author: WATSON, Justice.

text:
    STATE of Louisiana v. Charles COLE.
    No. 66793.
    Supreme Court of Louisiana.
    May 19, 1980.
    Rehearing Denied June 23, 1980.

      Garland R. Rolling, Metairie, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Marion B. Farmer, Dist. Atty., Abbott J. Reeves, Asst. Dist. Atty., for plaintiff-respondent.
   WATSON, Justice.

On September 9, 1975, defendant Charles Cole allegedly battered Billy Ray Crain with a baseball bat. He was indicted for aggravated battery in violation of LSA-R.S. 14:34 on February 21, 1978, and arraigned on July 31, 1979. On November 8, 1979, he filed a Motion to Quash the indictment because of the delay of almost four years between the offense and arraign-merit. The trial judge denied the motion and a writ of certiorari was granted to review Cole’s contention that he was denied a fair and speedy trial by excessive pre-in-dictment and post-indictment delays.

Statutes of limitation are the primary protection against stale criminal charges. State v. Crain, 379 So.2d 1094 (La., 1980). Aggravated battery is a felony not necessarily punishable by imprisonment at hard labor (LSA-R.S. 14:34), so the permissible delay for the institution of prosecution is four years. LSA-C.Cr.P. art. 572(2). This indictment was filed well within the statutory limitation.

As to the post-indictment delay, there is also no violation of the statute of limitations. Trial was scheduled for a date within two years of the indictment. LSA-C.Cr.P. art. 578(2). Therefore, the only issue is whether the pre-indictment and post-indictment delays violated defendant’s constitutional right to a speedy trial.

Alleged violations of due process of law through pre-indictment delays are evaluated by weighing the government’s justification for the delay against the degree of prejudice to the accused. State v. Malvo, 357 So.2d 1084 (La., 1978); State v. Crain, supra.

The State has offered no explanation for the delay of two years and five months between the alleged offense and the indictment. There is nothing in the record to indicate that the case warranted extensive investigation or that the State had difficulty in locating the accused. No justification for the delay is claimed.

Defendant contends that he was prejudiced by the pre-indictment delay because the sole eyewitness, Johnny Fitzmor-ris, died prior to defendant’s arraignment. The testimony at the hearing on the motion to quash revealed that Cole killed Fitzmor-ris and is charged with manslaughter. Defense counsel indicated that his defense is justifiable homicide, claiming that Cole was shot twice before he shot Fitzmorris. (Tr. 12)

Any prejudice resulting from Fitzmorris’ death is nonetheless attributable to defendant and not the State. Regardless of Cole’s culpability, Fitzmorris died by his hand. Also there is no evidence as to what this witness would have said or that his testimony would have been favorable to defendant. Serious prejudice is not shown. Compare State v. Malvo, supra.

The particular circumstances of each case determine the weight to be ascribed to the length and reasons for a post-indictment delay. State v. Reaves, 376 So.2d 136 (La., 1979).

The right to a speedy trial stems from the Sixth Amendment to the United States Constitution and Article 1, Section 16 of the Louisiana Constitution of 1974. Speedy trial claims, are evaluated under the four factor test enunciated in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The considerations are the length of the delay, the reasons for the delay, defendant’s assertion of his right to a speedy trial and the prejudice which defendant has suffered.

Applying the Barker v. Wingo factors here, it is apparent that: (1) the delay between indictment and arraignment was one year and five months, not statutorily excessive; (2) no significant reason has been offered by the State for the delay; (3) the defendant has not asserted a demand for speedy trial; and (4) there is no showing of substantial prejudice to the accused.

Considering all the circumstances, there is not a violation of defendant’s right to a speedy trial.

Accordingly, the judgment of the trial court is affirmed.

AFFIRMED.

       Honorable RICHARD H. GAUTHIER participated in this decision as Associate Justice Ad Hoc.

      . Following arraignment, trial was set for August 24, 1979, but was continued three times on defense motion. Defendant does not complain of post-arraignment delays; his only objection is to the delay between the offense and the arraignment.

      . The State claimed that a change in administration in the District Attorney’s office was the reason for the delay between indictment and arraignment, but did not account for the pre-in-dictment delay. (Tr. 6)


source: Caselaw Access Project

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

license: Public Domain

text:
    ADOPTION of Rachel Marie LATIOLAIS.
    No. 66078.
    Supreme Court of Louisiana.
    May 19, 1980.
    Rehearing Denied June 23, 1980.
    Richard J. Putnam, Jr., Abbeville, for defendant-respondent, Glenn Latiolais.
    James M. Cunningham, III, Edwards, Stefanski & Barousse, Crowley, for plaintiff-applicant, Kenneth James Guidry.
   BLANCHE, Justice.

Kenneth James Guidry seeks to adopt Rachel Marie Latiolais, the child of his wife by her first marriage. Sherald Glenn La-tiolais, the child’s father, has opposed the adoption. The trial court granted the adoption, ruling that since Mr. Latiolais had not paid court-ordered child support for a period in excess of one year, the necessity for his consent was obviated, and considering applicant’s fitness as an adoptive parent, the adoption would be granted. R.S. 9:422.1. The court of appeal reversed, 376 So.2d 555 (La.App. 3d Cir. 1979), finding that the adoption was not in the child’s best interest. We agree.

R.S. 9:422.1 does not set the criteria to be used in determining whether or not an adoption shall be granted. It applies only to the narrow question of whether parental consent shall be required when a minor’s adoption is sought. The best interest of the child is the major standard to which a court must look before it can determine when or whether to order an adoption. R.S. 9:432. See also the full scope of requisites which the law makes applicable to adoptions. R.S. 9, §§ 421-441.

The courts below were correct that Mr. Latiolais’ consent would not be required before an adoption could be ordered; he had failed to pay the child support which he was obligated to pay under court order. However, no showing was made by petitioner that Rachel Marie’s best interest will be served by permitting the adoption here sought. On the contrary, Mr. Latiolais has shown that he and his daughter have a very close and loving relationship which has been maintained over the years since Mr. Latio-lais and Mrs. Guidry were separated in 1971, at which time Rachel Marie was between two and three years old. Mr. Guidry failed to show how the adoption, which would rupture the relationship between Rachel Marie and her father, would be in the child’s best interest. The record contains no evidence which relates to this crucial factor and which could be the basis for granting the adoption.

The decision of the court of appeal was correct and should be affirmed.

AFFIRMED.

MARCUS, J., dissents and assigns reasons.

DENNIS, J., dissents with reasons.

MARCUS, Justice

(dissenting).

I agree that where La.R.S. 9:422.1 applies, it dispenses with the necessity of obtaining consent from the other legitimate parent. The statute does not require a court to grant the adoption by the new spouse of the parent having custody merely because the conditions of the statute are met; the court must still consider whether the adoption will be in the “best interest of the child.” La.R.S. 9:432(B).

I disagree with the affirmance of the decision denying Mr. Guidry’s petition to adopt Rachel Marie Latiolais. Apparently, the trial court did not conduct a “best interest of the child” test, but merely granted the adoption by Mr. Guidry because it received a “favorable” report from the Louisiana Office of Family Security and because it believed La.R.S. 9:422.1 foreclosed consideration of Mr. Latiolais’ relationship with the child as a factor in determining whether Mr. Guidry’s adoption of the child should take place. It is for this reason that the record does not reveal evidence that the child’s best interest will be served by granting the adoption. Under La.Code Civ.P. art. 2164, the appeals court should have remanded the case to the trial court to conduct a hearing to determine whether the best interest of this child would be served by granting Mr. Guidry’s petition for adoption. Accordingly, I would reverse the decision of the court of appeal and remand the case to the trial court to conduct such a hearing. I respectfully dissent.

DENNIS, Justice,

dissenting.

I respectfully dissent.

The trial judge found that the adoption was in the best interests of the child. The evidence supports his decision, despite the majority’s conclusory language that there is no evidence that the adoption was in the best interests of the child. The plaintiff presented to the trial court evidence showing that Mr. Latiolais failed to make his child support payments for a period of one year. He produced evidence of his own fitness to adopt the child, demonstrating that the home environment for the child in his care has been beneficial to the child’s welfare. Furthermore, the trial judge considered the recommendation of a state agency in favor of the adoption following its investigation into the matter.

La.R.S. 9:422 authorizes a person 18 years or older to adopt children, but requires that consent must be given by a legitimate parent for his or her child to be adopted by the spouse of the other legitimate parent. La. R.S. 9:422.1 dispenses with the necessity of this consent in several instances, one of which is when the non-consenting legitimate parent has refused or failed to comply with a court order of support for a period of one year or more.

Thus, when the non-consenting legitimate parent so fails or refuses to support the child, the legislature in its wisdom has seen fit to grant the adopting parent as full a right to adopt as if consent had been granted.

Accordingly, it appears the majority opinion and the court of appeal opinion are incorrect on two grounds: They overrule the legislative policy established by the statutes, and they reverse a factual decision as to the best interest of the child by a trial court without demonstrating manifest error or abuse of discretion.

       Chief Judge FREDERICK S. ELLIS participated in this decision as Associate Justice Ad Hoc.


author: PER CURIAM. MARCUS, Justice CALOGERO, Justice,

text:
    STATE of Louisiana v. Dwight D. ELLENDER.
    No. 65338.
    Supreme Court of Louisiana.
    May 19, 1980.
    James M. Ross, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., David Miller, Kay Kirkpatrick, Asst. Dist. Attys., for plaintiff-appellee.
   PER CURIAM.

On the evening of November 2, 1977, police officers concluded two days of surveillance with the arrest of three men suspected of trafficking in marijuana. The seizure of cocaine and marijuana led to the filing of various charges against the three, including possession with intent to distribute marijuana, La.R.S. 40:966, against defendant and possession of cocaine, La.R.S. 40:967, against co-participant Roger Mendoza. After the denial of his motion to suppress evidence, defendant pleaded guilty to attempted possession with intent to distribute, reserving his right to appeal from the adverse ruling. See, State v. Crosby, 338 So.2d 584 (La.1976). Thereafter, the court sentenced him to serve three years at hard labor, but suspended the sentence and placed defendant on probation with the special condition that he submit to drug testing and pay a $300 fine.

