessed the requisite criminal intent and would have been admissible in each of the four separate trials if the offenses were severed, we do not find that the trial court’s denial of the motion to sever was error. The trial court’s determination that the probative value outweighed the prejudicial effect of admission of the other crimes was not, in our view, incorrect. The state’s separate presentation of the evidence for the offenses and the jury’s finding the defendant guilty of only three of the four murders satisfy us that the number of offenses and the complexity of the facts did not confuse the jury. We therefore conclude that the trial court did not err in refusing to sever the counts. His determination that trial on all four counts was appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense, considering the principles enunciated in Carter and Prieur, did not constitute error.

This assignment is without merit.

ARGUMENT NO. IX

(Assignments of Error Nos. 10, 11 and 12)

Defendant assigns error on two separate rulings by the trial court which denied defense requests for a mistrial. Assignment ten arose when Officer Fricke testified on direct examination by the state as follows:

“Q. Was the defendant placed under arrest for anything at that time?
“A. No, sir.
“Q. What happened then, sir?
“A. We went to the motel. We knocked on the door. We observed two subjects in the room, Warren Harris and the other individual I just identified as Jimmy Lee Rogers.
We identified ourselves as police officers. We asked the subject, Warren Harris, his name and he identified himself. It was at this time that we told them that he was a suspect in, again, another unrelated incident.”

The defense moved for a mistrial, but the court chose to admonish the jury to disregard the remark by the witness. The defense again requested a mistrial when a police officer testified during cross-examination by defense counsel as follows:

CROSS EXAMINATION BY MR. LAWRENCE:
“Q. Officer Saladino, you stated that you did not give the subject any warning of his rights?
“A. No, sir, because of information that Derose had given me, pertaining to this man had been involved in another incident.
“THE COURT:
No. Hold it right there. Stop right there.”

Again the court denied the mistrial and admonished the jury to disregard the remark.

In brief, defendant bases his claim for mistrial on La.C.Cr.P. art. 771(2). The statute provides:

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

The article leaves the decision as to whether to grant a mistrial or admonition to the sound discretion of the trial court. State v. Hegwood, 345 So.2d 1179 (La.1977); State v. Sepulvado, 342 So.2d 630 (La.1977). However, defendant apparently intends to base his request for a mistrial on La.C.Cr.P. art. 770(2) which provides in pertinent part:

“Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
(2) Another crime committed or alleged to. have been committed by the defendant as to which evidence is not admissible . . ”

This Court has generally recognized that a police officer’s unsolicited, unresponsive reference to another crime by the defendant is not the comment of a court official under Article 770. Absent a showing of a pattern of unresponsive answers or improper intent by the police officer or prosecutor such comments would not fall within the purview of Article 770. State v. Schwartz, 354 So.2d 1332 (La.1978); State v. Hammontree, 363 So.2d 1364 (La.1978); State v. Martin, 376 So.2d 300 (La.1979). A mistrial is a drastic remedy and is warranted only when trial error results in substantial prejudice to the defendant sufficient to deprive him of a fair trial. State v. Williams, 375 So.2d 364 (La.1979); State v. Heads, 370 So.2d 564 (La.1979).

In the present case the references indicated that the defendant was a suspect in an “unrelated incident.” The police officers apparently used restraint in this testimony as to why the defendant was initially taken into custody. Cf., State v. Foss, 310 So.2d 573 (La.1975). The officers did not specifically mention the other crime involved and the testimony was promptly halted by defense counsel and the court. The trial court did not abuse its discretion in its decision to admonish the jury rather than declare a mistrial. This assignment lacks merit.

ARGUMENT NO. XXVI

(Assignments of Error Nos. 38 and 43)

In assignment thirty-eight defendant argues that the following special charge should have been given:

“Specific intent, which is an essential ingredient or element of the offense with which the defendant at bar is charged, is a particular state of mind, a determination, not merely to perform some criminal act, but to attain some fixed end which end would constitute the corpus delicti of the very offense charged; and specific intent is of larger and more comprehensive scope than general intent.
“ ‘Specific intent’ comprehends more than a mere decision to do unlawful act or acts, it is a thought-out design to effect a definite result, a fixed direction of the mind to a particular goal; a contemplation of the particular consequence which would constitute the identical crime charged, combinéd with an expectation and intention to accomplish that precise effect.”

The trial court’s charge as to specific intent is detailed and properly informs the jury as to the definition of “specific intent.” Because the general charge to the jury adequately covered the applicable law regarding specific intent, the trial court properly refused to give the requested special charge. See, State v. George, 346 So.2d 694 (La.1977).

In Assignment of Error No. 43 defendant argues that the court erred in giving its charge on homicide over objection by defense counsel regarding “specific intent” where there are no external signs of specific intent. In particular at trial the objection was to the language that “specific intent” or premeditation may also be implied where there are no external signs of it beyond the mere fact of the killing itself” and also to the language in the general charge that “a specific intent to kill may be inferred if any deliberately cruel act was committed against one person by another. The intent may be inferred from the circumstances.” The basis of these objections was that this was not “the law of first degree murder.”

We find the charges unobjectionable. The state’s burden of proving the element of specific intent is not undermined by the charge. There was nothing illogical or lined in other portions of the trial judge’s charge. There was nothing illogical nor mandatory insofar as the instruction to the jury about these permissive implications and/or inferences.

In brief for the first time defendant objects to that portion of the trial judge’s general charge which informs the jury that “the law holds that a sane person is presumed to intend the natural and probable consequences of his acts.” He relies primarily upon Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979).

In the present case unlike Sandstrom defense counsel made no objection to the trial court’s charge that “the law holds that a sane person is presumed to intend the natural and probable consequence of his acts.” Therefore, because no contemporary objection was made this charge cannot be urged as error on this appeal. See La.C.Cr.P. art. 841; State v. Kelly, 362 So.2d 1071 (La.1978); State v. Williams, 366 So.2d 1365 (1978). Furthermore the judge’s charge to the jury in the present case made it very clear that the state had the burden of proving beyond a reasonable doubt specific intent to kill.

Decree

For the foregoing reasons, the convictions and sentences of defendant are affirmed.

AFFIRMED.

DIXON and DENNIS, JJ„ concur.

      . Article 495.1 was amended by Acts 1978, No. 466 § 1 effective after the date of defendant’s trial to provide as follows:
      “If it appears that a defendant or the state is prejudiced by a joinder of offenses in an indictment or bill of information or by such joinder for trial together, the court may order separate trials, grant a severance of offenses or provide whatever other relief justice requires.”

      . R.S. 15:445 and 446 provide as follows:
      “In order to show intent, evidence is admissible of similar acts, independent of the act charged as a crime in the indictment, for though intent is a question of fact, it need not be proven as a fact, it may be inferred from the circumstances of the transaction.” R.S. 15:445
      “When knowledge or intent forms an essential part of the inquiry, testimony may be offered of such acts, conduct or declarations of the accused as tend to establish such knowledge or intent and where the offense is one of a system, evidence is admissible to prove the continuity of the offense, and the commission of similar offenses for the purpose of showing guilty knowledge and intent, but not to prove the offense charged.” R.S. 15:446

      . In Sandstrom v. Montana the accused confessed to the slaying of Annie Jessen and was charged with deliberate homicide under Montana law, in that he “purposely or knowingly caused the death of Annie Jessen.” At trial Sandstrom admitted killing Jessen, but defended on the ground that he did not do so “purposely or knowingly,” and was hence not guilty of “deliberate homicide,” but of a lesser crime, relying for his defense on testimony of mental health experts. The trial judge instructed the jury that “the law presumes that a person intends the ordinary consequences of his voluntary acts” unless he offers evidence to the contrary, whereupon Sandstrom’s attorney objected, arguing that this instruction had the effect of shifting the burden of proof on the issue of purpose or knowledge to the defense. Ultimately the Supreme Court of the United States reversed Sandstrom’s conviction for deliberate homicide, pointing out that a reasonable juror could have inferred that this presumption was mandatory and irrebuttable, that the lone element of the offense at issue in Sandstrom’s trial was whether the crime was committed purposely or knowingly, and that the instruction was constitutional error because it relieved the prosecution of the burden of proving every essential element of the crime beyond a reasonable doubt.


source: Caselaw Access Project

license: Public Domain

text:
    Jerry E. SEYMORE v. LOUISIANA SOIL STABILIZATION COMPANY, INC.
    No. 67076.
    Supreme Court of Louisiana.
    March 28, 1980.
   In re Jerry E. Seymore, applying for cer-tiorari, to the Court of Appeal, Second Circuit, Bossier Parish. No. 67,076.

