author:
WATSON, Justice.
     LEMMON, Justice,

text:
    STATE of Louisiana v. Harden JOHNSON and James Kelly.
    No. 81-KA-0033.
    Supreme Court of Louisiana.
    Sept. 8, 1981.
    Rehearing Denied Oct. 16, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Lindsay Larson, John Craft, Louise Korns, Asst. Dist. Attys., for plaintiff-appellee.
    Lawrence J. Boásso and William Noland, New Orleans, for Kelly.
    Roy V. Ladner, New Orleans, for Johnson.
   WATSON, Justice.

Defendants, Warden Johnson and James Kelly, were charged by bills of information with two counts of possession with intent to distribute controlled dangerous substances, to-wit: Preludin and Dilaudid. A jury found James Kelly guilty as charged and Harden Johnson guilty of possession.

Kelly was adjudicated a third offender and sentenced to twenty years at hard labor on Count I and ten concurrent years at hard labor on Count II. Johnson was sentenced to three concurrent years in Parish prison on each count. The two defendants have appealed their convictions and sentences.

FACTS

Search warrants were issued for apartments E and F in the Magnolia Housing Project. Two officers banged on the back door of apartment E and Harden Johnson exited through the front door of Apartment F into the arms of two other police officers. There are separate stairwells for the front and rear entrances of the two third floor apartments. The officers entered apartment F with Johnson and discovered James Kelly in the bathroom attempting to dispose of a bottle marked Vitamin C. The bottle which was removed from the commode contained eighty yellow tablets and forty-eight pink tablets. The yellow pills were Dilaudid, a trade name for dihydro-morphinone, which is an opium derivative or “downer”. The pink pills were Preludin (phenmetrazine) a stimulant or “upper”. The testimony was that Preludin tablets have a street value of approximately $18 each and Dilaudid tablets have a street value of from $35 to $55 each. Apartment F is the residence of Harden Johnson. James Kelly was a visiting friend. Also arrested in apartment F was Carlin Morgan. A brown lady’s purse in apartment F contained $316.00.

The bills of information charge the crimes under the wrong statute. Both Pre-ludin or phenmetrazine, and Dilaudid are Schedule II drugs. LSA-R.S. 40:964. Defendants were charged with possession and intended distribution of Schedule IV drugs under LSA-R.S. 40:969, whereas they should have been charged under LSA-R.S. 40:967, which deals with Schedule II drugs.

The Louisiana Constitution of 1974 in Article 1 § 13 provides that an accused in a criminal prosecution shall be informed of the nature and cause of the accusation against him. An information is a written accusation of crime. LSA-C. Cr.P. art. 384. It must inform the defendant of the statutory basis of his offense. State v. Gainey, 376 So.2d 1240 (La., 1979). However, clerical errors in statutory citations do not warrant reversal of convictions. State v. Hamilton, 297 So.2d 419 (La., 1974). If an indictment states the essential facts of an offense charged, an error or omission in the statutory citation does not require reversal of a conviction if the error or omission did not mislead the defendant to his prejudice. LSA-C.Cr.P. art. 464. The trial court allowed the State to amend its answer to defendants’ bill of particulars to show that the correct statute is LSA-R.S. 40:967. Defendants were not misled by the erroneous citation and the fact that they were charged under the wrong statute is not ground for reversal of their convictions. State v. James, 305 So.2d 514 (La., 1974).

ASSIGNMENT OF ERROR NUMBER ONE

Defendants contend that the trial court erred in restricting their inquiry into the reliability of the confidential informant whose information provided the basis for police surveillance, the affidavit and the search warrant. State objections were sustained to various questions about the informant. There were no contemporaneous objections to the rulings, and the alleged errors cannot be raised on appeal. LSA-C. Cr.P. art. 841.

This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO

Defendants contend that the trial court erred in not allowing a question about evidence seized relating to other persons arrested at the same time as Johnson and Kelly. There was no contemporaneous objection. LSA-C.Cr.P. art. 841, supra.

This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER THREE

Defendants contend that the evidence seized should have been suppressed because the search warrant is defective on its face and does not establish probable cause for the search.

The search warrant initially described the premises as 2705 Belmont Street, apartment D. The D was crossed out and replaced with a handwritten F. The correction was initialled by the magistrate and the two affiants. It is contended that the handwritten F resembles a C and this causes an ambiguous discrepancy which is fatal to the warrant’s validity.

F rather than C is the correct letter. Apartments E and F had been under surveillance. A separate warrant had been executed for E. This warrant could not reasonably have authorized the search of any apartment other than F. Officers McNeil and Peralta, who had conducted the surveillance and executed the affidavits, knew that the two apartments to be searched were E and F. They were executing the warrant for apartment E, while other officers were executing the warrant for Apartment F, the only other third floor apartment. There was no danger of the wrong premises being searched and the description is therefore not deficient. State v. Cobbs, 350 So.2d 168 (La., 1977). The alteration did not invalidate the warrant. State v. Welsh, 371 So.2d 1314 (La., 1979).

It is also contended that the affidavit did not establish probable cause for the search. The affidavit recites that a reliable confidential informant had been present in Apartment E, the residence of Sharon Rudolph, and discussed obtaining Dilaudid. Rudolph was given money by the informant, went to apartment F, her sister’s residence, returned to apartment E and produced the purchased narcotics. Rudolph advised the informant that she had to conceal the drugs in her sister’s residence because the police were watching her. The informant was told drugs could be obtained when Rudolph was not at home directly from her sister in apartment F. Officers McNeil and Peralta undertook surveillance of apartments E and F and observed various people enter and exit the two apartments on Wednesday, August 23. The surveillance was limited and the detectives, according to their testimony on the motion to suppress, could not see the entrance to apartment F. The informant advised by telephone on Thursday, August 24, that he had returned to apartment E but Sharon Rudolph was not at home. The informant knocked on the apartment F door of her sister, Harden Johnson, to secure Dilaudid. Harden asked the confidential informant if he wanted Dilaudid and when he replied affirmatively she fetched the narcotics from the rear of the residence. The two officers undertook another surveillance and again observed people coming and going from the two apartments. They then executed the affidavit.

The reliable informant reported that Dilaudid was available for sale in apartment F on at least two occasions. The second report was on August 24, the same day that the search warrant was obtained. Although the cache of drugs was not observed by the informant, a sufficient amount was available for sale on two occasions. Probable cause was established by the fact that a retail quantity was present on the date of the warrant and on a prior occasion.

It is contended that the affidavit contains misrepresentations which invalidate the warrant. Officer McNeil knew the informant through officer Peralta. McNeil did know that the informant had been used on a prior occasion. However, on that occasion the information was fruitless. It is contended that McNeil could not have sworn that the informant’s information had led to arrests and convictions of persons engaged in narcotics traffic. The misrepresentation was not deliberate. Officer Per-alta was familiar with the informant’s reliability. After excising McNeil’s unintentional misrepresentation, Peralta’s knowledge was sufficient to establish probable cause. State v. Rey, 351 So.2d 489 (La.,1977).

Objection is made to the surveillance portion of the affidavit, because the entrance of apartment F, was not visible. The officers did see individuals coming and going toward what could only have been apartment F. Moreover, the surveillance portion of the affidavit is unnecessary to establish probable cause. Lack of corroboration for the informant does not invalidate the warrant, when the other details of the affidavit support a reasonable inference of reliability. State v. Paciera, 290 So.2d 681 (La.,1974).

This assignment lacks merit.

ASSIGNMENTS OF ERROR NUMBER FOUR, ELEVEN AND FIFTEEN

These assignments relate only to defendant Johnson. Since her conviction must be reversed on the basis of assignment of error number sixteen, the questions raised are moot.

ASSIGNMENT OF ERROR NUMBER SEVEN

Defendants contend that the trial court should have severed the trials. The trial judge stated in denying the motion to sever that he would grant it during trial if it developed that the two defenses were antagonistic. Johnson did not testify that the drugs were Kelly’s and stated that she had never seen him with any drugs. Kelly did not testify or present any evidence that exculpated him and inculpated Johnson. Although alleged to be antagonistic, the two defenses were not. Defendants did not show that justice required a severance and no prejudice appears from the joint trial. LSA-C.Cr.P. art. 704; State v. Bradford, 367 So.2d 745 (La.,1978); State v. McGraw, 366 So.2d 1278 (La.,1978).

This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER TEN

It is contended that the trial court erred in allowing officer David Peralta to testify beyond the scope of his expertise. Questions about normal dosage units in illegal sales, the quantity of tablets required to maintain a drug habit and how many pills might be taken in a day by an addict are said to be outside the witness’s knowledge. The trial court found the witness to be an expert in the packaging and distribution of controlled dangerous substances. The trial court did not abuse its discretion in allowing the questions. State v. Carter, 347 So.2d 236 (La.,1977).

This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER TWELVE

Defendant Johnson contends that a mistrial should have been granted. Kelly’s attorney asked whether known drug addicts had been seen entering or leaving Johnson’s apartment, and the trial court did not allow an answer to the question.

Kelly contends that this prejudiced his defense, because he could have established that others were responsible for any narcotics found in the residence. It is argued that the evidence was also relevant to the question of whether he had a specific intention to distribute drugs.

Kelly’s guilt rested on the fact that he was found with the drugs. Officer Peralta testified that an addict would need at the most approximately two Dilaudids a day and four Preludin. Addicts generally keep only a two or three day supply of drugs. According to Peralta, the amount possessed by Kelly had a street value of between $3,500 and $3,600. An intention to distribute narcotics can be inferred from the quantity in Kelly’s possession. See U. S. v. Staten, 581 F.2d 878 (D.C.Cir.1978) and State v. Sibley, 310 So.2d 100 (La.,1975). Compare State v. House, 325 So.2d 222 (La.,1976) and State v. Harveston, 389 So.2d 63 (La.,1980). Any evidence of other narcotics offenders at the residence was immaterial evidence of other offenses, which was properly excluded by the trial judge.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER FOURTEEN

It is contended that the trial court erred in denying a motion for the jury to view the crime scene. A view would allegedly have clarified the evidence about the layout of the two apartments. The matter was within the trial court’s discretion. LSA — C.Cr.P. art. 762. There was no abuse of discretion because the evidence about the relative locations of the two apartments and their interior designs was sufficiently clear. State v. Gallow, 338 So.2d 920 (La.,1976).