Roger Mendoza’s appeal, also taken following a conditioned plea, preceded defendant’s by several months and resulted in a reversal on the issue presented here, viz., the legality of the seizure of narcotics. For the reasons assigned in State v. Mendoza, 376 So.2d 139 (La.1979), we reverse defendant’s conviction and sentence. Absent the information provided by the informant, which we found unreliable, the officers had at best only a mere suspicion that criminal activity was about to take place. Those suspicions could not justify probable cause for the full arrest that occurred. State v. Thomas, 349 So.2d 270 (La.1977).

Accordingly, the defendant’s conviction and sentence are reversed and the case is remanded to the district court for further proceedings consistent with this opinion.

REVERSED: REMANDED FOR FURTHER PROCEEDINGS.

SUMMERS, C. J., retired, acting as Justice ad hoc, dissents.

MARCUS and CALOGERO, JJ., dissent and assign reasons.

MARCUS, Justice

(dissenting).

I dissented in State v. Mendoza, 376 So.2d 139 (La.1979). Moreover, the majority correctly noted in Mendoza that the informant’s information about Ellender was “far more specific and was largely corroborated by police observation.” Accordingly, I respectfully dissent in this case.

CALOGERO, Justice,

dissenting.

I dissent. The information given the police concerning Ellender was corroborated by police observation and was sufficiently specific to give the police probable cause to arrest defendant Ellender.


author: BLANCHE, Justice.

text:
    STATE of Louisiana v. Willie SPAIN.
    No. 66207.
    Supreme Court of Louisiana.
    May 19, 1980.

      Lennie P. Perez, Roren, Holthaus & Perez, Baton Rouge, for defendant-respondent.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Marvin Montgomery, Asst. Atty. Gen., Louisiana Dept, of Justice, for plaintiff-relator.
   BLANCHE, Justice.

Petitioner, Willie Spain, sought a writ of habeas corpus in the 19th Judicial District Court, the purpose of which was to obtain a judgment ordering the Louisiana Parole Board to remove a detainer which it held against him as a parole violator. The trial judge granted the writ in favor of Spain and we granted the state’s application for a writ of certiorari in order to review the correctness of that decision.

Willie Spain was convicted of attempted simple burglary in 1975 and was sentenced on April 11, 1975 to serve four years in the custody of the Louisiana Department of Corrections. He was paroled on August 11, 1976. By the terms of the parole, Spain was to “remain within the limits of Baton Rouge, Louisiana until April 4, 1979; or until other action may be taken by this Board of Parole.” The parole was also contingent upon a number of other conditions specified in the Certificate of Parole.

On July 20, 1978 Spain was arrested and charged with two counts of distribution of phencyclidine, the offenses being alleged to have occurred on September 11, 1977 and October 11, 1977. The sales are alleged to have been made to a narcotics officer in Baton Rouge. On July 24, 1978, four days subsequent to this arrest, the Department of Corrections placed a detainer on Spain, requested a warrant from the Parole Board to confirm the detainer, and tentatively scheduled a preliminary hearing to consider the question of revocation of Spain’s parole. Notice of the hearing was sent to Spain on July 25,1978. Spain indicated on the form that he wanted a hearing. The preliminary (pre-revocation) hearing was then duly held on August 9,1978. At its conclusion, Spain signed a request which stated:

“If the Parole Board votes to have me returned to the institution for a revocation hearing, I request that such hearing be deferred until disposition of the open charges against me. I understand that I will be held without bond until my revocation hearing.”

Two persons, the hearing examiner (agent) and the parole officer in charge of Spain’s case, signed as witnesses to Spain’s signature. Spain does not dispute that he signed the request.

The finding by the hearing agent, made in his subsequent report to the Parole Board, was that “probable cause is established that [Spain] violated conditions of his parole as alleged.” The report is dated September 1, 1978. This report with the agent’s recommendation that parole be revoked and the request which Spain signed were sent to the Parole Board at the same time.

On September 14, 1978, the Parole Board issued a warrant for Spain as a parole violator and sent him the following letter:

Dear Mr. Spain:
After reviewing the report of violation and a summary of the preliminary revocation hearing held in your case, the Parole Board has voted to return you for a revocation hearing.
However, at your request, the Parole Board will not order your return for a revocation hearing until the disposition of the charges against you. If you are convicted on new felony charges your parole will be automatically revoked by law without a hearing by the Parole Board. You may request to be returned for a revocation hearing at any time [sic] by writing Mrs. Sybil Fullerton, Chairman of the Parole Board, at the above address. You will be held in jail on our warrant. If you are not convicted, but if your parole is revoked for other reasons, you will be given credit for time served in jail on our warrant.
If you are convicted, your time in jail will be credited to your new sentence, and you will not be given jail time credit on your paroled sentence.
Probable cause has been found that you have violated the following conditions of your parole:
[The letter then specifies the charges pending against Spain.]
Sincerely,
Sybil Fullerton, Chairman
Board of Parole

Spain was held in the East Baton Rouge Parish jail, without bond, on the two distribution charges because he was ineligible for bond while the detainer was in effect. R.S. 15:574.4(I)(1). Spain has remained in the jail awaiting disposition of the drug charges since that time. He never requested that the Parole Board return him to Louisiana State Penitentiary for the revocation proceedings.

In October, 1979, Spain filed the Application for Writ of Habeas Corpus with which we are here concerned. In that application and the proceedings which followed, Spain alleged and argued that he was being held illegally because, by its own terms, his parole period would have terminated on April 11, 1979 (R.S. 15:574.6); therefore, he should be bondable on the pending charges of distribution of a controlled dangerous substance, and the court should order that his parole had terminated without either a revocation having taken place, or any revocation proceedings having been initiated properly so as to permit further action to revoke and return him to prison to serve out his first (and at this point only) sentence.

Following a hearing in the 19th Judicial District Court, the judge made this ruling:

“No authority has been cited or found which authorizes a parolee to consent to an extension of his parole term. If such authority is inherent, it would be limited to a reasonable amount of time. Cf. State ex rel. Williams v. Henderson, 289 So.2d 74 (La.1974); State v. Bell, 324 So.2d 451 (1975). Such a request executed conditionally and without assistance of counsel cannot reasonably be considered an effective consent to an UNLIMITED and UNCERTAIN extension of the parole term when such has an immediate and in this case continuing impact upon liberty.
“The analogous situation in probation revocation proceedings is persuasive. See State v. Martens, 338 So.2d 95 (La.1976) and compare the analogous provision of La.R.S. 15:575.6 with C.Cr.P. art. 898 and La.R.S. 15:574.9(C) with C.Cr.P. art. 899.
“Even when a probation proceeding is INITIATED within the probationary period a hearing must be provoked within a ‘reasonable time’ following the initiation. See State v. Martens, supra and State v. Jones, 285 So.2d 231 (La.1973). Parole, of course, is less judicially supervised; this does not commend a lesser standard than probation.
“Without statutory authorization, this court cannot conclude that the uncoun-seled ‘request’ for an indefinite delay authorizes the parole board to extend the parole term. This is especially so in light of the significant present and potential impact on liberty and the absence of direct judicial supervision. Creation of consensual extended parole terms more properly addresses itself to the prerogative of the legislature.
“That petitioner did not request a hearing appears no longer relevant since the parole term has expired and a revocation hearing was not initiated within a reasonable time of the expiration.

ORDER

“For the foregoing reasons, the writ of habeas corpus is granted and the state through the Board of Parole is ordered to remove the detainer lodged against Willie Spain, applicant.”

Spain also has argued before this Court that, by analogy to the probation statutes and the jurisprudence thereunder (particularly Martens and Jones, supra), we should apply similar reasoning in this instance and find that he should be released.

The premise of the court below that Spain consented to an extension of his parole term is, in our opinion, incorrect. What Spain requested was that no revocation hearing be held until final disposition of the charges pending against him. Though there is no statutory mandate specifically permitting or requiring a parolee to make such a request, not only is there no prohibition against such a request, but it appears to be a reasonable exercise of the Parole Board’s administrative power. In this manner, a precipitous decision may be avoided and, should a parolee be found not guilty of the subsequent crime(s) charged, a more equitable and just disposition can be made by the Board relative to revocation of the parole. In Spain’s case, the Board’s response in the letter of September 14 correctly informed him of all consequences to himself and of the revocable nature of the request at any time of Spain’s choosing. In this way he could avoid any delay, yet, if he were to choose to invoke a delay in order to await a favorable disposition of the pending charges, his parole would not be jeopardized to the same extent. Meanwhile, the Board, by issuing a warrant and holding the preliminary (pre-revocation) hearing, had initiated the revocation proceedings prior to the expiration of the parole term, in compliance with the requirements of R.S. 15:574.-9(C). This makes the present case clearly distinguishable from such cases as those relied upon by Spain and by the court below. In those cases, the state failed to initiate proceedings to revoke the proba-tions within the time period mandated by the statute.

R.S. 15:574.9(E) also establishes what shall be the allocation given to the time a parolee is detained pending a trial or disposition on charges placed against him while he is on parole. Since the record in this case does not reflect any disposition on those charges, we cannot say what will be the ultimate allocation as to the time Spain has been detained. We do, however, find that his detention was proper, that it was at his option to end it prior to any disposition of the pending charges, but that he did not take any action. The Board has properly initiated the parole revocation proceedings, and once those have been initiated, Spain cannot claim that his detention is improper. Any delay in final resolution was caused by Spain, not the Board.

For the reasons stated, we find that the ruling of the court below granting the writ of habeas corpus was in error. We find that the Parole Board properly commenced revocation proceedings against Willie Spain and Spain was held in custody under a valid detainer. We therefore reverse the district court and the writ previously granted is hereby recalled, vacated and set aside.

WATSON, J., dissents.

DENNIS, J., dissents for the reasons assigned by district judge.

       Honorable EDWARD A. de la HOUSSAYE, III participated in this decision as Associate Justice Ad Hoc.

