author: DIXON, Chief Justice.

text:
    STATE of Louisiana v. Alfred WILLIAMS.
    No. 80-KA-2155.
    Supreme Court of Louisiana.
    July 2, 1981.
    Rehearing Denied Sept. 4, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry Connick, Dist. Atty., Joseph Meyer, Cornelius Regan, Louise Korns, Asst. Dist. Attys., for plaintiff-appellee.
    Larry P. Williams, New Orleans, for defendant-appellant.
   DIXON, Chief Justice.

Defendant was convicted of armed robbery, R. S. 14:64, and sentenced to five years at hard labor without benefit of parole. In this appeal he relies upon four assignments of error. Because none of these assignments has merit, the conviction and sentence are affirmed.

Shortly after midnight on December 22, 1979 the victim parked her car in her carport and was preparing to open her apartment door when she heard a voice from behind. She turned and saw a man with a gun who demanded her purse. After complying with the robber’s demand, the victim reported the incident to the police.

The victim spotted the defendant on the morning of January 2, 1980. As she was preparing to get in her car to go to work, she saw him in front of the business establishment across the street from her apartment. She notified the police that she had seen the man who robbed her, and was told to be on the lookout for him, and to notify the police should she see him again. The next morning she did see him again at the same business establishment. This time he noticed her and winked at her. The police were notified by the victim of the encounter.

The police then contacted the owner of the business and learned from him the defendant’s name and the fact that he was a new employee there. The police secured a booking photograph of the defendant, assembled five fill-in photographs, and conducted a photographic line-up that same day at the victim’s office. The victim positively identified the defendant as the man who robbed her. A physical line-up was conducted on January 17, 1980 and the victim again positively identified the defendant as the robber.

The evidence adduced against defendant consisted of the testimony of the victim and the evidence relating to the two pretrial line-ups.

Assignment of Error No. 1

In this assignment of error defendant maintains that the trial judge should have suppressed the pretrial identifications because they were conducted pursuant to procedures that were unduly suggestive. As recently stated by this court:

"... A line-up is unduly suggestive if a sufficient resemblance of characteristics and features of the persons in the line-up e. g. build, hair, facial hair and complexion, does not exist to reasonably test the identification. State v. Guillot, 353 So.2d 1005 (La.1977); State v. Gray, 351 So.2d 448 (La.1977); State v. Anthony, 347 So.2d 483 (La.1977). If only one person in the line-up has the characteristics of the perpetrator, the witness’ attention will be focused on that person. State v. Guillot, supra.State v. Davis, 385 So.2d 193, 198 (La.1980).

Defendant maintains that the identification procedures were impermissibly suggestive because the defendant was the only subject in the line-ups with a short, neat hairstyle. This contention lacks merit. All of the subjects in the photographic line-up including defendant, had short plaited hairstyles. All of the subjects in the physical line-up, including defendant, had short Afro hairstyles. In both the photographic lineup and the physical line-up all subjects appeared to have moustaches, were of similar build, and had similar facial characteristics. There are sufficient similarities to test the identification, and in neither line-up can it be said that the victim’s attention would have been focused on the defendant because of distinctive features.

This assignment lacks merit.

Assignments of Error Nos. 2 and 3

These assignments contest the admissibility into evidence of the photographs used in the photographic line-up. Defendant argues that the pictures are readily identifiable as mug shots despite the fact that the police data is concealed by the state’s evidence tags. Defendant maintains that introduction of the mug shot of the defendant apprised the jury of defendant’s prior criminal record and therefore was prejudicial to him.

An identical argument was rejected by this court in State v. Jones, 381 So.2d 416 (La.1980). In that case, we framed the issue as whether the probative value of the photographs outweighed the prejudicial effect on the jury. In Jones, as in the instant case, the state’s evidence consists primarily of the victim’s identification of the defendant. Because of the photograph’s relevance to the material issue of identification, and its probative value, the photographs were properly admitted.

Further, even assuming that the judge erred in admitting the photographs, the defendant was not prejudiced. During the cross-examination of the two character witnesses called on defendant’s behalf, the jury was apprised of defendant’s prior criminal record.

These assignments lack merit.

Assignment of Error No. 4

In this assignment defendant argues that the state failed to establish venue in Orleans Parish. It is true, as contended by defendant, that no one positively testified that the crime occurred in Orleans Parish. Nonetheless, the victim testified that the robbery occurred in front of her Mande-ville Street apartment. A trial judge may take judicial notice of the fact that geographical locations mentioned by witnesses are within a particular parish, even if the parish is not specifically designated in the testimony. State v. Rheams, 352 So.2d 615 (La.1977).

This assignment is without merit.

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

      . The municipal address must have been 627 Mandeville Street, even though the trial transcript indicates that the victim declared the address to be 217 Mandeville Street.


source: Caselaw Access Project

author:
CALOGERO, Justice.
     REDMANN, Justice pro tern., KLIEBERT, Justice Ad Hoc,

license: Public Domain

text:
    STATE of Louisiana v. Billy R. WOODS.
    No. 80-KA-2493.
    Supreme Court of Louisiana.
    July 2, 1981.
    Rehearing Denied Sept. 4, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., Nancy Gilliland, Lovalle Salomon, Asst. Dist. Atty., for plaintiff-ap-pellee.
    Sam 0. Henry, III, Blackwell, Chambliss, Hobbs & Henry, West Monroe, for defendant-appellant.
   CALOGERO, Justice.

Defendant Billy R. Woods was arrested on January 13, 1980 in Ouachita Parish for driving while intoxicated (DWI), a violation of R.S. 14:98. He was originally charged by bill of information with DWI-4 but the charge was later reduced to DWI-3. Defendant proceeded to a bench trial and was found guilty of DWI-3. He was sentenced to three years imprisonment in the Ouachi-ta Parish Jail. On appeal defendant seeks a reversal of his conviction and sentence contending that the trial court erred in admitting his two prior convictions for DWI into evidence and allowing them to be used as a basis for the multiple offender charge.

Defendant went to trial for DWI-3. The state attempted to prove the elements of the crime by introducing two prior DWI convictions of the defendant. Both of the convictions in question resulted when defendant pled guilty to two counts of DWI on December 13,1977. Over defense objection, the trial court admitted proof of these prior DWI convictions and allowed their use as the basis for the repeat offender charge of driving while intoxicated for the third time.

Defendant contends that evidence of these prior convictions was improperly admitted at his trial. He bases this argument on two different grounds. First, he contends that the convictions resulting from his guilty pleas cannot be used as a basis for the repeat offender charge because he was not properly Boykinized prior to pleading guilty. Defendant, in the alternative, argues that if we find that he was properly Boykinized then the charge should nonetheless be reduced to DWI-2 because both the prior convictions occurred on the same day and, therefore, they can only be considered as one prior conviction.

Defendant argues that he was not properly Boykinized prior to his pleading guilty to DWI in 1977. He argues that under State ex rel Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971); State ex rel. LeBlanc v. Henderson, 261 La. 315, 259 So.2d 557 (1972); and State v. Holden, 375 So.2d 1372 (La.1979) he should have been informed by the trial judge of his right to a jury trial, his confrontation rights and his privilege against self incrimination, before his guilty plea was accepted. He contends that he was not informed of his confrontation rights prior to the acceptance of his plea.

We have before us both the minute entry relating to the guilty plea proceeding and the transcript of the colloquy between the trial judge and defendant. Neither of these two written records supports defendant’s contentions. To the contrary they evidence the fact that the trial judge made every effort to thoroughly explain defendant his rights in a manner that he would understand.