This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER SIXTEEN

Defendant Johnson contends that there was insufficient evidence to find her guilty beyond a reasonable doubt of possession of the drugs. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

The drugs were not in Johnson’s possession. She lived in the apartment where Kelly was found with them. The officers at the front door had not knocked or announced their presence. Johnson attempted to exit at that door after hearing a loud noise by police at her sister’s back door. It can be inferred that she was fleeing the scene because she was going away from the police noise at the back. Since there was nothing to warn Johnson that the police were also at the front door of her apartment, her encounter with them at that door must be viewed as accidental. The inference that Harden Johnson was aiding Kelly’s disposal efforts is unjustified.

Proximity to a drug or association with a possessor may establish a prima facie case of drug possession when colored by other evidence. United States v. Staten, 581 F.2d 878 (D.C.Cir.1978). However, mere association or proximity, without more, is insufficient. Arellanes v. United States, 302 F.2d 603 (9th Cir. 1962); State v. Cann, 319 So.2d 396 (La.,1975). Dominion over the illegal substance must be proven. State v. Walker, 369 So.2d 1345 (La.,1979). Active cooperation in an attempt at drug disposal is adequate other evidence. United States v. Jackson, 423 F.2d 506 (9th Cir. 1970). That factor is not present here. The only color of other evidence is Johnson’s attempted exit from the apartment. Flight can show consciousness of guilt. State v. Bolton, 354 So.2d 517 (La.,1978). However, flight alone, particularly that here, where there was no question of hot pursuit, is insufficient. See State v. Alford, 323 So.2d 788 (La.,1975) where evidence of flight was insufficient even though there was hot pursuit.

Kelly was seen with his hand in the commode disposing of the only drugs in the apartment. He had possession of them. The only evidence that Johnson shared that possession is her attempt to leave the scene.

If Harden Johnson knew Kelly possessed the drugs, this would explain her flight but would not suffice to prove constructive possession. The crucial element of control over the illegal substance would be missing. See United States v. DiNovo, 523 F.2d 197 (7th Cir. 1975); United States v. Watkins, 519 F.2d 294 (D.C.Cir.1975); United States v. Bonham, 477 F.2d 1137 (3rd Cir. 1973); and, Montoya v. United States, 402 F.2d 847 (5th Cir. 1968). A rational trier of fact could not have found Harden Johnson guilty beyond a reasonable doubt of possession of Preludin and Dilaudid, and her conviction must be reversed.

ASSIGNMENT OF ERROR NUMBER TWENTY-ONE

Defendants contend that the trial court erred in not calling Barbara Jean Allen to the witness stand in the presence of the jury. Barbara Jean Allen had been examined twice outside the presence of the jury and answered some questions but invoked her Fifth Amendment privilege against self-incrimination as to most inquiries. Her attorney stated that any testimony about the events of August 23 or 24 would be incriminating to the witness and that she invoked the Fifth Amendment in relation to such questions. The questions the witness answered outside the presence of the jury were irrelevant to any issues in the trial.

It is contended that failure to force the witness to invoke her privilege before the jury restricted the defendant’s constitutional right to present a defense in violation of the Sixth Amendment to the United States Constitution, and Article 1, Section 16, of the Louisiana Constitution of 1974. It is reversible error to allow a witness to claim a blanket privilege. State v. Wilson, 394 So.2d 254 (La.,1981). However, when it is clear to the trial court that the silence of a witness is justified as to a particular evening because any testimony could be injurious, a question by question asserted of the privilege is unnecessary. State v. Darby, 403 So.2d 44 (La.,1981). It is improper to call a witness to the stand solely to impress upon the jury the fact that the witness will claim the privilege against self-incrimination. State v. Berry, 324 So.2d 822 (La.,1975); State v. Day, 400 So.2d 622 (La.,1981).

Once it was determined that witness Allen would invoke the Fifth Amendment as to all questions relative to August 23 or 24, the trial court did not err in refusing to have her testify before the jury, State v. Darby, supra. The rights of confrontation and cross-examination are guaranteed. Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965). However, none of the statements by this witness bore on a fundamental part of the State’s case and they would not have bolstered the defense. Douglas, supra. Defendants were not denied testimony which which would have been relevant and material to their defense. Compare Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). It may be trial error, but not necessarily reversible error to require a witness to answer questions in front of the jury which the witness will refuse to answer on the ground of self-incrimination. Namet v. United States, 373 U.S. 179, 83 S.Ct. 1151, 10 L.Ed.2d 278 (1963). The better policy is an examination outside the presence of the jury such as that conducted by the trial court here. See United States v. Lacouture, 495 F.2d 1237 (5th Cir. 1974); United States v. Johnson, 488 F.2d 1206 (1st Cir. 1973); and, United States v. Bowman, 636 F.2d 1003 (5th Cir. 1981). The trial court did not err in not requiring the witness to invoke the privilege in front of the jury.

This assignment lacks merit.

ASSIGNMENTS OF ERROR NUMBER NINETEEN AND TWENTY

Defendant Kelly contends that the trial court erred in finding him to be a third offender. LSA-R.S. 15:529.1.

The primary issue is whether defendant Kelly was properly advised of his constitutional rights as required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), at the time of his 1972 conviction. As to his privilege against self-incrimination, defendant was told: “When you plead guilty, you lose or give up certain rights. ... You lose your right to remain silent because when you plead guilty you’re not remaining silent. Do you understand that?” State v. Martin, 382 So.2d 933 (La.,1980) held that similar advice was insufficient since it did not adequately advise the defendant of his right to remain silent at a later trial after his plea. However, Martin dealt with a 1976 conviction. In all recent Louisiana felony cases, the record must affirmatively show that the defendant was adequately advised of the three rights prescribed by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1971). State v. Williams, 400 So.2d 868 (La.,1981). In the case of pleas entered more than six years ago, the record must show only that the defendant voluntarily pleaded guilty with a full understanding of “the connotation and consequences”. State v. Cusher, 400 So.2d 601 (La.,1981); State v. Warren a/k/a Mason, 402 So.2d 662 (La.,1981). Defendant here was adequately advised of his rights. His plea was knowing and voluntary. The trial court did not err in using the 1972 conviction to find defendant Kelly to be a multiple offender.

It is also contended that a 1963 plea was effective because defendant was not accompanied by counsel. State v. Coody, 275 So.2d 773 (La.,1973). The minute entry for that conviction reflects that the Legal Aid Bureau was appointed as counsel for Kelly the day before his guilty plea was entered. Defendant was afforded counsel. He was entitled to waive the presence of that counsel when he entered his guilty plea. Kelly was accompanied by Harry F. Connick, attorney, when he was sentenced in 1963. The 1963 conviction was properly considered to enhance Kelly’s sentence.

The testimony of police officer Glen Bur-meister, a fingerprint expert, adequately establishes that defendant, James Kelly, is one and the same as the James Kelly previously convicted.

For the foregoing reasons, the convictions of defendant, Harden Johnson, for possession of Preludin and Dilaudid are reversed and vacated. The convictions and sentence of defendant, James Kelly, for possession of Dilaudid and Preludin with intent to distribute those drugs are affirmed.

REVERSED AS TO DEFENDANT HARDEN JOHNSON; AFFIRMED AS TO DEFENDANT JAMES KELLY.

LEMMON, J., dissents and assigns reasons.

LEMMON, Justice,

dissenting as to reversal of conviction of Harden Johnson.

I disagree that there was insufficient evidence to prove defendant Johnson’s guilt beyond a reasonable doubt.

The evidence raises the inference that Ms. Johnson, after hearing the police knock on the door of the adjoining apartment, either was fleeing the scene or delaying the police while Kelly flushed the drugs down the toilet. Either possibility points unmis-takenly to Ms. Johnson’s guilty knowledge of the presence of drugs in her own apartment.

Under the circumstances shown by the evidence and the inferences reasonably drawn therefrom, a rational trier of fact could conclude beyond a reasonable doubt that Ms. Johnson actively participated in Kelly’s possession of the drugs. I would affirm the conviction based on the responsive verdict of guilty of possession.

       Judges Frederick Stephen Ellis, Morris A. Lot-tinger, Jr. and Elven E. Ponder of the Court of Appeal, First Circuit participated in this decision as Associate Justices Ad Hoc joined by Justices Calogero, Dennis, Watson, and Lem-mon.

      . LSA-C.Cr.P. art. 841 provides:
      “An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. A bill of exceptions to rulings or orders is unnecessary. It is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take, or of his objections to the action of the court, and the grounds therefor.
      “The requirement of an objection shall not apply to the court’s ruling on any written motion.”

      . It should be noted that the information concerning Johnson’s sister obtaining drugs from Johnson was contained only in the affidavit and was not evidence presented to the jury.

      . A 1960 conviction at which Kelly’s lawyer was allowed to withdraw as counsel was not considered.

      . Martin was overruled in State v. Williams, 392 So.2d 448 (La.,1980) which held that a defendant cannot collaterally attack his prior conviction in a trial under LSA-R.S. 14:95.1 for possession of a firearm by a convicted felon.

      . The jury apparently concluded that the evidence was not sufficient to support the conclusion beyond a reasonable doubt that Ms. Johnson had acted with the specific intent to distribute the drugs.


source: Caselaw Access Project

author: WATSON, Justice. LEMMON, Justice,

license: Public Domain

text:
    SUCCESSION OF Melissa Mary RAIFORD.
    No. 81-C-0552.
    Supreme Court of Louisiana.
    Sept. 8, 1981.
    Rehearing Denied Oct. 9, 1981.
    Allen B. Pierson, Jr., of Pierson, Drake & Scott, Pontchatoula, for plaintiff-applicant.
    Iddo Pittman, Jr. and James D. Johnson, of Pittman & Matheny, Hammond, for defendant-respondent.
   WATSON, Justice.

This is a dispute about whether a notation, allegedly written by Melissa Mary Rai-ford, has a sufficiently certain date to constitute a valid olographic will.

FACTS

Melissa Mary Raiford executed a statutory will on March 18, 1963, bequeathing all of her property to a brother, Elzy Peter Raiford. Melissa and Elzy, both unmarried, had each made a will naming the other as beneficiary so that if one died the other could remain in their joint home. Melissa died on June 22,1970. Her will was probated and the brother was given a judgment of possession on December 29, 1972. He died on December 20, 1975, shortly after adopting Floyd Travis Lavigne and Margaret Raiford Lavigne. The two forced heirs had his testament probated and received a judgment of possession on March 11, 1976.