Writ denied.


text:
    Judith Thibodaux, wife of Robert Louis BETTENCOURTT v. Robert Louis BETTENCOURTT.
    No. 67037.
    Supreme Court of Louisiana.
    March 28, 1980.
   In re Robert Louis Bettencourtt, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 381 So.2d 538.

Denied.


text:
    Ruby CARTER v. WOOLCO DEPARTMENT STORE and the Travelers Insurance Company.
    No. 67113.
    Supreme Court of Louisiana.
    April 8, 1980.
   In re Ruby Carter applying for writ of certiorari, or writ of review to the Court of Appeal, Fourth Circuit. Parish of St. Bernard. 379 So.2d 759.

Denied.


text:
    Gerald A. WILLIAMS v. Tom A. ENMON.
    No. 67107.
    Supreme Court of Louisiana.
    April 8, 1980.
   In re Tom A. Enmon applying for certio-rari, or writ of review, to the Court of Appeal, First Circuit. Parish of Tangipa-hoa. 380 So.2d 144.

Denied.


text:
    Robert W. DOMINGUE v. LUKE FRUGE, INC. et al.
    No. 67038.
    Supreme Court of Louisiana.
    April 8, 1980.
   In re Trinity Universal Insurance Company, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Cameron. 379 So.2d 490.

Denied.


text:
    Sandra M. Johnson, wife of/and Raymond David SPEEG v. STEWART TITLE GUARANTY COMPANY et al.
    No. 66488.
    Supreme Court of Louisiana.
    April 8, 1980.
   In re Sandra M. Johnson, wife of/and Raymond David Speeg, applying for certio-rari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 381 So.2d 582.

Denied. In view of the Court of Appeal’s judgment of February 27, 1980 dismissing respondent’s appeal, relator’s application here is now moot.


text:
    Edward C. RAGAS v. ARGONAUT SOUTHWEST INSURANCE COMPANY et al.
    No. 67110.
    Supreme Court of Louisiana.
    April 8, 1980.
   In re Edward C. Ragas, applying for cer-tiorari, or writ of review to the Court of Appeal, Fourth Circuit. Parish of Orleans. 379 So.2d 822.

Granted.


text:
    PLAQUEMINES PARISH COMMISSION COUNCIL v. HERO LANDS COMPANY et al.
    No. 67042.
    Supreme Court of Louisiana.
    April 8, 1980.
   In re Hero Lands Company et al. applying for writ of certiorari, or review to the Court of Appeal, Fourth Circuit. Parish of Plaquemines. 380 So.2d 722.

Granted.


text:
    Eugene E. SCHAEFER, Jr. v. Judith McCasland, wife of Eugene E. SCHAEFER, Jr.
    No. 67122.
    Supreme Court of Louisiana.
    April 8, 1980.
   In re Judith McCasland, wife of Eugene E. Schaefer, Jr., applying for certiorari or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 379 So.2d 864.

Writ denied.


text:
    STATE of Louisiana v. Walter E. LAFIELD, Jr.
    No. 67184.
    Supreme Court of Louisiana.
    April 8, 1980.
   In re Walter E. Lafield, Jr., applying for remedial writs. Parish of East Baton Rouge. No. 1-80-382.

Denied.


text:
    STATE of Louisiana ex rel. Arthur M. DAVIS v. STATE of Louisiana.
    No. 67182.
    Supreme Court of Louisiana.
    April 8, 1980.
   In re Arthur M. Davis applying for writ of mandamus. Parish of Orleans. No. 66,-402.

Writ denied. Moot.


text:
    STATE of Louisiana v. Paul M. KROLOWITZ.
    No. 67173.
    Supreme Court of Louisiana.
    April 8, 1980.
   In re Paul M. Krolowitz, applying for remedial writs. Parish of St. Bernard. Nos. 53,993 and 53,995.

Writ denied.


text:
    James OTIS v. STATE of Louisiana, Through the DEPARTMENT OF CORRECTIONS.
    No. 67072.
    Supreme Court of Louisiana.
    April 8, 1980.
   In re James Otis, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. No. 12,862.

Writ denied.

DIXON, C. J., BLANCHE and WATSON, JJ., would grant the writ.


author: DIXON, C. J.

text:
    Lionel THERIOT et al. v. MERMENTAU RESOURCES, INC.
    No. 67155.
    Supreme Court of Louisiana.
    April 8, 1980.
   In re Mermentau Resources, Inc. applying for writs of certiorari, prohibition, and mandamus, to the 38th Judicial District Court. Parish of Cameron. No. 7612.

Granted. The case is remanded to the Court of Appeal with instructions to rule on the merits of the application.

DIXON, C. J.

concurs in the grant; the Court of Appeal is apparently confusing the standard of appeal from an interlocutory judgment. See C.C.P. Art. 2083. If there is irreparable injury, there is a right of appeal.

WATSON, J., would deny the writ.


text:
    STATE of Louisiana ex rel. Bryan THOMAS v. Hayden J. DEES, Warden Dixon Correctional Institute.
    No. 66601.
    Supreme Court of Louisiana.
    April 8, 1980.
   In re Bryan Thomas applying for writ of certiorari. Parish of Orleans. No. 89,101.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Raymond RIDGEWAY v. Judge Charles WARD, Orleans Criminal Judicial District Court.
    No. 66611.
    Supreme Court of Louisiana.
    April 8, 1980.
   In re Raymond Ridgeway, applying for writ of mandamus. Parish of Orleans. No. 266-062.

Denied.


text:
    Columbus R. BARARD v. Maison BLANCHE, Travelers Insurance Co., XYZ Insurance Company, Service Master Building Service, Inc., and Allstate Insurance Company.
    No. 67069.
    Supreme Court of Louisiana.
    April 8, 1980.
   In re Service Master Building Services, Inc., and Allstate Insurance Company, applying for writs of certiorari, review and mandamus. Parish of Orleans. No. 76-16786.

Writ denied.


text:
    STATE of Louisiana ex rel. Lendon Rae COLE v. STATE of Louisiana.
    No. 67003.
    Supreme Court of Louisiana.
    April 8, 1980.
   In re Lendon Cole Rae, applying for writ of habeas corpus, and writ of mandamus. Parish of Lincoln. Number unknown.

Denied..


text:
    STATE of Louisiana v. Walter E. LAFIELD, Jr.
    No. 66788.
    Supreme Court of Louisiana.
    April 8, 1980.
   In re Walter E. Lafield, Jr., applying for remedial writs and stay order. Parish of East Baton Rouge, City Court of Baton Rouge. No. 1-80-382.

Denied.


text:
    STATE of Louisiana ex rel. Peter M. MOSBEY v. Wallace C. LeBRUN, Judge, Division “I” 24th Judicial District Court, Parish of Jefferson.
    No. 66733.
    Supreme Court of Louisiana.
    April 8, 1980.
   In re Peter M. Mosbey, applying for writ of mandamus. Parish of Jefferson. No. 73-1220.