Defendant was advised that he had a right to trial and that “the State must call its witnesses and prove guilt beyond a reasonable doubt.” He was also advised that he “would have a right to call witnesses on [his] own behalf to state that [he] might not have been there, [he] might-not have been driving while intoxicated, [he] might not have been intoxicated...." While it is true that defendant was not specifically advised that he had the right to “confront” the witnesses against him, it would be the height of technicality to require that the word “confront” be used rather than an explanation of the right as was used here. It is clear from the transcript of the guilty plea colloquy, as well as the minutes, that defendant was advised of his confrontation rights, his right to trial by jury and his privilege against self-incrimination, and knowingly and voluntarily waived those rights.

Defendant alternatively argues that where two convictions are obtained by a guilty plea on the same day, they are to be treated as one conviction for the purpose of serving as a predicate to a multiple DWI charge. Accordingly, he contends that the DWI-3 charge should be reduced to DWI-2.

R.S. 14:98(D) provides:

“On a third conviction, regardless of whether the third offense occurred before or after an earlier conviction, the offender shall be imprisoned with or without hard labor for not less than one year nor more than five years, and may be fined not more than one thousand dollars.” (emphasis provided)

R.S. 14:98(D) was last amended in 1978 by Act 682. At that time the legislature added the underscored language. The requirements for DWI-2 and DWI-4 were similarly amended. R.S. 14:98(C) and (E). This language evidences a clear intent by the Legislature that all prior DWI convictions be considered in determining the applicable penalty, and further shows an intent to distinguish these enhancement proceedings from other multiple offender prosecutions. We conclude that the above language is clear and that it is the number of prior convictions, not their sequence, which determines the appropriate designation of a subsequent offense.

Therefore, the trial judge did not err in admitting and considering these two prior DWI convictions as proof of defendant’s guilt in this case.

Decree

For the foregoing reasons, defendant’s conviction and sentence are affirmed.

AFFIRMED.

DENNIS, J., and REDMANN, J. pro tern., dissent with reasons.

KLIEBERT, J. ad hoe, dissents.

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 to the Louisiana Supreme Court as constituted by La.Const. art. 5 §§ 1, 3 and 4, to which this Court should order this case referred.

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

KLIEBERT, Justice Ad Hoc,

dissenting.

The defendant Woods pled guilty to two counts of DWI on the same day in 1977. At that time, he could not have been convicted of DWI-2 because under the applicable jurisprudence of this Court, i. e., State v. Neal, 347 So.2d 1139 (La.1977) a defendant could be convicted of DWI-2 only after he had first been convicted of DWI-1. In 1978, the legislature amended R.S. 14:98 so as to permit conviction for second and third offenses irrespective of whether the crime occurred before or after a prior conviction. In 1980 the defendant was convicted of DWI-3 and sentenced to three years in jail. Each of the offenses for which he was convicted in 1977 was considered a separate offense.

The defendant argued that where two convictions are obtained by a guilty plea on the same day, they are to be treated as one conviction. The majority concluded the 1978 amendments are clear and that it is the number of prior convictions, not their sequence, which determines the appropriate designation of a subsequent offense. I agree with majority’s conclusion, but believe that applying the conclusion to the factual situation here violates the defendant’s constitutional protection against ex post facto laws and his constitutional right of equal protection and to due process.

In State v. Sepulvado, 342 So.2d 630 (La.1977) this Court defined an ex post facto law as:

“An ex post facto law, by definition, is one which is passed after the occurrence of a fact or commission of an act, which retrospectively changes the legal consequences or relations of such fact or deed.”

and in the same case said:

“... liability for criminal conduct attaches at the moment the crime is corn-mitted. Therefore, laws passed after the offense may not work to either redefine or increase the severity of punishment for the crime. To do so would impair substantive rights. Such a law would violate the prohibition against ex post facto laws of the Louisiana and the United States Constitutions.”

To convict the defendant of DWI-3, the prior conviction of DWI-1, which occurred prior to the 1978 amendment, has to redefine as a DWI-1 and a DWI-2. Without the 1978 amendment this could not be done. State v. Neal, 347 So.2d 1139 (La.1977). Clearly, this is a redefinition of the offense by a law passed after the commission of the crime and results in an increase in the severity of the punishment. The intent of the legislature is clear and must be abided by except that it cannot be applied retrospectively in violation of the defendant’s rights. As was stated by Justice Tate in State v. Neal, 347 So.2d 1139:

“Traditional American principles of criminal responsibility of an individual for his conduct do not permit the state to convert a formal charge against him for a less serious offense, into a charge for a more serious offense, on the legal basis of a change of status or other incident which occurs after the initial offense charged. ...”

Intellectual analysis might be satisfied by concluding the defendant is presumed to have known the statute was amended in 1978 and therefore knew the consequences of his offense at the time of its commission, but practical application -born of experience denies the conclusion.

Although not necessary to a decision here, in my view, the legislature’s intent to distinguish DWI enhancement proceedings from other multiple offender proceedings would necessitate an inquiry not only into the earlier convictions, but also into earlier jurisprudence regarding conviction based on breath test analysis to determine whether a person charged with a DWI offense is entitled to the same equal protection and due process protection of the constitution as a person charged as a multiple offender for other offenses. Therefore, it serves to compound the violation of the defendant’s constitutional rights.

       Judges William V. Redmann and Thomas J. Kliebert of the Court of Appeal, Fourth Circuit, and Judge Cecil C. Cutrer of the Court of Appeal, Third Circuit, participated in this decision as associate justices ad hoc, joined by Associate Justices Pascal F. Calogero, Jr., James L. Dennis, Fred A. Blanche, Jr., and Harry T. Lem-mon.

      . The charge against defendant was reduced from DWI-4 to DWI-3 after a hearing on defendant’s motion to quash in which the trial judge ruled that a 1975 conviction against defendant for DWI could not be used for multiple offender purposes because it was beyond the five year period set out in R.S. 14:98(F). That provision disallows the consideration of any offense under the statute committed more than five years prior to the commission of the charged crime, in the assessment of penalties.

      . The minutes provide:
      “Defendant present, represented by Hon. Patrick H. Wright, Jr. Defendant requested that his formerly entered not guilty pleas to DWJ-4th Offense (2 Counts) be withdrawn and entered a plea of guilty to DWI-3rd Offense (2 Counts). Defendant was sworn and informed and interrogated by the Court, and he stated under oath that he had conferred with counsel and was satisfied with the representation; understood the charge; understood his right to confrontation and against self-incrimination; understood his right to trial by jury and waived same; understood his right to appeal had he maintained his not guilty plea and had gone to trial and had been found guilty and waived same; realized he was not obliged to plead guilty and that his plea was not influenced by any promises, persuasion or coercion on the part of others; knew the maximum penalty he faced and realized the Court and no other person would determine his sentence (see record of interrogation). The Court found the plea to be intelligently and voluntarily entered and accepted same.”
      The transcript in pertinent part provides:
      “Q. You understand that you are presumed innocent, and the State must call its witnesses and prove your guilt beyond a reasonable doubt. Not only that you were guilty of DWI on the last time, but that you had been previously convicted several other times which would constitute this offense.
      “A. Yes, sir.
      “Q. You understand that you would have a right to call witnesses on your own behalf to state that you might not have been there, you might not have been driving while intoxicated, you might not have been intoxicated, or you’re just not the type of individual that would do this? You understand that?
      “A. Yes sir.
      “Q. And by pleading guilty you’re giving up all these rights?
      “A. Yes, sir.”