      . Spain had also been arrested in June, 1977 for carrying a concealed weapon, of which arrest the Parole Board was notified. The Board chose to permit Spain to make bond on that matter and deferred any further action until a disposition would be made as to that charge. The weapon involved was a two-foot-long knife contained in a cane; there was reason to believe Spain did not know there was a weapon concealed in the cane, which had been given to him only shortly before he was stopped by the police.

      . The notice contains a specification of the charges against him and also enumerates his rights as an alleged parole violator.

      . R.S. 15:574.6. “The parole term, when the board orders a prisoner released on parole, shall be for the remainder of the prisoner’s sentence, without any diminution of sentence for good behavior. When the parolee has completed his full parole term, he shall be discharged from parole and shall be issued a final order of discharge by the board. A copy of this order shall be sent to the Department of Corrections to be made a matter of permanent record.” Amended by Acts 1968, No. 191, § 1.

      . C.Cr.P. art. 893 et seq. provide the regulations for probation and its revocation.

      . R.S. 15:574.9. “C. Except in the case of a parolee who has absented himself from the jurisdiction or from his place of residence, action revoking a parolee’s parole and recommitting him for violation of the condition of parole must be initiated before the expiration of his parole term. A parolee who has absented himself from the jurisdiction, or from his place of residence, shall be deemed a fugitive from justice.”

      . R.S. 15:574.9. “E. When the parole of a pa- • rolee has been revoked by the board for the violation of the conditions of parole, the parolee shall be returned to the institution from which he was paroled and serve the remainder of his sentence as of the date of his release on parole, subject to consideration by the board of any commutation of the sentence, and any diminution of sentence earned for good behavior while in the institution. The parolee shall be given credit for time served prior to the revocation hearing whether such time is served in a local detention facility, state institution, or out-of-state institution, except that the parolee shall not receive credit for such time served prior to the revocation hearing where such hearing does not result in revocation, or the revocation is based on the subsequent conviction of a crime, in which case the parolee will receive credit for time served for the subsequent conviction pursuant to Code of Criminal Procedure Article 880.”


author: PER CURIAM.

text:
    STATE of Louisiana v. Ronald BELL.
    No. 66147.
    Supreme Court of Louisiana.
    May 19, 1980.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Brian G. Meissner, Asst. Dist. Atty., for plaintiff-appellee.
    John M. Lawrence, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
   PER CURIAM.

Having reviewed all the assignments of error filed by the defendant, we find that they present no reversible merit and do not require published explanation because they do not present any question of unsettled law. Therefore, these assignments are discussed in an unpublished, but publicly recorded, appendix to this opinion.

The defendant’s conviction and sentence are affirmed.

AFFIRMED.

       The Honorable FREDERICK STEPHEN ELLIS participated in this decision as an Associate Justice pro tempore.


author: GAUTHIER, Justice Ad Hoc. MARCUS, Justice

text:
    STATE of Louisiana v. Sherman WISHAM.
    No. 66159.
    Supreme Court of Louisiana.
    May 19, 1980.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Ralph Tyson, Kay Kirkpatrick, Asst. Dist. Atty., for plaintiff-appellee.
    M. Michele Fournet, App. Counsel, Asst. Public Defender, Alton T. Moran, Director, Joseph B. Olinde, Jr., Trial Atty., Baton Rouge, for defendant-appellant.
   GAUTHIER, Justice Ad Hoc.

The defendant, Sherman Wisham, was convicted by a jury of attempted armed robbery La.R.S. 14:27, 64. He was sentenced to fifteen years imprisonment at hard labor. The defendant appealed his case, and on September 4, 1979, this court remanded the case for a further hearing on the defendant’s motion for new trial. State v. Wisham, 371 So.2d 1151 (La.1979), hereinafter referred to as Wisham I.

After a hearing in the trial court, the motion for new trial was again denied and the defense now appeals on the basis of two assignments of error. The defendant contends that the trial court erred in allowing inadmissible testimony regarding the subjective reactions of jurors to the arrest of a defense witness for perjury and in the denial of defendant’s motion for a new trial by relying on the said inadmissible testimony. La.R.S. 15:470.

As related in Wisham I, during the trial defendant’s brother-in-law, Ray Banks, testified that the defendant was residing and working with him in Houston, Texas at the time the crime was committed in East Baton Rouge Parish. In cross-examining Banks about his testimony, the State questioned closely his understanding of the crime of perjury. After some off the record discussion, the trial court ordered Banks not to leave the courtroom until discharged. Shortly after testifying, Banks was arrested for perjury by law enforcement officers in the hallway of the courthouse just outside of the courtroom where defendant’s trial was in progress.

After the jury rendered a verdict of guilty, one of the jurors related to defense counsel that prior to the jury deliberation, two jurors had witnessed the arrest of defendant’s alibi witness in the hall and the incident had been discussed in the jury room. On the basis of these allegations defendant moved for a Motion for a New Trial pursuant to Code of Criminal Procedure Articles 851 and 854. The state objected to the Motion on the basis of La.R.S. 15:470 which reads:

“No juror, grand or petit, is competent to testify to his own or his fellow’s misconduct, or to give evidence to explain, qualify or impeach any indictment or any verdict found by the body of which he is or was a member; but every juror, grand or petit is a competent witness to rebut any attack upon the regularity of the conduct or of the findings of the body of which he is or was a member.”

The trial judge determined that any testimony by the jurors as to what occurred in the hall of the court would be in violation of La.R.S. 15:470 and denied the Motion for a New Trial at the first hearing.

We went on to hold in Wisham I that the trial judge’s application of R.S. 15:470 was too restrictive and that jurors may testify concerning the overt act of a third person that might improperly enter into their deliberations:

“As in Marchand and the cases discussed therein, we conclude that the statutory prohibition against jurors impeaching their verdict was not legislatively intended to defeat the equally valid statutory prohibition against unauthorized communications or prejudicial conduct tantamount to unauthorized communication to the jury which might influence their verdict, i. e., by preventing proof of it through the only means possible, the testimony of the jurors who witnessed the prejudicial conduct and reported it to the other jurors.” Wisham, Supra, at 1154.

At the hearing on remand, the defendant subpoenaed five jurors who testified to the events preceding the jury’s deliberation. Two members related that they witnessed the apparent arrest of one of the witnesses. One of these jurors testified that he overheard an assistant district attorney tell the witness that he may be arrested for perjury and that he (the juror) knew the man was a defense witness. Other jurors called to testify at the hearing indicated that a female juror related the incident to several jurors in the jury room and that this matter was discussed during the jury deliberation for approximately five minutes.

On cross-examination of the five jurors, the state questioned each juror as to what each witnessed or heard about the events and as to the effect of these events upon his or her decision as to defendant’s guilt or innocence. Each of the five jurors testified that the events did not affect their respective decisions, but on re-direct examination some jurors testified they could not say with absolute certainty that the incident did not effect their decision.

The defense objected to this type of inquiry on the basis of La.R.S. 15:470, which forbids examination of the subjective reaction of jurors. It is upon this objection raised at the hearing on remand that, the defendant appealed the second denial of his Motion for a New Trial.

In the instant appeal, the defense alleges that the testimony elicited at the hearing should have been limited to whether the events occurred and whether the state could rebut the presumption of prejudice which was raised by the occurrence of those events. Defense argues that the state’s right to rebut the presumption does not include a right to delve into the subjective reactions of jurors in the deliberation of a verdict. Defense submits that the admissibility of testimony regarding the effect of the arrest of the witness upon their deliberations is prohibited by R.S. 15:470 and that the reliance upon this testimony to deny the Motion for a New Trial is in error.

We agree. The State should not have been allowed to examine the jurors as to the effect the extraneous prejudicial information had on the jury deliberations. Testimony of this nature by the jurors would impeach their own verdict within the prohibition of La.R.S. 15:470. The policy behind this statute is to preserve the confidentiality of discussion among jurors in their deliberation, as well as the finality of jury verdicts. State v. Marchand, 362 So.2d 1090 (La.1978); State v. Abney, 347 So.2d 498 (La.1977); State v. Durr, 343 So.2d 1004 (La.1977).

In Wisham I, we confirmed this principle of law that forbids evidence as to the mental processes and reasons of the jury in reaching a decision. See footnote 2, Wis-ham, supra, at 1154.

We also held in Wisham I, that:

“In a criminal case, any private communication, contact or tampering directly or indirectly, with a juror during a trial about the matter pending before the jury, is for obvious reasons, deemed presumptively prejudicial, if not made in pursuance of known rules of the court and the instructions and directions of the court made during the trial, with full knowledge of the parties. The defendant’s constitutional due process right to fair trial by jury is violated if the trial jurors are subjected to influences through the attending bailiffs of the state which may cause their verdict to be influenced by circumstances other than the evidence developed at the trial. See, Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1964); Remmer v. United States, 347 U.S. 227, 229, 74 S.Ct. 450, 451, 98 L.Ed. 654 (1954).” Wisham, supra, at 1153.

The evidence in the instant case clearly shows that the alleged conduct did in fact occur in the juror’s presence; that a juror related the event to other jurors; and that the matter was discussed in the jury room during deliberations. The State produced no evidence to overcome the presumption, other than the testimony of the juror’s subjective reactions, which is prohibited by La.R.S. 15:470.

Accordingly, we find merit to the assignment of error. The extraneous activity in this instance, communicated to the jurors, deprived the defendant of his constitutional and statutory right to an impartial jury verdict, untainted by outside activities and not influenced by any consideration other than his innocence or guilt, based solely on the evidence properly before the jury.

The verdict and the sentence must therefore be reversed, and the case remanded for a new trial in accordance with law.

REVERSED AND REMANDED.

WATSON, J., concurs in the result.

BLANCHE, J., dissents.

MARCUS, J., dissents and assigns reasons.

MARCUS, Justice

(dissenting).