Denied.


text:
    STATE of Louisiana ex rel. Lovelle HILTON v. Charles R. WARD, Judge, Section “A” Criminal District Court, Parish of Orleans.
    No. 66715.
    Supreme Court of Louisiana.
    April 8, 1980.
   In re Lovelle Hilton, applying for writ of mandamus. Orleans Parish. No. 217-764.

Denied.

DIXON, C. J., would grant the writ.


text:
    STATE of Louisiana ex rel. Ronald DANIELS v. C. Paul PHELPS, Secretary, Department of Corrections.
    No. 66676.
    Supreme Court of Louisiana.
    April 8, 1980.
   In re Ronald Daniels applying for writ of certiorari. Parish of East Baton Rouge. Nos. 10-77-791 and 2-77-385.

Writ denied.


text:
    STATE of Louisiana ex rel. Charles R. CARTER v. Judge Thomas W. TANNER, St. Tammany Parish, 22nd Judicial District Court.
    No. 66675.
    Supreme Court of Louisiana.
    April 8, 1980.
   In re Charles R. Carter, applying for writs of certiorari, prohibition and mandamus. Parish of St. Tammany. Number unknown.

Denied.


text:
    STATE of Louisiana ex rel. Edward James ARMSTEAD, Jr. v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 66650.
    Supreme Court of Louisiana.
    April 8, 1980.
   In re Edward James Armstead, Jr., applying for remedial writs of certiorari and habeas corpus. Parish of Iberia. No. 25516.

Denied.


text:
    STATE of Louisiana ex rel. Mervin PAYNE v. STATE of Louisiana.
    No. 66648.
    Supreme Court of Louisiana.
    April 8, 1980.
   In re Hayward Simmons, Jr., applying for remedial writs. . Parish of East Baton Rouge. No. 77389.

Denied.


text:
    STATE of Louisiana ex rel. Willie MORRIS, Gaylord Lee and Frederick Paul v. STATE of Louisiana.
    No. 66647.
    Supreme Court of Louisiana.
    April 8, 1980.
   In re Willie Morris, Gaylord Lee and Frederick Paul, applying for remedial writs. Parish of East Baton Rouge. Number unknown.

Writ denied. Moot.


text:
    STATE of Louisiana ex rel. James ATOMANCZYK, a/k/a James Warde v. STATE of Louisiana.
    No. 66645.
    Supreme Court of Louisiana.
    April 8, 1980.
   In re James Atomanczyk, a/k/a James Warde, applying for remedial writs. Parish of St. Tammany. No. 68886.

Denied.


text:
    STATE of Louisiana ex rel. Michael G. LACEY v. C. Paul PHELPS, Secretary, Department of Corrections et al.
    No. 66623.
    Supreme Court of Louisiana.
    April 8, 1980.
   In re Michael G. Lacey applying for remedial writs. Parish of East Baton Rouge. No. 12-79-156.

Denied.


text:
    STATE of Louisiana ex rel. Willie MORRIS v. STATE of Louisiana.
    No. 66614.
    Supreme Court of Louisiana.
    April 8, 1980.
   In re Willie Morris, applying for writ of review. Parish of . West Baton Rouge. Nos. 72208-72218.

Denied.


text:
    STATE of Louisiana ex rel. David Edward BARNETT v. CLERK OF COURT, 4TH JUDICIAL DISTRICT COURT.
    No. 66613.
    Supreme Court of Louisiana.
    April 8, 1980.
   In re David Edward Barnett, applying for remedial writs. Parish of Morehouse. No. 28181.

Denied.


text:
    STATE of Louisiana ex rel. Melvin HENDERSON v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary, Angola, Louisiana.
    No. 66562.
    Supreme Court of Louisiana.
    April 8, 1980.
   In re Melvin Henderson, applying for writ of habeas corpus, writ of certiorari and remedial writ. Parish of East Baton Rouge. No. 6,79-341.

Denied.


text:
    STATE of Louisiana ex rel. Chester STRICKLAND v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 66504.
    Supreme Court of Louisiana.
    April 8, 1980.
   In re Chester Strickland, applying for writ of habeas corpus, mandamus and cer-tiorari. Parish of Orleans. No. 250-421.

Writ denied.


text:
    STATE of Louisiana ex rel. Robert MYLES v. Hon. Frank A. MARULLO, Judge, Criminal District Court, Parish of Orleans.
    No. 66344.
    Supreme Court of Louisiana.
    April 8, 1980.
   In re Robert Myles, applying for writ of mandamus and prohibition. Orleans Parish. No. 265-242.

Denied. Moot.


text:
    STATE of Louisiana v. Raymond TUCKER.
    No. 65705.
    Supreme Court of Louisiana.
    April 8, 1980.
   In re Raymond Tucker, applying for writ of mandamus. Parish of Orleans. No. 257-MO.

Denied.


text:
    STATE of Louisiana ex rel. Ronald S. MONROE v. STATE of Louisiana.
    No. 67116.
    Supreme Court of Louisiana.
    April 8, 1980.
   In re Ronald S. Monroe, applying for remedial writs. Parish of Orleans. No. 261-647.

Transferred to Criminal District Court, Orleans Parish.


text:
    STATE of Louisiana ex rel. Larry W. DIXON v. 20th JUDICIAL DISTRICT COURT.
    No. 66711.
    Supreme Court of Louisiana.
    April 8, 1980.
   In re Larry W. Dixon, applying for writ of habeas corpus. Parish of East Feliciana. Nos. 3-79-444 and 3-79-446.

Not considered. Relator must first file his application for post conviction relief in the district court.


text:
    CITY OF MONROE v. Alereza BAGHRI et al.
    No. 67220.
    Supreme Court of Louisiana.
    April 8, 1980.
   In re Alereza Baghri et al. applying for writ of certiorari, prohibition, mandamus and stay order. Parish of Ouachita. Monroe City Court. Number unknown.

Granted.


text:
    Percy L. TATE v. Hon. Frank A. MARULLO, Jr. and Hon. Clerk of Court, Criminal District Court.
    No. 67149.
    Supreme Court of Louisiana.
    April 8, 1980.
   In re Percy L. Tate applying for remedial writ. Parish of Orleans. No. 255-943.

Granted. Applicant is ordered to be furnished with another copy of the transcript.


text:
    STATE of Louisiana v. Fredwood E. EVANS.
    No. 67031.
    Supreme Court of Louisiana.
    April 8, 1980.
   In re Fredwood E. Evans, applying for remedial writs. Parish of Jefferson. No. 79-980.

Granted.


text:
    Frances Radosta, wife of, and Stephen J. DeFELICE v. Herbert J. GARON and Rufus M. Carimi.
    No. 66993.
    Supreme Court of Louisiana.
    April 8, 1980.
   In re Frances Radosta, wife of, and Stephen J. DeFelice v. Herbert J. Garon and Rufus M. Carimi, applying for certiorari, or writ of review, to the Court of Appeal. No. 10,344. Parish of Orleans.

Granted.


text:
    STATE of Louisiana v. Kenneth KAERCHER and Thomas Tighe and Allied Fidelity Insurance Company.
    No. 66678.
    Supreme Court of Louisiana.
    April 8, 1980.
   In re Allied Fidelity Insurance Company, applying for remedial writs. Parish of La-fourche. Nos. 78,617 and 78,618.

Writ granted.


text:
    Rena M. GREEN v. Albert R. CULMONE. Albert R. CULMONE v. Rena GREEN (Mrs. Joe Green).
    No. 67118.
    Supreme Court of Louisiana.
    April 8, 1980.
   In re Rena M. Green applying for certio-rari or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. Nos. 12985 and 12986.