      . The habitual offender statute, R.S. 15:529.1, provides in pertinent part:
      “It is hereby declared to be the intent of this Act that an offender need not have been adjudged to be a second offender in a previous prosecution in order to be charged as, and adjudged to be, a third offender.... Provided, however, that the offender shall be deemed a second offender only if the crime resulting in the second conviction shall have been committed after his first conviction; that one shall be deemed a third offender under this Act only if the crime resulting in the third conviction shall have been committed after his conviction for a crime which in fact caused him to be a second offender, whether or not he was adjudged to be a second offender in the prior instance; . ... ”


author:
DENNIS, Justice.
     REDMANN, Justice pro tem.,

text:
    STATE of Louisiana v. William C. CLARK.
    No. 80-KA-2687.
    Supreme Court of Louisiana.
    July 2, 1981.
    Rehearing Denied Sept. 4, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ronald C. Martin, Dist. Atty., Michael Henry, Sp. Prosecutor, for plaintiff-appellee.
    Julian E. Bailes, Natchitoches, for defendant-appellant.
   DENNIS, Justice.

Defendant, William C. Clark, was convicted by a jury of manslaughter, La.R.S. 14:31, and sentenced to twenty-one years at hard labor. In this appeal defendant argues three assignments of error which raise the following questions: Does a pardon by the governor prevent the use of a prior conviction to impeach the credibility of a witness’s testimony? May the credibility of a witness be attacked by proof of his bad reputation for truth and veracity at a place other than the community in which he lives?

ASSIGNMENTS OF ERROR NOS. 1 and 3

The defendant took the witness stand in his own behalf. On cross-examination, the prosecution was permitted, over a defense objection, to elicit from the defendant an admission that in 1951 he was convicted of aggravated arson, aggravated burglary and manslaughter. The defense introduced evidence that in 1976 the governor pardoned him for those offenses. The trial judge refused to give a jury instruction requested by the defense that the executive pardon had the effect of reestablishing defendant’s credibility. However, the judge charged the jury that it may consider the pardon to have this effect. Defendant argues that the judge’s evidentiary ruling and jury instruction were erroneous because a pardon prevents the use of a conviction to impeach.

This court has adopted the majority view that a pardon does not prevent the use of a conviction to impeach. State v. Boudreaux, 221 La. 1078, 61 So.2d 878 (1952); see also Hozer v. State Police & Firemen’s Pension Fund, 95 N.J.Super. 196, 230 A.2d 508, 511-512 (1967); McCormick, Law of Evidence, § 43 at 87 (1972). The defendant may introduce evidence of his pardon, and the jury may weigh it as a valid consideration in assessing his credibility. State v. Taylor, 172 La. 20, 133 So.2d 349 (1931).

Other jurisdictions have recognized several exceptions to the general rule. A conviction too remote in time may be excluded by the judge if in his discretion he finds that under the circumstances it lacks probative value. Fire Assn. of Philadelphia v. Weathered, 62 F.2d 78 (5th Cir. 1932); McCormick, supra, § 43 at 87 n.67. Federal Rule of Evidence 609(c) provides that a pardon, amendment or certificate of rehabilitation prevents use of the conviction, if the procedure of issuance required a substantial showing of rehabilitation and the person has not been convicted of a subsequent crime punishable by death or more than a year in prison, or if its issuance was based on defendant’s innocence.

The reasons for the rule and its qualifications were well put by the court of appeal in Gurleski v. United States, 405 F.2d 253, 266 (5th Cir. 1968), as follows:

“A pardon for any other reason than subsequent proof of innocence does not obliterate the defendant’s previous transgressions particularly as they may bear on his present character and veracity. Any number of, reasons may lie behind the granting of an executive pardon, but the granting of a pardon does not in itself indicate any defect in previous convictions. Neither does it negate any bearing that they may have on present credibility. Appellant introduced no evidence concerning the motives behind the granting of the pardon. In the absence of doubt being cast on the validity of these convictions, the pardon is not a bar. Richards v. United States , 89 U.S.App.D.C. 354, 192 F.2d 602, 30 A.L.R.2d 880 (1951), cert. den. 342 U.S. 946, 72 S.Ct. 560, 96 L.Ed. 703.”

See also Slovenko, The Treatment of the Criminal in Louisiana and Elsewhere, 34 Tul.L.Rev. 523, 544 (1960).

The trial judge’s ruling and instruction were in accord with the general rule and the rules of this jurisdiction. The defendant did not introduce any evidence to bring this case within an exception or qualification of the general rule. Nor can we say that the trial judge abused his discretion in refusing to exclude the convictions as having been too remote in time. The convictions were for very serious crimes involving extreme forms of untrustworthiness.

These assignments are without reversible merit.

ASSIGNMENT OF ERROR NO. 5

In rebuttal of evidence introduced by the defendant to show good character, the prosecution called a former sheriff of Natchi-toches Parish, where the crime was committed, to testify to the defendant’s bad reputation in the parish for truthfulness. Since the defendant resided in Red River Parish, his counsel objected to the testimony on the ground that it exceeded the traditional inquiry as to general reputation “in the community where he lives.” McCormick, supra §§ 44,191. Because the objection was overruled, the defense argues reversible error was committed.

Our statute provides that character, whether good or bad, depends upon “the general reputation that a man has among his neighbors,” La.R.S. 15:479. This wording conveys a similar meaning to the traditional formulation calling for “the general reputation at the present time ... in the community in which he lives. * * *” McCormick, §§ 44, 191.

The object of this limitation of place is to restrict evidence of repute, to reputation among the people who know the person best. However, a literal interpretation of the rule is no longer appropriate in this country today, where a person may be little known in the suburb or city neighborhood where he lives, but well known in another locality where he spends his work days or in several localities where he does business from time to time. Thus, today it is generally agreed that proof may be made not only of the reputation of the person where he lives, but also of his repute, as long as it is “general” and established, in any substantial community of people among whom he is well known, such as the group with whom he works, does business or goes to school. McCormick, supra, §§ 44, 191; 5 Wigmore, Evidence, § 1616 at 591 (Chad-bourne Rev. 1974).

Our statutory formulation, which limits general reputation evidence to “that a man has among his neighbors” is somewhat more expansible than the traditional rule. We think the legislative aim was to restrict evidence of repute to reputation among those who know the person well, and that it should be interpreted in accordance with the above stated generally agreed upon modern American view.

Although the defendant resided in Red River Parish, he testified that he worked for his employer in Natchitoches Parish for three years immediately preceding the offense, serving as his valet, chauffeur, and personal attendant. We conclude, therefore, that the trial judge did not abuse his discretion in finding that Natchitoches Parish was a substantial community of people among whom the defendant was well known, meeting the statutory standard.

This assignment is without merit.

The defendant’s conviction and sentence are affirmed.

AFFIRMED.

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

REDMANN, Justice pro tem.,

dissenting.

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

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

       Judges William V. Redmann and Thomas J. Kliebert of the Court of Appeal, Fourth Circuit, and Cecil C. Cutrer of the Court of Appeal, Third Circuit, participated in this decision as Associate Justices pro tempore, joined by Associate Justices Pascal F. Calogero, Jr., James L. Dennis, Fred A. Blanche, Jr. and Harry T. Lem-mon.


author: PER CURIAM.

text:
    STATE of Louisiana v. Mark BORDELON.
    No. 80-KA-2948.
    Supreme Court of Louisiana.
    July 2, 1981.
    Rehearing Denied Sept. 4, 1981.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Eddie Knoll, Dist. Atty., Jeanette Theriot Knoll, Asst. Dist. Atty., for plaintiff-appellee.
    Anatole J. Palisance, Lafayette, for defendant-appellant.
   PER CURIAM.

