author:
WATSON, Justice.
     PONDER, J. Ad Hoc, BLANCHE, Justice

text:
    STATE of Louisiana v. Marvin Elwood SCOTT. STATE of Louisiana v. Winifred Ellen SCOTT.
    Nos. 80-KA-2845, 80-KA-2846.
    Supreme Court of Louisiana.
    June 22, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Knowles M. Tucker, Dist. Atty., J. Wayne Landry, Asst. Dist. Atty., for plaintiff-appellee.
    James B. Supple, Indigent Defender Board, Franklin, for defendant-appellant Marvin Elwood Scott.

      James R. McClelland, Indigent Defender Board, Franklin, for defendant-appellant Winifred Ellen Scott.
   WATSON, Justice.

Defendants, Marvin Elwood and Winifred Ellen Scott, were convicted of cruelty to a juvenile in violation of LSA-R.S. 14:93. Each was sentenced to five years at hard labor. They have appealed their convictions and sentences.

FACTS

Jason Paul Scott, age two, was severely burned with hot grease on Saturday, January 26, 1980. The injury was accidental, but the Scotts neglected to seek medical assistance, allegedly because of poverty and lack of transportation. There was no testimony that Jason could have survived, but “his chances would have been infinitesimally greater if he had received immediate treatment.” (Preliminary Hearing, p. 9) The Scotts used over-the-counter remedies but the jury found that they were criminally negligent in not seeking medical assistance.

A friend of the family, Gerald Provorse, went to the Scotts’ home on Monday morning. Because Mr. Proverse thought the Scotts were in shock and unaware Jason needed help, he called the sheriff’s department that Monday evening at 6:00 P.M. Deputy Sheriff Matt LeBlanc went to the Scotts’ home on Monday, January 28, at approximately 8:35 P.M., but was not allowed to enter the house. On Tuesday, January 29, Debra Aymond went to the Scott home with another employee of the Louisiana Office of Human Development. Mr. Scott threatened them and Ms. Aymond obtained a court order Tuesday afternoon in order to see Jason. Ms. Aymond and two deputies went to the Scott residence again on Wednesday, January 30, and found the child semi-conscious. They wrapped him in a sheet and took him to the emergency room of Lakewood Hospital in terminal condition. Dr. Evariste J. Trahan testified that Jason must have suffered excruciating pain during the first two or three days after his injury. Jason was subsequently transferred to New Orleans Charity Hospital where he died as the result of burns over fifty percent of his body.

ASSIGNMENT OF ERROR NUMBER ONE

Defendants both claim that the trial court erred in refusing to compel production of records of the Department of Health and Human Resources, which were in the state’s possession. The trial judge made an in camera inspection and apparently determined that the evidence was not exculpatory and need not be disclosed.

The reports are not exculpatory as to Marvin Scott but are exculpatory as to Winifred Scott. They indicate that Mrs. Scott, married at age 15 to a 25 year old husband, has no part in making family decisions. Mr. Scott is the parent who does not want the children to have medical treatment. Mrs. Scott is described as incompetent, weak, depressed and subservient to her husband. She has taken advantage of mental health counseling when it was available.

Winifred Scott’s theory of defense was that she had no control over family affairs. The reports are material to this issue and would have assisted her defense. Brady v. Maryland. Since the ruling was highly prejudicial to Winifred Scott, and deprived her of due process of law, she is entitled to a new trial. Winifred Ellen Scott’s conviction must be reversed, and her remaining assignments of error will not be considered.

Marvin Scott’s defense was not prejudiced by the trial court’s refusal to order production of the reports. They contain nothing favorable to Marvin Scott.

This assignment of error has no merit as to Marvin Scott.

ASSIGNMENT OF ERROR NUMBER TWO

Marvin Scott contends that the trial court erred in failing to sever the trials. However, his defense was not antagonistic to that of his wife. Mr. Scott did not attempt to blame her for the failure to obtain treatment for Jason. Neither Mr. nor Mrs. Scott testified at the guilt portion of their trial. No confessions of either party were introduced into evidence. No prejudice to Marvin Scott from the trial judge’s failure to sever the trials is apparent. Justice did not require a severance. LSA—C. Cr.P. Art. 704. Moreover, Marvin Scott would clearly have been convicted in a separate trial. State v. McGraw. This assignment lacks merit.

ASSIGNMENTS OF ERROR NUMBER THREE, FOUR AND FIVE

Defendant contends the trial court should have suppressed statements made by Marvin and Winifred Scott at home and statements made by Winifred Scott enroute to and at the hospital. Miranda v. Arizona ; Escobedo v. Illinois.

The statements made at the home were volunteered. There were no custodial circumstances and the questions were aimed solely at the welfare of Jason. The deputies were unaware that their questions might elicit an incriminating response. Rhode Island v. Innis.

The statements made by Mrs. Scott en-route to and at the hospital were made in a semi-custodial situation. She accompanied Jason, who had been taken from his home under court order. Her answers to the questions might have elicited an incriminating response. However, the statements she made were not inculpatory. Mrs. Scott stated that: the injuries were accidental; they did not have enough money for a hospital; and they did not want to take the child to a charity institution. These statements were not prejudicial to Marvin Scott’s defense.

These assignments lack merit.

ASSIGNMENT OF ERROR NUMBER SIX

It is contended that the trial court erred in admitting into evidence five photographs of Jason showing the nature of his burns. The photographs are gruesome and were admitted into evidence despite the defendants’ offer to stipulate the nature and extent of the injuries. The photographs were crucial to the issue of whether the Scotts were criminally negligent in not seeking medical assistance for Jason. The photographs proved that even a lay person would have realized the nature and extent of the injuries and were essential to prove that the Scotts were criminally negligent. Their probative value outweighed any prejudice. State v. Vernon.

This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER SEVEN

Marvin Scott contends that the trial court erred in curtailing defense counsel’s closing argument. Counsel stated:

“You know, if we start convicting people in saying they’re grossly criminally negligent because they don’t take the child to a doctor or they don’t go to hospitals, what are we going to do? Are we going to put all Jehovah Witnesses in jail? Are we going to put all Christian Scientists in jail? Are we going to.... ”

The trial court sustained the state’s objection to further argument along those lines. Since there was no testimony that the Scotts’ failure to take Jason to the hospital was motivated by religious considerations, the argument was beyond the scope of the evidence and the objection was properly sustained. LSA-C.Cr.P. art. 774.

ASSIGNMENTS OF ERROR NUMBER EIGHT AND NINE

Defendant Marvin Scott contends that no rational trier of fact could have found the essential elements of this crime beyond a reasonable doubt.

Marvin Scott is above the age of seventeen. His oldest child by Winifred Scott, Koren, was fourteen. Dr. Trahan estimated Marvin Scott’s age at over forty and Officer Froreich estimated it as over thirty. Failing to take the child to a doctor under these circumstances was criminally negligent and the testimony of Dr. Trahan established that his criminal negligence caused unjustifiable pain and suffering to the child.

These assignments lack merit.

ASSIGNMENT OF ERROR NUMBER TEN

It is contended that the five year sentence at hard labor is excessive.

The trial court articulated the reasons for the sentence imposed. A suspended sentence or probation was found to pose undue risk of further neglect or child abuse. The court conceded that correctional treatment would not be of any assistance or have any rehabilitating value, but felt that having defendants in custody would benefit their remaining children. The trial court stated that any sentence short of imprisonment would deprecate the seriousness of the crime, which resulted in unnecessary pain and suffering, as well as death. Free medical assistance was available, and the parents should have known this from their previous contacts with welfare agencies. Although Marvin Scott had no serious criminal history, the court noted complaints of neglect against him in the past and concluded that the circumstances of the crime might recur. The court felt that defendants’ disdain for authority and governmental agencies made it unlikely that they would respond affirmatively to probationary treatment. It was the court’s opinion that imprisonment would not entail excessive hardship for the defendants, and their dependents would be better off in foster care. The court noted the absence of any emotion or remorse.

The sentence imposed on Marvin Scott is not unconstitutionally excessive.

This assignment lacks merit.

For the foregoing reasons, the conviction of defendant, Winifred Ellen Scott, is reversed and her case is remanded for new trial.

The conviction and sentence of defendant, Marvin Elwood Scott, are - affirmed.

REVERSED AS TO WINIFRED ELLEN SCOTT; AFFIRMED AS TO MARVIN ELWOOD SCOTT.

BLANCHE, J., dissents and assigns reasons.

PONDER, J. Ad Hoc,

dissents from reversal of conviction of Winifred Scott. The report should be hearsay and cumulative and subservience would not be a defense.

BLANCHE, Justice

(dissenting).

I respectfully dissent. The most plausible reason for defendant not taking his child to the doctor was due to the fear of reprisal from the welfare department, which had previously investigated the defendant’s family life. His mistake in judgment, which resulted in the child’s death, is tragically unfortunate and should not be compounded by requiring defendant to serve five years in the penitentiary.

       Judges Morris A. Lottinger, Jr., Wallace A. Edwards, and Elven E. Ponder of the Court of Appeal, First Circuit, participated in this decision as Associate Justices Ad Hoc, joined by Chief Justice Dixon and Associate Justices Marcus, Blanche and Watson.

      . LSA-R.S. 14:93 provides:
      “Cruelty to juveniles is the intentional ■ or criminally negligent mistreatment or neglect, by anyone over the age of seventeen, of any child under the age of seventeen whereby unjustifiable pain or suffering is caused to said child. Lack of knowledge of the child’s age shall not be a defense.
      “Whoever commits the crime of cruelty to juveniles shall be fined not more than one thousand dollars, or imprisonment for not more than ten years, with or without hard labor, or both.”