Denied.


text:
    STATE of Louisiana. v. Daniel GETTRIDGE.
    No. 67304.
    Supreme Court of Louisiana.
    April 14, 1980.
   In re State of Louisiana through Attorney General William Guste, Jr., applying for stay order. Parish of Orleans. No. 258-000.

Granted. All proceedings in this matter are stayed. The case is fixed for hearing at 4:00 p. m., Tuesday, April 15, 1980. The Orleans Parish Criminal Sheriff is to transport no other prisoners to the Department of Corrections under the order of April 11, 1980 of the Orleans Parish Criminal Court, which is suspended pending further orders of this Court.


text:
    STATE of Louisiana v. Daniel GETTRIDGE.
    No. 67304.
    Supreme Court of Louisiana.
    April 15, 1980.
   In re State of Louisiana through the Attorney General, William J. Guste, Jr., applying for stay order. Parish of Orleans. No. 258-000.

The en banc order of the Criminal District Court of April 11,1980 is set aside and vacated for the reasons that there was no notice to the defendants or Department of Corrections and no hearing to establish facts to warrant the transfer.


text:
    In the Matter of Larry COOLEY, Guy Clements, Jr., Aubrey Stalsby, and Roy Gibliant.
    No. 67204.
    Supreme Court of Louisiana.
    April 16, 1980.
   In re Larry Cooley, Guy Clements, Jr., Aubrey Stalsby, and Roy Gibliant, applying for stay order. Parish of Calcasieu.

Stay Order denied.


text:
    STATE of Louisiana v. Jerry L. DEVITO.
    No. 67261.
    Supreme Court of Louisiana.
    April 17, 1980.
   In re Jerry L. Devito applying for writs of certiorari prohibition and mandamus. Parish of Jefferson. No. 77-379.

Granted.


text:
    Hugh M. CARLETON v. DIVISION OF ADMINISTRATION, LOUISIANA CIVIL SERVICE COMMISSION AND DEPARTMENT OF CIVIL SERVICE, State of Louisiana.
    No. 67117.
    Supreme Court of Louisiana.
    April 18, 1980.
   In re Louisiana Department of Civil Service, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 380 So.2d 628.

Granted.


text:
    Chris OWENS v. H & L ENTERPRISES et al.
    No. 67141.
    Supreme Court of Louisiana.
    April 18, 1980.
   In re Chris Owens, applying for certiora-ri, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of St. Charles. 379 So.2d 876.

Writ granted. The judgment of the Court of Appeal is reversed and the case is remanded to the trial court for a hearing on the Exception of Prescription after service in accordance with law.


text:
    RIVER ROAD CONSTRUCTION, INC. v. BOARD OF COMMISSIONERS FOR the LAFOURCHE BASIN LEVEE DISTRICT et al.
    No. 67109.
    Supreme Court of Louisiana.
    April 18, 1980.
   In re River Road Construction, Inc., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of St. Charles. 379 So.2d 786.

Denied.

DIXON, C. J., and CALOGERO, J., would grant the writ.


text:
    AMERICAN HOME ASSURANCE COMPANY v. COMMERCIAL UNION ASSURANCE COMPANY.
    No. 67129.
    Supreme Court of Louisiana.
    April 18, 1980.
   In re American Home Assurance Company, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish' of Orleans. 379 So.2d 757.

Writ denied.


text:
    Application of Wayne Edward KOONCE and Joy Marie Granier Koonce applying for Adoption.
    No. 67136.
    Supreme Court of Louisiana.
    April 18, 1980.
   In re Wayne Edward Koonce and Joy Marie Granier Koonce applying for certiora-ri, or writ of review to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 380 So.2d 140.

Writ denied.

WATSON, J., would grant the writ.


text:
    CARR OIL COMPANY, INC. v. DONALD G. LAMBERT CONTRACTOR, INC. et al.
    No. 67137.
    Supreme Court of Louisiana.
    April 18, 1980.
   In re Maryland Casualty Company and State of Louisiana through the Department of Highways, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of St. Mary. 380 So.2d 157.

Denied.


text:
    Odis ROBERTS v. Thomas A. HEATH et al.
    No. 67139.
    Supreme Court of Louisiana.
    April 18, 1980.
   In re Odis Roberts applying for certiorari or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 380 So.2d 113.

Denied.


text:
    CITY OF BATON ROUGE v. Ronald L. CAUSEY.
    No. 67140.
    Supreme Court of Louisiana.
    April 18, 1980.
   In re Ronald L. Causey applying for cer-tiorari or writ of review to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 380 So.2d 136.

Writ denied.


text:
    PLANTATION ACCEPTANCE CORPORATION v. Thomas H. STONE.
    No. 67148.
    Supreme Court of Louisiana.
    April 18, 1980.
   In re Thomas H. Stone, applying for cer-tiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 379 So.2d 782.

Denied.


text:
    Lynn A. DUPUY v. Dr. Joe C. TILLEY.
    No. 67156.
    Supreme Court of Louisiana.
    April 18, 1980.
   In re Lynn A. Dupuy, applying for certio-rari, or writ of review, to the Court of Parish of East Baton Appeal, First Circuit. Rouge. 380 So.2d 634.

Denied.


text:
    John B. BARKER v. AETNA CASUALTY AND SURETY COMPANY et al.
    No. 67157.
    Supreme Court of Louisiana.
    April 18, 1980.
   In re John B. Barker applying for certio-rari, or writ of review to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 380 So.2d 178.

Denied.


text:
    DENNIS MILLER PEST CONTROL, INC. v. Denney MILLER Jr., Pest Control, Inc. et al.
    No. 67163.
    Supreme Court of Louisiana.
    April 18, 1980.
   In re Dennis Miller, applying for certiora-ri, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 379 So.2d 801.

Denied.

BLANCHE, J., would grant the writ.


text:
    STATE of Louisiana v. Billy J. BRISTER.
    No. 66690.
    Supreme Court of Louisiana.
    April 18, 1980.
   In re Billy J. Brister, applying for writ of certiorari and supervisory and/or remedial writs and mandamus. Orleans Parish. No. 262-006.

Writ granted. Trial court judgment recalling, revoking and setting aside relator’s sentence is reversed and set aside without prejudice to such right as the state may have to apply to the district court to review the original sentence as to its legality. C.Cr.P. Art. 882.


text:
    STATE of Louisiana ex rel. Travis RUSHING v. Warden Ross MAGGIO, Hunt Correctional Center.
    No. 66763.
    Supreme Court of Louisiana.
    April 18, 1980.
   In re Travis Rushing, applying for writ of habeas corpus. Parish of Rapides. No. 144,247.

Denied.


text:
    STATE of Louisiana ex rel. Eldridge PAYTON v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 66762.
    Supreme Court of Louisiana.
    April 18, 1980.
   In re Eldridge Payton, applying for writ of certiorari, prohibition, mandamus or ha-beas corpus. Parish of Orleans. No. 228-514.

Denied.


text:
    STATE of Louisiana ex rel. Dwayne SIMS v. Hayden J. DEES, Warden Dixon C. I. and C. Paul Phelps, Secretary, Louisiana Dept. of Corrections et al.
    No. 66759.
    Supreme Court of Louisiana.
    April 18, 1980.
   In re Dwayne Sims applying for writ of certiorari. Parish of Jefferson. No. 79-322.

Denied.


text:
    STATE of Louisiana ex rel. Raymond Louis SINGLETON v. Hayden J. DEES, Warden Dixon C.I. and C. Paul Phelps, Secretary, Louisiana Department of Corrections.
    No. 66758.
    Supreme Court of Louisiana.
    April 18, 1980.
   In re Raymond Louis Singleton applying for writ of certiorari. Parish of Iberville. No. 214-79.