Affirmed.

LEMMON, J., would assign the case for opinion on the regular docket.


author: DIXON, Chief Justice. DENNIS, Justice, LEMMON, Justice,

text:
    Vera Jenkins MILLER and Ivy Lea Miller v. Ralph SMITH, d/b/a Skinneys and Aetna Casualty and Surety Company.
    No. 81-C-0079.
    Supreme Court of Louisiana.
    July 2, 1981.
    Dissenting Opinion Aug. 21, 1981.
    Rehearing Denied Sept. 18, 1981.
    David W. Robinson, Due, Dodson, deGra-velles, Robinson & Caskey, Baton Rouge, for plaintiffs-applicants.
    Iddo Pittman, Jr., Pittman & Matheny, Hammond, for defendants-respondents.
   DIXON, Chief Justice.

Plaintiffs were granted judgment in the trial court for personal injuries suffered by Mrs. Miller when she slipped and fell on the dance floor at defendant’s restaurant and lounge. The Court of Appeal reversed. Miller v. Smith, 391 So.2d 1263 (La.App. 1st Cir. 1980). We affirm the judgment of the Court of Appeal.

Our attention was attracted to the case because the Court of Appeal noted that the reasons for judgment assigned by the trial judge were actually prepared by plaintiffs’ lawyer — a practice sometimes employed by busy trial judges.

The trial judge found that wax for the dance floor was not applied “in a safe manner” and was accumulated in a “dangerous excessive quantity” in the area where Mrs. Miller fell.

The evidence was properly analyzed in the Court of Appeal opinion. Mrs. Miller saw the bartender apply the wax just before the music started, but neither she nor any other person noted the manner of application on that evening. The cause of Mrs. Miller’s fall is not clearly established. She and her husband danced the first number and completed it in spite of noticing that it was “unusually slippery.” Returning to their table, Mr. Miller attempted to alert Mrs. Miller to a shadow on the floor which he suspected was wax; she noted a “shadow of something a little dark,” but not in time to prevent her falling.

There was, however, no other evidence of any foreign substance, wax or otherwise, on the floor where Mrs. Miller fell. There was testimony from other witnesses that the dance floor was slick on the night of the fall, but the dancing continued into the night with no complaints from the dancers that the floor was too slippery.

Not only does the proof fall short of establishing that Mrs. Miller fell because of some foreign substance on the floor, but it is also short of establishing that the floor was defective or dangerously slippery. Dance floors need to be smooth, and perhaps even “slippery” enough for shoes to slide easily on the floor; but the record does not establish that this floor was unreasonably slick for the purpose for which it was designed and used.

The judgment of the Court of Appeal is affirmed at relators’ cost.

DENNIS, J., dissents with reasons.

LEMMON, J., dissents and will assign reasons.'

DENNIS, Justice,

dissenting.

I respectfully dissent.

It is difficult to understand the majority’s conclusion that the proof fell short of establishing that Mrs. Miller fell because of some foreign substance on the floor. Mr. and Mrs. Miller testified they saw “something a little dark” on the floor where she slipped. Mrs. Miller said her foot went out from under her when she stepped on it. The Millers and other witnesses testified the floor was unusually slippery or slick. There was evidence that the bartender had a habit of applying the wax unevenly and sloppily. In fact, there does not appear to be any evidence that Mrs. Miller’s fall was caused by anything other than a foreign substance on the floor. The trial court’s finding of fact should not be overturned or the plaintiff penalized because the facts of this case cannot be color matched with previous cases.

LEMMON, Justice,

dissenting.

We granted plaintiffs’ application for cer-tiorari because the court of appeal reversed a factual decision of the trial court, holding that the trial court’s findings were not entitled to any weight because the trial court improperly allowed plaintiffs’ counsel to prepare his reasons for judgment. We now affirm the court of appeal on the basis that the record does not support a finding that an excessively slippery floor caused plaintiff wife’s fall.

As to the weight to be accorded to the reasons for judgment, a trial judge may properly direct counsel to prepare proposed findings of fact and conclusions of law. The preferable course is to request proposed findings from both sides, either prior to trial or at the conclusion of the evidence. However, if the judge designates the prevailing party at the conclusion of the trial, he may properly direct that party to prepare proposed findings, as long as the judge allows opposing counsel an opportunity to refute the proposed findings and then edits and modifies the proposed findings to accord with his own factual determination.

In the present case the trial judge, in a per curiam filed in the court of appeal, stated that he directed counsel to prepare proposed findings, reviewed and modified the proposal, and then rendered the reasons as his own. While the trial judge should have included opposing counsel in the process, the court of appeal was incorrect to disregard totally the trial court’s decision on the merits, thereby putting the plaintiffs in a worse position than if the trial judge had simply rendered judgment without assigning reasons. Therefore, even if the trial judge’s written reasons are struck for the record, the applicable standard of review is to view the evidence in the light most favorable to the prevailing party.

The evidence in this record, reviewed in the light most favorable to the prevailing party, supports the trial court’s judgment. Dominick Sassoon, defendant’s employee, had spread the wax on the floor, but died prior to trial and did not testify. Wilhemi-na Raley, another employee, testified without contradiction that Sassoon usually dumped large amounts of dance wax in particular areas rather than following the proper procedure of distributing the wax evenly over the entire dance floor.

Plaintiff husband testified that the spot where his wife slipped was “real slippery”. Two other patrons testified that the dance floor was “slicker (than usual)”, that “it was really slippery, it was too much wax”, and that it was “pretty slippery, because I made a comment about it”. There was no other suggested explanation for the fall.

I would reinstate the judgment of the trial court on liability and remand to the court of appeal to review the award of damages.

      . Earlier Court of Appeal cases involving falls on dance floors indicate that plaintiffs have recovered where they demonstrated the presence of a foreign substance on the floor, and testimony revealed that the substance’s presence was reported to an employee of defendant before plaintiff slipped. See Rosensweig v. The Travelers Insurance Co., 333 So.2d 334 (La.App. 4th Cir. 1976) and Roberts v. Courville, 162 So.2d 750 (La.App. 1st Cir. 1964). On the other hand, a plaintiff who alleged that a dance floor was dangerously slippery was denied recovery where a court found that the defendant kept the floors in reasonably safe condition and was not told that the floor was excessively waxed. See Champagne v. Harahan Lions Club, Inc., 243 So.2d 292 (La.App. 4th Cir. 1971).

      . It is even acceptable for the trial judge to adopt the statement of facts supplied by counsel in written brief (if the brief was served on opposing counsel). The main point is that the findings of fact (no matter by whom the findings are prepared) represent the conclusions of the trial judge.


text:
    STATE of Louisiana In the Interest Of Kenneth BANKS.
    No. 81-K-0712.
    Supreme Court of Louisiana.
    July 2, 1981.
    Rehearing Denied Sept. 4, 1981.
    Concurring Opinion Sept. 9, 1981.

      Frank J. Saia, Baton Rouge, Kathleen Stewart Richey, Asst. Public Defender, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Tyronne Gibbs, Kay Kirkpatrick, Asst. Dist. Attys., for plaintiffs-respondents.
   DIXON, Chief Justice.