      . There is some indication that the trial court denied production of the reports on the basis of LSA-R.S. 46:56. See Hearing on Motion to Sever and Motion to Suppress, pp. 14-19. However, the District Attorney’s office had the reports, which is also in violation of LSA-R.S. 46:56. The statutory prohibition against release of the records would be outweighed by defendants’ right to an adequate defense. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974).

      . 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

      . Defendants were indicted in separate bills of information. That procedural defect was waived to allow a joint trial. Defendants reserved the right to complain about the failure to grant a severance. Trial proceeded with “the fiction” of a single bill of information. (Trial Tr. 8).

      . LSA-C.Cr.P. art. 704 provides:
      “Jointly indicted defendants shall be tried jointly unless:
      “(1) The state elects to try them separately; or
      “(2) The court, on motion of the defendant, and after contradictory hearing with the district attorney, is satisfied that justice requires a severance.”

      . 366 So.2d 1278 (La., 1979).

      . 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964).

      . 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980).

      . 385 So.2d 200 (La., 1980).

      . LSA-C.Cr.P. art. 774 provides:
      “The argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.
      “The argument shall not appeal to prejudice.
      “The state’s rebuttal shall be confined to answering the argument of the defendant.”


source: Caselaw Access Project

author:
KLIEBERT, Justice Ad Hoc.
     REDMANN, Justice Pro Tern.,

license: Public Domain

text:
    STATE of Louisiana v. Kenneth SANCHEZ.
    No. 80-KA-2850.
    Supreme Court of Louisiana.
    June 22, 1981.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Michael Campbell, J. Kevin McNary, Louise Korns, Asst. Dist. Attys., for plaintiff-appellee.
    Dwight Doskey, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
   KLIEBERT, Justice Ad Hoc.

Defendant, Kenneth Sanchez, was charged by bill of information with simple burglary of an inhabited dwelling in violation of La.R.S. 14:62.2. He was tried by a judge, convicted, and sentenced to serve two years at hard labor in the state penitentiary. Defendant appeals.

Although the defendant submitted two assignments of error to the trial court, assignment one has not been briefed or argued and is, therefore, deemed abandoned. State v. Gardette, 352 So.2d 212 (La.1977); State v. Phillips, 337 So.2d 1157 (La.1976).

The second assignment of error requests only that we review the entire record in this matter for error patent on the face of the record pursuant to La.C.Cr.P. Art. 920(2). We find no such error.

Accordingly, the conviction and sentence are affirmed.

REDMANN, J. Pro Tern., dissents with reasons.

REDMANN, Justice Pro Tern.,

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 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 Redmann and Kliebert of the Court of Appeal, Fourth Circuit, and Judge Cutrer of the Court of Appeal, Third Circuit, participated in this decision as associate justices ad hoc, joined by Justices Calogero, Dennis, Blanche and Lemmon.


author:
KLIEBERT, Justice ad hoc.
     REDMANN, Justice Pro Tern.,

text:
    STATE of Louisiana v. Major STEWART.
    No. 80-KA-2875.
    Supreme Court of Louisiana.
    June 22, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Julie LeBlanc, Louise Korns, J. Kevin McNary, John Craft, Asst. Dist. Attys., for plaintiff-appellee.
    Susan B. Milstein, Student, John Stan-desk, Michael S. Gallagher, William O’Hara, New Orleans, Loyola Law School Clinic, for defendant-appellant.
   KLIEBERT, Justice ad hoc.

The facts of the case are not at issue. A dispute developed between Robert Eppis and Major Stewart, defendant, regarding Eppis’ repair of defendant’s automobile. The victim, Eppis, asserted that on May 11, 1979, Stewart pulled a gun, ordered Eppis into the car, drove him to a deserted section of the Mississippi River levee, forced him out of the car and at gunpoint robbed him of $220.00. Following the robbery, according to the victim, he was shot in the left arm and then as he was attempting to escape from Stewart, was shot in the left leg. Eppis says he hid in the water by some moored barges and after he believed Stewart had left, crawled back over the levee where he received assistance from third parties. The victim Eppis later identified Stewart to the police as his assailant.

Major Stewart was charged by bill of information on a first count of armed robbery in violation of La.R.S. 14:64 and a second count of attempted first degree murder in violation of La.R.S. 14:27, 14:30. Responsive verdicts to the first count of armed robbery was (a) Guilty as charged, i. e., armed robbery, (b) Guilty of attempted armed robbery, (c) Guilty of simple robbery and (d) Not guilty. Responsive verdicts to the second count of attempted first degree murder was (a) Guilty as charged, i. e., attempted first degree murder, (b) Attempted second degree murder (c) Guilty of attempted manslaughter, (d) Guilty of attempted aggravated battery and (e) Not guilty.

After trial by jury, defendant was convicted of attempted second degree murder. The jury was deadlocked on the armed robbery charge and a mistrial was declared as to that charge. A motion for new trial was denied. The defendant was sentenced to 20 years hard labor with the Louisiana Department of Corrections. Defendant appeals, assigning as error a denial of due process.

First, defendant contends his due process rights were violated because the crime for which he was convicted, i. e., attempted second degree murder, does not include all of the elements of the crime with which he was charged, i. e., attempted first degree murder. Hence, he argues that he did not receive the constitutionally required notice of the charge for which convicted and in the absence of such notice was deprived of an adequate opportunity to defend against the crime for which convicted.

In support of the argument, counsel for defendant relies on State v. Booker, on rehearing, 385 So.2d 1186 (La.1980). In Booker, the defendant was charged with attempted first degree murder and convicted of attempted second degree murder. The same statutes applicable in the instant case were applicable in Booker. This Court reversed the conviction, finding that defendant Booker was convicted of criminal conduct not actually included within the charge of attempted first degree murder; i. e., he was convicted of attempting to kill a person while engaged in the perpetration of a major felony. In finding the defendant had been denied due process of law, despite the fact that attempted second degree murder was legislatively classified as a responsive verdict to the crime charged, this Court reasoned that Booker had not received the constitutionally required “adequate notice for due process” because all of the elements necessary to constitute the crime of attempted second degree murder, i. e., the underlying felony was not included in the definition of the crime of attempted first degree murder; therefore, a charge of attempted first degree murder does not give notice of the underlying felony necessary to support the crime of attempted second degree murder.

The instant case, however, is distinguishable from Booker, because defendant Stewart was charged with attempted first degree murder and with armed robbery, both offenses having occurred in the same sequence of events. The defendant in this case, then, was adequately apprised that the attempted murder took place in the perpetration of one of the enumerated felonies, i. e., an armed robbery, and the defendant was aware that felony murder was a responsive verdict to the crime charged. Through the combined charge of armed robbery and attempted second degree murder in the bill of information, the defendant was fully notified of every element of the crime of second degree murder, thus, his due process right to be informed of the charges against him was not violated.

Secondly, the defendant contends he was denied due process of law because one element of the crime of felony murder, the underlying felony (in this instance, armed robbery), was not proven beyond a reasonable doubt.

It is well established that every element of a crime must be proven beyond a reasonable doubt before a defendant can be convicted of the offense. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).

Further, where, as here, the definition of the greater crime does not necessarily include all of the elements of the lesser, this Court has stated that one of the inquiries to satisfy due process is to determine whether there is evidence to support the conviction for the lesser offense even though it is a legislatively designated responsive verdict. State v. Dauzat, 392 So.2d 393 (La.1980). Under this rationale, the defense urges that since the elements necessary to convict for attempted second degree murder are not included in the charge of attempted first degree murder and since the jury failed to find the defendant Stewart guilty of armed robbery as charged, the defendant was denied due process because the state failed to prove beyond a reasonable doubt all of the elements necessary for a conviction of attempted second degree murder, i. e., the underlying felony.

To maintain this contention, the defense must show reason to believe the jury failed to return a verdict of guilty on the armed robbery charge because of reasonable doubt as to the defendant’s guilt. While it would appear persuasive that a “hung jury” on the charge could only result from lack of conviction beyond a reasonable doubt of guilt on the part of some jurors, the evidence coupled with the fact the jury returned a verdict of attempted second degree murder persuades us the jury was convinced every element of the crime, including the underlying felony, was proven beyond a reasonable doubt.

It would be rank speculation to attempt to explain why the jury was deadlocked on the armed robbery charge. To accept the defendant’s argument would mean that, in order for this defendant to have been convicted of attempted second degree murder, he would have had to been found guilty of both the attempted felony murder and the felony or attempted felony. As discussed previously, such a scenario is barred by double jeopardy protection and would produce incongruous results.

The standard of review when considering the sufficiency of the evidence to support a criminal conviction is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 433 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Guillot, 389 So.2d 68 (La.1980); State v. Landry, 381 So.2d 462 (La.1980); State v. Abercrombie, 375 So.2d 1170 (La.1979), cert. den. 446 U.S. 935, 100 S.Ct. 2151, 64 L.Ed.2d 787; State v. Mathews, 375 So.2d 1165 (La.1979).

The evidence presented at trial by the state consisted almost entirely of the victim’s own testimony. The victim, Eppis, testified that he had agreed to repair the defendant’s car. A misunderstanding developed and the defendant accused the victim of stealing his car and some of its contents. According to the victim’s testimony, defendant Stewart forced him into a car at gunpoint and drove to a deserted part of the levee. Eppis further stated that defendant Stewart repeatedly told him he was going to kill him, robbed him of $220.00 in cash and then shot him in the arm. Eppis asserted that after the first shot he ran toward the Mississippi River and was shot in the leg in his attempt to escape. He waded into the river and hid behind a barge. The defendant did not attempt to follow him and Eppis later crawled over the levee to a nearby house for help.