La.R.S. 15:470 provides: “No juror . is competent ... to give evidence to explain, qualify or impeach . . any verdict . . . .” I consider that the testimony by the jurors as to their presence in the hallway during the witness’ arrest as well as their testimony that they related this information to the other jurors and that the arrest was discussed during their deliberations is clearly prohibited by this statutory provision. Rule 606 of the Federal Rules of Evidence sets forth a similar prohibition but provides “except that a jur- or may testify on the question whether extraneous prejudicial information was improperly brought to the juror’s attention or whether any outside influence was improperly brought to bear upon any juror.” In my view, any change in the rule in Louisiana addresses itself to the legislature. See also my dissents in State v. Charles, 377 So.2d 344 (La.1979), State v. Wisham, 371 So.2d 1151 (La.1979), and State v. Marchand, 362 So.2d 1090 (La.1978). Accordingly, I respectfully dissent.


author: CALOGERO, Justice.

text:
    JEFFERSON BANK AND TRUST COMPANY v. Christos G. STAMATIOU.
    No. 66166.
    Supreme Court of Louisiana.
    May 19, 1980.

      Kim M. O’Dowd, O’Dowd & O’Dowd, New Orleans, for defendant-applicant.
    David R. Sherman, Donelon, Cannella & Donelon, Metairie, for plaintiff-respondent.
   CALOGERO, Justice.

Defendant’s reconventional demand asserting a defense to plaintiff’s suit on a promissory note given plaintiff’s assignor for the purchase of a truck was dismissed. The trial judge held in favor of the plaintiff bank, granting its exception of no cause of action upon finding the bank to be a holder in due course. The Court of Appeal affirmed the trial court judgment. Jefferson Bank and Trust Company v. Stamatiou, 375 So.2d 1185 (La.App.1979). We granted writs upon application of defendant, vendee and maker of the promissory note.

Defendant, Christos G. Stamatiou, purchased a truck from Key Dodge, Inc. At the time of purchase, defendant and an agent of Key Dodge signed an instrument designated Sale and Chattel . Mortgage. The instrument or contract is on a single sheet of paper, front and back. It consists of provisions relative to the Sale and Chattel Mortgage with a promissory note at the bottom of this same page. The note portion of the contract bears language indicating that it is an unconditional promise to pay $10,774.44 on prescribed terms. The preceding Sale and Chattel Mortgage portion of the instrument has numerous provisions including the following which preserves for the purchaser his defenses against a future holder:

“NOTICE: ANY HOLDER OF THIS CONSUMER CREDIT CONTRACT IS SUBJECT TO ALL CLAIMS AND DEFENSES WHICH THE DEBTOR COULD ASSERT AGAINST THE SELLER OF GOODS OR SERVICES OBTAINED PURSUANT HERETO OR WITH THE PROCEEDS HEREOF. RECOVERY HEREUNDER SHALL NOT EXCEED AMOUNTS PAID BY THE DEBTOR HEREUNDER.”

Defendant’s signature appears twice on the instrument, once following the sale and chattel mortgage and once at the conclusion of the promissory note. The purchaser is shown on the contract as “Christos G. Sta-matiou” and no provision of the sale and chattel mortgage/promissory note indicates the purpose of the purchase, or the use to which the truck is to be put. Nor does any provision of the instrument indicate that Stamatiou purchased anything other than an ordinary truck. Near the top of the contract there is a “Disclosure Statement” by which “Buyer acknowledges that the Promissory Note secured by Sale and Chattel Mortgage will be assigned to JEFFERSON BANK, as Assignee and CREDITOR within the meaning of the Federal Truth-In-Lending Act.”

Key Dodge assigned this contract to plaintiff, Jefferson Bank and Trust Co., as contemplated. Defendant alleges that the truck became inoperable and unusable a short time after purchase and that he notified Key Dodge and Jefferson Bank of the problem and demanded rescission of the sale because of these redhibitory vices. Later, Jefferson Bank filed an ordinary petition against Stamatiou for the unpaid balance on the note (after separating or cutting the note off from the remainder of the contract).

Defendant answered the suit and reconvened seeking rescission of the sale and judgment for return of the purchase price.

Plaintiff bank filed an exception of no cause of action to defendant’s reconventional demand contending that because defendant purchased the truck for use in his tow truck business, the instrument is not a “consumer credit contract” and that therefore the above quoted language of the contract is not applicable. Plaintiff claims to be a holder in due course against whom defendant may not assert his redhibition defense. The trial court maintained plaintiff’s exception and dismissed the reconventional demand. The Court of Appeal affirmed the trial court’s ruling.

Our writ grant requires that we determine whether the inclusion of the preservation of defenses language (federally required in all “consumer credit contracts”) in a contract which is not a consumer credit contract, allows the defendant to present his defense against a party who would otherwise be a holder in due course; in effect, whether the language, specifically countering the primary effect of holder in due course status is applicable to this holder, Jefferson Bank.

Under authority of 15 U.S.C. § 41, et seq., the Federal Trade Commission, a United States regulatory agency, requires the inclusion of the exact same language as was included in the present contract in all “consumer credit contracts” for the sale of goods or services. 16 CFR 433. The federal regulations define a consumer as “a natural person who seeks or acquires goods or services for personal, family or household use.” Therefore in any contract for the sale of goods or services where credit is being extended to the purchaser, and the purchaser is acquiring the item for personal, family, or household use, the following language identical to that language used in the contract and quoted above, must be contained in the contract:

“NOTICE
ANY HOLDER OF THIS CONSUMER CREDIT CONTRACT IS SUBJECT TO ALL CLAIMS AND DEFENSES WHICH THE DEBTOR COULD ASSERT AGAINST THE SELLER OF GOODS OR SERVICES OBTAINED PURSUANT HERETO OR WITH THE PROCEEDS HEREOF. RECOVERY HEREUNDER BY THE DEBTOR SHALL NOT EXCEED AMOUNTS PAID BY THE DEBTOR HEREUNDER.” 16 CFR 433

The express purpose of the FTC regulation is to prevent the seller, in a consumer credit transaction, from separating the buyer’s duty to pay from the seller’s duty to perform as promised, by the seller’s assigning the buyer’s promissory note to a financing institution, as against whom, because of holder status, defenses would otherwise not be available.

Plaintiff makes the following argument: that the preservation of defenses language is included in all credit contracts to insure compliance with federal regulations but is only intended to apply to the appropriate transactions even though there is no notation to the effect that the clause is possibly inapplicable; absent inclusion in all credit contracts, the vendor and/or finance company would be required to have two different forms and to hire a staff attorney to instruct them each time which to use; and that the sale of the truck to defendant for use in his tow truck business takes the transaction out of the consumer credit contract category as defined by the FTC, and thus the provision, although there in the contract, was not applicable to this transaction and should be ignored.

Defendant on the other hand claims that the preservation of defenses language (whether federally required in this contract or not) was included in the contract and as such becomes a part of that contract. Defendant relies on La.Civ.Code art. 1901 and La.Civ.Code art. 1945 in support of his argument.

We conclude that defendant’s argument is the more persuasive and is more supported by the law. Under the provisions of the Civil Code, parties are free to govern their relationships through their contracts, and the contractural provisions have the effect of law on the parties. The contract between Stamatiou and Key Dodge, as assigned to plaintiff, provided “Any holder of this . . . contract is subject to all claims and defenses which the debtor could assert against the seller.” That the parties to the contract mistakenly asserted that it was a consumer credit contract (“any holder of this consumer credit contract”) is of little consequence. In looking at the contract, there was nothing on the face of the instrument to indicate that this was not a “consumer credit contract.” The assignee/holder was put on notice that all defenses were available to the buyer against him at the time he acquired the instrument. In looking at the face of the instrument, plaintiff could not have expected to be a holder in due course, and is not now entitled to be so treated. At best the contract is ambiguous and is surely not to be construed against the purchaser who did not confect it. Kuhn v. Stan A. Plauche Real Estate Company, 249 La. 85, 185 So.2d 210 (1966); and La. Civ.Code art. 1958.

Plaintiff bank further argues that all parties are presumed to know the law and therefore, defendant should have known that the language in question was not intended to apply to their contract. Defendant can hardly be charged with knowledge of a federal regulation, defining consumer in a manner more limited than that used in everyday language. In any event, if we were to agree with plaintiff’s argument that the parties are presumed to know the law and the pertinent federal regulations as well, then we fail to understand why the preservation of defenses language was not excluded from this contract if that was what the parties intended.

Finally, plaintiff argues that the preservation of defenses language only appears in the Sale and Chattel Mortgage portion of the instrument and not in the promissory note and therefore, the language, even if applicable in a suit on the chattel mortgage, is not applicable in a suit on the note alone. As stated above, the instrument executed by the parties was all one piece of paper. There was no perforated line separating the Sale and Chattel Mortgage from the Promissory Note or other indication that the note was likely or possibly to be employed separately. We do not accept plaintiff’s contention that he can alter the effects of the contractural undertaking by the simple expedient of physically separating the promissory note from the rest of the contract.

For these reasons we conclude that the preservation of defenses language is applicable to the contract. Plaintiff bank is subject to defendant purchaser’s claims or defenses and the contract provision takes precedence over the rights plaintiff would otherwise have been legally entitled to under R.S. 10:3-305 as a holder in due course.

Decree

Accordingly the judgment of the district court and the Court of Appeal is reversed and plaintiff’s exception of no cause of action to defendant’s reconventional demand is overruled. The case is remanded to the district court for further proceedings consistent with this opinion.

REVERSED; REMANDED TO DISTRICT COURT.

       Honorable FREDERICK STEPHEN ELLIS participated in this decision as an Associate Justice Pro Tempore.

      . It should be noted that there is no perforation between the Chattel Mortgage and the Promissory Note. Rather, both are on the single sheet of paper; both are parts of a single instrument. The note portion bears a paragraph:
      “NE VARIETUR
      As per Act of Sale and Mortgage of this date:
      December 12, 1972
      A. J. Boudreaux, Notary Public”

      . Plaintiff also contends that the language in question is preceded by the heading “Notice” and that such heading indicates that the language in question is informational only and is not a legally binding provision of the contract. In fact, the word “Notice” is required by the FTC for the purpose of calling the buyer’s attention to the clause so that he is aware of his included rights. Nonetheless, it is that very inclusion of the provision within the contract that gives the buyer his rights. The provision is not merely inserted in the contract to inform the buyer of a right which exists independently of the provision’s inclusion in the contract.

      . La.Civ.Code art. 1901 provides as follows:
      “Agreements legally entered into have the effect of laws on those who have formed them.
      They can not be revoked, unless by mutual consent of the parties, or for causes acknowledged by law.
      They must be performed with good faith.”