Kenneth Banks was adjudicated delinquent because of an aggravated battery, R.S. 14:34, he had committed when he was sixteen. Banks struck another boy in the face with a two by four breaking the victim’s upper and lower jaw bones. At the dispositional hearing held January 14, 1981 the juvenile judge ordered that Banks be committed to the Department of Corrections until January 24, 1982, his eighteenth birthday.

Defense counsel orally entered a motion for appeal. Additionally, she moved for suspension of the effect of the judgment of disposition and for the setting of bond pending appeal. The juvenile judge denied these motions, apparently relying upon the discretion vested in him by C.J.P. 103, which provides:

“The effect of a judgment of disposition shall not be suspended by an appeal unless the trial court or the court of appeal directs otherwise.”

Banks then sought relief from the First Circuit on the theory that La.Const. art. I, § 18 guarantees juveniles bail pending appeal of their juvenile delinquency adjudication. The First Circuit found that section to be inapplicable to juvenile delinquency adjudications because of art. V, § 19 which directs the legislature to enact special juvenile procedures on “[t]he determination of guilt or innocence, the detention, and the custody of a person who is alleged to have committed a crime prior to his seventeenth birthday ...” (Emphasis added). The Court of Appeal reasoned that art. V, § 19, a special provision for juveniles, controls over art. I, § 18, which is general in nature. The First Circuit found C.J.P. 103 to be a permissible legislative response to the constitutional mandate of art. V, § 19. Therefore, the juvenile judge’s action taken pursuant to that statute was affirmed. State in the Interest of Banks (La.App. 1st Cir. 1981). This court granted writs to assess the juvenile’s contention that his state and federal constitutional rights have been violated by the juvenile judge’s action. State in the Interest of Banks, 397 So.2d 800 (La.1981).

THE STATE CLAIMS

Banks maintains that the 1921 Constitution guaranteed bail to juveniles and that the redactors of the 1974 Constitution incorporated this right into art. I, § 18 which provides:

“Excessive bail shall not be required. Before and during a trial, a person shall be bailable by sufficient surety, except when he is charged with a capital offense and the proof is evident and the presumption of guilt is great. After conviction and before sentencing, a person shall be bailable if the maximum sentence which may be imposed is imprisonment for five years or less; and the judge may grant bail if the maximum sentence which may be imposed is imprisonment exceeding five years. After sentencing and until final judgment, a person shall be bailable if the sentence actually imposed is five years or less; and the judge may grant bail if the sentence actually imposed exceeds imprisonment for five years.”

The primary support for relator’s statement regarding the 1921 Constitution is drawn from State v. Franklin, 202 La. 439, 12 So.2d 211 (1943), in which it was held that the 1921 Constitution guarantees to juveniles the right to bail pending their juvenile delinquency adjudications. When that case is read in isolation, it does tend to support the conclusion that the 1921 Constitution intended to accord juveniles bail. Nonetheless, the constitutional provisions were silent on the issue, and the jurisprudence interpreting these provisions, when read as a whole, do not provide consistent support for relator’s proposition.

The bail provision of the 1921 Constitution, La.Const. of 1921, art. I, § 12, is very similar to the bail provision of the current constitution, La.Const. art. I, § 18. Neither constitutional provision expressly denies juveniles the right to bail, yet each provision is couched in language indicating that it is intended to apply only to criminal prosecutions.

The juvenile provisions of the 1921 Constitution differ significantly from the current constitution’s juvenile provisions. The prior constitution, in addition to providing more detail, distinguished between juvenile procedures applicable to Orleans Parish, La. Const, of 1921, art. VII, §§ 95-96, and those applicable to the other parishes in the state, La.Const. of 1921, art. VII, §§ 52-54.

The 1921 Constitution

The cases addressing the issue of the juvenile’s right to bail under the 1921 Constitution should be separated into those cases dealing with the juvenile’s right to bail pending the delinquency adjudication, and those cases addressing the issue of the juvenile’s right to bail pending appeal of the delinquency determination.

Bail Pending Adjudication

As previously mentioned, Banks relies upon the case of State v. Franklin, supra, as establishing that the 1921 Constitution afforded juveniles the right to bail. That case involved the issue of the juvenile’s right to bail pending adjudication, and did not purport to decide whether a juvenile is entitled to bail pending appeal. The juvenile in Franklin had been denied bail pending adjudication because of a statute granting the trial judge discretion in placing the child pending the delinquency adjudication. The juvenile contended that he was entitled to bail by virtue of art. I, § 12 of the Constitution’s Bill of Rights.

After reviewing the constitutional provision setting up the juvenile courts, this court found that “this provision of the Constitution does not contain any language indicating that it was ever the intention of the framers of the Constitution to abrogate the constitutional right to bail pending trial.” 202 La. at 443, 12 So.2d at 213. Thus, the court found that the 1921 Constitution intended to afford juveniles the same right to bail pending the delinquency adjudication as it accorded to defendants pending their criminal trial.

Bail Pending Appeal

As previously mentioned, Orleans Parish was governed by juvenile procedures which differed from those applicable to the rest of the state. Prior to 1944, one such differ-. ence was that the Orleans Parish provision provided that “appeals shall not suspend the judgment of said court.” La.Const. of 1921, art. VII, § 96 (as it appeared prior to 1944 La. Acts, No. 322 (adopted November 7, 1944)). The provision dealing with appeals from other parishes was silent on whether such appeals were to be suspensive. La. Const, of 1921, art. VII, § 52 (repealed by 1948 La. Acts, No. 539 (adopted November 2, 1948)).

The first case to address the issue of the juvenile’s right to bail pending appeal was State v. Clark, 186 La. 655, 173 So. 137 (1937). That case involved an appeal from a delinquency adjudication in Orleans Parish. The juvenile contended that the provision disallowing suspensive appeals was in conflict with the 1921 Constitution’s guarantee of bail pending appeal.

The court noted that the state constitution’s Bill of Rights provided general laws which would govern unless there were a special law on the subject. The court reasoned that the constitutional provision dealing with Orleans Parish was such a special law. Thus, the special provision would prevail over the general law embodied in the Bill of Rights.

The Clark opinion did not involve the issue of the rights of juveniles from parishes other that Orleans to bail pending appeal. However, the inference from Clark is that those juveniles would be entitled to a suspensive appeal and to bail pending that appeal since there were no special provisions governing their appeals.

The Clark approach was not followed in the case which subsequently addressed the issue of whether juveniles from the rest of the state are entitled to bail pending appeal. In State v. McDonald, 206 La. 732, 20 So.2d 6 (1944), the juvenile argued that, whereas the constitutional provision dealing with Orleans Parish denied the right to suspensive appeal, no such restriction was placed on appeals from other parishes. The McDonald court rejected this argument without addressing either the issue of the applicability of the right to bail provision in the Bill of Rights, or the Clark and Franklin opinions. Rather, the court found McDonald’s argument to be unpersuasive:

“... Neither the constitutional article nor the statutory provision sets forth that such an appeal shall suspend the execution of the judgment of the juvenile court, and not having so provided they can not be enlarged by implication to have that effect.” Id. at 739, 20 So.2d at 9.

Although criticized for its methodology, the McDonald result was approved by the commentators writing at that time. Bennett, The Work of the Louisiana Supreme Court for the 1944-1945 Term—Criminal Law and Procedure, 6 La.L.Rev. 644, 673 n. 117 (1946); Jackson, The Right to Bail and Suspensive Appeal in the Louisiana Juvenile Courts, 20 Tul.L.Rev. 363, 377 (1946).