Applying the standard above stated, this testimony and the record as a whole convinces us that there is sufficient evidence in the record to support a rational trier of fact returning a verdict of guilty beyond a reasonable doubt on the felony murder charge. Hence, we conclude there was no denial of due process.

For the foregoing reasons, therefore, the conviction and sentence are affirmed.

LEMMON and DENNIS, JJ., concur and will assign reasons.

REDMANN, J. Pro Tern., dissents with reasons.

REDMANN, Justice Pro Tern.,

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 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 Redmann and Kliebert of the Court of Appeal, Fourth Circuit, Judge Cutrer of the Court of Appeal, Third Circuit, participated in this decision as associate justices ad hoc, joined by Associate Justices Calogero, Dennis, Blanche and Lemmon.

      . At the time second degree murder was defined as “the killing of a human being when the offender is engaged in the perpetration or attempted perpetration of aggravated rape, aggravated arson, aggravated kidnapping, aggravated escape, armed robbery or simple robbery, even though he has no intent to kill or to inflict great bodily harm.” La.R.S. 14:30.1 as of May 1979. Attempted second degree murder was made a responsive verdict to a charge of attempted first degree murder by La. Code of Criminal Procedure Article 814(A)(2).

      .At the time first degree murder was defined as the killing of a human being when the offender has a specific intent to kill or inflict great bodily harm. La.R.S. 14:30(1) as of May 1979.

      . It should be noted that the prohibition against double jeopardy forbids prosecution and conviction for both felony murder and the enumerated felony. Here defendant Stewart was charged with attempted first degree murder and armed robbery; hence, the charge was proper. The defendant could not, however, be convicted of attempted felony murder and the underlying felony. Once convicted of attempted “felony murder” the defendant is punished for the felony which he was perpetrating at the time of the attempted murder and he cannot be punished a second time for the same offense. State v. Henderson, 292 So.2d 505 (La.1974).

      . I. e., was it deadlocked over guilty or not guilty as charged, or guilty or not guilty of attempted armed robbery, or was it a compromise vote, or a vote showing leniency, or some combination of these?

      . See footnote 4, supra.


author:
CUTRER, Justice.
     REDMANN, Justice Pro Tern.,

text:
    STATE of Louisiana v. Samuel HYMER.
    No. 80-K-2933.
    Supreme Court of Louisiana.
    June 22, 1981.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., Walter Lee Perkins, Jr., Asst. Dist. Atty., for plaintiff-relator.
    James Sharp, Jr., Monroe, for defendant-respondent.
   CUTRER, Justice.

Defendant, Samuel Hymer, was charged, by a bill of information, with possession of a controlled dangerous substance, to wit: “marijuana, a violation of La.R.S. 40:967.” Defendant filed a motion to suppress the evidence. After a hearing the motion to suppress was granted by the trial court. The State contends that this ruling was error and now appears before this court under a grant of supervisory writs. 396 So.2d 910.

The single assignment of error contends that the trial court erred in suppressing the marijuana and other contraband located in the room occupied by defendant, Samuel Hymer, at 2101 South Grand Street in Monroe, Louisiana.

Acting upon information from a confidential informant, Officer Brian Boney obtained a search warrant authorizing the search of a residence located at 2101 South Grand, Monroe, Louisiana, being a large white wood frame house with a gray roof. The search warrant authorized the executing officer to search any person, and his/her belongings at the above described location at the time of the search. The warrant authorized a search for controlled dangerous substances including marijuana.

The only testimony presented at the hearing on the motion to suppress was that of Officers Brian Boney and William Beck-ham, the officers who carried out the execution of the search warrant.

That testimony reveals the following:

At 7:55 P.M. on September 26, 1980, the residence was searched. James Newell Till and his wife, Ms, Mary Jo Till, were present when the officers arrived. Hymer came in during the search. Mr. Till was advised of his rights and when asked if he had any marijuana, he responded affirmatively and handed over to the officers marijuana he had taken from a dresser in a bedroom. Officer Boney testified that Mr. and Ms. Till were very cooperative and sat quietly as the officers located marijuana elsewhere in the large, two-story residence.

Officer Beckham stated that while conducting a search of the residence, he encountered a door which was locked. Ms. Till, when asked where it led, said only that it was a bedroom and produced a key which the witness used to unlock the door. This witness, as did Officer Boney, testified that when the room was entered, they did not know that it was being occupied by Hymer. Once in the room, Officer Beckham found a bag of marijuana and a wooden pipe in a dresser drawer. When asked at what point he realized that it was Hymer’s bedroom, he responded that it was not until Officer Boney entered the room and found a bill in the dresser with Hymer’s name on it. Officer Boney had testified earlier that his confidential informant had told him that a brother-in-law by the name of “Newell” also lived in the residence at 2101 Grand but that he did not learn that the bedroom searched was the defendant’s until a J. C. Penney bill addressed to Hymer was found in a dresser in the room.

Officer Beckham testified that the defendant arrived at the residence while the search was in progress and after the marijuana was found in his bedroom.

Neither the defendant nor Mr. and Ms. Till testified at the hearing. No witnesses were called on their behalf.

After hearing this evidence, the trial court, in granting the motion to suppress the evidence found in Hymer’s room, commented that the search warrant “did not entail the search of Mr. Hymer’s room.” The ruling of the trial court was erroneous and we will reverse.

The State contends that the scope of the search warrant extended to all portions or rooms of the residence, including the room occupied by Hymer. The defendant contends that the warrant, authorizing the search of premises at 2101 Grand, established probable cause for and applied only to the portion of the house occupied by the Tills. Defendant contends that the door to his room, being locked, put the executing officers on notice that this room was actually a “sub-unit” or an “apartment” and the search warrant for the residence did not authorize a search of such “sub-unit” or “apartment.”

These arguments bring up the issue of whether it was necessary, under the circumstances, that the search warrant particularly describe Hymer’s room as the place to be searched.

In the case of State v. Manzella, 392 S.2d 403, 405 (La.1980), this court held as follows:

“A search warrant must describe with particularity the place to be searched. U.S.Const., Amend. IV; La.Const. art. 1, § 5; C.Cr.P. art. 162. As we said in State v. Cobbs, 350 So.2d 168, 177 (La.1977):
“The object of the description in a search warrant is to prevent the search of the wrong premises. If the place to be searched is described in sufficient detail to enable the officers to locate it with reasonable certainty and with the reasonable probability that the police will not search the wrong premises, the description is sufficient.”

The description of the premises to be searched, found in both the application for the warrant and the warrant itself, was as follows:

“2101 SOUTH GRAND, MONROE, LA., being a large white wood frame house with a gray roof. The residence is located at the corner of Chestnut St. and South Grand St.”

As we review the information furnished to Officer Boney contained in the application, we note that the confidential informant stated that he could purchase marijuana at the described premises. After a search of the informant, and while he was under surveillance, such informant went into the particular premises and made the purchase and turned same over to the officers. Also, the informant told Officer Boney that he had observed marijuana in the premises in the possession of a person known as “Newell.”

The reference to the name “Newell” would not have the effect of placing a limitation upon the area to be searched within the premises. The information, in addition to reflecting possession by “Ne-well,” reflects that marijuana was located in the premises and also a purchase was made in the premises. Under these circumstances there existed probable cause for a search warrant to issue authorizing the search of the described premises and not just a portion thereof.

Further, there is no evidence in the record that Hymer’s room constituted a separate “sub-unit” or “apartment” so as to require a particular description. Defendant did not testify and called no witnesses at the hearing. There is no evidence that the room was private or inaccessible to his sister and brother-in-law. There is no proof that Hymer paid any rent for the use of the room.

The proof only reflects that Mr. Till, Ms. Till and Ms. Till’s brother, Hymer, occupied the premises to be searched. The search of the bedroom occupied by Hymer was clearly authorized by the search warrant. This court stated in the case of State v. Roach, 322 So.2d 222, 226 (La.1975) that:

“.. . a search warrant authorizing the search of the ‘premises’ at a stated address must reasonably be interpreted to permit a search of the dwelling house proper, the garage, and any other outbuildings within close proximity of the house proper that one normally associates with and includes within the word ‘house’ or ‘premises.’ United States v. Long, 449 F.2d 288 (8th Cir. 1971), cert. denied, 405 U.S. 974, 92 S.Ct. 1206, 31 L.Ed.2d 247 (1972); Fine v. United States, 207 F.2d 324 (6th Cir. 1953); cert. denied, 346 U.S. 923, 74 S.Ct. 310, 98 L.Ed. 417 (1954); State v. Brochu, 237 A.2d 418 (Me.1967)

Hymer’s room was a part of the premises and there was probable cause to search the described premises including the room in question. The motion to suppress was erroneously granted by the trial court.

Accordingly, the ruling of the trial court granting the defendant’s motion to suppress is reversed and vacated and the case is remanded to the district court for further proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.

REDMANN, J., Pro Tern., dissents with reasons.

REDMANN, Justice Pro Tern.,

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 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 Cecil C. Cutrer, Court of Appeal, Third Circuit; William V. Redmann and Thomas J. Kliebert, Court of Appeal, Fourth Circuit; participated in this decision as Associate Justices Ad Hoc; joined by Associate Justices Pascal F. Calogero, Jr.; James L. Dennis; Fred A. Blanche, Jr. and Harry T. Lemmon.

      . Defendant’s motion was consolidated for purposes of the hearing with the motion to suppress of two other defendants. While the motion as to the accused was granted, the motion as to the other two was denied.