Denied.


text:
    STATE of Louisiana v. John B. HAMILTON, Jr.
    No. 66756.
    Supreme Court of Louisiana.
    April 18, 1980.
   In re John B. Hamilton applying for writ of certiorari. Parish of East Baton Rouge. No. 1-79-400.

Denied.

WATSON, J., would grant the writ.


text:
    STATE of Louisiana ex rel. Eddue BURKHALTER v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 66751.
    Supreme Court of Louisiana.
    April 18, 1980.
   In re Eddie Burkhalter, applying for writs of habeas corpus, certiorari, prohibition and mandamus. Parish of West Felici-ana. Number unknown.

Writ denied on the showing made.


text:
    STATE of Louisiana ex rel. Joseph V. FOSTER, Jr. v. LOUISIANA DEPARTMENT OF CORRECTIONS.
    No. 66927.
    Supreme Court of Louisiana.
    April 18, 1980.
   In re Joseph V. Foster, Jr., applying for writ of certiorari. Parish of East Baton Rouge. No. 221-947.

Denied.


text:
    STATE of Louisiana v. Roy HUTTON.
    No. 67297.
    Supreme Court of Louisiana.
    April 18, 1980.
   In re Roy Hutton applying for writs of certiorari, prohibition and mandamus. 21st Judicial District Court, Parish of Tangipa-hoa. No. 44243.

Denied.


text:
    STATE of Louisiana v. Richard WINN.
    No. 67258.
    Supreme Court of Louisiana.
    April 18, 1980.
   In re Richard Winn applying for writs of certiorari, prohibition, and mandamus. Parish of Jefferson. No. 79-2760.

Denied.


text:
    STATE of Louisiana v. Patricia J. KNOWLES.
    No. 67257.
    Supreme Court of Louisiana.
    April 18, 1980.
   In re Patricia J. Knowles applying for remedial writ. Parish of Ouachita. Nos. 39,176 and 39,177.

Denied. Application is moot.


text:
    STATE of Louisiana ex rel. Larry Joe PHILLIPS v. STATE of Louisiana.
    No. 67254.
    Supreme Court of Louisiana.
    April 18, 1980.
   In re Larry Joe Phillips applying for remedial writ. Parish of Orleans. No. 259-452.

Denied.


text:
    STATE of Louisiana v. Willie FOLEY.
    No. 67208.
    Supreme Court of Louisiana.
    April 18, 1980.
   In re Willie Foley applying for writs of certiorari, prohibition, mandamus and for a stay order. Orleans Parish. No. 272-397.

Denied.

DIXON, C. J., would grant the writ.


text:
    STATE of Louisiana v. William E. MORRIS and Paula S. Morris; William E. Morris and Gregory Allen Lott; Gary Neal Hughes; Gary Neal Hughes.
    No. 67181.
    Supreme Court of Louisiana.
    April 18, 1980.
   In re William E. Morris, Paula S. Morris, Gregory Allen Lott and Gary Neal Hughes, applying for writ of’review. Parish of Oua-chita. Nos. 39,006; 39,007; 38,999 and 39,-000.

Denied. Adequate remedy by review in the event of conviction.


text:
    STATE of Louisiana v. Lawrence L. CHAPMAN.
    No. 67176.
    Supreme Court of Louisiana.
    April 18, 1980.
   In re Lawrence L. Chapman applying for remedial writs, for the Parish of LaSalle. No. 20,311.

Denied. Adequate remedy by review in the event of conviction.


text:
    Phil Z. COLE v. WHITEHALL DEVELOPMENT CORPORATION, INC.
    No. 67154.
    Supreme Court of Louisiana.
    April 18, 1980.
   In re Whitehall Development Corporation applying for certiorari, or writ of review to the Court of Appeal, First Circuit. Parish of East Baton Rouge. No. 12,946.

Writ denied.


text:
    Marguerite Cecilia LANDRY, wife of Thurman Paul Hall, Jr. v. Thurman Paul HALL, Jr.
    No. 67142.
    Supreme Court of Louisiana.
    April 18, 1980.
   In re Marguerite Cecilia Landry, wife of Thurman Paul Hall, Jr., applying for certio-rari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of St. Bernard. No. 25-959.

Denied.


text:
    Phil Z. COLE v. WHITEHALL DEVELOPMENT CORP., INC.
    No. 67128.
    Supreme Court of Louisiana.
    April 18, 1980.
   In re Phil Z. Cole, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. No. 12,946.

Writ denied.


text:
    STATE of Louisiana ex rel. Reginald DUNCAN v. STATE of Louisiana.
    No. 67094.
    Supreme Court of Louisiana.
    April 18, 1980.
   In re Reginald Duncan, applying for remedial writs. Parish of Orleans. No. 257-602.

Denied.


text:
    STATE of Louisiana ex rel. Arthur TURNER v. STATE of Louisiana.
    No. 67052.
    Supreme Court of Louisiana.
    April 18, 1980.
   In re Arthur Turner, applying for remedial writs to the Orleans Parish Criminal District Court. No. 267-391.

Denied.


text:
    STATE of Louisiana ex rel. Doyle WHITTINGTON v. Captain Richard MARTIN, House of Detention, Orleans Parish.
    No. 67007.
    Supreme Court of Louisiana.
    April 18, 1980.
   In re Doyle Whittington, applying for writ of habeas corpus. Parish of Orleans Municipal Court.

Writ denied.


text:
    STATE of Louisiana ex rel. Reginald AMBROSE v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 67006.
    Supreme Court of Louisiana.
    April 18, 1980.
   In re Reginald Ambrose, applying for writ of habeas corpus, certiorari and prohibition to the Parish of Orleans. No. 257-866.

Denied.


text:
    STATE of Louisiana ex rel. James WILLIAMS v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 66983.
    Supreme Court of Louisiana.
    April 18, 1980.
   In re James Williams, applying for remedial writs. Parish of Orleans. No. 251-470.

Writ denied.


text:
    STATE of Louisiana ex rel. Warren James CAIN, Jr. v. CLERK OF COURT, 31st JUDICIAL DISTRICT COURT.
    No. 66966.
    Supreme Court of Louisiana.
    April 18, 1980.
   In re Warren James Cain, Jr., applying for writ of mandamus. Parish of Jefferson Davis. No. CR-1831-77.

Denied.


text:
    STATE of Louisiana ex rel. Pinnel LOMAX v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 66950.
    Supreme Court of Louisiana.
    April 18, 1980.
   In re Pinnel Lomax, applying for remedial writs. Parish of Jefferson. No. 75-1861.

Denied.


text:
    STATE of Louisiana ex rel. Otho H. LINNEAR v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 66946.
    Supreme Court of Louisiana.
    April 18, 1980.
   In re Otho H. Linnear applying for remedial writs. Parish of Bossier. No. 56,534.

Denied.


text:
    STATE of Louisiana ex rel. Kenneth SKELTON v. Warden Frank BLACKBURN, Louisiana State Penitentiary and 32nd Judicial District Court, Parish of Terrebonne.
    No. 66932.
    Supreme Court of Louisiana.
    April 18, 1980.
   In re Kenneth Skelton, applying for writs of habeas corpus, certiorari, mandamus and remedial. Parish of Terrebonne. No. 57034.

Denied.


text:
    STATE of Louisiana ex rel. Grandville TENNART v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 66947.
    Supreme Court of Louisiana.
    April 18, 1980.
   In re Grandville Tennart applying for remedial writs. Parish of East Feliciana. No. B10087.