Subsequently, on June 24, 1976, Marie Raiford, Gwendolyn Brown Cooper, George Allen Cooper and Deborah Gwen Cooper Gill filed a petition to annul the probated testament of Melissa Raiford. Marie Rai-ford is the sister-in-law of the decedent. Gwendolyn Brown Cooper is Marie’s adopted daughter, and George Allen Cooper is her husband. Deborah Gwen Cooper Gill is the Coopers’ daughter. It was stipulated that Deborah Gwen Cooper Gill is the real party at interest. Plaintiffs contended that the statutory will had been nullified by a later will, consisting of a notation in a booklet, as follows:

“Monday.8 1968
“I wont gwen cooper
to have what I got when I died
My land and all
Melisa Raiford”
(Plaintiff’s Exhibit 9)

The trial court decided that this “purported later testament is not the last will and testament of the deceased” and dismissed plaintiffs’ suit. (Tr. 40) The Court of Appeal reversed, holding that the eighth day of the month occurred on a Monday only in February, April and July of 1968; that the writing took place in the summer; and that a note in the booklet immediately following the purported will fixes the date as July 8. The Court of Appeal also concluded that the instrument showed sufficient donative intent to constitute a will and that Gwen Cooper, the beneficiary, was a favorite with the testatrix. Succession of Raiford, 393 So.2d 398 (La.App. 1 Cir. 1980). A writ was granted to review the judgment of the Court of Appeal. 398 So.2d 529 (La., 1981).

The primary item in the succession is ten acres of land. A thirty acre tract was owned in indivisión by the Raifords: sister Melissa Mary and her two brothers, Elzy Peter and Thomas Alonzo. It was partitioned into three ten acre tracts on February 20, 1954. Thomas Alonzo, Marie’s husband, died in the interim between the deaths of his sister and brother.

At trial, Marie Raiford testified that she found the booklet containing the purported will between the mattresses of Melissa’s bed. The booklet is entitled “Brunswick Record Index”. It accompanied the purchase of a Brunswick phonograph in 1928 and was intended as an index of phonograph records. Marie Raiford testified that she found the booklet a good while after her sister-in-law died, but did not remember when. Melissa Raiford had a limited education. She completed the third grade but had only three months of school in each grade. Marie Raiford testified that the notation appeared to be in Melissa Raiford’s handwriting. She assumed that Melissa had written the olographic will because it was in her book, but the two brothers and their sister “wrote nearly alike”. (Tr. 70)

The claimant under the olographic will is Marie’s granddaughter, Gwen Cooper. According to Marie, the decedent called Gwen Cooper “Sweet” and often declared her intention to give her estate to Gwen. There are two other grandchildren.

Marie Raiford admitted an indirect financial interest in the lawsuit. She felt that she deserved the property and the Lavignes did not, because she took care of Melissa and her older brother during their lifetimes.

Melissa Raiford’s first cousin, Magdelene Howes, testified that she and Melissa were very close, and she thought the olographic will reflected Melissa’s handwriting and spelling.

Gwendolyn Brown Cooper, a cousin of Marie Raiford, was adopted by Marie and her husband. She was very familiar with Melissa Raiford’s handwriting. In her opinion, there was no question that the instrument, Plaintiff’s Exhibit 9, was completely written, dated and signed by Melissa Rai-ford.

Pamela Cooper Short, the sister of claimant Gwen, was twenty-three years old at the time of trial in March of 1979. She had lived near Melissa Raiford, had known her quite well and was familiar with her handwriting. She testified that the purported olographic will was in Melissa’s handwriting. One summer day, Melissa was sitting on the porch with the Brunswick Record Index in her hand. Pamela, then about thirteen, asked- Melissa some questions about the family and made notes on pages CD, E, and F of the book. She could not remember any writing on page A where the will appears, but was sure it was there or she would not have flipped over to page CD to begin her notes. She did not see Melissa write the purported will. Pamela would have been thirteen in July of 1968.

Deborah Gwen Cooper Gill said that she was not married on July 8, 1968, and was then known as Gwen Cooper.

The signature in the booklet differs from the signature used by Melissa Raiford in 1938 (Plaintiff’s Exhibit 10) and from her signature on the statutory will. On both of those occasions she spelled her name with two s’s rather than one. The original of the act of partition is not in evidence. Although there are other exhibits in Melissa’s handwriting, none of them contain her signature. The purported will appears on page A of the Brunswick booklet. A notation on page B, dated July 8, is written with a lighter pencil and in a slightly different style.

LAW

LSA-C.C. art. 1588. “Olographic testament; definition, formalities”:

“The olographic testament is that which is written by the testator himself.
“In order to be valid, it must be entirely written, dated and signed by the hand of the testator. It is subject to no other form, and may be made anywhere, even out of the State.”

Louisiana law requires that the date on an olographic will include the day, as well as the month and year. Heffner v. Heffner, 48 La.Ann. 1088, 20 So. 281 (1896). The date must be reasonably certain. Succession of Kron, 172 La. 666, 135 So. 19 (1931); Succession of Wenling, 172 La. 673, 135 So. 21 (1931); Succession of Caro, 175 La. 402, 143 So. 355 (1932). Extrinsic evidence can be admitted to establish the certainty of an ambiguous date. Succession of Lefort, 139 La. 51, 71 So. 215 (1916); Succession of Boyd, 306 So.2d 687 (La., 1975).

CONCLUSION

The only certain thing about the date here is the year 1968. The figure 8 could reflect either the day or the month. Although Pamela Short saw Melissa with the Brunswick booklet in the summer of 1968, she could not establish that the testamentary notation was made at that time. The notation on page B of the booklet, dated July 8, shows no indication that it was written on the same day as the will on page A. Differences in the pencil and the script indicate that the passage on page B may have been written by a different hand. There is certainly no basis to conclude that the writings on pages A and B were made at the same time.

The Court of Appeal erred in finding that the testamentary writing took place in the summer and that the following note, written with a different pencil and in a different style, established the date as July 8.

When the date or dates on which an olographic will was written cannot be established, the will is invalid. The year alone does not suffice. Heffner v. Heffner, supra. See the French authorities cited in Succession of Buck, 208 La. 556, 23 So.2d 215 (1945) at pages 222, 223 and 224. Here, as in Buck, there is also some question whether Melissa Mary Raiford actually wrote the olographic will. The trial court correctly decided that the purported olo-graphic will is not a valid last will and testament.

For the foregoing reasons, the judgment of the Court of Appeal is reversed. The judgment of the trial court dismissing plaintiffs’ suit is reinstated.

REVERSED.

LEMMON, J., dissents and assigns reasons.

LEMMON, Justice,

dissenting.

An olographic will must be dated to be valid. The primary purpose of that requirement is to permit a determination of whether the testator was competent when the will was made. The date also permits a determination of which of two wills supercedes the other. 3 M. Planiol, Traité Élémentaire de Droit Civil, § 2691 (La.S.L.Inst.Trans., 1959). In short the date provides a reference point that aids in the adjudication of attacks on a will based on numerous grounds.

The will in the present case is dated since the point in time expressed by the designation of the year is a date. Therefore, the will is valid, at least for the purposes of this litigation in which the only issue is whether the date on the will establishes the point in time of its making sufficiently to show that this will was made later than the 1963 will in which decedent left the property to her brother. The date on the 1968 will clearly resolves that issue.

I would affirm the judgment.

      . The date or point in time, of course, can be more clearly expressed, even beyond the month and day.


author:
LOTTINGER, Justice Ad Hoc.
     CALOGERO, Justice,

text:
    STATE of Louisiana v. Craig WHITT.
    No. 81-KA-0201.
    Supreme Court of Louisiana.
    Sept. 8, 1981.
    Rehearing Denied Oct. 9, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Robert Long, J. Kevin McNary, John Craft, Louise Korns, Asst. Dist. Attys., for plaintiff-appellee.
    John Lawrence, New Orleans, Orleans Indigent Defender Program, Lyall G. Shiell, James D. Shannon, Hazelhurst, Richard E. Stratton, III, Brookhaven, Craig E. Whitt, pro se, for defendant-appellant.
   LOTTINGER, Justice Ad Hoc.

Defendant, Craig Whitt, was charged by bill of indictment with first degree murder, a violation of La.R.S. 14:30. Whitt and a co-defendant were tried before a jury which found him guilty as charged by a unanimous verdict. Pursuant to the jury’s recommendation, the accused was sentenced to life imprisonment without benefit of probation, parole or suspension of sentence. Defendant now appeals his conviction on the basis of fourteen assignments of error, four of which have been abandoned on appeal.

FACTS

At approximately 10:30 the night of October 26, 1978, the victim, Randy Johnson, answered a knock on the door of his trailer home, and as he stood outside speaking to the man who had knocked, five rifle shots struck and killed him. The shots were fired from behind a fence in an unlighted area near the trailer. Neither the knocker nor the shooter was apprehended at the scene. The five shell casings were recovered, but the rifle was not. After a lengthy investigation the police theorized that the victim’s estranged wife, Sandra Johnson, had contracted to kill her husband in order to collect on a $67,000.00 insurance policy. It is the state’s theory that Mrs. Johnson, dealing through intermediaries, had paid $3,000.00 to the defendant to kill her husband. The state contended that a friend of the accused, Donald Best, knocked on the trailer door and as the victim stepped out, the defendant shot him. Craig Whitt, Donald Best and Sandra Johnson were arrested and charged with first degree murder. Johnson and Whitt were tried as co-defendants; severance had been granted to Best.

Maurice Higgings testified relating how Sandra Johnson had dealt with him to find someone to kill her husband. He contacted Rene Jaunet who in turn contacted the accused. Jaunet testified that he paid the accused a total of $3,000.00 for the killing. Several witnesses testified that the accused admitted the murder, and another witness testified that on an earlier occasion she saw the defendant hiding outside the victim’s trailer with a rifle. Neither co-defendant took the stand on his/her own behalf.