      . The oath in support of the search warrant, as attested by Officer Boney, urged that probable cause to search was based on the following: Within the past 30 days, your affiant has been contacted by a RELIABLE CONFIDENTIAL INFORMANT who stated to your affiant that the RCI could purchase a controlled dangerous substance (being marijuana) from a particular location. The RCI was searched by your affi-ant for controlled dangerous substances and none were found. The RCI under direct controlled surveilance was allowed to enter a particular residence. Said residence was kept under constant surveillance by your affiant and after an alloted amount of time, the RCI left the residence and returned to your affiant at a predermined [sic] location and turned over to your arriant a substance the RCI stated was marijuana. After the RCI turned over the suspected marijuana, your affiant field-tested the substance and the results were positive.
      “The information received from this RCI is believed to be true and correct due to past infro-mation [sic] received from this RCI has always proved to be truthful and has been verified by your affiant through other police officers. This RCI has provided infromation [sic] in the past which led to one felony marijuana arrest. “Within the past 36 hours, your affiant has been contacted by this same RCI, who stated to your affiant thatwithin this same 36 hour period, this RCI has had the oppuntunity [sic] to be at 2]0] South Grand St., and while at this location, said RCI observed approximately one-half pount of marijuana in the possession of a white male known as NEWELL.”


author: MARCUS, Justice.

text:
    STATE of Louisiana v. Alvin SYLVESTER, Jr.
    No. 80-KA-2942.
    Supreme Court of Louisiana.
    June 22, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leonard Knapp, Dist. Atty., Evelyn Oubre, Charles Richard, Asst. Dist. Attys., for plaintiff-appellee.
    Phillip S. St. Romain, Jack Rogers, Harold Thibodeaux, Lake Charles, for defendant-appellant.
   MARCUS, Justice.

Alvin Sylvester, Jr. was indicted by the grand jury for two counts of first degree murder in violation of La.R.S. 14:30. After trial by jury, defendant was found guilty as charged on both counts. A sentencing hearing was conducted by the same jury that determined the issue of guilt. The matter was submitted on the evidence of the trial on the issue of guilt without introduction of other evidence. The jury unanimously recommended that a sentence of death be imposed on defendant for each count. The trial judge sentenced defendant to death in accordance with the recommendations of the jury. On appeal, defendant relies on twenty assignments of error for reversal of his convictions and sentences. Finding reversible error in two of the contentions raised under Assignment of Error No. 3, we need not consider the others or those raised under the remaining assignments of error. However, we have chosen to discuss defendant’s contention under Assignment of Error No. 10 because it concerns an issue that may be raised on a new trial.

FACTS

On the evening of July 15, 1979, defendant, along with Brad Lewis and Ernestine Guillory, went to the White Eagle Lounge in Lake Charles. At about midnight, the group was occupying a table adjacent to that of Darrell Walker and his sister, Dorothy Walker. Apparently, Mr. Walker had danced with Ms. Guillory during the evening and defendant had danced with Ms. Walker. None of the members of the parties knew each other prior to that evening. At this point, Brad Lewis asked Ms. Walker to dance and she refused. Words were exchanged and an argument ensued. A ■scuffle broke out involving the male members of the two parties and Ms. Walker was knocked to the floor. With the help of several bystanders, the manager of the lounge broke up the fight and ejected the participants from the bar. Defendant and Brad Lewis left first, followed a short time later by the Walkers. On the outside of the lounge, Ms. Walker displayed a pistol. There was also evidence that she possessed the gun while inside of the bar. The manager instructed the Walkers that they would have to leave and last saw them as they were walking toward their car.

There is conflicting testimony as to exactly what transpired next. An eyewitness for the state testified that the Walkers got into their car with Ms. Walker driving and attempted to start the engine. Though the accounts varied, witnesses for the defense generally testified that one of the Walkers fired several shots from a pistol into the air or in the direction in which defendant and Brad Lewis were leaving the scene. In any event, defendant went to his car and removed his 30-06 bolt-action rifle from beneath the rear seat. He returned to the parking lot near the lounge and fired three shots from close range at the Walker vehicle. The first shot apparently struck the pavement and fragmented. The second shot struck Darrell Walker in the head and the third shot struck Dorothy Walker in the face. Both of the victims died as a result of these wounds. Defendant fled the scene on foot.

A Lake Charles City Police patrol unit was dispatched to the scene of the shooting at 1:03 a. m. on July 16, 1979. The victims were found inside of their vehicle. A chrome-plated revolver with five spent shells in the cylinder was found beneath the passenger seat of the Walker vehicle. Three bullet casings from a 30-06 rifle were also found at the scene. On the following day, July 17, 1979, defendant surrendered himself to the Lake Charles City Police, maintaining that he had acted in self-defense. A subsequent investigation at the scene of the shooting revealed no physical evidence that shots had been fired by the Walkers prior to their deaths.

ASSIGNMENT OF ERROR NO. 3

Under this assignment of error, defendant contends, inter alia, that the trial judge erred in denying his challenges for cause of prospective jurors Mrs. Bobby Ray Miller and Frank Landry. He argues that, because of these erroneous rulings, he was forced to accept Mrs. Miller as a juror and compelled to exercise one of his peremptory challenges to excuse Mr. Landry, thereby depriving him of one of his twelve peremptory challenges.

La.Code Crim.P. art. 797 provides in pertinent part:

The state or the defendant may challenge a juror for cause on the ground that:
(2) The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence;
(3) The relationship, whether by blood, marriage, employment, friendship, or enmity between the juror and the defendant, the person injured by the offense, the district attorney, or defense counsel, is such that it is reasonable to conclude that it would influence the juror in arriving at a verdict;
(4) The juror will not accept the law as given to him by the court; ....

La.Code Crim.P. art. 800 provides in pertinent part:

A defendant cannot complain of a ruling refusing to sustain a challenge for cause made by him, unless his peremptory challenges shall have been exhausted before the completion of the panel.

Where an accused has exhausted all of his peremptory challenges before completion of the panel, he is entitled to complain on appeal of a ruling refusing to maintain a challenge for cause made by him. He need only show two things to obtain reversible error: (1) that the trial judge erred in refusing to maintain a challenge for cause by him; and (2) that he exhausted all of his peremptory challenges. He need not make the additional showing of injury resulting from the court’s action by forcing him to accept the challenged juror. The trial judge is vested with broad discretion in ruling on a challenge for cause which ruling will not be disturbed on appeal absent a showing of abuse of that discretion. However, service on a criminal jury by one associated with law enforcement duties must be closely scrutinized and may justify a challenge for cause; such association does not automatically disqualify a prospective juror. State v. McIntyre, 365 So.2d 1348 (La.1978).

During voir dire, defendant questioned Mrs. Miller as to her religious preference. She stated that her preference was Alleluia Acres, a non-denominational Christian church. She also stated that her literary preferences were Christian literature and the Bible. At that point the following colloquy took place between the prospective juror and defense counsel:

Q During the course of this trial, the issue of self-defense will be brought out, do you believe in the right of man or a person to defend himself or to defend someone else?
A Do what?
Q Do you believe in the right of a man or ... or a person to ... to defend himself or to defend someone else?
A No.
Q You do not believe that he should be permitted to defend ... defend himself?
A Well, my belief, ... Jesus, you know, you trust in him and he defends you.
Q And if the Judge were to instruct you that the law of the State of Louisiana is that under certain situations, you have a right to defend yourself from bodily harm, or possibly death, or to defend someone else in bodily harm or possibly death, if you have that right and if it is shown that you were acting reasonably in self-defense and killed the other person that this would justify the killing ... if the Judge were to instruct you that . . . that would be the law, could you apply that?
A You mean myself?
Q Yes, ma’am.
A Well, I don’t know. I ... if someone was really going to hit me or hurt me real bad, I don’t know if I could follow through with what I say I believe in. You know, haven’t been to test. I hope and pray that I could.
Q Okay. Okay, of course, now, it’s part of your duty, your civic duty as a juror, of course, is ... will be to hear the evidence presented in this case and to pass judgment on the guilt or innocence of Alvin Sylvester ...
A Um-hmm.
Q ... and he is charged with two counts of first degree murder, very serious charges, which we all agree, and, of course, he has not been proven guilty of these charges.' There are charges and charges alone. At this point, he stands presumed to be innocent. If the State proves that he, in fact, killed these people, and he did it under the critera [sic] wherein the murder might be return . .. the verdict of murder might be returned, the defense will also present evidence in ... in terms of self-defense, and it’s quite possible that he acted in self-defense. In fact, well ... if I understand you correctly, you could maybe ...' you’re not sure about self-defense. Maybe in some situation, you might defend yourself, but you don’t agree with the idea of self-defense, and you might have trouble finding self-defense in someone else’s actions, do I understand that correctly?
I don’t believe that you .. . you don’t protect .. . you know, there’s ... I don’t ... on myself, I don’t need defending. Jesus defends me.
Okay, and ... and you feel that Jesus should defend all of us? .©
Right . ..
And that .. .
.. . trust in him.
And is that an absolute trust that you feel that no one should . . . should take up arms against anyone else for any . . . any circumstances whatsoever?
Well, you . . . you know, you’re talking about just somebody combating you . . . coming against you? Like I said, I ... I haven’t really stood and defended this, but this is not the way that I feel in my heart.
Okay, there may be situations where a person is justified by law in defending himself even if no weapon is found in the hands of the other person . . . let’s assume there are two people involved, the victim and a . . . and a person who was charged with the crime . .. that is, there may be a situation where the victim, or the supposed victim did not even have a weapon in his hand, but the person who is charged with the crime who is claiming self-defense has a weapon, of course, and kills .. . and kills the victim, the supposed victim, and it turns out the victim did not even have a weapon in his hand, but there ... he might have conducted himself in such a manner that the person who did the killing thought that he was in danger of being dilled [sic] himself, or thought that he was in danger of receiving grave bodily harm, and acted to defend himself, finding out later on there was no weapon in the other person’s hand, do you think my hypothetical defendant here would be justified in self-defense? O’
Huh-huh. You don’t defend ... well ... I don’t believe you defend yourself.
Q Okay, now .. .
A If you completely give your life to Jesus, that’s just the way I feel. Then you don’t need to be ... you know, He takes care of you.