Writ denied.


text:
    STATE of Louisiana ex rel. James McAllister, Jr. v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 66928.
    Supreme Court of Louisiana.
    April 18, 1980.
   In re James McAllister, Jr., applying for writs of mandamus, habeas corpus and remedial writs. Parish of East Baton Rouge. No. 91,088.

Writ denied.


text:
    STATE of Louisiana ex rel. Thomas E. LAMEAR v. Morgan J. GOUDEAU, III, District Attorney, St. Landry Parish, Louisiana Department of Corrections and Paul Phelps, Secretary.
    No. 66925.
    Supreme Court of Louisiana.
    April 18, 1980.
   In re Thomas E. Lamear, applying for remedial writs. Parish of St. Landry. No. 28,915.

Denied.


text:
    STATE of Louisiana ex rel. Douglas JOHNSON v. 19TH JUDICIAL DISTRICT COURT, PARISH OF EAST BATON ROUGE.
    No. 66924.
    Supreme Court of Louisiana.
    April 18, 1980.
   In re Douglas Johnson, applying for remedial writs. Parish of East Baton Rouge. Number unknown.

Denied.


text:
    STATE of Louisiana ex rel. Jessie SAWYER v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 66923.
    Supreme Court of Louisiana.
    April 18, 1980.
   In re Jessie Sawyer, applying for writ of habeas corpus. Parish of Union. No. 23667.

Writ denied.


text:
    STATE of Louisiana ex rel. Frank Freddie MONROE v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 66920.
    Supreme Court of Louisiana.
    April 18, 1980.
   In re Frank Freddie Monroe applying for remedial writs. Parish of Orleans. Nos. 244-336; 241-128.

Denied.


text:
    STATE of Louisiana ex rel. Robert J. JOHNSON v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 66914.
    Supreme Court of Louisiana.
    April 18, 1980.
   In re Robert J. Johnson, applying for writ of habeas corpus. Parish of East Feliciana. No. 1-75-58.

Writ denied.


text:
    STATE of Louisiana ex rel. Dallas CUSTARD v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 66906.
    Supreme Court of Louisiana.
    April 18, 1980.
   In re Dallas Custard, applying for writs of certiorari, prohibition, mandamus or ha-beas corpus. Jefferson Parish. No. 75-6421.

Denied.


text:
    STATE of Louisiana ex rel. Burl D. SWAGERTY v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 66817.
    Supreme Court of Louisiana.
    April 18, 1980.
   In re Burl D. Swagerty, applying for writs of habeas corpus and certiorari. Parish of Sabine. No. 24,448.

Denied.


text:
    STATE of Louisiana v. Wilbert “Honky” WINSTON.
    No. 66814.
    Supreme Court of Louisiana.
    April 18, 1980.
   In re Wilbert “Honky” Winston applying for writ of habeas corpus and remedial writs. Parish of Calcasieu. No. 1557-75-A.

Writ denied.


text:
    STATE of Louisiana ex rel. Omer Ellis BUTLER v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 66783.
    Supreme Court of Louisiana.
    April 18, 1980.
   In re Omer Ellis Butler, applying for remedial writs. Parish of Caddo. No. 112-897NC.

Writ denied.


text:
    STATE of Louisiana ex rel. Brogan C. YOUNG v. ORLEANS PARISH INDIGENT DEFENDER PROGRAM.
    No. 66782.
    Supreme Court of Louisiana.
    April 18, 1980.
   In re Brogan C. Young, applying for remedial writs. Parish of Orleans. No. 268-881.

Denied.


text:
    STATE of Louisiana ex rel. Jack Wesley DENNIS v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 66744.
    Supreme Court of Louisiana.
    April 18, 1980.
   In re Jack Wesley Dennis, applying for writs of habeas corpus and certiorari. Parish of St. Landry. Nos. 26,367; 26,368 and 26,369.

Denied.


text:
    STATE of Louisiana ex rel. Leonard MARSHALL, Jr. v. STATE of Louisiana.
    No. 66740.
    Supreme Court of Louisiana.
    April 18, 1980.
   In re Leonard Marshall, Jr., applying for remedial writs. Parish of Jefferson. No. 78-2026.

Denied.


text:
    STATE of Louisiana ex rel. John T. MARTIN v. Judge Oliver SCHULINGKAMP, Orleans Criminal Judicial District Court.
    No. 66734.
    Supreme Court of Louisiana.
    April 18, 1980.
   In re John T. Martin, applying for writs of certiorari and mandamus. Parish of Orleans. No. 257-714.

Writ denied.


text:
    STATE of Louisiana ex rel. Kevin E. SEWARD v. ORLEANS INDIGENT DEFENDER PROGRAM.
    No. 66533.
    Supreme Court of Louisiana.
    April 18, 1980.
   In re Kevin E. Seward, applying for remedial writs. Orleans Parish. No. 263-196.

Denied.


text:
    STATE of Louisiana ex rel. Richard BURT v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 66442.
    Supreme Court of Louisiana.
    April 18, 1980.
   In re Richard Burt applying for writ of habeas corpus. Parish of Jefferson. No. 77,165.

Denied.


text:
    STATE of Louisiana ex rel. Phillip DEAN v. Judge Frank SHEA, Orleans Criminal Judicial District Court.
    No. 66253.
    Supreme Court of Louisiana.
    April 18, 1980.
   In re Phillip Dean, applying for writ of mandamus. Parish of Orleans. No. 191-104.

Writ denied.


text:
    STATE of Louisiana ex rel. Larry Joe PHILLIPS v. J. D. MIDDLEBROOKS, Warden, Louisiana Correctional and Industrial School.
    No. 66239.
    Supreme Court of Louisiana.
    April 18, 1980.
   In re Larry Joe Phillips, applying for writ of habeas corpus. Parish of Orleans. Number unknown.

Denied. Moot.


text:
    STATE of Louisiana v. Jerry D. COBURN.
    No. 66065.
    Supreme Court of Louisiana.
    April 18, 1980.
   In re Jerry D. Coburn, applying for writ of mandamus. Parish of Morehouse. No. 70-202A.

Denied.


text:
    STATE of Louisiana ex rel. Arthur MITCHELL v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 65888.
    Supreme Court of Louisiana.
    April 18, 1980.
   In re Arthur Mitchell, applying for rehearing and reconsideration of recalled writ of February 8, 1980. Parish of Orleans. No. 249-486.

Denied.


text:
    STATE of Louisiana v. Larry Joe PHILLIPS.
    No. 65788.
    Supreme Court of Louisiana.
    April 18, 1980.
   In re Larry Joe Phillips, applying for remedial writs. Parish of Orleans. No. 259-425.

Writ denied.


text:
    STATE of Louisiana v. Larry Joe PHILLIPS.
    No. 65545.
    Supreme Court of Louisiana.
    April 18, 1980.
   In re Larry Joe Phillips, applying for writ of certiorari. Parish of Orleans. No. 259-425.

Denied. Moot.


text:
    STATE of Louisiana v. Edmund GUIDRY.
    No. 67193.
    Supreme Court of Louisiana.
    April 18, 1980.
   In re State of Louisiana through the District Attorney, Harry F. Connick, applying for writs of certiorari, prohibition and mandamus. Parish of Orleans. No. 273-496.

Granted.


text:
    STATE of Louisiana ex rel. Glenn CONSTANTINE v. ORLEANS CRIMINAL DISTRICT COURT, SECTION “A”.
    No. 66761.
    Supreme Court of Louisiana.
    April 18, 1980.
   In re Glenn Constantine, applying for writ of mandamus. Parish of Orleans. No. 262-845.