The day after McDonald was decided, the constitutional provision dealing with Orleans Parish juvenile courts was amended to provide:

“... appeal shall not discharge the, child from the custody of the Juvenile Court or of the person, institution, or agency to whose care such child may be committed by the Juvenile Court, unless the Supreme Court shall so order.” 1944 La. Acts, No. 322, amending La.Const. of 1921, art. VII, § 96 (adopted November 7, 1944).

Four years later, the constitutional provision dealing with juvenile courts for the rest of the state was amended to include identical language. 1948 La.Acts, No. 539, amending La.Const. of 1921, art. VII, § 52 (adopted November 2, 1948).

When McDonald is read in conjunction with the constitutional amendments denying juveniles the right to a suspensive appeal, it seems that the 1921 Constitution did not intend to accord juveniles the right to bail pending appeal of their delinquency adjudication.

Regarding the issue of bail pending adjudication, it is impossible to say whether the redactors of the 1921 Constitution intended to grant juveniles that right. On the one hand, Franklin applied the general bail provision to juveniles and found a right to bail pending adjudication. On the other hand McDonald, decided a year after Franklin, retreated from this position and did not apply the bail provision to juveniles.

1974 Constitution

As previously mentioned, the 1974 Constitution’s bail provision is similar to the bail provision in the 1921 Constitution. Art. I, § 18, located in the Declaration of Rights, phrases the guarantee in terms of “trial,” “conviction,” and “sentence.” This terminology is traditionally applicable only in the context of criminal prosecutions, and suggests that the redactors did not intend to extend the guarantee to juvenile delinquency adjudications.

Regarding the juvenile provision, the language in the 1921 Constitution denying juveniles the right to a suspensive appeal was not carried over. Rather, the redactors of the 1974 Constitution mandated that the legislature should provide special juvenile procedures. La.Const. art. V, § 19.

The specific language of art. V, § 19 represents a compromise agreed to by the Constitutional Convention delegates in the final days of the convention. See XXXVIII State of Louisiana Constitutional Convention of 1973: Verbatim Transcripts, Jan. 15, 1974, at 62 (remarks of Mr. Derbes). Delegate Derbes explained what the compromise was intended to do:

“... Now, on the one hand there are people who want to spell out all juvenile court jurisdiction in the constitution, and only change juvenile court jurisdiction by a constitutional amendment. On the other hand, there are those of us who felt that nothing should be said about juvenile court at all, but everything should be left up to the legislature, and midstream of those two alternatives, I happen to feel that by saying that the legislature should consider separate juvenile procedures when they say how a person should be tried, I felt that that was an adequate middle ground to satisfy both people.... ” Id. at 64-65.

As mentioned by Delegate Derbes, the delegates had previously disagreed over the amount of detail that should exist in the constitution. See generally XII State of Louisiana Constitutional Convention of 1973: Verbatim Transcripts, Aug. 28, 1973, at 3-38; XXVIII State of Louisiana Constitutional Convention of 1973: Verbatim Transcripts, Nov. 16, 1973, at 13-22; XXXVI State of Louisiana Constitutional Convention of 1973: Verbatim Transcripts, Jan. 8, 1974, at 64-106.

The 1921 Constitution had spelled out in detail that suspensive appeals were not available to juveniles. The 1974 Constitution does not address the matter, but instructed the legislature to devise special juvenile procedures. J.C.P. 103 is one of those special procedures enacted by the legislature pursuant to that constitutional mandate. We conclude from this that J.C.P. 103 is a valid exercise of legislative power and does not contravene the right to bail accorded to defendants in the Declaration of Rights.

THE FEDERAL CLAIMS

Even though C.J.P. 103 is not violative of the Louisiana Constitution, that statute must be scrutinized to determine whether it abridges any federal constitutional guarantees. Our inquiry begins with In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). The United States Supreme Court was concerned in that case with injecting procedural due process into juvenile delinquency proceedings, for, as the court remarked, “neither the Fourteenth Amendment nor the Bill of Rights is for adults alone.” Id. at 13, 87 S.Ct. at 1436, 18 L.Ed.2d at 538.

The court broadly discussed the shortcomings of the states’ juvenile systems. Nonetheless, the holding of the case is relatively narrow. See Rosenberg, The Constitutional Rights of Children Charged With Crime: Proposal for a Return to the not so Distant Past, 27 U.C.L.A. L.Rev. 656, 661-73 (1980). Gault ruled that, in the adjudicative stage of a juvenile delinquency proceeding, as a result of which the child may be incarcerated in a state institution, the following constitutional protections attach: notice of the charges, assistance of counsel, cross-examination and confrontation, and the privilege against self-incrimination.

Cases subsequent to Gault have identified further some of the specific components of the juvenile’s constitutional rights. See, e. g., In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). In embellishing upon the analytical framework posited in Gault, the court has made clear that Gault did not superimpose completely the constitutional rights assured to adults into juvenile delinquency adjudications. McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971). Rather, the applicable due process standard in juvenile proceedings is fundamental fairness. In McKeiver, it was determined that trial by jury is not a necessary ingredient of fundamental fairness in juvenile delinquency proceedings. Further delimitation of Gault’s scope has devolved upon the state and lower federal courts. See, e.g., In re Bruno, 388 So.2d 784 (La.1980); In re Grand Jury Subpoenas to Graham, 387 So.2d 1140 (La. 1980); In re Causey, 363 So.2d 472 (La. 1978); In re Dino, 359 So.2d 586 (La.1978).

This court has previously resolved the separate question of whether fundamental fairness mandates that juveniles be admitted to bail pending adjudication. In State v. Hundley, 263 La. 94, 267 So.2d 207 (1972), the trial judge had denied bail to two young girls pending their delinquency adjudications based upon possession of marijuana. This court ordered that the judge admit the children to bail. Gault was cited as authority for this court’s action, along with State v. Franklin, supra. More recently, this court ordered that another juvenile be admitted to bail pending his delinquency adjudication. In re Aaron, 390 So.2d 208 (La.1980).

Implicitly recognized in these two cases is the concept that bail pending adjudication is necessary for the proceedings to conform to the fundamental fairness mandated by Gault. We adhere to that view today, although we recognize that other states which have addressed the issue have not found bail pending adjudication to be a component of fundamental fairness at the adjudicatory stage. See Pauley v. Gross, 1 Kan.App.2d 736, 574 P.2d 234 (1977); Baker v. Smith, 477 S.W.2d 149 (Ky. 1971); Morris v. D’Amario, R.I., 416 A.2d 137 (1981).

Allowing the juvenile to be free pending adjudication preserves the presumption of innocence. See Comment, Juvenile Right to Bail, 11 J. Fam. L. 81, 100-01 (1971). That presumption is a corollary to the requirement that the state prove its case beyond a reasonable doubt. This latter standard has been found by the court to be necessary in juvenile delinquency proceedings. In re Winship, supra.

Once the delinquency determination has been made, however, the presumption of innocence no longer attaches. Further, we are not persuaded that the principles of Gault are applicable once the delinquency determination has been made. At the outset of its opinion, the Gault court emphasized that its decision did not deal with either the pre-judicial stage or the post-adjudicative or dispositional stage. 387 U.S. at 13, 87 S.Ct. at 1436, 18 L.Ed.2d at 538. This limited nature of the opinion was made clear in a subsequent footnote:

“The problems of pre-adjudication treatment of juveniles, and of post-adjudication disposition, are unique to the juvenile process; hence what we hold in this opinion with regard to the procedural requirements at the adjudicatory stage has no necessary application to other steps of the juvenile process.” Id. at 30-31, 87 S.Ct. at 1445, 18 L.Ed.2d at 548 n. 48.