This colloquy constituted all of Mrs. Miller’s responses on the issue of self-defense. At no time during the examination of the prospective juror did the state ask any questions relating to this issue. At the conclusion of questioning by defendant, the state accepted the juror. Based on his examination, defendant challenged Mrs. Miller for cause. The trial judge denied defendant’s challenge for cause without asking any questions of the prospective juror. Defendant objected to the trial judge’s ruling but accepted Mrs. Miller as a juror. The record reflects that defendant’s peremptory challenges were exhausted before the completion of the panel; therefore, his objection to the ruling refusing to sustain his challenge for cause is properly before us. Defendant argues that the challenge should have been granted because of the prospective juror’s testimony that she did not believe in self-defense and would not accept that defense even if instructed by the trial judge.

When questioned as to whether she believed in a person’s right to self-defense, Mrs. Miller consistently responded that she did not. It is clear that her religious belief prevented her from accepting the concept of self-defense in any factual situation and that she would not accept the defense even if instructed by the trial judge. The state addressed no questions to Mrs. Miller on the issue of self-defense. No attempt to rehabilitate the prospective juror was made by the trial judge.

A review of the entire record, comprising 1343 pages, indicates that the sole and only defense raised by defendant was that of self-defense. From the time he turned himself in to the authorities through his testimony at trial, the defendant, while admitting that he shot the two victims, contended that he acted in self-defense. The crucial issue at trial and the one which elicited the greatest amount of conflicting testimony was whether either of the victims had in fact fired shots from the pistol found in their car which might have led defendant to believe that his life or that of his friends had been threatened.

In view of Mrs. Miller’s steadfast declaration that she could not accept the theory of self-defense because of her religious belief, we do not consider that she could render an impartial verdict according to the law and evidence. Additionally, she stated that she would not accept the law on self-defense as given her by the court. Hence, we find that the trial judge abused his discretion in refusing to maintain defendant’s challenge for cause of this prospective juror. We must reverse because this erroneous ruling affected substantial rights of the accused. La.Code Crim.P. art. 921.

Next, we consider defendant’s contention that the trial judge erred in denying his challenge for cause of prospective juror Frank Landry. He argues that given the totality of the circumstances and Mr. Landry’s long relationship with law enforcement, Mr. Landry was not capable of serving as an impartial juror.

During voir dire, it was established that Mr. Landry had been employed by the Lake Charles City Police Department for a number of years. Mr. Landry had worked as a detective for nine years and had served as chief of detectives for “a couple of years” before being promoted to the rank of Major. He had been retired for two years and four months at the time of trial. It was established that Mr. Landry has a son who is a sergeant with the Lake Charles City Police Department and serves as an investigator in the detective division. When asked by defendant if he knew state witness Sergeant David Wagner, Mr. Landry stated that he knew Sergeant Wagner and that Wagner had worked under his supervision for a number of years. He further stated that he had known Sergeant Wagner on the police department “from the day that he came on,” a period which Wagner later testified was nearly fourteen years, and that he thought Wagner was “a very good police officer.”

At trial, Sergeant Wagner, as the officer responsible for the investigation in this case, was a principal state witness. He testified that he had been a detective with the Lake Charles City Police for eleven years and served as the senior investigator in this case. Sergeant Wagner was present for much of the investigation at the scene of the shooting on the night of the incident. He also subsequently conducted a search for evidence related to defendant’s defense at the scene and was in charge of securing and interviewing witnesses. He also compiled the offense report. Three other officers who served on the Lake Charles City Police Department while Mr. Landry was there also testified. Despite his long association with the police department and Sergeant Wagner, Mr. Landry stated that he would not tend to credit the testimony of Sergeant Wagner over that of other persons not in the department.

At the conclusion of questioning by defendant, the state accepted the juror. Based on his examination, defendant challenged Mr. Landry for cause. The trial judge then asked Mr. Landry if he felt that having served on the police department would have any influence on his decision in this case. Landry replied that he did not believe that it would. The trial judge then denied defendant’s challenge for cause. Defendant objected to the ruling of the trial judge and peremptorily challenged Mr. Landry. The record reflects that defendant’s peremptory challenges were exhausted before the completion of the panel. Hence, his objection to the ruling of the trial judge is properly before us.

Defendant established that Mr. Landry had been employed for many years with the Lake Charles City Police, the agency which had conducted the investigation in this case. He had been retired from that department for only a relatively short time. He had a son who was currently serving with the detective division of that department. He had himself served as a detective with the department for nine years and had been chief of detectives for about two years. He had known the senior investigator in this case for fourteen years and had served as his supervisor for a number of years. He had also served on the department at the same time as three other officers who testified at trial. Due to the totality of these circumstances and particularly his long relationship with law enforcement, We do not consider that it is reasonable to conclude that Mr. Landry was capable of serving as an impartial juror despite his manifestations to the contrary. Hence, we find that the trial judge abused his discretion in refusing to sustain defendant’s challenge of Mr. Landry for cause and that this erroneous ruling constitutes reversible error because it affected substantial rights of the accused. La.Code Crim.P. art. 921.

ASSIGNMENT OF ERROR NO. 10

Defendant contends the trial judge erred in denying his motion for mistrial after it was learned that defense witnesses Brad Lewis and Ronald Frelow had been arrested for intimidating state witnesses. Defendant argues that the state improperly used its arrest powers to intimidate defense witnesses into altering their testimony thus violating his constitutional rights to compulsory process and due process of law. Although we are reversing defendant’s convictions and sentences on other grounds, we consider it necessary to dispose of the issue raised under this assignment of error as it is one likely to be raised again at the new trial.

Following a recess during the presentation of the defense witnesses, defendant moved for a mistrial based upon the arrest of two defense witnesses for public intimidation of state witnesses. He argued that the arrests would intimidate those witnesses who were arrested and would affect their testimony and that of other defense witnesses who observed the arrests. The trial judge denied the motion but allowed a proffer of evidence to be adduced at a hearing following the conclusion of the trial. At that hearing, Lake Charles City Police Officer Craig Douglas testified that, while sequestered in a hallway outside the courtroom, defense witness Brad Lewis walked back and forth seven or eight times in front of a group of several state witnesses including himself; former officer Randall Hyatt; Joe Walker, brother of the victims; and Jerry Freeman, the prosecution’s principal eyewitness, all of whom had already testified. Each time he passed, Lewis gave the group “a dirty look” and continued walking. Finally, Lewis turned and walked toward Freeman and lay down on a bench nearby. Lewis then quickly sat up, slammed his foot on the floor, and yelled “Snitch!” while looking directly at Freeman. Officer Douglas testified that Lewis then looked to see if there was any movement, to see if he had scared any of the witnesses, and then got up and walked away whistling.

Ronald Frelow also walked back and forth in front of the four witnesses several times and “continuously glared” at Walker and Freeman. On one occasion, he also turned and walked back toward Freeman, looked at him and said “Son of a bitch!” Officer Douglas stated that the manner in which this was said constituted a threat in his mind. Mr. Freeman then asked that Officer Douglas or another police officer stay with him at all times. Officer Douglas concluded by stating that he felt Lewis and Frelow were attempting to intimidate Walker and Freeman. Mr. Walker also testified that he felt he was being intimidated at the time and that he was fearful. Both Walker and Freeman complained of these incidents to Scott Chaffin, an investigator with the Calcasieu Parish District Attorney’s Office. Walker also told his father, Melvin Walker, who was a spectator at the trial, and he contacted Ms. Evelyn Oubre, the assistant district attorney prosecuting this case. She then advised Deputy John Clawson of the Calcasieu Parish Sheriff’s Department who was in charge of courtroom security of the incidents and informed him of the charges on which Lewis and Frelow should be arrested. Deputy Claw-son subsequently arrested Frelow and then Lewis in the hallway outside the courtroom. Both arrests took place quietly and without incident and outside the presence of the jury. Lewis and Frelow were later sequestered along with another defense witness, Ernestine Guillory, in the bailiff’s room. The state witnesses were separately sequestered.

The record reflects that following Fre-low’s testimony, but prior to that of Lewis and Guillory, Ms. Oubre informed Lewis and his attorney that the state would not accept the public intimidation charges pending against Lewis or Frelow. Ms. Oubre specifically stated that the reason for her action was to prevent any form of prejudice to defendant related to Brad Lewis testifying on defendant’s behalf.

U.S.Const. amend. VI provides: “In all criminal prosecutions, the accused shall enjoy the right ... to have compulsory process for obtaining witnesses in his favor . ... ” The right of an accused to have compulsory process for obtaining witnesses in his favor is applicable to the states through the due process clause of the fourteenth amendment. Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). Also, La.Const. art. 1, § 16 (1974) provides in pertinent part: “An accused is entitled to confront and cross-examine the witnesses against him, to compel the attendance of witnesses, to present a defense, and to testify in his own behalf.” La.Code Crim.P. art. 775 provides in part: “Upon motion of a defendant, a mistrial shall be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial. . . . ”

In the instant case, defendant made no showing that the arrests of the two defense witnesses were prejudicial to him. The arrests occurred outside the presence of the jury. There was no showing that the arrests were witnessed by any other defense witnesses. There was probable cause for their arrest. There was no evidence that the state acted in bad faith. To the contrary, the prosecuting attorney refused to accept charges against the two witnesses. Moreover, the record reflects that Brad Lewis, Ronald Frelow and Ernestine Guillo-ry all subsequently testified favorably to defendant. There was no indication that their testimony was in any way affected by the arrests. Clearly, there was no violation of the constitutional rights of defendant which affected his right to a fair trial in this case or upon retrial. Hence, the assignment of error is without merit.