ASSIGNMENT OF ERROR NO. 1

By this assignment the defendant asserts that the trial court erred in denying his motion to quash. Defendant argues that it was error for the trial judge to deny his motion to quash the indictment against him because: a death qualified jury would deny him a representative jury and a fair trial; the statute (La.R.S. 14:30) was invalid because it was without responsive verdicts; and he was not provided with the option of a bench trial.

As to the death qualified jury allegation, defendant asserts that he was denied equal protection of the law because the prosecution successfully challenged for cause prospective jurors who were opposed to the death penalty as permitted under La.C.Cr.P. art. 798(2). This same argument was rejected in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), and this court has recently rejected this argument in State v. Berry, 391 So.2d 406 (La.1981). In State v. George, 371 So.2d 762 (La.1979) we held that Article 798(2) had been amended to conform with Witherspoon v. Illinois, supra. Additionally, since the trial court did not impose nor did the jury recommend the death penalty, this defendant was insulated from the death penalty and therefore does not have a valid Witherspoon complaint. State v. George, supra.

Additionally the defendant argues that the indictment fails to charge an offense punishable under a valid statute because the statute under which defendant was convicted was without valid responsive verdicts. In particular, second degree murder was not a valid responsive verdict under La.R.S. 14:30 at the time the killing took place. Defendant allegedly committed murder on October 26, 1978. He was thus charged under the pre-1979 amendment to La.R.S. 14:30 which read in pertinent part: “First degree murder is the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm.. .. ” in State v. Booker, 385 So.2d 1186 (La.1980), this court determined that second degree murder which was then defined in La.R.S. 14:30.1 as “. . . the killing of a human being when the offender is engaged in the perpetration or attempted perpetration of aggravated rape, aggravated arson, aggravated burglary, aggravated kidnapping, aggravated escape, armed robbery, or simple robbery, even though he has no intent to kill or to inflict great bodily harm,” was not a proper responsive verdict to first degree murder as defined above.

Though Booker, supra, raised questions about the responsiveness of a second degree murder verdict, those of guilty, not guilty and guilty of manslaughter remained. La. C.Cr.P. art. 814. Those verdicts were given to the jury. There is no authority for defendant’s position that the first degree murder statute is invalid if a verdict of second degree murder is not responsive to it.

Finally, under this assignment, defendant argues that the indictment should have been quashed because he was denied the option of a bench trial. La.C.Cr.P. arts. 780 and 782. In State v. Lott, 325 So.2d 576 (La.1976) this court considered Articles 780 and 782 and determined that, in accordance with the clear legislative intent, a jury cannot be waived in a capital case.

This assignment of error lacks merit.

ASSIGNMENTS OF ERRORS NOS. 2 AND 3

By these assignments the defendant contends the trial court erred in refusing to require the state to answer his motion for a bill of particulars, in holding the answer sufficient, and in failing to conduct an in camera inspection of Brady materials. He further asserts that the state failed to provide requested Brady material. The defendant alleges that testimony of two witnesses, Carl Lacombe and James Moore, before the grand jury that indicted him was procured by prosecution offers of leniency regarding separate charges of armed robbery pending against these witnesses. He contends that the failure of the prosecution to inform him of these offers of leniency was in violation of the ruling of Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).

Neither Moore nor Lacombe testified at the trial of this matter. There is nothing in the record to indicate that any offer of leniency was ever made by the prosecution to Moore or Lacombe. The allegation is pure speculation on the part of the defendant. Additionally, the sister of Moore testified that he was currently serving a 75 year prison sentence at the Hunt Correctional Center.

Giglio v. United States, supra, has never been extended to testimony introduced in grand jury proceedings. Bracy v. United States, 435 U.S. 1301, 98 S.Ct. 1171, 55 L.Ed.2d 489 (1978) (Rehnquist, J. as Circuit Justice).

These assignments of error lack merit.

ASSIGNMENT OF ERROR NO. 4

By this assignment the defendant urges that there was error in the trial court’s refusal to grant his motion for severance. Defendant argued that antagonistic defenses would be presented during the trial thus the refusal to sever placed a chilling effect on the exercise of his right to testify in his own behalf, that the ruling prevented him from calling the co-defendant as his witness, and that the ruling created a situation where hearsay evidence inadmissible as to one defendant could be admitted because such evidence was admissible to a co-defendant.

Severance is governed by La.C.Cr.P. art. 704. The burden is upon the defendant moving for severance to satisfy the trial court that justice requires such. Mere allegations do not suffice. State v. Bradford, 367 So.2d 745 (La.1978). In State v. Jenkins, 340 So.2d 157 (La.1976), we held that the trial judge’s determination of whether to grant or deny severance rests in his sound discretion, and absent a showing of clear abuse, such a ruling will not be reversed by this court. It is clear from the record that the defendant failed to carry the burden in moving for severance, and that there was no abuse on the part of the trial court.

On the question of an antagonistic defense problem, it would appear that neither co-defendant could have attempted to exculpate him/herself by inculpating the other.

Defendant argues that he was prevented from calling his co-defendant as a witness, but this court has previously held that a request for severance need not be granted simply because a defendant desires to call his co-defendant as a witness. State v. Jenkins, supra. Severance does not force a co-defendant to waive his Fifth Amendment right to remain silent, and there was no showing in the instant case that the co-defendant was willing to testify.

Lastly, as to the issue of hearsay evidence being inadmissible, we are of the opinion that any hearsay evidence would have been admissible under the co-conspirator exception, La.R.S. 15:455.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 5

By this assignment the defendant urges that the trial court erred in allowing the introduction of testimony involving other acts to establish system and intent where there had been no pretrial notice of the state’s plan to introduce such evidence. By a pretrial motion defendant sought to prohibit the state from using “system and intent” evidence without complying with the requirements set out in State v. Prieur, 277 So.2d 126 (La.1973). The defendant argues that the state failed to meet the requirements of paragraphs 2 and 3, and that the court disregarded the requirements of paragraph 4 of Prieur.

The testimony at issue is that of Loretta Jackson who testified that late one night approximately two weeks before the murder she drove the accused to the victim’s trailer park. After he left her vehicle, she saw the accused with a rifle crouching behind some bushes near the victim’s trailer. She testified that she saw a man standing apparently in the defendant’s line of fire, so she blew her horn and drove off to create a disturbance. When she arrived at the front of the trailer park she met the defendant who no longer had the rifle, and who said he left because “when the noise was made, people came out.”

The state filed notice of its intention to introduce evidence showing that approximately 10 days prior to the murder of Johnson the defendant Craig Whitt went to the immediate area of 7701 Chef Ment-eur Highway, Lot 13, armed with a rifle, and that upon his arrival, he aimed the rifle at Johnson but did not fire the rifle and was scared away by an observer. The state cited La.R.S. 15:446.

Paragraph 2 of the Prieur rule provides that the state shall specify the exception to the general exclusionary rule upon which it relies for the admissibility of evidence of other acts. The state’s citation of La.R.S. 15:446 complies with this paragraph of the rule. A hearing was apparently held on the accused’s motion, and though a copy of the hearing has not been provided in the record, we assume that the trial judge concluded that the state was not offering this evidence for its repetitive or cumulative nature nor in an attempt to show the defendant’s bad character, and thus the state was in compliance with paragraph 3 of the Pri-ear rule. We agree.

The state admits that the trial judge failed to specifically mention the questioned evidence in his charge, but it argues that the Prieur rule requires a substantial compliance, and not the hypoteehnical application urged by defendant herein. See concurring opinion by Justice Calogero in State v. Ghoram, 290 So.2d 850 (La. 1974). Inasmuch as the prior pointing of the rifle at the intended victim only amounted to an aggravated assault, and the accused was on trial for murder, the jury could not have possibly found the accused guilty of aggravated assault. Nor do we believe that the introduction of such evidence prejudiced the jury against the accused.. We therefore find that any error was nonprejudicial.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 7

By this assignment the defendant urges that the trial court erred in allowing testimony by a state witness which concerned a severed co-defendant. Defendant objected to the testimony of a state witness’ account of having shown a photographic lineup, containing a photograph of Donald Best, to another state witness, Bobby Lewis. The defendant objected that the testimony was irrelevant. The trial judge overruled the objection and allowed the witness to explain how he had conducted the line.

In presenting its case the state was apparently trying to develop a theory that Donald Best knocked on the victim’s door in an effort to provide the accused with an opportunity to shoot him. Mr. Lewis testified that he had been with the victim on the night of the murder and that he saw the face of the man who knocked on the trailer door moments before the shooting. He further testified that the same man had come to the trailer several nights before and had spoken briefly with the victim. Through the photographic lineup he identified this individual as Donald Best.

The trial judge is vested with a wide discretion in determining the relevancy of evidence, and his ruling will not be disturbed on appeal in the absence of a clear showing of abuse of discretion. State v. King, 355 So.2d 1305 (La. 1978). Considering the alleged role of Best in the murder, the trial judge’s decision to allow testimony about the selection of the photographic lineup does not appear to have been an abuse of discretion.

The accused also asserts in brief that the admission of this testimony was a reversible error because Best, a severed co-defendant, could not be compelled to testify at trial. We note that the accused failed to raise this issue via a contemporaneous objection in the trial court, and thus has waived any right to show it before this court. La.C.Cr.P. art. 841.

This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 11

By this assignment the defendant contends that the trial court erred in not allowing the jury to retire after the closing arguments and charges and begin deliberation the next day.

The jury retired to deliberate at 8:13 p.m. on the third day of trial. It returned to open court at 11:00 p.m. for further instructions. The trial judge called in the jury at 2:00 a.m. and ordered them to be sequestered for the night and to return for deliberations the next morning. The jury at this point informed the court of its desire to have an additional 10 minutes to deliberate. At 2:15 a.m. the jury informed the court that it had not yet reached a verdict, but asked for an additional 10 minutes. At 2:30 a.m. the jury was returned to the courtroom and stated that they had not reached a verdict and would like to retire for the remainder of the night. The court agreed and ordered the jurors sequestered and returned at 9:00 a.m. At this point the jury indicated that it had a verdict on one defendant. The verdict of guilty as charged as to this defendant was then read and signed by each of the 12 jurors. This defendant was Craig Whitt. The defendant basically urges that it was error for the court not to have retired and sequestered the jury earlier.

We note again that this objection was not raised in the trial court, thus the defendant has waived his right to waive it before this court. La.C.C.R.P. art. 841.