      . La.Civ.Code art. 1945 provides as follows:
      “Legal agreements having the effects of law upon the parties, none but the parties can abrogate or modify them. Upon this principle are established the following rules:
      First—That no general or special legislative act can be so construed as to avoid or modify a legal contract previously made;
      Second—That courts are bound to give legal effect to all such contracts according to the true intent of all the parties;
      Third—That the intent is to be determined by the words of the contract, when these are clear and explicit and lead to no absurd consequences;
      Fourth—That it is the common intent of the parties—that is, the intention of all—that is to be sought for; if there was a difference in this intent, there was no common consent and, consequently, no contract.”

      .Webster’s New Collegiate Dictionary defines consumer as “one that utilizes economic goods.” Webster’s New Collegiate Dictionary, (Woolf, H. B„ ed.) G. & E. Merrian Co. 1979.


author: DENNIS, Justice.

text:
    Lucian PERNICIARO, Jr., et al. v. Anders K. BRINCH et al.
    No. 66176.
    Supreme Court of Louisiana.
    May 19, 1980.

      Carl J. Selenberg, Metairie, for plaintiffs-applicants.
    John J. Hainkel, Jr., New Orleans, for defendants-respondents.
   DENNIS, Justice.

In this personal injury suit we granted certiorari to determine if the lower courts correctly assessed the damages for the plaintiff, Ms. Perniciaro, who received neck and low back injuries as a result of a car accident in Jefferson Parish. The jury, after hearing the testimony of the plaintiff, her husband, the defendant, and one orthopedic surgeon, awarded the plaintiff $500 in general damages and $143 for medical costs. The court of appeal affirmed the general damage award, concluding that the jury reasonably found that the plaintiff suffered only a moderate neck and back strain of short duration and reasonably attributed her other physical disorders exclusively to her osteoarthritic degenerative back condition. The court of appeal increased the award of medical expenses to reflect the full medical costs incurred during the plaintiff’s first period of medical treatment, the total amount being $212.50.

On May 12,1976, Ms. Perniciaro was driving on the interstate in Jefferson Parish near the Williams Boulevard exit. Mr. Brinch, the defendant, followed the plaintiff at about twenty-five miles per hour. The plaintiff was forced to make an abrupt stop for traffic in front of her and the defendant, although he applied his brakes, struck her in the rear. The sole disputed issue on this writ of review is the extent of compensable injuries received by the plaintiff as a result of this accident.

The plaintiff testified that she sustained neck and low back injuries in the accident, which have caused her disability and pain from the time of the collision through the trial on November 15, 1977. At the jury trial, the plaintiff, her husband, the defendant, and Dr. Víctor Chisesi, the treating physician, testified to the nature of the plaintiffs injuries. According to a majority of the court of appeal, the jury reasonably found that the injuries were caused by a combination of the accident and a pre-exist-ing osteoarthritic condition, but that the extent of the injuries attributable to the accident encompassed only the first two or three weeks following the collision; thereafter Ms. Perniciaro’s problems were caused independently by her osteoarthritis and degenerative disc. We conclude from the evidence in this record that a reasonable trier of fact must find that Mrs. Perniciaro’s continuing back disorder and symptoms were causally related to her automobile accident. We further conclude, therefore, that either the jury’s determination of the extent of her compensable injuries was based upon a manifestly erroneous factual finding or it abused its great discretion in awarding only $500 for intermittent pain and suffering from May 12, 1976 through November 15, 1977.

The evidence fully supports a finding that the plaintiff received neck and low back injuries in the accident. The defendant testified that when he went up to the plaintiff’s car after the collision, the plaintiff complained of neck pain and the defendant noticed that her neck was swollen. She was taken to the emergency room of East Jefferson Hospital; there, the doctors gave her two shots and some medication to relieve the pain. After one hour, she was allowed to go home. Her husband testified that the pain in her neck and low back was so severe that she had trouble getting out of bed on the morning of May 13.

On May 14 the plaintiff went to see an orthopedic surgeon, Dr. Chisesi. Dr. Chisesi diagnosed a cervical and lumbo-sacral strain, caused by the trauma received in the accident. Using x-rays, he discovered a condition of osteoarthritis, which pre-exist-ed the accident. He gave her Valium and Tylenol 3, sent her home to rest, and told her not to go to work for the time being.

Between May 14 and the date of the plaintiff’s next visit to Dr. Chisesi, May 20, the record shows that the plaintiff experienced disabling pain in her neck and lower back. Her husband testified that she could not get out of bed without difficulty; she and her husband attested to the fact that she could not do her normal household chores, such as vacuuming and grocery shopping. She could not lift any heavy object without aggravating her injuries.

The plaintiff saw Dr. Chisesi on May 20, after a week of rest and medication. The doctor gave her no examination, but listened to her complaints about continuing pain in the neck accompanied by headaches. The pain in her back, however, had subsided somewhat due to her use of a girdle. She asked the doctor for his permission to return to work; he assented, and told her that she could return to work within four days.

Ms. Perniciaro was, and is, employed as an indexer for the Parish Court of Jefferson Parish. Her duties consist in recording traffic tickets in the record books. Because of her neck and back problems, she was not able to lift the tomes in which the tickets were recorded. Nor was she able to sit for long periods of time without getting headaches. To alleviate her difficulties, other employees of the court assisted her with her job, lifting the books for her.

On June 10, 1976, she went to see Dr. Chisesi’s partner, Dr. Lococo (who did not testify at trial). According to Dr. Chisesi, Dr. Lococo instructed her on how to do certain physical, therapy exercises which were designed to strengthen the back muscles.

Ms. Perniciaro did not return to Dr. Chi-sesi’s office until March 23, 1977. During this period she testified that the pain was somewhat suppressed due to the exercises prescribed by Dr. Lococo. She testified without contradiction, however, that every two or three months she experienced a recurrence of pain, which endured for two or three days. Her husband testified that she was not able to do any heavy housework. She could not vacuum, rearrange furniture, or carry heavy grocery bags. On March 23 she visited Dr. Chisesi again, complaining of pain in her low back, which started two days prior. The doctor found that she had a limitation of back movement, and he told her to continue taking Naperson.

On April 26 Ms. Perniciaro made her final visit to Dr. Chisesi. At this time she felt much better, although she still could not do household vacuuming or lift grocery bags. The doctor discharged her from his care, telling her to continue the physical therapy exercises to strengthen her back.

At trial, Dr. Chisesi stated that the accident trauma aggravated the pre-existing osteoarthritis. He testified that the cervical and lumbo-strain from the accident would have subsided within two weeks, but for the osteoarthritis, and that the pre-ex-isting condition was made “symptomatic” by the trauma. He further told the jury that Ms. Perniciaro had no significant medical history, no prior back trouble, and the only serious operation she had received was a hysterectomy. He said that she might have gone along as normal for another five or ten years without any back problem, had the trauma not aggravated the osteoarthritis.

The court of appeal agreed with what it considered to be the “obvious” jury conclusion that the accident caused only a few weeks of “moderate strain.” Both the jury and that court apparently focused upon the doctor’s statements regarding the normal duration of cervical and lumbo-sacral strain from this type of trauma, which was two or three weeks. However, they apparently ignored the doctor’s testimony that the osteoarthritis was made symptomatic by the accident, that the plaintiff might have escaped back or neck problems for five or ten more years had the accident not occurred. The fact findings also discounted the evidence that during the initial two weeks the plaintiff’s pain was so severe, getting out of bed was a major task.

In the assessment of damages in cases of quasi offenses much discretion must be left to the judge or jury. La.C.C. art. 1934(3). Before a court of appeal can disturb an award made by a trial court the record must clearly reveal that the trier of fact abused his discretion in making his award. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977). Before an appellate court can disturb a factual finding by the trial court, it must determine that the finding is manifestly erroneous and has no reasonable factual basis. Canter v. Koehring, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

In this case we find that the record clearly shows that the award of $500 should have been disturbed as inadequate compensation for Ms. Perniciaro’s pain and suffering. The award was either a patent abuse of discretion or it was based on a manifestly erroneous finding that her continuing back problems were not caused by the accident. The evidence is uncontradicted that the plaintiff suffered severe pain during the initial two weeks to the extent that getting out of bed in the morning was a major undertaking. Thereafter, it is clear that she was not able to perform her normal household chores nor could she lift the record books at the parish court. Her pain recurred every two or three months, despite the medication and the exercises, and Dr. Chisesi testified that he could not be sure whether the pain would ever completely resolve itself. Dr. Chisesi testified that, because of this accident, Ms. Perniciaro’s osteoarthritic condition has become symptomatic. He further testified that but for the accident the aggravation of this condition might not have happened for many hears, if ever. It is true that Dr. Chisesi testified the aggravation could have occurred independently of the accident, but his opinion, which is supported by all of the evidence, was that it was probably caused by the accident.

A defendant takes his victim as he finds him and he is responsible for all the natural and probable consequences of his tortious conduct. See Sansonni v. Jefferson Parish School Board, 344 So.2d 42 (La.App. 4th Cir. 1977); Deville v. United States Fidelity & Guaranty Company, 258 So.2d 694 (La.App. 3d Cir. 1972); Dufrene v. Miller, 266 So.2d 462 (La.App. 4th Cir. 1972); Rachal v. Bankers and Shippers Insurance Company, 146 So.2d 426 (La.App. 3d Cir. 1962); see also, Johnston v. Ford Motor Co., 443 F.Supp. 870 (E.D.La.1978). Where the defendant’s negligent action aggravates a pre-existing injury, he must compensate the victim for the full extent of this aggravation. The lower courts here improperly cut off the period for which the plaintiff would be entitled to compensation by attributing Ms. Perniciaro’s pain and suffering after the first two or three weeks exclusively to her pre-existing condition. The plaintiff must be awarded damages for activation of the osteoarthritic symptoms which the evidence clearly indicates were caused by the accident.