DECREE

For the reasons assigned, the convictions and sentences are reversed and the case is remanded to the district court for a new trial.

      . While the record is not clear as to the total years of service on the Lake Charles City Police Department by Mr. Landry, his testimony at one point suggests that he had been a member of that department for over 27 years.

      . La.R.S. 14:122 provides in pertinent part:
      Public intimidation is the use of violence, force, or threats upon any of the following persons, with the intent to influence his conduct in relation to his position, employment, or duty:
      ts) Witness, or person about to be called as a witness upon a trial or other proceeding before any court, board or officer authorized to hear evidence or to take testimony.


author: CALOGERO, Justice. WATSON, J., DIXON, Chief Justice

text:
    Walter Dale TUCKER v. Mr. and Mrs. Earl LIRETTE, Jr., and State Farm Mutual Automobile Insurance Company.
    No. 81-C-0144.
    Supreme Court of Louisiana.
    June 22, 1981.

      Clifton A. Adcox, Weidemann & Fransen, New Orleans, for plaintiff-applicant.
    Jerry H. Schwab, Schwab & Butler, Hou-ma, for defendant-respondent.
   CALOGERO, Justice.

Plaintiff Walter Dale Tucker sued defendants Mr. and Mrs. Earl Lirette, Jr., and their insurance carrier, State Farm Mutual Automobile Insurance Company, for damages resulting from an intersectional collision between plaintiff’s motorcycle and the car driven by Mrs. Lirette in the city of Houma. The trial court found defendant negligent, but also determined that plaintiff was contributorily negligent and consequently denied damages. Plaintiff appealed the decision to the First Circuit Court of Appeal. The Court of Appeal affirmed. 393 So.2d 293 (La.App. 1st Cir. 1980). Plaintiff applied to this Court for writs of certiorari which we granted to review the decisions of the lower courts. 396 So.2d 1327 (La.1981), No. 81-C-0144.

The basic facts are not in dispute. Rather, the issues for our consideration are the degree of caution which must be exercised by a motorist faced with a flashing yellow light when he has observed that the motorist on the cross street has stopped in response to a flashing red light, and whether plaintiff’s driving in excess of the speed limit constitutes contributory negligence so as to bar his recovery of damages.

Plaintiff was traveling north on Gouaux Avenue heading toward its intersection with Elizabeth Street. A flashing yellow semaphore light faced plaintiff. Mrs. Lir-ette was driving east on Birch Street which becomes Elizabeth on the far side of the intersection with Gouaux. Mrs. Lirette had stopped at Gouaux in compliance with the flashing red light and an octagonal stop sign facing her. Plaintiff observed the Lir-ette car in its stopped position when he was approximately one half block from the intersection. Plaintiff continued at the 30-35 m. p. h. he was traveling. When he was about 20 feet from the intersection, plaintiff saw defendant pull out in front of him. Plaintiff testified that it was too late to brake his motorcycle and he hit defendant’s car in the middle of the front door.

Defendant testified that she had stopped at the intersection in response to the flashing red light. She looked left and right and saw no vehicles approaching. Defendant pulled slowly into the intersection, looking again to the left and then to the right. Defendant said that she did not see plaintiff until she was in the middle of the intersection, looking right, and plaintiff was at her door.

Both parties testified that they were aware that the intersection was a dangerous one because both lived in the vicinity. Birch/Elizabeth does not cross Gouaux at a right angle. Instead, defendant had to angle to her right to proceed on Elizabeth past Gouaux. Defendant’s line of vision to her right was partially obstructed by telephone poles, shrubbery, and other items on the corner. Gouaux was a one-way street with traffic coming from defendant’s right. Nevertheless, defendant looked first to her left when entering the intersection. She explained that upon occasion drivers still drove the wrong way on Gouaux and traffic from the left would be the first she would encounter in the intersection. Defendant drove, albeit slowly according to her, into the intersection rather than moving forward a few feet and stopping to check traffic again. We agree with the lower court that defendant was negligent in her actions.

The lower courts held that plaintiff was contributorily negligent based in part upon the fact that he was traveling 30—35 m. p. h. in an area where the speed limit was 25 m. p. h. Ordinances setting speed limits are designed to protect the safety of those who use the streets and violation of such an ordinance is negligence. Dixie Drive It Yourself Sys. v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962). Nevertheless, that conduct will not constitute contributory negligence such as to bar recovery unless the conduct was also a legal cause of the accident. Breithaupt v. Sellers, 390 So.2d 870 (La.1980).

Contributory negligence is a defense to a tort suit and it is incumbent upon the defendant to prove that the plaintiff was contributorily negligent. In this case before us, defendant offered no evidence tending to prove this fact. In Welton v. Falcon, 341 So.2d 564 (La.App. 4th Cir. 1976), writ refused 342 So.2d 872, 1109 (La. 1977), the motorist with the flashing red light introduced the testimony of an accident reconstruction expert to prove that the motorist with the flashing yellow light could have stopped in ample time to avoid the accident had he been traveling within the speed limit. In the instant ease, the record is devoid of any evidence establishing that plaintiff’s speed was a cause of the accident.

The lower courts also stressed that a motorist facing a flashing yellow light must exercise caution in proceeding through or past the signal. R.S. 32:234 imposes that duty on the motorist. We must therefore focus our attention upon plaintiff’s response, confronted by a yellow flashing light, to seeing defendant’s automobile stopped at the intersection in obedience to both a flashing red light and an octagonal stop sign. This is a matter of first impression for us although the Courts of Appeal have considered similar questions upon many occasions. Our brethren on those courts have held that a motorist approaching an intersection with a flashing yellow light may not rely entirely upon the motorist with the flashing red light stopping as required by law. E. g. Great American Ins. Co. v. Turnage, 339 So.2d 1322 (La.App. 1st Cir. 1976); Lockhart v. McInnis-Peterson Chevrolet, Inc., 205 So.2d 744 (La.App. 1st Cir. 1967).

Surely a motorist approaching an intersection with a flashing yellow light and without knowledge of opposing traffic on the intersecting street, as well as one approaching the same intersection hnd seeing a motorist approaching on the intersecting street, is wrong to proceed without reducing his speed. Neither of these situations prevailed here, for this plaintiff observed that this defendant had already stopped. Plaintiff therefore, was quite within reason to expect that a motorist who had stopped in compliance with the flashing red light would remain stopped until certain that it was safe to enter the intersection. The driver facing the flashing red light in Great American Ins. Co. v. Turnage, supra, stopped for the red light and then moved forward into the intersection to take a second look. The court found that driver negligent.

We agree with plaintiff and defendant that the intersection at which the accident occurred is a dangerous one at which it is difficult to see opposing traffic. However, defendant had a flashing red light controlling traffic in her direction and an octagonal stop sign to observe. Under the circumstances, it was reasonable for plaintiff to assume that defendant would remain stopped and also reasonable for plaintiff to continue into the intersection. Plaintiff therefore was not contributorily negligent in his actions.

Decree

For the foregoing reasons, the judgment of the Court of Appeal denying plaintiff recovery is reversed. The case is remanded to the Court of Appeal for determination of damages and entry of judgment in plaintiff’s favor.

REVERSED AND REMANDED TO THE COURT OF APPEAL.

DIXON, C. J., concurs with reasons.

WATSON, J.,

dissents. It is obvious that plaintiff was contributorily negligent; therefore, I would affirm the trial court and the Court of Appeal.

DIXON, Chief Justice

(concurring).

I respectfully concur. Defendant had the last clear chance to avoid the accident.

      . In pertinent part R.S. 32:234 reads: “When a yellow lens is illuminated with rapid intermittent flashes, drivers of vehicles may proceed through or past such signal only with caution.”


author:
LEMMON, Justice.
     REDMANN, Justice Pro Tern.,

text:
    STATE of Louisiana v. Eddie Lee BIAS.
    No. 81-K-0287.
    Supreme Court of Louisiana.
    June 22, 1981.

      William E. Armstrong, Monroe, for defendant-realtor.
    William J, Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., Vicki Green, Asst. Dist. Atty., for plaintiff-respondent.
   LEMMON, Justice.

This case presents the issue of whether evidence that a defendant defaulted on a contractual obligation involving the lease of movables by failing either to make the rental payments or to return the movable is alone sufficient to establish beyond a reasonable doubt that defendant committed the crime of unauthorized use of a movable. R.S. 14:68.

I.

Defendant rented a television set from Peter’s Furniture Store at a weekly rate of $20, payable in advance. The contract, although purporting to be a rental agreement, clearly provides that the furniture company will transfer ownership of the television after 104 weekly payments.

After making about six weekly payments, defendant defaulted. Concerned that payments had stopped and the set had not been returned, an employee of the furniture company investigated and discovered that defendant had changed his residence, taking the set with him. Since the furniture company had not consented, removal of the set from the residence address listed in the contract constituted a breach of the agreement.

Defendant was contacted at his place of employment, and he promised to become current in his payments. However, he failed to live up to this promise or to return the set, as required by the contract. The company then complained to the police, who arrested defendant for unauthorized use of a movable. The district attorney filed a bill of information, and this conviction resulted.

II.

A person commits the crime of unauthorized use of a movable when he either takes or uses another’s property without the owner’s consent or by means of fraudulent practices. R.S. 14:68, although not requiring that a person act with an intent to deprive the owner permanently of his property, must reasonably be construed to require the existence of fraudulent intent. See State v. Kelley, 241 La. 224, 128 So.2d 18 (1961). If the statute were construed otherwise, every breach of a rental contract would be included within the reach of the statute, and the Legislature certainly did not intend such a result.