We feel compelled, however, to point out that there does not appear from the record to have been any pressure placed by the trial judge for this jury to render a verdict prior to being retired for the night. It is clear that the choice was the jurors to continue. This assignment therefore lacks merit.

ASSIGNMENT OF ERROR NO. 13

By this assignment the defendant asserts that the trial court erred in denying his motion for a new trial. Defendant asserts that the motion for a new trial was based on: insufficiency of evidence; the court’s failure to grant his motion for severance (see, Assignment of Error No. 4, supra); the failure of the state to provide him with Prieur notice (see, Assignment of Error No. 5, supra); and the existence of witnesses who could have provided him with an alibi.

In regard to defendant’s evidentiary sufficiency challenge, the state introduced the testimony of Rene Jaunet who admitted negotiating a $3,000.00 arrangement with the accused to shoot the victim. This witness also testified that the defendant admitted accomplishing what he had been paid for. Lorinda Moore testified that the defendant showed her a newspaper clipping of the victim’s murder and said he did it. Additionally, Loretta Jackson stated that two weeks before the murder she saw the accused hiding in bushes outside the victim’s trailer aiming a rifle at him.

The evidence presented in the instant case, seen in the light most favorable to the prosecution, appears adequate under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), to justify the jury’s conclusion beyond a reasonable doubt that the defendant committed first degree murder.

Lastly, defendant alleges that failure of his attorney to call alibi witnesses constituted grounds for the granting of a new trial. Defendant’s bare allegations shed no light on who these witnesses were, why they were not called at trial, what the “alibi” would have been or whether he is asserting that this is newly discovered evidence. This court cannot speculate on what these witnesses could have testified to. Conceivably, they were not called because they would not have been beneficial.

This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 14

By this assignment the defendant urges that this court review the record for errors patent. We have reviewed the record and it fails to reveal any discernible errors patent. This assignment lacks merit.

For the foregoing reasons the conviction and sentence of defendant are affirmed.

AFFIRMED.

LEMMON, J., concurs in the result.

CALOGERO, J., concurs with reasons.

CALOGERO, Justice,

concurring.

I agree that defendant’s conviction and sentence should be affirmed. I do not, however, subscribe to the majority’s treatment of R.S. 15:445 and R.S. 15:446.

R.S. 15:445 and R.S. 15:446 bar introduction of evidence of other crimes except to establish knowledge, system or intent. State v. Prieur, 277 So.2d 126 (La. 1973) is the leading case on the application of these statutes. As I understand the facts, I do not find that a witness’ testimony that the defendant was seen holding a rifle, crouching behind bushes near the victim’s trailer shows that he was committing any crime. The State’s provoking a pre-trial Prieur ruling seems more out of an abundance of caution, than prompted by necessity.

I would therefore in this ease not speak, as the majority has, about whether it was possible for the jury to have found the defendant guilty of aggravated assault nor about whether the error is non-prejudicial. The introduction of evidence of this “stalking incident” was simply a non-criminal episode, relevant nonetheless for establishing the identity of the murderer two weeks later.

       Judges Ellis, Lottinger, and Ponder of the Court of Appeal, First Circuit, participated in this decision as associate justices ad hoc, joined by Associate Justices Calogero, Dennis, Watson, and Lemmon.

      . An error occurred in numbering and no assignment of error No. 6 exists.


author: LABORDE, Justice Ad Hoc.

text:
    STATE of Louisiana v. Danny G. SERMON.
    No. 80-KA-2804.
    Supreme Court of Louisiana.
    Sept. 8, 1981.
    Rehearing Denied Oct. 9, 1981.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leonard Knapp, Dist. Atty., Terry Johnson & Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-ap-pellee.
    Thomas L. Lorenzi, of Hunt, Godwin, & Painter, Alcide J. Gray, of Gray, Clemons & Spruel, Lake Charles, for defendant-appellant.
   LABORDE, Justice Ad Hoc.

Defendant Danny G. Sermon was jointly indicted with George Herbert English in a single bill of indictment charging them with first degree murder in violation of LSA-R.S. 14:30, as amended by Acts 1976, No. 657, § 1. On motion of the State, a severance was granted between Sermon and English and Sermon was rearraigned. The first trial of Danny Sermon ended in a mistrial. In a second jury trial, defendant Sermon was found guilty as charged and was sentenced to life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence.

ASSIGNMENT OF ERROR NO. 1

Defendant contends’ that the trial court erred in denying his motion to quash on the ground of double jeopardy.

Following the first day of voir dire examination three prospective jurors were selected to serve. The trial court failed to sequester them and instead allowed them to return home. It was later pointed out to the trial judge that defendant was charged with first degree murder, a capital offense and thus one requiring that each juror be sequestered after he is sworn. LSA-C. Cr.P. art. 791.' Because the three jurors already selected were allowed to return home, the trial judge concluded that its decision not to sequester the jury had created a legal defect in the proceedings. Accordingly, the trial court on its own motion and despite defense objections, declared a mistrial. LSA-C.Cr.P. art. 775(3). Trial was then rescheduled but defendant moved to quash the renewed proceedings on the grounds of double jeopardy. La. Const. 1974, Art. 1, § 15; LSA-C.Cr.P. art. 591 et seq. The motion was denied following which defendant was tried and convicted of first degree murder. Defendant reurges this double jeopardy claim on appeal.

Louisiana Code of Criminal Procedure Article 592 provides that when a defendant pleads not guilty, jeopardy does not attach until the first witness is sworn at the trial on the merits. This article has been amended by the U.S. Supreme Court’s holding in Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978). See also State v. McCord, 376 So.2d 154 (La.1979), Unpublished Appendix No. 63,029. In Crist, the Supreme Court held that the federal rule governing the attachment of jeopardy is an integral part of the Fifth Amendment’s guarantee against double jeopardy and thus it must be applied to the States. The federal rule provides that jeopardy does not attach until the jury is empaneled and sworn.

Applying these principles to the facts present in the instant case, the selection and swearing in of three jurors was insufficient to trigger the attachment of jeopardy prior to the trial court’s declaration of a mistrial. Without this initial attachment of jeopardy, defendant’s claim that his retrial twice placed him in jeopardy lacks merit.

ASSIGNMENT OF ERROR NO. 2

By this assignment, defendant contends that the trial court erred in failing to dismiss the proceedings when the prosecution failed to file a separate indictment against him, as required by LSA-C.Cr.P. Art. 705.

On September 15, 1977, the Calcasieu Parish Grand Jury returned an indictment for first degree murder against the defendant and George Herbert English. Pursuant to an oral motion filed by the State on March 13, 1978, the charge against the defendant was severed from that lodged against English. Thereafter, on September 10, 1978, the defendant, Danny G. Sermon, was arraigned under the original indictment and entered a plea of not guilty. La- ■ ter, at the close of jury selection on May 21, 1980, defendant filed a motion to dismiss the proceedings on grounds that the court-ordered severance of jointly-indicted defendants necessitated the filing of separate indictments under Article 705. Despite its untimely character, a hearing was held on the motion outside of the presence of the jury, with the trial court ultimately concluding that the state had substantially complied with the mandate of Article 705. By this appeal, defendant reurges his previously filed motion.

Assuming, without deciding, that separate indictments should have been filed, we nonetheless hold that defendant was in no way prejudiced by the trial court’s failure to require separate indictments. The grand jury had jointly indicted the defendant and George English for the first degree murder of Roland Lampris. After a severance was granted, the State proceeded against defendant and English individually, obtaining a conviction of English for first degree murder in March, 1978. Following a second arraignment and an aborted trial in April, 1980, defendant was finally convicted in May, 1980. Under these circumstances, it seems clear that defendant was fully notified as to the nature of the charge against him. While counsel for the defense claims that the procedure adopted by the state was improper, he fails to make any allegation as to how the state’s omission to file a separate indictment prejudiced him. State v. St. Andre, 263 La. 48, 267 So.2d 190 (1972); State v. Williams, 263 La. 755, 269 So.2d 232 (1972); State v. Gardette, 352 So.2d 212 (La.1977); State v. Sonnier, 379 So.2d 1336 (La.1979).

Defendant’s second assignment lacks merit.

DECREE

For the reasons assigned, the conviction and sentence of Danny G. Sermon are affirmed.

       Judges J. Burton Foret, Jimmy M. Stoker and P. J. Laborde, Jr. of the Court of Appeal, Third Circuit, participated in this decision as associate justices ad hoc, joined by Chief Justice Dixon and associate justices Marcus, Blanche and Watson.

      . George Herbert English was tried in March, 1978, convicted, and sentenced to death. This Court affirmed English’s conviction but set aside the death sentence with instructions that he be sentenced to life imprisonment. State v. English, 367 So.2d 815 (La.1979).

      . Due to the nature of the two assignments of error urged on appeal, a recitation of the facts surrounding the crime charged is unnecessary. Instead, the facts relevant to disposition of each assignment will be set forth as needed.

      . The only support for defendant’s position derives from Justice Barham’s concurring opinion in State v. St. Andre, supra and his dissent in State v. Williams, supra. In these opinions, Justice Barham argued that the state is required to file separate indictments whenever jointly indicted defendants are tried separately. However, a majority of this Court has never adopted this position.


text:
    Phyllis McKnight CATA v. William Arthur McKNIGHT.
    No. 81-C-0638.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re William Arthur McKnight, applying for writs of certiorari, prohibition, review and mandamus, to the Fourth Judicial District Court. Parish of Ouachita. No. 126041.

Granted. Case remanded to Court of Appeal for hearing and decision on merits.


text:
    Phyllis McKnight CATA v. William Arthur McKNIGHT.
    No. 81-C-1095.
    Supreme Court of Louisiana.
    May 4, 1981.
   In re William Arthur McKnight, applying for certiorari or writ of review, to the Court of Appeal, Second Circuit. Parish of Oua-chita. 401 So.2d 1221.

Granted. All proceedings are stayed pending further orders of this Court.


author: DIXON, C. J.,

text:
    G. Thomas ARBOUR, Individually and as Master of the Community Existing Between Himself and Dianne Rabalais Arbour and Dianne Rebalias Arbour, Individually, v. TOTAL CATV, INCORPORATION.
    No. 81-C-1231.
    Supreme Court of Louisiana.
    June 5, 1981.
   In re G. Thomas Arbour, et al., applying for writs of certiorari, or review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 400 So.2d 1155.