Writ granted. The trial judge is ordered to conduct a contradictory hearing with the custodian of the evidence to determine whether relator is entitled to relief.


text:
    STATE of Louisiana ex rel. Willie SPEARS v. Judge Matthew BRANIFF, Criminal District Court.
    No. 66707.
    Supreme Court of Louisiana.
    April 18, 1980.
   In re Willie Spears, applying for writ of mandamus. Orleans Parish. Nos. 257-786 and 269-435.

Granted. Evidentiary hearing ordered.


text:
    STATE of Louisiana ex rel. Edward A. JENNINGS v. Frank C. BLACKBURN, Warden et al.
    No. 66272.
    Supreme Court of Louisiana.
    April 18, 1980.
   In re Edward A. Jennings, applying for writ of mandamus. Orleans Parish. No. 256-044.

Granted. Trial judge is ordered to act on relator’s habeas application by May 1, 1980.


text:
    STATE of Louisiana v. Danny SERMON.
    No. 67343.
    Supreme Court of Louisiana.
    April 18, 1980.
   In re State of Louisiana, applying for writ of review. Parish of Calcasieu. No. 103-1877.

Denied. The trial court has not erred in ruling that the jury verdict must be twelve out of twelve.


text:
    STATE of Louisiana v. Danny G. SERMON.
    No. 67354.
    Supreme Court of Louisiana.
    April 21, 1980.
   In re State of Louisiana through the District Attorney, Leonard K. Knapp, applying for writ of review and stay order. Parish of Calcasieu. No. 10,318-77.

Denied.


text:
    STATE of Louisiana v. Ruben AGIN.
    No. 67350.
    Supreme Court of Louisiana.
    April 22, 1980.
   In re Ruben Agin, applying for writs of certiorari, review, mandamus, and stay order. Parish of Jefferson. No. 80-840.

Granted. Trial judge ordered to conduct preliminary examination within 48 hours.


text:
    STATE of Louisiana v. Randy SCHACHT.
    No. 67357.
    Supreme Court of Louisiana.
    April 22, 1980.
   In re Randy Schacht, applying for remedial writs and stay order. Parish of Winn. No. 23,268.

Denied.


text:
    STATE of Louisiana v. Norman K. LANOIX.
    No. 67367.
    Supreme Court of Louisiana.
    April 22, 1980.
   In re Norman K. Lanoix, applying for writs of certiorari, mandamus, prohibition and stay order. Parish of Jefferson. No. 79-2189.

Denied.


text:
    James L. BORDELON v. Cheryl Gaspard BORDELON.
    No. 67346.
    Supreme Court of Louisiana.
    April 22, 1980.
   In re James L. Bordelon, applying for stay order and writ of review. Parish of Avoyelles. No. 34,604.

Stay order previously issued set aside; the writ is denied.


text:
    STATE of Louisiana v. Gerald G. BOUDREAUX.
    No. 67386.
    Supreme Court of Louisiana.
    April 24, 1980.
   In re Gerald G. Boudreaux, applying for writ of review. Parish of Terrebonne. No. 88279.

Denied.


text:
    BANK OF NEW ORLEANS AND TRUST COMPANY v. Jack PERRY.
    No. 67403.
    Supreme Court of Louisiana.
    April 28, 1980.
   In re Howard M. Rubinstein applying for certiorari, or writ of review to the Court of Appeal, Fourth Circuit. Parish of Orleans. No. 77-15727.

Writ denied on the showing made.


author: ELLIS, Judge:

text:
    LOUISVILLE & NASHVILLE RAILROAD et al. v. LOUISIANA TAX COMMISSION et al.
    No. 12925.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 21, 1980.
    M. Truman Woodward, Jr., New Orleans, of counsel for plaintiff-appellee Louisville & Nashville R.R.
    Tommy D. Teague, Baton Rouge, of counsel for defendant-appellant Louisiana Tax Commission.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge:

This is a suit by 14 railroad companies operating in Louisiana for review of the determination by the Louisiana Tax Commission of the assessed valuation of their properties for 1978 ad valorem tax purposes.

Article 7, § 18 of the Constitution of 1974 provides, in pertinent part, as follows:

“(A) Assessments. Property subject to ad valorem taxation shall be listed on the assessment rolls at its assessed valuation, which, except as provided in Paragraph (C), shall be a percentage of its fair market value. The percentage of fair market value shall be uniform throughout the state upon the same class of property. “(B) Classification. The classifications of property subject to ad valorem taxation and the percentage of fair market value applicable to each classification for the purpose of determining assessed valuation are as follows:
“Classifications Percentages
1. Land 10%
2. Improvements for residential purposes 10%
3. Other property 15%
“(D) Valuation. Each assessor shall determine the fair market value of all property subject to taxation within his respective parish or district except public service properties, which shall be valued at fair market value by the Louisiana Tax Commission or its successor. Each assessor shall determine the use value of property which is to be so assessed under the provisions of Paragraph (C). Fair market value and use value of property shall be determined' in accordance with criteria which shall be established by law and which shall apply uniformly throughout the state.”

R.S. 47:1853, which was-applicable for the first time in 1978, provides, in part, as follows:

“(A) In accordance with the provisions of this Section and Sections 1854 and 1855, the Louisiana Tax Commission shall, on or before September first of each calendar year, appraise, for taxation, public service properties based upon each company’s report, as defined in Section 1852(A) and such other information as may be available to the Louisiana Tax Commission. In the absence of a report the Louisiana Tax Commission shall appraise the properties of any company failing to file such a report upon any information which the Louisiana Tax Commission, in its best judgment, deems sufficient.
“(B) In appraising public service properties, the Louisiana Tax Commission shall employ all of the following nationally recognized techniques of appraisal, where applicable, to best determine fair market value: the market approach, the cost approach, and/or the income approach. However, all public service properties of the same nature and kind shall be appraised in the same manner. The appraised value of all lands owned by the company in this state shall be deducted from the total appraised value of the public service properties and shall 'be assessed by the Louisiana Tax Commission and shown as a separate item on the tax roll.
* * * * * *
“(E) The appraisal for the first year only shall be accomplished by the Louisiana Tax Commission through the use of an independent appraisal firm or firms qualified in the appraisal of public service properties.”

Pursuant to the mandate of R.S. 47:1853(E), the Tax Commission entered into a contract with Thos. Y. Pickett & Company, Inc. to appraise the properties of plaintiffs, and other railroads, in Louisiana. The contract called for the appraisal to be done using all of the approaches named in R.S. 47:1853(B). When Pickett filed its reports in' December, 1977, the fair market values fixed therein were such that the' assessed valuation thereof would result in a substantial reduction in revenues from the ad valorem taxation of railroad properties.

Thereafter, a contract was entered into by the Tax Commission and Pan American Engineers, Inc., to reappraise the public service properties of plaintiffs. The contract specified that the sole basis' of the appraisal was to be the reproduction cost of the said properties less allowable depreciation. The reports filed by Pan American resulted in a substantial increase in the values of the said properties, although the tax revenues to be derived as a result thereof would still be lower than in prior years.

The Tax Commission based its initial determination of fair market value on the Pan American reports. Each of the petitioners herein formally protested the finding of the Commission and requested a full hearing and the ultimate reduction of the assessed valuations. The hearing was held, and the Commission affirmed its initial determination. Thereafter, plaintiffs sought judicial review of the order of the Tax Commission.

The expert testimony in the record is unanimous, and unrefuted, to the effect that it is necessary to use a combination of the market value, cost and income approaches in making appraisals of railroad properties. The Pan American personnel who made the appraisal for that firm testified that they did not attempt to determine fair market value as defined by R.S. 47:2321, which provides:

“Fair market value is the price for property which would be agreed upon between a willing and informed buyer and a willing and informed seller under usual and ordinary circumstances; it shall be the highest price estimated in terms of money which property will bring if exposed for sale on the open market with reasonable time allowed to find a purchaser who is buying with knowledge of all the uses and purposes to which the property is best adapted and for which it can be legally used.”