Under the circumstances of this case an award of $5,000 is the lowest reasonable amount of damages for pain and suffering which the evidence will justify. See Coco v. Winston Industries, Inc., supra; compare, Dobard v. Becnel, 345 So.2d 147 (La.App. 1st Cir. 1977); Boatner v. McCrory Corp., 341 So.2d 1174 (La.App. 1st Cir. 1977); Romero v. Flo-Tel, Inc., 332 So.2d 596 (La.App. 3d Cir. 1976); Johnson v. Ceaser, 304 So.2d 855 (La.App. 4th Cir. 1974); Green v. Taca International Airlines, 293 So.2d 198 (La.App. 4th Cir. 1974); see also, Allen v. Liberty Mutual Insurance Company, 280 So.2d 614 (La.App. 4th Cir. 1973). Accordingly, we award the plaintiff $5,000 in general damages for the cervical and lumbo-sac-ral strain and the aggravation caused to her osteoarthritic condition. As to the special damages, we find that the court of appeal erred in restricting the medical costs to the first period of treatment. The plaintiff is entitled to all the medical expenses incurred as a result of this accident; and the record demonstrates that Dr. Chisesi’s bill was $283, with the emergency room fee being $54.50. The special damages are therefore assessed at $337.50.

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of plaintiffs, Gertrude Perniciaro, wife of Lucian Perniciaro, and Lucian Per-niciaro, and against defendants, Anders K. Brinch and Allstate Insurance Company, in solido, for the sum of $5,337.50, together with interest at the legal rate from the date of judicial demand.

All costs are taxed against Anders K. Brinch and Allstate Insurance Company.

AFFIRMED IN PART AND AMENDED IN PART.

BLANCHE, J., dissents.

      The Honorable FREDERICK STEPHEN ELLIS participated in this decision as an Associate Justice pro tempore.


author:
BLANCHE, Justice.

      MARCUS, Justice

text:
    STATE of Louisiana v. Larry CURTIS.
    No. 66181.
    Supreme Court of Louisiana.
    May 19, 1980.

      Jacques F. Bezou, Garon, Brener & McNeely, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Joseph Meyer, Jr., Asst. Dist. Attys., for plaintiff-appellee.
   BLANCHE, Justice.

Defendant, Larry Curtis, was convicted of second degree murder in violation of R.S. 14:30.1. Subsequently, he was sentenced to life imprisonment without benefit of probation, parole, or suspension of sentence for a period of not less than forty years. Defendant now appeals on the basis of five assignments of error. Assignments of Error Numbers 4 and 5, alleging the state’s failure to reveal, upon request, certain exculpatory evidence, merit consideration.

On July 16, 1978, the victim, Jack Gilmore, was working on his sister’s car in the parking lot at 3705 Thalia Street in New Orleans, when two men approached him and one of them fired three shots which struck and killed him. Both the victim’s sister, Armentine Gibb Gilmore, and the victim’s brother, Donald Gilmore, witnessed the shooting. At trial, Armentine Gilmore testified that she recognized the defendant as one of the two men who had approached her brother, but did not see which of the two men fired the fatal shots. Donald Gilmore identified the defendant as the person who shot and killed his brother. One Tracy Clark, who did not witness the shooting, identified defendant as a man with a gun whom she observed run by her immediately after she heard gunfire. Jerry Gilmore, another brother of the victim, testified that he recognized defendant as the person who stopped outside the victim’s apartment earlier on the day of the murder and stared at the victim.

Prior to trial, defense counsel filed a motion for bill of particulars and prayer for oyer, requesting that the state furnish him with any exculpatory evidence. The state responded that it possessed no exculpatory evidence. Following defendant’s conviction, defense counsel viewed the district attorney’s file on the case and learned that Donald Gilmore, the only witness who testified that he actually saw defendant shoot his brother, had viewed a group of photographs which contained a photograph of defendant and failed to identify defendant as the murderer. Counsel immediately filed a motion for a new trial on the ground that this information was exculpatory evidence which should have been disclosed by the state. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). At a hearing on the motion for a new trial, Donald Gilmore testified that he had viewed a photographic display and had not identified defendant. After listening to this testimony, the trial judge denied the motion.

The law is settled that the prosecution may not suppress evidence, in the face of a defense request for production, where the evidence is favorable to the accused and is material to his guilt. Brady v. Maryland, supra; State v. Cass, 356 So.2d 936 (La.1978); State v. Falkins, 356 So.2d 415 (La.1978). The Brady rule includes cases in which evidence concerns the reliability of key state witnesses. Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); State v. Roussel, 381 So.2d 796 (La.1980); State v. Falkins, supra. However, the failure of the state to disclose exculpatory evidence, will not result in reversal of a conviction unless such evidence creates a reasonable doubt as to defendant’s guilt that did not otherwise exist. Only then can defendant complain that nondisclosure deprived him of his due process right to a fair trial. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); State v. Falkins, supra; State v. Williams, 349 So.2d 286 (La.1977). The following language from the United States Supreme Court case of Agurs often has been quoted as an explanation of the reasonable doubt test of reversibility:

“The proper standard of materiality must reflect our overriding concern with the justice of the finding of guilt. Such a finding is permissible only if supported by evidence establishing guilt beyond a reasonable doubt. It necessarily follows that if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is not justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt.”

See e. g., State v. Falkins, supra, at 418 quoting U. S. v. Agurs, 96 S.Ct. at 2401-02.

In the present case, there is no question but that the evidence suppressed by the state was favorable to the accused and material to his guilt. The fact that Donald Gilmore failed to identify defendant in an earlier photographic display weakens the reliability of his later identification of defendant at trial. Consequently, this failure of Gilmore to identify defendant was Brady material which the state should have disclosed following defense counsel’s request for exculpatory evidence.

The more difficult issue is whether the undisclosed evidence creates a reasonable doubt that did not otherwise exist, thus requiring a reversal of the conviction. The entire basis of the state’s case was eyewitness identification of the defendant. One state witness provided testimony that defendant was one of two persons who approached the victim, and another witness identified defendant as a man who fled the scene of the shooting. However, only Donald Gilmore actually saw who fired the shots and thus, was the only witness who identified defendant as the person who killed his brother. While the identification testimony against defendant is substantial, Donald Gilmore’s identification was the most important and key evidence presented against defendant, and his reliability would have been a crucial factor in the jury’s determination of defendant’s guilt. Because the evidence excluded (i. e., the earlier failure of Donald Gilmore to identify defendant) weakens the identification of the only state witness who actually saw the shooting, we believe it creates a reasonable doubt that did not otherwise exist. The identification is further weakened by the fact that the witness did not know the defendant prior to the murders. Having examined the evidence as a whole, we conclude that the state’s nondisclosure of Gilmore’s earlier failure to identify defendant deprived defendant of a fair trial in violation of due process of law.

Accordingly, the conviction and sentence is reversed. The case is remanded for a new trial.

CONVICTION AND SENTENCE REVERSED; CASE REMANDED FOR A NEW TRIAL.

MARCUS, J., dissents and assigns reasons.

MARCUS, Justice

(dissenting).

I do not consider that the omitted evidence would have created a reasonable doubt that did not otherwise exist under the facts of this case sufficient to cause reversal of the conviction. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). Accordingly, I respectfully dissent.

       Honorable FREDERICK S. ELLIS participated in this decision as Associate Justice Ad Hoc.


author: MARCUS, Justice.

text:
    STATE of Louisiana v. Bruce E. WRIGHT.
    No. 66198.
    Supreme Court of Louisiana.
    May 19, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Jerry G. Jones, Dist. Atty., for plaintiff-appellee.
    Kenneth E. Badon, Lake Charles, for defendant-appellant.
   MARCUS, Justice.

Bruce E. Wright was charged by information with theft of livestock in violation of La.R.S. 14:67.1. Defendant withdrew his former plea of not guilty and entered a plea of guilty as charged. After determining that the plea was made voluntarily with understanding of the nature of the charge, the trial judge accepted the plea of guilty. A pre-sentence investigation was ordered. Subsequently, defendant was sentenced to serve three years at hard labor. On appeal, defendant relies on one assignment of error for reversal of his sentence.

Defendant contends the trial judge erred in failing to comply with the sentencing guidelines set forth in La.Code Crim.P. art. 894.1. He further argues that the sentence imposed is excessive.

La.Code Crim.P. art. 894.1 provides:

A. When a defendant has been convicted of a felony or misdemeanor, the court should impose a sentence of imprisonment if:
(1) There is an undue risk that during the period of a suspended sentence or probation the defendant will commit another crime;
(2) The defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution; or
(3) A lesser sentence will deprecate the seriousness of the defendant’s crime.
B. The following grounds, while not controlling the discretion of the court, shall be accorded weight in its determination of suspension of sentence or probation:
(1)The defendant’s criminal conduct neither caused nor threatened serious harm;
(2) The defendant did not contemplate that his criminal conduct would cause or threaten serious harm;
(3) The defendant acted under strong provocation;
(4) There was substantial grounds tending to excuse or justify the defendant’s criminal conduct, though failing to establish a defense;
(5) The victim of the defendant’s criminal conduct induced or facilitated its commission;
(6) The defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sustained;
(7) The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the instant crime;
(8) The defendant’s criminal conduct was the result of circumstances unlikely to recur;
(9) The character and attitudes of the defendant indicate that he is unlikely to commit another crime;
(10) The defendant is particularly likely to respond affirmatively to probationary treatment; and
(11) The imprisonment of the defendant would entail excessive hardship to himself or his dependents.
C.The court shall state for the record the considerations taken into account and the factual basis therefor in imposing sentence.

Defendant was sentenced along with a number of other persons who had entered guilty pleas to charges relating to the theft of livestock. Addressing the entire group, the trial judge noted that their activity constituted a continuing criminal conspiracy with an adverse economic impact on the victims and that the legislature “has pointed out in the past that they are interested in the discouragement of the theft of livestock.” In sentencing defendant to serve three years at hard labor, the trial judge stated that he was particularly disturbed by the fact that defendant had induced his stepson to participate in the crime, resulting in his stepson having “a felony on his record.” He further noted that he disbelieved defendant’s explanation that he was unaware that cattle were being stolen. Defendant objected to the sentence on grounds that the trial judge failed to comply with art. 894.1 and that the sentence was excessive.