Writ denied. Not final.

DIXON, C. J.,

concurs in the denial. The judgment is not final, but the court of appeal, was in error in seeming to hold that injunction will not lie to stop trespassers. See, C.C.P. 3663 and comment (b).


text:
    Blythe C. GLASSCOCK v. Robert E. GLASSCOCK.
    No. 81-C-1852.
    Supreme Court of Louisiana.
    Sept. 9, 1981.
   In re Robert E. Glasscock, applying for writs of certiorari, mandamus; and prohibition. Parish of Lafayette. No. 810580-B.

Denied.

MARCUS and BLANCHE, JJ., would grant the writ.


text:
    Gloria ROLLO, Individually and as Administratrix for the Estate of Charles Jefferson Rollo, III and Shelley Michelle Rollo, v. Roosevelt DISON, et al.
    No. 81-C-1966.
    Supreme Court of Louisiana.
    Sept. 9, 1981.
   In re Gloria Rollo, applying for writ of certiorari and or review, to the Second Circuit, Court of Appeal. Red River Parish. 402 So.2d 122.

Denied.


text:
    STATE of Louisiana v. Joseph A. FARACE.
    No. 81-K-1835.
    Supreme Court of Louisiana.
    Sept. 9, 1981.
   In re State of Louisiana, applying for writs of certiorari, or review. Parish of Rapides. No. 200082.

Writ denied. See La.C.Cr.P. Art. 858.

MARCÚS and LEMMON, JJ., would grant the writ.


text:
    STATE of Louisiana v. Mandred M. DELGADO.
    No. 81-K-1993.
    Supreme Court of Louisiana.
    Sept. 9, 1981.
   In re Mandred M. Delgado, applying for writs of certiorari, prohibition mandamus, and for a stay order. Parish of Jefferson. No. 79-559.

Granted. Sentence is vacated; case remanded to district court for resentencing in compliance with La.C.Cr.P. Art. 894.1.


text:
    STATE of Louisiana v. Eldred WESLEY.
    No. 81-K-1874.
    Supreme Court of Louisiana.
    Sept. 9, 1981.
   In re Eldred Wesley, applying for writs of mandamus. Parish of Orleans. No. 258-184.

Granted in part and denied in part. The writ is granted as to the mandamus, and a hearing is ordered on the motion for release or probation pursuant to CCrP 655 et seq.; defense counsel, defendant, and state are to be notified at least 10 days before the date of hearing, and the defendant is to be afforded the right of compulsory process for witnesses and evidence. Otherwise, the writ is denied.


author: BLANCHE, J.,

text:
    In re In the Matter of the Superseding of the DISTRICT ATTORNEY OF the 25TH JUDICIAL DISTRICT.
    No. 81-K-1851.
    Supreme Court of Louisiana.
    Sept. 9, 1981.
   In re District Attorney of the 25th Judicial District, applying for writs of certiora-ri, mandamus and prohibition. Parish of Plaquemines. No. 62463.

Denied.

BLANCHE, J.,

would grant the writ. The object of the proceeding is to remove the District Attorney. The nature of the proceeding is therefore civil in nature and relators should be given the right to take depositions like in any other civil case.


text:
    Randal S. BACON v. COLUMBIA RIVER SHAKE AND SHINGLE COMPANY, et al.
    No. 81-C-1856.
    Supreme Court of Louisiana.
    Sept. 9, 1981.
   In re Columbia River Shake and Shingle Company, applying for writ of review, to the Court of Appeal, Third Circuit. Parish of Calcasieu. No. 8490.

Denied.


text:
    STATE of Louisiana v. Kevin Ray JONES.
    No. 81-K-1873.
    Supreme Court of Louisiana.
    Sept. 9, 1981.
   In re Kevin Ray Jones, applying for writs of certiorari, prohibition and mandamus. Parish of Caddo. No. 118610.

Denied.


text:
    STATE of Louisiana v. Gary L. DAVIS and Evelyn D. Bates.
    No. 81-K-1876.
    Supreme Court of Louisiana.
    Sept. 9, 1981.
   In re Gary L. Davis and Evelyn D. Bates, applying for writs of certiorari or review. Parish of St. Tammany.

Denied.


text:
    STATE of Louisiana v. Richard WEISS.
    No. 81-K-1899.
    Supreme Court of Louisiana.
    Sept. 9, 1981.
   In re Richard Weiss, applying for writs of certiorari, prohibition and mandamus. Parish of Caddo. No. 114680.

Denied.


text:
    STATE of Louisiana v. Earnest Felton GRAY.
    No. 81-K-1921.
    Supreme Court of Louisiana.
    Sept. 9, 1981.
   In re Earnest Felton Gray, applying for writs of certiorari, prohibition, review and mandamus. Parish of Grant. No. 37361.

Denied.


text:
    STATE of Louisiana v. James TERRY.
    No. 81-K-1925.
    Supreme Court of Louisiana.
    Sept. 9, 1981.
   In re James Terry, applying for writs of certiorari, review, prohibition mandamus, and stay order. Parish of Vermilion. No. 22647.

Denied.


text:
    STATE of Louisiana v. Jerry W. HUTZLER.
    No. 81-K-1985.
    Supreme Court of Louisiana.
    Sept. 9, 1981.
   In re Jerry W. Hutzler, applying for remedial writs. Parish of West Baton Rouge. No. 88914.

Denied.


text:
    STATE of Louisiana v. Jerry W. HUTZLER.
    No. 81-K-1986.
    Supreme Court of Louisiana.
    Sept. 9, 1981.
   In re Jerry W. Hutzler, applying for remedial writs. Parish of Pointe Coupee. Nos. 26605 and 26606.

Denied.


text:
    STATE of Louisiana ex rel. Clarence RANDOLPH v. Sheriff Charles C. FOTI, Jr.; Chief Deputy Leslie Bonano; Chief Deputy Rudolph Belisle; Chief Deputy Daniel Dunn; Warden Nathaniel Hall; Major J. Arnold, et al.
    No. 81-KH-1520.
    Supreme Court of Louisiana.
    Sept. 9, 1981.
   In re Clarence Randolph, applying for writ of mandamus and prohibition. Parish of Orleans. Number Unknown.

Denied.


text:
    LOUISIANA STATE BAR ASSOCIATION v. Frank C. O’HALLORAN, Jr.
    No. 80-B-1973.
    Supreme Court of Louisiana.
    Sept. 9, 1981.
   In re Louisiana State Bar Association and Frank C. O’Halloran, Jr., filing concurrence and motion to confirm Commissioner’s Report.

Motion denied.

DIXON, C. J., and MARCUS and WATSON, JJ., would grant the motion.


text:
    STATE of Louisiana, ex rel., Charles L. STEWART v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-0349.
    Supreme Court of Louisiana.
    Sept. 9, 1981.
   In re Charles L. Stewart, applying for remedial writs. Parish of Orleans. No. 259-002.

Granted. Evidentiary hearing ordered on broken plea bargain allegation only.


text:
    STATE of Louisiana, ex rel. Helen T. BAILEY v. CITY OF WEST MONROE.
    No. 81-KH-1184.
    Supreme Court of Louisiana.
    Sept. 9, 1981.
   In re Helen T. Bailey, applying for remedial writs and stay order. Parish of Oua-chita. Nos. 55943, 55944 and 55945.

Granted.


text:
    STATE of Louisiana v. Robert J. RODRIGUE.
    No. 81-K-1206.
    Supreme Court of Louisiana.
    Sept. 9, 1981.
   In re Robert J. Rodrigue, applying for remedial writs. Parish of Terrebonne. Nos. 92627 and 92628.

Writ granted.


text:
    STATE of Louisiana v. Johnnie S. WHEAT.
    No. 81-K-1292.
    Supreme Court of Louisiana.
    Sept. 9, 1981.
   In re Johnnie S. Wheat, applying for remedial writs. Parish of East Baton Rouge. No. 8-80-331.

Writ granted. The defendant s conviction and sentence are reversed and the defendant is discharged. There is no evidence from which a trier of fact could find beyond a reasonable doubt that the sale occurred within a jurisdiction in which it was illegal.


text:
    STATE of Louisiana ex rel. Barry Joseph SMITH, Sr. v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-1529.
    Supreme Court of Louisiana.
    Sept. 9, 1981.
   In re Barry Joseph Smith, Sr., applying for writs of habeas corpus, certiorari, prohibition, and mandamus. Parish of Orleans. No. 266-47.

Granted. Evidentiary hearing ordered to decide question of waiver of appeal.


text:
    STATE of Louisiana ex rel. Raymond P. PERIQUE v. Edwin A. LOMBARD, Clerk of the Criminal District Court Parish of Orleans and Ellis M. Gill, Court Reporter, Section “A” Criminal District Court Parish of Orleans.
    No. 81-KH-1530.
    Supreme Court of Louisiana.
    Sept. 9, 1981.
   In re Raymond P. Perique, applying for writ of mandamus. Parish of Orleans. No. 242-843.

Granted. Relator is ordered furnished sought transcripts upon his prior payment of costs.


text:
    STATE of Louisiana ex rel. Grover Co. MORAN, III v. STATE of Louisiana.
    No. 81-KH-1554.
    Supreme Court of Louisiana.
    Sept. 9, 1981.
   In re Grover C. Moran, III, applying for remedial writs. Parish of St. Tammany. No. 58357.

Granted. Production of transcript of arguments and instructions is ordered, defendant to pay costs.

4


text:
    STATE of Louisiana ex rel. Sherman WILLIAMS v. CLERK OF COURT, CRIMINAL DISTRICT COURT PARISH OF ORLEANS.
    No. 81-KH-1654.
    Supreme Court of Louisiana.
    Sept. 9, 1981.
   In re Sherman Williams, applying for writs of mandamus. Parish of Orleans. No. 252-130.

Granted. Trial court is ordered to furnish relator with a transcript of his boykini-zation and guilty plea.


text:
    STATE of Louisiana ex rel. Sterling LaVIGNE v. Honorable Frank MARULLO, Judge Criminal District Court Section “D”.
    No. 81-KH-0780.
    Supreme Court of Louisiana.
    Sept. 9, 1981.
   In re Sterling LaVigne, applying for writs of mandamus and review. Parish qf Orleans. No. 275-205.