The trial judge found that R.S. 47:1853(B), supra, requires that all three methods of appraisal must be used in determining the fair market value of the railroad operating properties. The Commission argues that the use of the disjunctive “and/or” in the statute permits it to determine which method of appraisal is “applicable” to the properties being appraised, and that “fair market value” may be arrived at using any applicable method as a criterion.

We disagree. We think the sense of R.S. 47:1853(B) is that all three methods should be used in making appraisals of public service properties, unless it is not possible to use one or more of the methods. It has been shown that all three of the methods are appropriate in appraising railroad operating properties, and that data exists on which such appraisals can be based. We think the trial judge correctly found that the Commission’s appraiser failed to find the fair market value of the properties appraised by him, and properly remanded the case for reappraisal in accordance with law.

Also at issue herein is the valuation of certain non-operating properties of Texas Pacific-Missouri Pacific Terminal Railroad of New Orleans in Jefferson Parish. This property was valued at $11,659,900.00 for assessment purposes. At the hearing before the Tax Commission, Omer F. Kuebel testified as an expert witness for the railroad, and fixed the fair market value at $4,000,000.00. His testimony was uncontra-dicted at that hearing. The hearing officer, Thomas F. Wade, in his proposed order for the Commission, recommended that the Commission “review its assessment of these nonoperating properties and make the necessary adjustments to conform with the valuations presented by the testimony of Mr. Omer F. Kuebel.”

On October 25, 1978, the Commission advised plaintiffs by letter that “our decision is to accept the recommendations of Mr. Thomas F. Wade, the hearing officer, and finalize the 1978 assessed valuation for ad valorem tax purposes accordingly.” On February 16,1979, the Commission adjusted the assessed valuations of the said properties, but did not do so in accordance with Mr. Kuebel’s appraisal, although it was stated in the reasons for the change that they were doing so. The total of 790.75 acres was assessed at $709,920.00, which is 15% of $4,732,800.00, a figure in excess of the $4,000,000.00 appraisal of fair market value made by Mr. Kuebel.

The railroad argues that the Commission is bound by its own order, and must comply with the Kuebel appraisal. The Commission contends that, under R.S. 47:1990, it has the authority to change or correct any assessment at any time until the taxes are paid. The trial judge found that the Kuebel appraisal was properly made and unrebutted in the record and ordered the Commission to appraise the property accordingly.

We agree. Not only is Mr. Kuebel’s appraisal correct, but we do not believe that the Commission has the authority to disregard its own order, rendered following a full hearing. In fact, in making the changes in the assessment of the properties, the Commission purported to implement its own order.

The judgment appealed from is therefore affirmed, at the cost of the Tax Commission.

AFFIRMED.


author: GREENE, Judge.

text:
    FIDELITY AND CASUALTY COMPANY OF NEW YORK v. David BOWMAN et al.
    No. 13078.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 21, 1980.
    Charles W. Wilson, III, Baton Rouge, for plaintiff-appellee, Fidelity, and Cas. Co. of New York.
    John W. King, Baton Rouge, for defendant and third party plaintiffs-appellants, David Bowman and Leonard Bowman.
    John R. Keogh, Baton Route, for third party defendants-appellees, Leonard B. Edelman and Theodore G. Soloman d/b/a Bon Marché Co. and. Bon Marché, Inc.
    Before EDWARDS, LEAR and GREENE, JJ.
   GREENE, Judge.

Plaintiff filed suit seeking recovery of $2,087.00 paid to occupants of its insured’s vehicle (hereinafter referred to as the Vince vehicle). The accident giving rise to this litigation occurred in the parking lot of the Bon Marché Shopping Center in Baton Route. Defendants answered, denying liability and filed a third party petition against Leonard B. Edelman and Theodore G. Solomon d/b/a Bon Marché, Inc. The trial court gave judgment in favor of plaintiff against defendant driver, finding both Bon Marché and the driver of the Vince vehicle free from fault. From that judgment, defendant driver has appealed.

Appellant contends that the trial court erred in finding the defendant driver guilty of negligence which was a proximate cause of this accident and in failing to find negligence on the part of the driver of the Vince vehicle.

The record establishes that Loretta Vince, accompanied by her mother, sister and another individual, was driving plaintiff’s insured’s vehicle in an easterly direction in a driving lane through a parking area in the Bon Marché Shopping Center when her car was struck on the left side by a car driven by Leonard Bowman. Bowman was driving in a southerly direction and was exiting from one of the parking lanes when his car struck the Vince vehicle.

This parking lot has tiers of parking spaces separated by parking lanes running in a north-south direction. The parking lanes provide access to the parking stalls. Defendant’s vehicle had been traveling in one of these parking lanes right before impact. Located at the south end of these parking lanes is an east-west driving lane which provides access to this parking lot from a public street. The Vince vehicle was traveling on this driving lane when the accident occurred. A “T” intersection is created as each parking lane intersects with the traffic lane.

Both cars were moving at a relatively slow pace before the collision. Mrs. Vince did not see the Bowman vehicle in time to avoid the collision. Appellant, unfamiliar with this parking lot, acknowledge that he was looking for a parking space and never did see the Vince vehicle prior to impact.

The trial court found Bowman to be derelict in keeping a look-out, particularly in view of the fact that he was entering a “T” intersection and could not proceed straight through. The trial court further found that the Vince vehicle was proceeding on what was considered to be a main thoroughfare through the parking lot and was free from fault.

The factual determinations made by the trial court are entitled to great weight and are not to be disturbed in the absence of manifest error. Arceneaux v. Domingue, 365 So.2d 1330 (La.1979). This Court finds there to be sufficient evidence in the record to furnish a reasonable factual basis for the trial court’s findings concerning the negligence of Leonard Bowman and the lack of negligence of Loretta Vince.

Appellant further alleges that the trial court erred in not finding Bon Marché negligent in the traffic control design of its parking lot. In connection with this specification of error, appellant also alleges that the trial court should have allowed the introduction into evidence of a written report from the Baton Rouge City Traffic Engineer to Bon Marché Corporation together with an attendant cover letter from the Director of Public Works dated March 19, 1973. Although the trial court sustained an objection to the introduction of this evidence, the pertinent content of this exhibit was introduced into evidence without objection through the testimony of Robert Can-field, the Baton Rouge City Traffic Engineer. Since the pertinent content of this exhibit is in evidence without objection, it is of no consequence that the exhibit is not in evidence.

Appellant contends that Bon Marché was negligent in failing to install traffic control devices such as stop signs at the intersections of the parking lanes and the driving lane. The Baton Rouge City Traffic Engineer worked with the developers of Bon Marché in planning this parking lot. Although he recommended that traffic control devices be used where these parking lanes intersected with the driving lane, he did not require that these devices be installed before giving final approval to the project. He was of the opinion that it was not absolutely necessary for stop signs to be erected where these parking lanes intersected with the traffic lane. Since no traffic control devices were required by this traffic engineer, the lack of such controls was not in violation of any parish or city ordinance.

Appellant claims that even if the City of Baton Rouge did not properly enforce its ordinances upon Bon Marché concerning the erection of these traffic control devices, Bon Marché still had a duty not to cause an unreasonable risk of injury to the public using these parking facilities. Although we agree that Bon Marché had such a duty, we find the record adequately supports the trial court in finding that lack of such traffic controls was not a factor in the cause of the accident since Bowman was so obviously inattentive in his driving that traffic controls would have made no difference. Therefore, we do not find that the trial court committed manifest error in its factual determination that Bon Marché was not negligent.

The judgment of the trial court is affirmed. Appellant is to pay all costs of this appeal.

AFFIRMED.