Article 894.1 requires each sentence to be individualized. The trial judge must state for the record the considerations taken into account and the factual basis for imposing sentence. State v. Jackson, 360 So.2d 842 (La.1978). As stated in Jackson at 844:

The considerations taken into account by the trial judge should be based upon factual determinations. Among the numerous matters to be reviewed are: the defendant’s personal history (e. g., age, marital status, dependents, family stability, employment, mental, emotional, and physical health); the defendant’s prior criminal record; the seriousness of the crime; the circumstances of the offense; the likelihood that defendant will commit another crime; and his potential for rehabilitation through correctional services other than confinement.

In the instant case, the trial judge stated only one factor considered by him in imposing sentence. The trial judge’s disbelief of defendant’s explanation of his involvement in the crime supports the judge’s acceptance of defendant’s plea of guilty, but it should not be used as a factor in imposing sentence. The record reflects that defendant had no prior criminal record and had made restitution to the victims.

A matter of particular concern to us is the possible failure of the trial judge to consider the recent amendment to the penalty provision of La.R.S. 14:67.1 in his determination of the sentence to be imposed. La.Acts 1979, No. 184, § 1 greatly reduced the penalty for the crime of theft of livestock. Prior to the 1979 amendment, La. R.S. 14:67.1 provided for a penalty of imprisonment at hard labor of “not less than one nor more than ten years [for the first offense].” As amended, the penalty provides for imprisonment for the first offense of “not more than one year” and a fine of “not more than one thousand dollars or both.” The amendment was approved by the Governor on July 3, 1979, but did not become effective until September 7, 1979.

As a general rule, the law in effect at the time of the commission of the offense is determinative of the penalty which the convicted accused must suffer. State v. Gros, 205 La. 935, 18 So.2d 507 (1944), cert. denied, 326 U.S. 766, 66 S.Ct. 170, 90 L.Ed. 462 (1945). The instant offense was committed on July 28, 1979, prior to the effective date of the amendment. Hence, the pre-amendment penalty provision was applicable to defendant. Defendant entered his guilty plea on august 27, 1979, and was sentenced on October 9, 1979 (subsequent to the effective date of the amendment).

Under these circumstances, while the lesser penalty afforded by the amendment was not applicable to defendant, it certainly should have been considered by the trial judge in determining the sentence to be imposed. La.Code Crim.P. art. 894.1(A)(3) provides that the court should impose a sentence of imprisonment if “[a] lesser sentence will deprecate the seriousness of defendant’s crime.” The amendment reducing the penalty for the crime of livestock theft represents a legislative determination relative to the “seriousness of the crime.” Hence, the trial judge should have considered the amendment in imposing sentence, and we should consider it in reviewing the excessiveness of the sentence imposed.

Since we are unable to review the excessiveness of defendant’s sentence because it was imposed without proper compliance with La.Code Crim.P. art. 894.1, we must set aside the sentence and remand for resentencing.

DECREE

For the reasons assigned, the conviction is affirmed; the sentence is vacated and set aside and the case is remanded to the district court for resentencing of defendant according to law and consistent with the views herein expressed.

      The Honorable EDWIN W. EDWARDS participated in this decision as an Associate Justice Ad Hoc.


text:
    STATE of Louisiana v. Hubern Ray DOXEY.
    No. 66199.
    Supreme Court of Louisiana.
    May 19, 1980.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Jerry G. Jones, Dist. Atty., for plaintiff-appellee.
    Kenneth E. Badon, Lake Charles, for defendant-appellant.
   MARCUS, Justice.

Hubern Ray Doxey was charged in separate informations with four counts of theft of livestock allegedly occurring on July 18, 21, 28 and August 1, 1979. Defendant entered a plea of guilty to each count on August 29, 1979, and was sentenced on October 9, 1979, to serve five years at hard labor on each count; sentences were directed to be served concurrently. On appeal, based upon objections at the time of sentencing, defendant urges in an assigned error that the trial judge erred in failing to comply with the sentencing guidelines set forth in La.Code Crim.P. art. 894.1 and that the sentences imposed are excessive.

Our review of the sentencing hearing does not indicate that the trial judge considered the recent amendment to the penalty provision of La.R.S. 14:67.1 in his determination of the sentences to be imposed. For the reasons assigned in State v. Wright, La.App., 384 So.2d 399, handed down this date, the trial judge should have considered the amendment in imposing sentences on defendant.

Since we are unable to review the exces-siveness of defendant’s sentences because they were imposed without proper compliance with La.Code Crim.P. art. 894.1, we must set aside the sentences and remand for resentencing.

DECREE

For the reasons assigned, the convictions are affirmed; the sentences are vacated and set aside and the case is remanded to the district court for resentencing of defendant according to law and consistent with the views herein expressed.

      The Honorable EDWIN W. EDWARDS participated in this decision as an Associate Justice Ad Hoc.


text:
    STATE ex rel. Lamont Keith JOHNSON v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 65966.
    Supreme Court of Louisiana.
    May 19, 1980.

      Dwight Doskey, Orleans Indigent Defender Program, Covington, for plaintiff-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Nathan Stansbury, Dist. Atty., William J. Burris, Asst. Dist. Atty., for defendant-respondent.
   CALOGERO, Justice.

Lamont Keith Johnson, sixteen years of age at the time that he allegedly participated in the murder of John Doucet on June 3, 1974, was indicted for the crime of first degree murder. He entered, and the district court accepted, a plea of guilty to the non-capital responsive verdict, second degree murder.

The question posed in Johnson’s writ application is whether the district court was divested of jurisdiction over the juvenile when he pled guilty to the non-capital crime of second degree murder.

State ex rel. Moore v. Warden, 308 So.2d 749 (La.1975) is on point and dictates our holding here that the district court was so divested of jurisdiction. In Moore, defendant and two companions were indicted for the November 9, 1973 murder of George Dominick. Defendant was fifteen years of age at the time of the alleged offense. On February 2, 1974, defendant withdrew his former plea of not guilty to second degree murder, a non-capital offense [State v. Washington, 294 So.2d 793 (La.1974)]. In discussing the principle that a district court has no jurisdiction to accept a juvenile’s plea of guilty to second degree murder, this Court stated:

“The uniform jurisprudence of the State since 1921 holds that the jurisdiction of the district courts is limited to the determination of guilt and punishment for capital crimes (and the constitutionally provided for attempted aggravated rape). Although it can be argued that the constitutional deposit of jurisdiction in the district courts of the trial of juveniles in capital cases is the grant of jurisdiction embracing every part of the case, from arraignment to sentence, we decline to make such a departure from established jurisprudence, particularly in view of the policy of the State that juveniles are not to be punished as adults, except as provided by the constitution.” Moore, 308 So.2d at 752.

This policy of special juvenile treatment had its origins in Article 7, Section 52 of the 1921 Constitution. That. constitutional provision vested jurisdiction in the juvenile court in all cases wherein a child was alleged to have violated a law or an ordinance, except for capital crimes and crimes defined by any law defining aggravated rape where committed by a child fifteen years or older. R.S. 13:1570 in effect at the time this crime was committed made this grant of jurisdiction exclusive, thereby according the juvenile a right to special treatment under the law.

In brief, the state concedes the applicability of Moore to the case at bar, but argues that Moore was based upon an erroneous interpretation of legislative intent. By Act 337 of 1975 the legislature amended La.R.S. 13:1570 to provide that “once [a juvenile fifteen years of age or older] has been actually charged with a capital crime . the district court shall retain jurisdiction over his case, even though the child pleads guilty to, or is convicted of, a lesser included offense; and a plea to, or conviction of, a lesser included offense shall not revest the juvenile court with jurisdiction of [the] child.” (Emphasis provided.) According to the state, this amendment was meant as a legislative repudiation of the Moore court’s finding that strict construction of La.R.S. 13:1570 had been intended.

In State v. Sheppard, 371 So.2d 1135 (La.1979) we conceded that the goal of the amendment to R.S. 13:1570 by Act 337 of 1975 was to change the rule of State ex rel. Moore v. Warden, supra, and the older jurisdiction upon which Moore was based. And we determined that such change was constitutionally permissible and not in conflict with Article 5, Section 19, Louisiana Constitution of 1974. However, we did not in Sheppard, and cannot here, determine that Act 337 of 1975 is to be given retroactive effect. Therefore we do not reach the issue of whether an attempt to make R.S. 13:1570 retroactive would violate the ex post facto clauses of the United States and Louisiana Constitutions.

Decree

For the foregoing reasons we set aside defendant’s plea and sentence and remand the case to the district court for further proceedings.

PLEA AND SENTENCE SET ASIDE, CASE REMANDED.

       Honorable FREDERICK STEPHEN ELLIS participated in this decision as an Associate Justice Pro Tempore.

      . Lamont Johnson and Dalton Prejean allegedly committed an armed robbery by taking a change purse from a taxi driver during the course of which the taxi driver was shot twice in the head and killed by Dalton Prejean.

      . He was sentenced to life imprisonment at hard labor without eligibility for probation, parole, or suspension of sentence for twenty years.

      . The 1974 Constitution did not take effect until January 1, 1975. The homicide in question occurred on June 3, 1974, at which time all provisions were the same as for the November 9, 1973 homicide dealt with in Moore.

      . Article 7, Section 52 of the 1921 Constitution provides in pertinent part:
      “The said Courts shall have jurisdiction, except for capital crimes and crimes defined by any law defining attempted aggravated rape if committed by children fifteen years of age or older, of cases of the State of Louisiana in the interest of children under seventeen years of age, as may be provided by the Legislature, brought before said Courts as delinquent or neglected children and of the trial of all persons charged with the violation of any law now in existence or hereafter enacted for the protection of the physical, moral or mental well-being of children under seventeen years of age, not punishable by death or hard labor. Said Court shall also have jurisdiction of all cases of desertion or nonsupport of children by either parent, or nonsupport of a wife by her husband, and also of the adoption of children under seventeen years of age.” (Emphasis provided.)