Denied.


text:
    STATE of Louisiana v. Allen Louis WEATHERFORD, Jr.
    No. 81-K-1797.
    Supreme Court of Louisiana.
    Sept. 9, 1981.
   In re Allen Louis Weatherford, Jr., applying for writs of certiorari, review, prohibition, mandamus and for a stay order. Parish of Iberville. No. J-265.

Granted.


text:
    STATE of Louisiana v. William B. VERSTRATE.
    No. 81-K-1845.
    Supreme Court of Louisiana.
    Sept. 9, 1981.
   In re William B. Verstrate, applying for writ of certiorari, prohibition and mandamus. Parish of Orleans. No. 283-055.

Granted. Ruling of trial judge set asidé and case remanded with instructions to allow hearing on the motion to suppress.


text:
    STATE of Louisiana v. Kody ROY.
    No. 81-K-1906.
    Supreme Court of Louisiana.
    Sept. 9, 1981.
   In re Kody Roy, applying for writ of certiorari or review. Parish of Jefferson Davis. No. CR-878-80.

Writ granted. Finding the sentence excessive it is set aside. Moreover, the trial Judge failed to adequately consider [the] possibility [of] probation. Case remanded for resentencing.

LEMON and WATSON, JJ., dissent from the order.


text:
    SCHEYD, INC. d/b/a Hammond Construction Co. v. JEFFERSON PARISH SCHOOL BOARD.
    No. 81-C-1949.
    Supreme Court of Louisiana.
    Sept. 9, 1981.
   In re C. J. Waddell Contractors, Inc., applying for writ of certiorari and stay order, Parish of Jefferson. No. 255-098.

Granted.


text:
    STATE of Louisiana ex rel. Larry REDMOND v. Joy CLEMENS.
    No. 81-KH-2017.
    Supreme Court of Louisiana.
    Sept. 9, 1981.
   In re Larry Redmond, applying for writ of habeas corpus. Parish of Calcasieu. No. 11288-80.

Out of time appeal granted.


text:
    LOUISIANA STATE BAR ASSOCIATION v. Robert Peter AULSTON, III.
    No. 65155.
    Supreme Court of Louisiana.
    Sept. 9, 1981.
   In re Louisiana State Bar Association filing, motion to confirm Commissioner’s Report.

Motion granted.


text:
    STATE of Louisiana, ex rel. Edward R. ANTHONY v. Frank BLACKBURN, Warden Louisiana State Penitentiary.
    No. 81-KH-1806.
    Supreme Court of Louisiana.
    Sept. 9, 1981.
   In re Edward R. Anthony, applying for writs of certiorari, mandamus and habeas corpus. Parish of Iberia. No. 47229.

Motion granted. Writ dismissed without prejudice at relator’s request.


text:
    STATE of Louisiana v. Anthony M. GERARD and Carolyn J. Gerard.
    No. 67135.
    Supreme Court of Louisiana.
    Sept. 9, 1981.
   In re Anthony M. Gerard and Carolyn J. Gerard, applying for remedial writs. Parish of Jefferson. Nos. 123-575 and 123-576.

Denied.


text:
    STATE of Louisiana ex rel. Gill L. MINOR v. STATE of Louisiana.
    No. 80-KH-2735.
    Supreme Court of Louisiana.
    Sept. 9, 1981.
   In re Gill L. Minor, applying for writs of certiorari and mandamus. Parish of Orleans. No. 272-956.

Writ Denied.


text:
    STATE of Louisiana, ex rel. Arnel NELSON v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-0477.
    Supreme Court of Louisiana.
    Sept. 9, 1981.
   In re Arnel Nelson, applying for writs of certiorari, prohibition, mandamus or habeas corpus. Parish of Orleans. No. 248-419.

Denied.


text:
    STATE of Louisiana ex rel. Keith BRAZLEY v. Hayden J. DEES/Warden Dixon Correctional Institute.
    No. 81-KH-0688.
    Supreme Court of Louisiana.
    Sept. 9, 1981.
   Iii re Keith Brazley, applying for writ of certiorari. Parish of Orleans. No. 269-586.

Denied.


text:
    STATE of Louisiana ex rel. Errol BROOKS v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-1346.
    Supreme Court of Louisiana.
    Sept. 9, 1981.
   In re Errol Brooks, applying for remedial writs. Parish of Orleans. No. 260-262, Sect. “A”.

Denied.

CALOGERO, J., would grant the writ.


text:
    STATE of Louisiana ex rel. James HARVEY, Jr. v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-1430.
    Supreme Court of Louisiana.
    Sept. 9, 1981.
   In re James Harvey, Jr., applying for remedial writs. Parish of Avoyelles. No. 81-607.

Denied.


text:
    STATE of Louisiana ex rel. Lee N. DAVIS v. Robert P. JACKSON, Presiding Judge, 9th Judicial District Court, Parish of Rapides State of Louisiana, et al.
    No. 81-KH-1436.
    Supreme Court of Louisiana.
    Sept. 9, 1981.
   In re Lee N. Davis, applying for writ of certiorari and motion to proceed in forma pauperis. Parish of Rapides. No. 147463.

Denied.


text:
    STATE of Louisiana ex rel. David N. TAYLOR v. Warden Frank BLACKBURN.
    No. 81-KH-1518.
    Supreme Court of Louisiana.
    Sept. 9, 1981.
   In re David N. Taylor, applying for writ of habeas corpus. Parish of Caddo. Number Unknown.

Denied.

CALOGERO, J., would grant evidentiary hearing.


text:
    CONCERNED CITIZENS OF RAPIDES PARISH and Lorena Pospisil v. Paul HARDY, Secretary of the Louisiana Department of Transportation and Development.
    No. 81-C-1523.
    Supreme Court of Louisiana.
    Sept. 9, 1981.
   In re Concerned Citizens of Rapides Parish and Lorena Pospisil, applying for supervisory writs, to the Court of Appeal, Third Circuit. Parish of Rapides. No. 8110.

Denied.

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


text:
    STATE of Louisiana, ex rel. Thomas J. COLLINS v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-1549.
    Supreme Court of Louisiana.
    Sept. 9, 1981.
   In re Thomas J. Collins, applying for writs of habeas corpus, certiorari, prohibition, and mandamus. Parish of Orleans. No. 3-76-363.

Denied.


text:
    STATE of Louisiana v. Peter BODNER.
    No. 81-K-1592.
    Supreme Court of Louisiana.
    Sept. 9, 1981.
   In re Peter Bodner, applying for writs of certiorari, review and mandamus. City Court, for the City of Shreveport. Parish of Caddo. No. Y-1176.

Denied.


text:
    STATE of Louisiana ex rel. John William ELLISON v. J. D. MIDDLEBROOKS.
    No. 81-KH-1610.
    Supreme Court of Louisiana.
    Sept. 9, 1981.
   In re John William Ellison, applying for supervisory and remedial writs. Parish of St. Tammany. No. 67100.

Denied.


text:
    STATE of Louisiana ex rel. Billy Raymond AUSTIN v. TWENTIETH JUDICIAL DISTRICT COURT.
    No. 81-KH-1625.
    Supreme Court of Louisiana.
    Sept. 9, 1981.
   In re Billy Raymond Austin, applying for writ of certiorari or review. Parish of West Feliciana. Nos. 9346 and 10821 A.

Denied.


text:
    STATE of Louisiana ex rel. Mitchell MOORE v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-1653.
    Supreme Court of Louisiana.
    Sept. 9, 1981.
   In re Mitchell Moore, applying for writs of habeas corpus and remedial writs. Parish of Orleans. No. 252943.

Denied. ■


text:
    STATE of Louisiana ex rel. Willie SNELL v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-1674.
    Supreme Court of Louisiana.
    Sept. 9, 1981.
   In re Willie Snell, applying for remedial writs of habeas corpus, mandamus and other writs. Parish of East Baton Rouge.

Denied.


text:
    STATE of Louisiana v. Ulyssess E. RIVERE.
    No. 81-KH-1692.
    Supreme Court of Louisiana.
    Sept. 9, 1981.
   In re Ulyssess E. Rivere, applying for writs of certiorari, prohibition, mandamus, and a stay order. Parish of Jefferson. No. 81-1288.

Denied.

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


text:
    STATE of Louisiana v. Rayna HENDERSON.
    No. 81-K-1727.
    Supreme Court of Louisiana.
    Sept. 9, 1981.
   In re Rayna Henderson, applying for supervisory writ of certiorari or review. Parish of Lafourche. No. 106243.

Denied.


text:
    STATE of Louisiana ex rel. Nathaniel GIBSON v. Hayden J. DEES, Warden, Dixon Correctional Institute.
    No. 81-KH-1730.
    Supreme Court of Louisiana.
    Sept. 9, 1981.
   In re Nathaniel Gibson, applying for writs of certiorari. Parish of Orleans. No. 258-302.

Denied.


text:
    STATE of Louisiana v. Richard SOUDELIER.
    No. 81-K-1762.
    Supreme Court of Louisiana.
    Sept. 9, 1981.
   In re Richard Soudelier, applying for writs of review. Parish of Lafourche. No. 105366.

Denied.

CALOGERO, J., would grant the writ.


text:
    STATE of Louisiana ex rel. William Sherwood JOHNSON v. STATE of Louisiana.
    No. 81-KH-1791.
    Supreme Court of Louisiana.
    Sept. 9, 1981.
   In re William Sherwood Johnson, applying for remedial writs. Parish of Orleans. No. 263-196 “B”.

Writ denied.


text:
    Harold L. JOHNSTON v. MOREHOUSE PARISH POLICE JURY.
    No. 81-C-1798.
    Supreme Court of Louisiana.
    Sept. 9, 1981.
   In re Harold L. Johnston, applying for certiorari, or writ-of review, to the Court of Appeal, Second Circuit. Parish of More-house. No. 14569.

Writ denied.


text:
    STATE of Louisiana ex rel. Oscar Lynn SYKES v. FOURTH JUDICIAL DISTRICT COURT.
    No. 81-KH-1815.
    Supreme Court of Louisiana.
    Sept. 9, 1981.
   In re Oscar Lynn Sykes, applying for writ of certiorari, or review. Parish of Ouachi-ta. No. 38455.