Even if it were arguable that the Legislature intended such a result, we must construe the statute following the principle of lenity and give to defendant the benefit of any legitimate doubts regarding the scope of the statute’s proscriptions. See State v. Brown, 378 So.2d 916 (La.1980); State v. Bosworth, 373 So.2d 152 (La.1979).

R.S. 14:68 may be violated by a taking- or use either without the consent of the owner or by means of fraudulent conduct, practices, or representations. Here, the state’s theory must be either (1) that the “use” of the movable was without the owner’s consent, when defendant discontinued paying rent, or (2) that the “use” was by means of fraudulent practices, when defendant kept the set without making the agreed payments. We decline to accept a theory that the mere failure to make rental payments as agreed constitutes a “use without consent” or a “use by fraudulent practices” for purposes of the statute.

We conclude that the conscientious trial judge erred in construing the statute too broadly. Under the more narrow construction that we adopt, the state failed to produce evidence which, even when viewed in a light most favorable to the state, reasonably proved that defendant acted with a fraudulent intent when he failed to continue payments, to return the set, or to notify the furniture company that he moved the set to a new residence. Affirmation of the conviction on the evidence in this record would require a holding that proof of breach of a rental agreement is alone sufficient to prove a “use without consent” or a “use by fraudulent practices, conduct, or representations”. As stated before, we do not believe such a result was intended when the statute was enacted.

Perhaps the Legislature could enact a special criminal statute proscribing the failure to abide by the terms of a rental agreement. Nevertheless, we construe the present statute proscribing unauthorized use of a movable as requiring a showing of mens rea or criminal intent, since the “evil” state of mind of the actor normally distinguishes criminal acts (punishable by the state alone) from mere civil wrongs (actionable by private individuals against one another). C.Cr.P. art. 381. In State v. Brown, 389 So.2d 48 (La.1980), a case in which we construed a statute prohibiting possession of certain controlled substances to require proof of criminal intent, we stated:

“[w]e observe the familiar proposition that ‘[t]he existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence.’ Dennis v. United States, 341 U.S. 494, 500, 71 S.Ct. 857, 862, 95 L.Ed. 1137 (1951). In a much cited passage from Morissette v. United States, 342 U.S. 246, 250-251, 72 S.Ct. 240, 243, 244, 96 L.Ed. 288 (1952), the United States Supreme Court observed:
‘The contention that an injury' can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil. A relation between some mental element and punishment for a harmful act is almost as instinctive as the child’s familiar exculpatory “But I didn’t mean to,” and-has afforded the rational basis for a tardy and unfinished substitution of deterrence and reformation in place of retaliation and vengeance as the motivation for public prosecution. Unqualified acceptance of this doctrine by English common law in the Eighteenth Century was indicated by Blackstone’s sweeping statement that to constitute any crime there must first be a “vicious will”.’
“The ‘vicious will’ has been replaced with less colorful descriptions of the mental state required for a criminal act; nevertheless, intent generally remains an indispensable element of a criminal offense.” 389 So.2d at 50.

Finally, we note that the state may produce direct or circumstantial evidence of “fraudulent intent” in unauthorized use cases involving the initial acquisition of property by rental agreement. The evidence in this case, however, simply does not reasonably support the inference of fraudulent intent beyond a reasonable doubt.

Accordingly, the conviction and sentence are reversed, and the matter is remanded with instructions to grant defendant’s motion for a judgment of acquittal.

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

DENNIS, J., concurs with reasons.

REDMANN, Justice Pro Tern.,

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 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 Fourth Circuit Court of Appeal and Judge Cecil C. Cutrer of the Third Circuit Court of Appeal participated in this decision as associate justices ad hoc, joined by Associate Justices Calogero, Dennis, Blanche and Lem-mon.

      . Defendant argues that we should construe the contract as a sale and not as a lease, thereby transferring ownership to defendant. See Barber Asphalt v. St. Louis Cypress, 121 La. 152, 46 So. 193 (1908); Pastorek v. Lanier Systems Co., 249 So.2d 224 (La.App. 4th Cir. 1971). Obviously, were we to hold that the contract was a sale, defendant could not be guilty of unauthorized use of a movable “which belongs to another”. Because we reverse the conviction on insufficient evidence, we need not address this contention.

      . The record is unclear as to what happened to the television set. Defendant testified that he called the furniture company and told an employee, Tamara Patterson, to have the set picked up from his room in the Barron Hotel. A clerk at the Barron Hotel testified that she permitted the set to be picked up by two men from defendant’s hotel room, believing they were employees of the furniture company. The owner of the furniture company denied that any employees of his company picked up the set, but verified that Tamara Patterson had left her employment with the company. The set was never recovered.
      The record, though unclear, does not support a finding beyond a reasonable doubt that defendant was involved in the removal of the set from his room at a time shortly after his default in payment.

      .In his reasons for judgment the trial judge said:
      “It’s true that authorization was given to Mr. Bias when the contract was initially executed to take the TV set or have the TV set placed in his home. When he discontinued paying for that, and continued to keep the set without reporting and satisfying Mrs. Sanders about where the TV set was, at that time he began to use this TV set in an unauthorized fashion. The evidence is quite clear here that that’s what occurred, and the Court finds the defendant guilty as charged.”

      . For a very scholarly discussion of the history of the statute, see Chief Justice Dixon’s opinion in State v. Gisclair, 382 So.2d 914 (La.1980).

      . The Legislature has enacted various special criminal statutes to protect the interest of certain types of creditors, as, for example, the statute protecting mortgage holders from fraudulent disposition of movable property. The unauthorized use statute, however, cannot by its terms be applied to prosecute every lessee of a movable who defaults. See R.S. 9:5359 (removal of mortgaged property) and R.S. 32:710(L) (removal of mortgaged automobiles). See also R.S. 14:68.1 (unauthorized removal of shopping carts).


text:
    Succession of Mary Maude Greenlee OSTERLAND v. Mary O. GATES, et ux.
    Nos. 81-C-0301 and 81-C-0309.
    Supreme Court of Louisiana.
    June 22, 1981.

      C. Jerre Lloyd, Camp, Carmouche, Palmer, Barsh & Hunter, Lake Charles, for plaintiff-applicant and plaintiff-respondent.
    John G. McLure & Thomas C. McLure, of McLure & McLure, Alexandria, counsel for defendant-respondent and defendant-applicant.
   MARCUS, Justice.

Mary Maude Greenlee Osterland died intestate on February 2, 1973, leaving two daughters, Alma Osterland Fey and Mary Osterland Gates. Her succession was opened and Alma Fey qualified as adminis-tratrix of the succession. Alma Fey, in her capacity as administratrix of the succession, filed an action in the succession proceeding against her sister and brother-in-law, Mary and Stanley Gates, seeking collation and repayment of debts owed to the succession. Defendants answered generally denying the allegations of the petition. The answer was subsequently amended to include a claim for collation of sums given by decedent to Alma Fey.

After trial, the judge ruled that Mary Gates was required to collate $49,890.91, and Alma Fey was required to collate $4,545.38. He further held that no collation was due from Stanley Gates. Although he did not address the issue of a $20,000 debt allegedly owed by Gates, Inc., a corporation owned by Stanley Gates, the judge observed that the debt seemed to have “long prescribed.” U. S. Savings Bonds listing decedent and her daughters as co-owners were held not subject to collation. The adminis-tratrix appealed. Defendants answered the appeal.

The court of appeal affirmed the judgment of the district court except to rule that the claim to recover the $20,000 debt was properly before the court but had in fact prescribed and to order collation of the value of the U. S. Savings Bonds held by decedent’s daughters. The administratrix as well as Mary and Stanley Gates applied for writs to this court. We granted both applications primarily to consider whether the court of appeal was correct in ordering that the U. S. Savings Bonds were subject to collation.

At trial, it was established that decedent purchased during her life a total of $56,000 in U. S. Savings Bonds listing her and Mary O. Gates as co-owners and a total of $25,000 of such bonds listing her and Mrs. Alma Osterland Fey as co-owners. The federal regulations governing bonds issued in the name of co-owners provide that when either co-owner dies, “the survivor will be recognized as the sole and absolute owner.” 31 CFR § 315.62. Thus, when Mrs. Osterland died, her daughters became the sole and absolute owners of the bonds that each of them held in co-ownership with their deceased mother. The trial judge held that under the explicit holding in Free v. Bland, 369 U.S. 663, 82 S.Ct. 1089, 8 L.Ed.2d 180 (1962), these co-owner bonds were not subject to collation. The court of appeal recognized that under federal law the daughters were the sole owners of their bonds; however, it reversed the trial judge’s denial of collation and held that “a parent cannot use survivor bonds to circumvent Louisiana’s established law granting collation to their parent’s succession.” As this holding is contrary to Free v. Bland, supra, and Yiatchos v. Yiatchos, 376 U.S. 306, 84 S.Ct. 742, 11 L.Ed.2d 724 (1964), we must reverse that part of the judgment of the court of appeal.

In Free v. Bland, a husband used community funds to purchase U. S. Savings Bonds listing him and his wife as co-owners. Upon his wife’s death, he claimed full ownership of the bonds by virtue of federal regulations. The Texas court recognized his sole ownership of the bonds but awarded reimbursement to his wife’s estate by virtue of the state community property law. The Supreme Court reversed, holding that the survivorship provision under the federal regulations is a federal law that must prevail under the supremacy clause of the federal constitution if it conflicts with state law. If the state could frustrate the parties’ attempt to use the bonds’ survivorship provision through the simple equivalent of requiring the survivor to reimburse the estate of decedent co-owner as a matter of law, the state would have interfered directly with a legitimate exercise of the power of the federal government to borrow money. Therefore, the Court held that the state law that prohibits a married couple from taking advantage of the survivorship provisions of U. S. Savings Bonds merely because the purchase price was paid out of community property must fall under the supremacy clause. However, the Court added that federal regulations were not intended to be a shield for fraud and relief would be available in case of fraud or breach of trust tantamount to fraud.