      .Prior to its amendment in 1975, R.S. 13:1570 provided in pertinent part:
      “Except as otherwise provided herein, the [juvenile] court shall have exclusive original jurisdiction in proceedings:
      “A. Concerning any child whose domicile is within the parish or who is found within the parish:
      * * * * * *
      “(5) Who violates any law or ordinance, except a child charged with having committed a capital crime or a crime defined by any law defining attempted aggravated rape after having become fifteen years of age. .


text:
    August A. ROBIN v. CONCERNED CITIZENS FOR BETTER EDUCATION IN ST. BERNARD, INC. and Louis Riess, Registrar of Voters for St. Bernard Parish.
    No. 65794.
    Supreme Court of Louisiana.
    May 19, 1980.
    Manuel A. Fernandez, Law Office of Manuel A. Fernandez, Chalmette, for plaintiff-respondent; William P. Schuler, Chal-mette, of counsel.
    Gibson Tucker, Jr., Tucker & Schonekas, New Orleans, for defendants-applicants.
   BLANCHE, Justice.

On August 24, 1979, plaintiff filed a petition for injunction alleging that he was a member of the St. Bernard Parish School Board and that the defendant, Concerned Citizens for Better Education in St. Bernard, Inc., had published and was circulating a petition seeking his recall as a member of said Board. The unlawful conduct sought to be enjoined was the activity of the defendant, Concerned Citizens, its officers and members from obtaining signatures on the recall petition by means of fraud, deceit and misrepresentation of facts.

After a hearing on the rule, the trial court issued a preliminary injunction which restrained the defendant from “pursuing the recall of August A. Robin, through fraudulent means and misrepresentation.” After the aforesaid judgment, and after writs were denied by the Fourth Circuit Court of Appeal, but prior to relator’s application to this Court, Act No. 148 of 1979 became effective on September 7, 1979. That Act, which is now found in LSA-R.S. 42:341, et seq., is the controlling provision of law relative to recall petitions, and provides that prior to the entering of any signature on a petition, the chairman designated to represent the petitioners shall file a copy of the recall petition which will be used with the Registrar of Voters for each parish in which the recall election is to be held, and with the Secretary of State. The signed and dated petition shall be submitted not later than 180 days after the day on which the copy of the petition was filed.

Respondent maintains that the facts which gave rise to the instant suit accrued under the old law, and the failure of the relator to perfect his petition by the effective date of the new act renders this action moot. Relator claims to have brought his petition into compliance with the new act on September 7,1979, but he admits that as of that date, there were not enough signatures to effect a recall. Additionally, respondent submits that the ills he sought to remedy in his injunction suit have been remedied by the provisions of Act No. 148 of 1979.

Respondent has no objection to those signatures obtained after September 7, 1979 because these must now be obtained in compliance with the new act. Therefore, the only conflict possibly existing between the parties relates only to those signatures obtained by the relator prior to September 7, 1979.

As to these signatures, and despite relator’s claim to the contrary, we are of the opinion that they could never be in compliance with the new act. The act provides that undated signatures, or those bearing a date prior to the date on which the petition was filed, may not be counted. Because no action by the relator could possibly bring those signatures obtained prior to the September 7 filing of the petition into compliance with the law, these signatures are ineffective under the new recall provision.

Respondent brought this suit to enjoin the obtaining of signatures by the defendant in what he considered to be an unlawful and illegal manner. He concedes in brief that the new act will prohibit the activities of which he complains, and thereby argues that his action is moot.

A moot case is one which seeks a judgment or decree which, when rendered, can give no practical relief. State ex rel. Preston v. Henderson, 283 So.2d 230 (La.1973); State v. White, 358 So.2d 999 (La. App. 3rd Cir. 1978). We agree with the allegations of plaintiff/respondent that his suit is now moot. Any judgment by this Court as to those activities by the defendant in obtaining signatures to the recall petition prior to the effective date of the act have no effect since by operation of law, the same signatures would be invalid. Plaintiff/respondent has conceded that he has no objection to signatures affixed to the petition which are now controlled by the new recall provisions.

Having found the matter moot, we remand the case to the district court for dismissal with instructions to assess costs on the basis of one-half to plaintiff and one-half to defendant.

DISMISSED.

DIXON, C. J., dissents.

       Chief Judge PAUL B. LANDRY, JR., Retired, participated in this decision as Associate Justice Ad Hoc.


author:
MARCUS, Justice.
     DIXON, Chief Justice

text:
    STATE ex rel. Ellender L. BISHOP v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 65626.
    Supreme Court of Louisiana.
    May 19, 1980.

      Louis J. Cosenza, New Orleans, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., for plaintiff-respondent.
   MARCUS, Justice.

Ellender L. Bishop was charged with operating a motor vehicle under the influence of alcoholic beverages, third offense, in violation of La.R.S. 14:98. Defendant withdrew his former plea of not guilty and entered a plea of guilty as charged and was sentenced to serve three years at hard labor. No appeal was taken. Thereafter, defendant applied to the district court for a writ of habeas corpus, alleging that his conviction was unlawful because it was based on two prior convictions resulting from guilty pleas which were invalid. The trial judge denied the application. We granted defendant’s application to review that ruling. Finding that one of the prior convictions was improperly used to convict defendant, we must reverse his conviction and sentence. Accordingly, we need not consider the other assigned error.

At the outset, we must dispose of the state’s motion to dismiss defendant’s application, filed in this court on the day the matter was set for argument, because defendant had been discharged from custody two weeks earlier after having served in full the sentence of which he complained. Defendant filed an opposition to the state’s motion to dismiss contending his release from custody did not moot the issues of the invalidity of the two prior convictions.

Our determination of the mootness issue is guided by the United States Supreme Court decision in Carafas v. LaVellee, 391 U.S. 234, 237-38, 88 S.Ct. 1556, 1559, 20 L.Ed.2d 554 (1968):

It is clear that petitioner’s cause is not moot. . . . Because of these “disabilities or burdens [which] may flow from” petitioner’s conviction, he has “a substantial stake in the judgment of conviction which survives the satisfaction of the sentence imposed on him.” On account of these “collateral consequences,” the case is not moot. [Citations omitted.]

Defendant’s conviction for driving while intoxicated, third offense, also has substantial “collateral consequences” because a subsequent conviction for this same offense will subject him to the more severe penalty of ten to thirty years at hard labor. In addition, driving while intoxicated, third offense, is a felony since it may be punished by one to five years at hard labor, and thus triggers all restrictions imposed by law upon convicted felons. Accordingly, the motion to dismiss is denied.

Defendant contends that one of his prior convictions was improperly used to find him guilty of the instant offense in that the records of said conviction do not show that he knowingly waived his right to court-appointed counsel. The conviction complained of was based on a plea of guilty entered on August 15,1974, to the crime of operating a vehicle while intoxicated. As a result, defendant was sentenced to pay a fine of three hundred dollars and costs. The minute entry at the time his guilty plea was entered merely reflects that he “waived the presence of an attorney.”

La.Code Crim.P. art. 514 provides:

The minutes of the court must show either that the defendant was represented by counsel or that he was informed by the court of the defendant’s right to court-appointed counsel.

Since defendant was not represented by counsel, the above statute requires that the minutes show that he was informed by the court of his right to court-appointed counsel. The minutes simply reflect that defendant waived the presence of “an attorney.” We are unable to say that the waiver was knowingly and intelligently made since the record does not reveal that defendant was informed of his right to court-appointed counsel. Accordingly, this conviction was improperly used to find defendant guilty of the instant conviction of operating a vehicle while intoxicated, third offense, where a term of imprisonment was imposed. We must reverse.

DECREE

For the reasons assigned, defendant’s conviction and sentence are reversed and the bill of information is dismissed.

DIXON, C. J., concurs with reasons.

DIXON, Chief Justice

(concurring).

I respectfully concur.

The majority correctly holds that the 1974 conviction may not be used as a basis for defendant’s conviction as a third offender. In addition, the 1976 conviction should not be used for that purpose. The transcript of the proceeding in which Bishop entered that plea shows that he was not given any of the information required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). In State v. Lewis, 367 So.2d 1155, 1160 (La.1979), we made the following statement regarding the use of guilty pleas in the context of multiple offender proceedings:

“ . . . In a multiple offender hearing, only those previous pleas of guilty may be used to enhance a sentence which are supported by a contemporaneous record of a Boykin examination demonstrating the free and voluntary nature of a plea of guilty with an articulated waiver of the constitutional rights required by Boykin v. Alabama.”

While it is true that R.S. 14:98, Driving a Vehicle While Intoxicated, is structured so that each prior conviction increases the grade of the offense, instead of merely enhancing the punishment, the result is exactly the same, and there is no reason why the rule enunciated in Lewis should not be applied to offenses under this statute.

In Lewis, we were not called upon to decide whether this rule includes pleas of guilty to misdemeanor charges, but the answer to that question is strongly implied by a recent United States Supreme Court decision, Baldasar v. Illinois, - U.S. -, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980). In that case, the defendant entered an uncounseled plea of guilty, without waiver of right to counsel, to a charge of misdemeanor theft, and was fined and placed on probation. Evidence of that conviction was subsequently introduced to convert a later charge of misdemeanor theft into a felony punishable by one to three years imprisonment, as provided by an Illinois statute. In Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979), the court had specifically held that the assistance of court appointed counsel is not constitutionally required in misdemeanor cases unless the defendant is actually sentenced to imprisonment. In Baidasar, the court reiterated that imprisonment is the factor which invokes the requirement of assistance of counsel and it observed that imprisonment for the second offense was premised upon the first, un-counseled conviction. The court rejected the state courts’ finding that defendant was sentenced to imprisonment for the second offense only, and it reversed the conviction and sentence.

The situation before us here is directly comparable. Bishop was sentenced to three years at hard labor for this third conviction, and the possibility of imprisonment at hard labor forms the “bright line” between felonies and misdemeanors in Louisiana. R.S. 14:2(4) and (6). Because a felony conviction based upon an un-Boykinized guilty plea is invalid, defendant’s un-Boykinized plea of guilty to driving while intoxicated, second offense, may not be used to convict him of a third offense, punishable at hard labor.

       The Honorable EDWARD A. de la HOUSSAYE, III participated in this decision as Associate Justice Ad Hoc.

      . 377 So.2d 844 (La.1979).