Accord, In re Winship, 397 U.S. at 359, 90 S.Ct. at 1070, 25 L.Ed.2d at 372 n. 1.

We conclude that the juvenile's right to bail ends once the delinquency determination has been made. Prior to the adjudication, bail is available to the juvenile as part of the procedural due process to which he is entitled. After he has been found to be delinquent, however, the Gault requirements are not operative and due process is not offended when the juvenile is denied bail pending appeal.

Nor do we find that the juvenile is entitled to bail pending appeal by virtue of the equal protection clause of the Fourteenth Amendment. Gault recognized that post-adjudication dispositions of juveniles are unique to the juvenile process. Thus, we reject at the outset Bank’s contention that juvenile delinquents are situated similarly to convicted adult defendants. Their positions are simply not analogous.

For one thing, the authority of the juvenile court ceases when the juvenile reaches his twenty-first birthday. C.J.P. 89. And, the juvenile court judge is required to “impose the least restrictive disposition which the court finds is consistent with the circumstances of the case, the needs of the child, and the best interest of society.” C.J.P. 86.

Suspending the effect of the judgment of disposition would undermine the rehabilitative efforts of the juvenile court system by shortening the time available for such rehabilitation. In some cases, the jurisdiction of the juvenile court over the child might end prior to the final outcome on appeal. Such a result is possible in the instant case. The trial judge ordered Banks committed for approximately one year. Over four months has elapsed while Banks has litigated the issue of his right to bail and a suspensive appeal. His appeal on the merits has not yet occurred. By contrast, when a suspen-sive appeal is allowed in a criminal case, the duration of the sentence is not affected and the defendant merely begins to serve his sentence at the conclusion of the appeal.

For these reasons, we reject Banks’ equal protection challenge. Accord, In re Kelly, 236 N.W.2d 50 (Iowa 1975). For the reasons assigned, the trial judge’s ruling is affirmed. The prior order of this court ordering the relator to be admitted to bail pending argument in this court is recalled, and the trial judge’s order transferring relator to the custody of the Department of Corrections is reinstated.

DENNIS, J., dissents with reasons.

LEMMON, J., concurs and will assign reasons.

DENNIS, Justice,

dissenting.

I respectfully dissent.

Article V, § 19, which provides that the detention, custody and determination of certain children accused of having committed criminal offenses shall be exclusively pursuant to special juvenile procedures was never intended as an authorization for the legislature to strip juveniles of fundamental rights otherwise protected by the constitution. It was certainly not the delegates’ intention that a juvenile’s right to bail or to other safeguards of fairness in judicial proceedings not essentially different from a criminal trial, see State in the Interest of Dino, 359 So.2d 586, 595 (La. 1978), could be affected by such "special juvenile procedures.” This is clear throughout the debates, but was expressed succinctly by delegate Derbes:

“Mr. Jack:
Mr. Derbes, by the term ‘juvenile procedures’ what are you talking about?
“Mr. Derbes:
I’m talking about the juvenile procedures and the methods of treatment of juveniles which are currently spelled out in the revised statutes, Mr. Jack.” XXXVIII State of Louisiana Constitutional Convention of 1973: Verbatim Transcripts, Jan. 15, 1974, at 63.

Surely the majority does not mean that whatever rights a juvenile has under our state constitution to due process of law, equal protection of laws, property, privacy, freedom of expression and religion, etc. may be modified or abrogated by “special juvenile procedures.”

The majority’s federal equal protection analysis is faulty. It asserts that a juvenile’s position is “simply not analogous” to that of a convicted adult defendant. This may be true of juveniles who are not committed to correctional institutions after adjudication. But for those like relator, who are sent to places which resemble jails in every important essential, it clearly is false. As the United States Supreme Court observed in In re Gault, the slight differences between juvenile and adult confinement is of “no constitutional consequence.” 387 U.S. 1, 27, 87 S.Ct. 1428, 1443, 18 L.Ed.2d 527, 546 (1967).

It is ironic that the majority should give as a reason for its decision the argument that post-adjudication bail might shorten the time available for rehabilitation. Laying aside the very dubious assumption that rehabilitation usually occurs in such institutions, I think this court should be more impressed by the other possibility that a juvenile who has been convicted unfairly may rarely be able to appeal and have his conviction reversed before serving all or a substantial part of his sentence. Thus, the decision of the majority not only erodes all state constitutional rights of juveniles but it also erects a great practical deterrent to juvenile appeals.

LEMMON, Justice,

Concurring.

I agree that La.Const.Art. I, § 18 (1974) does not require this court to declare C.J.P. Art. 103 unconstitutional. Section 18 simply does not apply to delinquency proceedings.

Thus, the trial or appellate court may decide whether or not to suspend, pending appeal, the effect of a judgment of disposition ordering an adjudicated delinquent committed to the custody of the Department of Corrections for a period of confinement. See C.J.P. Arts. 83, 87. If the court in exercising its discretion decides not to suspend the judgment of disposition, that decision in effect denies release pending appeal. C.J.P. Art. 103 obviously vests this discretion in the trial and appellate judges handling the case.

In deciding whether to permit the adjudicated delinquent to remain free (or to remain without probationary conditions or suspension) pending appellate disposition of the case, trial courts should consider such factors as the possible danger that the adjudicated delinquent may commit other offenses if he remains free, the possibility of flight to avoid custody, and the merit (or frivolity) of the issues raised on appeal. See 18 U.S.C. § 3148. Because the decision involves the exercise of discretion, this court may review the exercise of that discretion. La.Const.Art. V, § 5 (1974).

I expressly decline to discuss in this case the federal constitutional right of alleged delinquents to preadjudication release on bail. The Legislature has outlined the circumstances under which alleged delinquents may be held in custody pending an adjudication hearing. See C.J.P. Arts. 38-41. The decision on whether these articles are constitutional should be made when the issue is squarely presented.

      . Not allowing suspensive appeals from Orleans Parish while allowing such appeals from the rest of the state could be justified on the basis of the several differences which existed between Orleans Parish and the rest of the state at the time the 1921 Constitution was adopted. Since Orleans juveniles appealed to the criminal district court and could thereafter seek writs of certiorari from the supreme court, the appellate process was longer in Orleans Parish. Also, since appeals in Orleans Parish lay on both questions of law and of fact, the appeal had the potential to be more involved.

      . See Acts 1981, No. 438, amending C.Cr.P. Art. 314, relating to postconviction bail for adults, in which some of these factors are expressly listed.


text:
    STATE of Louisiana v. John B. BENNETT.
    No. 81-K-0942.
    Supreme Court of Louisiana.
    May 6, 1981.
   In re John B. Bennett, applying for writs of certiorari and review. Parish of Ouachi-ta. Nos. M45175 and T96240.

Writ granted. Defendant’s conviction and sentence reversed. Case remanded. See State ex rel. Bishop v. Blackburn, 384 So.2d 406 (La.1980).


text:
    Ezra SAWYER v. STATE of Louisiana THROUGH LOUISIANA STATE EMPLOYEE’S RETIREMENT SYSTEM.
    No. 81-C-1219.
    Supreme Court of Louisiana.
    May 29, 1981.
   In re Ezra Sawyer, applying for writs of certiorari, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 401 So.2d 997.