Yiatchos v. Yiatchos, supra, decided two years later, was such a case. The decedent husband purchased U. S. Savings Bonds with community funds registered in his name and made payable on his death to his brother. The Supreme Court stated that under federal regulations decedent’s brother was entitled to the bonds unless decedent committed fraud or breach of trust tantamount to fraud. Fraud would be determined as a matter of federal law; however, state law would be used to determine property interests. The Court stated that bonds may not be used as a device to deprive the widow of property rights which she enjoys under state law and which would not be transferable by her husband but for the survivorship provisions of the federal bonds. The case was remanded to give the wife an opportunity to establish facts that might show fraud and to determine her community property rights under state law.

Under the survivorship provisions of the federal regulations governing co-owner bonds and the decisions in Free and Yiat-chos, we conclude that both daughters are entitled to their respective co-owner bonds in full ownership without any obligation to collate unless decedent committed fraud or breach of trust tantamount to fraud. Such fraud will have taken place if it can be shown that the bonds were used to deprive the daughters of property rights which they enjoy under Louisiana law and which would not have been transferable by decedent but for the survivorship provisions of the federal regulations.

In reaching its conclusion that a parent cannot use co-owner bonds as a device to circumvent Louisiana’s collation law, the court of appeal relied on Succession of Guerre, 197 So.2d 738 (La.App. 4th Cir.), writ denied, 250 La. 933, 199 So.2d 926 (1967). In Guerre, the decedent was survived by three children who, under Louisiana law, were forced heirs. A donor cannot deprive forced heirs of the portion of his estate reserved for them by law (legitime), except in cases where he has a just cause to disinherit them. La.Civ.Code art. 1495. During his life, decedent had acquired a number of federal bonds listing himself and persons other than his children as co-owners. At death, these bonds were valued at $42,779.60, whereas his other assets totaled only $8,941.35. Failure to include the bonds in the assets of his succession would have greatly reduced the legitime due his forced heirs. The court concluded that any attempt by a parent to breach the right of a forced heir to his legitime by means of converting his estate to federal co-owner bonds was a circumvention of Louisiana law of forced heirship and a wrong equivalent to a breach of trust tantamount to fraud. The court held that the co-owners were the owners of the bonds by virtue of federal law but that the forced heirs were entitled to bring an action for reduction of excessive donations impinging upon the legitime.

The instant case is clearly distinguishable from Guerre as it does not involve an impingement of the legitime; it merely involves collation. The obligation of collation is founded on the equality between children in dividing among them the succession of their parents and on the presumption that what was given to children by their parents was an advance of what they might come to expect from their succession. La.Civ.Code art. 1229. Although our law contains a presumption in favor of collation and states that children coming to the succession of their parents must collate what they have received from their parents by donations inter vivos, directly or indirectly, it does allow a parent to make a gift exempt from collation by formally expressing his will that the donation was an advantage or extra portion. La.Civ.Code arts. 1228, 1231. Thus, under Louisiana law, Mrs. Osterland could have made the bonds exempt from collation by specifying that they were to be extra portions. Decedent’s use of the co-owner bonds subject to right of survivor-ship on the surviving co-owner under federal regulations did not deprive either daughter of any property rights under Louisiana law which would not have been transferable by decedent but for the survivorship provisions of the federal regulations. Therefore, decedent did not commit fraud or a breach of trust tantamount to fraud by purchasing the co-owner bonds. Hence, neither daughter is obligated to collate her bonds or the value thereof.

OTHER ISSUES RAISED BY THE PARTIES

Plaintiff contends the courts below erred in not ordering collation of $15,000 which Mary Gates testified she received for agreeing to permit her mother to have the usu-fruct over the entire estate of her late husband. The record reflects that this amount was not paid to Mary Gates in cash but rather was given to her in co-owner bonds. As it appeared that this amount was included in the listing of bonds given to Mary Gates by decedent, it was unnecessary for the courts below to consider this item separately. Even assuming the $15,000 in bonds was not included in the listing, this amount is still not subject to collation as we have previously held that the co-owner bonds in this case are not subject to collation.

The 1966 United States Gift Tax Return of decedent reflects that she gave Mary Gates two savings and loan certificates valued at $10,000 each and bonds valued at $4,500. Plaintiff maintains the courts below were correct in ordering collation of the certificates but in error by failing to order collation of the bonds. Both Mary and Stanley Gates testified that the bonds were co-owner bonds listed in the name of decedent and Mary Gates and that decedent later reclaimed and cashed the bonds. Apparently, the trial judge believed this testimony and accordingly did not order collation of the bonds. We are unable to say that this finding was clearly wrong.

Plaintiff contends the courts below erred in not ordering collation of a series of cheeks totaling $37,000 given by decedent to Stanley Gates and Gates, Inc., a corporation solely owned by him. La.Civ.Code art. 1235 provides that an “obligation of collation is confined to [lawful] children and descendants succeeding to their fathers and mothers or other ascendant... . ” Stanley Gates is the son-in-law of decedent and thus is not her descendant and has no obligation to collate. Succession of Nelson v. Wiegand, 224 La. 731, 70 So.2d 665 (1953); Succession of Browne, 176 So.2d 217 (La.App. 2d Cir. 1965). Similarly, Gates, Inc., a corporation solely owned by Stanley Gates, has no obligation to collate.

Included in the checks discussed above were two checks issued to Gates, Inc. in November of 1956, each in the amount of $10,000. When these checks were received, the books of Gates, Inc. recorded the amounts as debt. In the courts below, plaintiff sought recovery of this $20,000 debt. The trial judge did not address the issue as he did not consider it properly before him; however, he noted that the debt seemed to have “long prescribed.” The court of appeal ruled that the claim to recover the $20,000 debt was properly before the court but, finding no interruption by the debtor’s acknowledgement, concluded that the debt had prescribed. La.Civ. Code arts. 3520, 3538. We agree. Plaintiff now argues that this amount was not debt but really a gift. Assuming this to be true, plaintiff is still not entitled to recover as we have previously held that gifts to Gates, Inc. are not subject to collation.

Plaintiff contends the courts below erred in failing to increase the award for attorney’s fees. The trial judge stated that the attorneys for the succession had already been awarded $9,973.07 for handling the succession and refused to allow any additional attorney’s fees. He reasoned that much of the time expended by the attorneys was for the individual benefit of their client, Alma Fey, rather than for the usual duties involved in handling a succession. The court of appeal concurred, finding that an award of additional attorney’s fees was unwarranted. We agree.

Plaintiff argues that the court of appeal erred in ordering her to collate the value of her bonds ($25,000) because Mary Gates did not ask in any pleading that plaintiff collate anything. First, in the trial court’s judgment, it stated that the “motion of Stanley and Mary Gates that their answer filed January 5,1977 be amended to include a claim for collation of sums given by decedent to Alma Fey is granted.” In any event, the contention is moot, as we are reversing that part of the judgment of the court of appeal ordering collation of the co-owner bonds held by Mary Gates and plaintiff.

The court of appeal affirmed the trial court’s award of interest from date of judicial demand on sums required to be collated by each party. Plaintiff contends that the courts below erred by not allowing interest from the date of donation. This contention is without merit. Since no collation is due for revenues of property, the full ownership of which had been donated, the court of appeal correctly affirmed the trial court’s award of interest only from the date of judicial demand. Clark v. Hedden, 109 La. 147, 33 So.2d 116 (1902).

Defendants contend that plaintiff is not entitled to any award of interest because plaintiff made no judicial demand for interest in her alternative prayer for collation. The court of appeal correctly ruled that plaintiff’s specific request for “interest from date of decedent’s death until paid” even though demanded only in her first prayer that she be declared owner of one-half of the bonds was sufficient when coupled with her final prayer for “full, general, and equitable relief.”

In her petition, plaintiff stated that she should have an undivided one-half interest in “Cemetery grave lots, in Sacred Heart Church, in or near Oakdale, Louisiana, held by defendants.” Plaintiff then specifically listed the lots:

Sec. 25, Lots, 2, 3, 4, 5, 6, 7 to “Osterland Family”
Sec. 27, Lots, 1, 2, 3, 4 to A. J. Osterland
Sec. 29, Lots 1, 2 Osterland Family
Sec. 31, Lots 1, 2, 3, 4, 5, 6, 7, 8 9,10,11 to Stanley Gates

In their answer, the Gates stated that: “Insofar as cemetery grave lots in Sacred Heart Church, in or near Oakdale, Louisiana, Defendants have no objection to Petitioner owning an undivided one-half (Vi) interest.” Plaintiff correctly contends this interest in the above described lots should be part of the trial court’s judgment. Hence, on remand the trial judge should render judgment accordingly.

DECREE

For the reasons assigned, that part of the judgment of the court of appeal ordering collation of the co-owner bonds is reversed; otherwise, the judgment is affirmed. The case is remanded to the district court with instructions to the trial judge to render judgment recognizing plaintiff’s undivided one-half interest in the cemetery lots described above and for further proceedings in accordance with law.

      . A statutory testament confected on February 3, 1964, was subsequently filed in her succession proceeding together with a written declaration of nullity dated December 3, 1972. After a hearing, the purported testament was declared revoked and the property of decedent was ordered to be distributed in accordance with the rules of intestate successions.

      . 391 So.2d 855 (La.App.3d Cir. 1980).

      . 396 So.2d 1350 (La.1981).