Granted.


text:
    Randall P. MOREL v. Greer Baker, Wife of Randall P. MOREL.
    No. 81-C-1405.
    Supreme Court of Louisiana.
    May 29, 1981.
   In re Randall P. Morel, applying for writs of certiorari, prohibition, mandamus and a stay order. Parish of Jefferson. No. 243-412.

Denied.

DENNIS, J., concurs in denial of this application but is of the opinion that relator may not be held in contempt unless it is shown that he committed deceit as to a matter material to the case. C.C.P. Art. 224.


text:
    STATE of Louisiana v. Paul RICHARDSON.
    No. 81-K-1394.
    Supreme Court of Louisiana.
    May 29, 1981.
   In re Paul Richardson, applying for writ of certiorari and stay order. Parish of Orleans. No. 276-136, Sect. “E”.

Granted. Trial stayed.


text:
    STATE of Louisiana v. Robert HEATH.
    No. 81-K-1393.
    Supreme Court of Louisiana.
    May 29, 1981.
   In re Robert Heath, applying for remedial writs, and a stay order. Parish of Orleans. No. 282-083.

Denied.

DIXON, C. J., concurs in the denial. There is an extradition hearing set on Monday, June 1. If relator is illegally prejudiced at that hearing, he may obtain a stay order and apply to this Court for relief.


text:
    James Paul SCHOUEST, Sr. v. J. RAY McDERMOTT & CO., INC.
    No. 81-C-1573.
    Supreme Court of Louisiana.
    July 2, 1981.
   In re James Paul Schouest, Sr., applying for writs of certiorari, or review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. No. 11581.

Granted.

WATSON, J., recused.


author: BARRY, Judge.

text:
    Succession of Laura McCloskey CLEMENT.
    No. 12267.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 7, 1981.
    Rehearing Denied Sept. 17, 1981.
    Clement F. Perschall, Sr., New Orleans, for petitioner-intervenor-appellant.
    Stone, Pigman, Walther, Wittman & Hutchinson, David Stone and Stephen G. Bullock, New Orleans, for testamentary executor-appellee.
    Before BOUTALL, BARRY and KLEES, Jj.
   BARRY, Judge.

This is an action seeking to annul the statutory will of Laura McCloskey Clement. A nephew and closest living relative, John M. Hagerty, filed an opposition to the will, but when the matter was scheduled for trial Hagerty stated he couldn’t proceed because he did not have an attorney. The District Court dismissed his petition with prejudice and he now appeals.

Appellant urges two errors: that the trial court’s denial of his continuance precluded “his day in court”; and that proponents of the will are required to prove its authenticity- ‘

The testatrix died on April 5, 1978 at the age of 96 and her will was probated the next day. Hagerty’s intervention was filed in proper person and in forma pauperis on July 14,1978 while he was incarcerated in a federal correctional institution. The intervention alleged fraud and testamentary incapacity and requested the proceedings be stayed. The executor responded with dilatory and declinatory exceptions. Hagerty was paroled in December, 1978 after which time he obtained an attorney who amended the pleadings and further alleged formal defects in the probated will. Trial was set for May 14, 1979.

Hagerty’s counsel was granted a continuance on May 3,1979. The matter was reset for June 26, 1979 but a second continuance was granted on June 21, 1979. On the executor’s motion the case was set for trial on January 29, 1980; however, on December 6, 1979 Hagerty’s attorney withdrew based upon “continued differences between himself and his client”. On January 15, 1980 Hagerty filed a motion in proper person requesting a third continuance — this motion was denied.

On January 21, 1980, eight days before trial, new attorneys enrolled as counsel and were granted a continuance. The trial was reset for May 12, 1980, but on May 8, 1980 these attorneys withdrew, citing “differ-enees with Mr. Hagerty which cannot be resolved”.

On May 9, 1980 Hagerty appeared in proper person and requested a fourth continuance which was denied by the court. On the morning of trial, May 12, 1980, this court denied a writ filed by Hagerty seeking a review of the lower court’s denial of his requested continuance.

When the matter was called for trial, Hagerty refused to present evidence and stated he could not proceed without an attorney. The trial judge then asked counsel for the executor to move for dismissal of the intervention, but the executor’s counsel requested the court’s indulgence in order to put on a prima facie case. The court stated it wasn’t necessary, denied the executor’s proffer, and ordered the matter dismissed with prejudice. Hagerty, in proper person, took supervisory writs to our Supreme Court which were denied and this appeal followed.

Appellant first complains, in effect, that the trial court abused its discretion in failing to grant the fourth continuance. A review of the record clearly shows otherwise. This matter was set for trial on May 14, 1979, June 26, 1979, January 29, 1980, and finally on May 12, 1980. Three continuances were granted upon appellant’s request and were apparently necessitated by his inability to agree with his attorneys. The decedent’s will was probated April 6, 1978 and appellant has succeeded in delaying implementation of Mrs. Clement’s bequests for three years, possibly longer if this matter goes to a higher court. Hagerty’s last motion for a continuance was not based on one of the peremptory grounds found in C.C.P. Art. 1602 and was therefore within the trial court’s discretion. See Town of Richwood v. Goston, 340 So.2d 632 (La.App.2nd Cir.1976), writ denied 342 So.2d 871.

A defendant in civil litigation certainly has the right to have the case heard as soon as practical and a dilatory opponent can cause irreparable injury and injustice, particularly when a plaintiff’s case is weak. Lambert v. Heirs of Adams, 325 So.2d 331 (La.App.3rd Cir.1975). A continuance may be granted in any case if there is sufficient ground therefore, but that determination is within the sound discretion of the trial judge. Considering the totality of appellant’s numerous opportunities to “have his day in court”, we fail to find any abuse of discretion in denial of appellant’s fourth request for a continuance.

Appellant’s able counsel argues that the intervention should not have been dismissed without first requiring that the will be proven as to authenticity and compliance with formal requirements. However, this argument is without merit in view of C.C.P. Art. 2932 which provides:

“The plaintiff in an action to annul a probated testament has the burden of proving the invalidity thereof, unless the action was instituted within three months of the date the testament was probated. In the latter event, the defendants have the burden of proving the authenticity of the testament, and its compliance with all of the formal requirements of the law.”

Appellant urges that this article establishes a prescription period which does not apply because the record is void of any evidence indicating appellant’s knowledge that Mrs. Clement’s will had been probated. We disagree. C.C.P. Art. 2932 does not establish a “notice” requirement, but simply provides a specific time to determine which party must carry the burden of proof. Appellant’s opposition was filed more than three months after probate and the burden of proving invalidity of the testament clearly rested with Hagerty.

Finally, appellant’s opposition was also based on the decedent’s alleged incapacity due to her advanced age, citing her poor mental condition and senility. However, the person who alleges testamentary incapacity has the burden to affirmatively establish its existence since testamentary capacity is always presumed until the contrary is affirmatively established. Succession of Montero, 365 So.2d 929 (La.App.4th Cir.1978).

For the foregoing reasons, the judgment of the District Court is affirmed.

AFFIRMED.

      . Appellant’s pleading was styled “Petition of John McCloskey Hagerty as Intervenor”.

      . C.C.P. Art. 1602. A continuance shall be granted in the following cases:
      (1) If the attorney of record in the case is a member of the legislature and his absence is caused by his attendance at a legislative session; or
      (2) If at the time a case is to be tried, the party applying for the continuance shows that he has been unable, with the exercise of due diligence, to obtain evidence material to his case; or that a material witness has absented himself without the contrivance of the party applying for the continuance.