Denied.


text:
    STATE of Louisiana ex rel. Emile EDWARDS v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-1805.
    Supreme Court of Louisiana.
    Sept. 9, 1981.
   In re Emile Edwards, applying for writs of certiorari, prohibition, mandamus, and habeas corpus. Parish of Orleans. No. 215-176.

Granted and consolidated with State ex rel. Becnel v. Blackburn, La., 400 So.2d 212.


text:
    Gail Horne RAY v. AMERI—CARE HOSPITAL, et al.
    No, 81-C-1706.
    Supreme Court of Louisiana.
    Sept. 11, 1981.
   In re Gail Horne Ray, applying for writ of certiorari, or review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 400 So.2d 1127.

Writ denied.


text:
    Richard Brady McDANIEL v. STATE of Louisiana, Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 81-C-1708.
    Supreme Court of Louisiana.
    Sept. 11, 1981.
   In re Richard Brady McDaniel, applying for writs of certiorari or review, to the Court of Appeal, Third Circuit. Parish of Avoyelles. 398 So.2d 88.

Denied, on showing made.

WATSON, J., would grant the writ.


text:
    Jackie O. PROTHRO v. LOUISIANA PAVING COMPANY, INC., et al.
    No. 81-C-1709.
    Supreme Court of Louisiana.
    Sept. 11, 1981.
   In re Jackie 0. Prothro, applying for writ of certiorari, or review, to the Court of Appeal, Third Circuit. Parish of Natchi-toches. 399 So.2d 1229.

Denied.


text:
    Amelia Jo LaSALLE, etc. v. SOUTHLAND CORPORATION, et al.
    No. 81-C-1710.
    Supreme Court of Louisiana.
    Sept. 11, 1981.
   In re Amelia Jo LaSalle, etc., applying for writs of certiorari, or review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 400 So.2d 1199.

Denied.

WATSON, J., would grant the writ.


text:
    Ruby Mae CELESTINE v. GREAT SOUTHERN OIL & GAS COMPANY and Lawrence Vincent, Jr. and United States Fidelity and Guaranty Company.
    No. 81-C-1711.
    Supreme Court of Louisiana.
    Sept. 11, 1981.
   In re Ruby Mae Celestine, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Lafayette. 398 So.2d 195.

Writ denied.


text:
    Dorothy Webster SILAS v. Albert SILAS, Jr.
    No. 81-C-1713.
    Supreme Court of Louisiana.
    Sept. 11, 1981.
   In re Dorothy Webster Silas, applying for supervisory or remedial writs, to the Third Circuit, Court of Appeal. Parish of Rap-ides. 399 So.2d 779.

Denied.

DENNIS, J., would grant the writ.


text:
    Louis P. TRENT, et al. v. The STATE of Louisiana and the Board of Trustees of the Louisiana State Employees’ Retirement System.
    No. 81-C-1689.
    Supreme Court of Louisiana.
    Sept. 11, 1981.
   In re Louis P. Trent, et al., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 400 So.2d 1178.

Writ denied.

MARCUS, J., recused.

WATSON, J., would grant the writ.


text:
    David R. WAGLEY v. Richard B. McDANIEL, et al. Richard Brady McDANIEL v. STATE of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 81-C-1688.
    Supreme Court of Louisiana.
    Sept. 11, 1981.
   In re State of Louisiana, Department of Transportation & Development, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Avoyelles. 398 So.2d 93 and 398 So.2d 88.

Writ denied.

MARCUS, J., would grant the writ.


text:
    Donald C. SCOTT v. Paul H. RAMOS.
    No. 81-C-1681.
    Supreme Court of Louisiana.
    Sept. 11, 1981.
   In re Paul H. Ramos, applying for writ of certiorari or review, to the Fourth Circuit, Court of Appeal. Parish of Orleans. 399 So.2d 1266.

Denied. Relator can escape the provisions of the injunction of which he complains by trimming his tree back to the property line for the tree’s entire height.

LEMMON, J., recused.


text:
    OUR LADY OF THE LAKE MEDICAL CENTER v. John CROPPER.
    No. 81-C-1685.
    Supreme Court of Louisiana.
    Sept. 11, 1981.
   In re Our Lady of the Lake Medical Center, applying for writs of certiorari, or ré-view, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 401 So.2d 403.

Denied.

MARCUS, J., would grant the writ.


text:
    Rose BEDFORD, Individually and on Behalf of her Minor Son, Tim Bedford v. Francis T. CAZAYOUX, Individually and on Behalf of his Minor Son Michael Cazayoux, and United Service Automobile Association.
    No. 81-C-1667.
    Supreme Court of Louisiana.
    Sept. 11, 1981.
   In re Rose Bedford, et al., applying for writs of certiorari, or review, to the Court of Appeal, First Circuit. Parish of St. Tammany. 399 So.2d 1214.

Writ denied.

CALOGERO, WATSON and LEMMON, JJ., would grant the writ.


text:
    Sylvia C. BORDELON, et al. v. SAFEWAY INSURANCE COMPANY, et al.
    No. 81-C-1670.
    Supreme Court of Louisiana.
    Sept. 11, 1981.
   In re Safeway Insurance Company, applying for writs of certiorari or review to the Court of Appeal, Third Circuit. Parish of Avoyelles. 398 So.2d 183.

Denied.


text:
    Robert D. PONDS v. Honorable David C. TREEN, Governor of the State of Louisiana, et al.
    No. 81-C-2380.
    Supreme Court of Louisiana.
    Sept. 11, 1981.
   In re Honorable David C. Treen, Governor of the State of Louisiana, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 401 So.2d 450.

Writ granted.


text:
    Myrtle Devall ANDRUS, et al. v. Kenneth H. KAHAO, J. King Woolf, Jr. and Ashland Plantation, Inc.
    No. 81-C-1678.
    Supreme Court of Louisiana.
    Sept. 11, 1981.
   In re Myrtle Devall Andrus, applying for writ of review, to the First Circuit, Court of Appeal. West Baton Rouge Parish. 400 So.2d 1194.

Granted.


text:
    John P. EVANS v. William E. EVANS, et al. Victor SCOTT and Ruby Chenault Scott v. William E. EVANS, Appalachian Ins. Co. et al.
    No. 81-C-1680.
    Supreme Court of Louisiana.
    Sept. 11, 1981.
   In re Heirs of Hurl Cotner Scott, Known or Unknown and Absentee, applying for writs of certiorari or review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 399 So.2d 721.

Granted.


text:
    Brenda Ann LANGLINAIS v. Richard GUILLOTTE, et al.
    No. 81-C-1712.
    Supreme Court of Louisiana.
    Sept. 11, 1981.
   In re Brenda Ann Langlinais, applying for writ of certiorari, or review, to the Court of Appeal, Third Circuit. Parish of Iberia. 398 So.2d 106.

Granted.


text:
    ACORN, et al., and Jimmie Walker, et al. v. CITY OF NEW ORLEANS, et al. Rosemary BAYOLO, et al., Janet Heaton, Jackson Homestead Association et al., and Louis W. Schlekau v. Errol WILLIAMS, Director of Finance of the City of New Orleans and the City of New Orleans through Ernest N. Morial, Mayor.
    No. 81-C-2080.
    Supreme Court of Louisiana.
    Sept. 11, 1981.
   In re City of New Orleans, et al., applying for writ of certiorari or review, to the Fourth Circuit, Court of Appeal. 403 So.2d 76.

Granted.


text:
    Dwight PERRILLOUX v. FIRST STANDARD LIFE INSURANCE COMPANY.
    No. 81-C-1288.
    Supreme Court of Louisiana.
    Sept. 11, 1981.
   In re Dwight Perrilloux, applying for reconsideration of denied writ of June 5,1981. Parish of Jefferson. 401 So.2d 358.

Not considered. Application for a rehearing from a denial of writ will not be considered. See, Rule 9, section 6, La. Sup.Ct. Rules.


text:
    STATE of Louisiana v. Albert C. KIPER.
    No. 81-K-1803.
    Supreme Court of Louisiana.
    Sept. 11, 1981.
   In re State of Louisiana, applying for writs of certiorari, prohibition, and mandamus. Parish of Orleans. No. 187-790.

Writ granted.


text:
    STATE of Louisiana ex rel. Robert MYLES v. Honorable Edwin LOMBARD, Clerk of Court Parish of Orleans, State of Louisiana.
    No. 81-KH-1818.
    Supreme Court of Louisiana.
    Sept. 11, 1981.
   In re Robert Myles, applying for writs of mandamus. Parish of Orleans. No. 265-242.

Granted. Relator is ordered furnished the requested Boykin transcript.


text:
    STATE of Louisiana ex rel. Henry WILLIAMS v. The COURT REPORTER, 16TH JUDICIAL DISTRICT COURT, PARISH OF ST. MARTIN.
    No. 81-KH-1829.
    Supreme Court of Louisiana.
    Sept. 11, 1981.
   In re Henry Williams, applying for writ of mandamus. Parish of St. Martin. No. 34683.

Granted. Trial judge is ordered to rule on the motion for copies of documents.


text:
    STATE of Louisiana ex rel. James UNDERWOOD v. 14TH JUDICIAL DISTRICT COURT, et al.
    No. 81-KH-1846.
    Supreme Court of Louisiana.
    Sept. 11, 1981.
   In re James Underwood, applying for remedial writs. Parish of Ouachita. No. 2855-753.

Granted. Furnish relator a Boykin transcript.


text:
    STATE of Louisiana ex rel. Claude WOODS and Joseph Woods v. Thomas J. LE BLANC, Clerk of 18th Judicial District Court, State of Louisiana, Parish of West Baton Rouge.
    No. 81-KH-1866.
    Supreme Court of Louisiana.
    Sept. 11, 1981.
   In re Claude Woods and Joseph Woods, applying for writ of mandamus. Parish of West Baton Rouge. No. 39945.

Granted. Relator is ordered furnished the Boykin transcript.


text:
    STATE of Louisiana v. Ronald GREGORIE and Alfred Scramuzza.
    No. 81-K-2101.
    Supreme Court of Louisiana.
    Sept. 11, 1981.
   In re State of Louisiana, through the District Attorney, Harry Connick, applying for writ of certiorari. Parish of Orleans. No. 279-384.

Granted.


text:
    STATE of Louisiana v. James DUNN.
    No. 81-K-2132.
    Supreme Court of Louisiana.
    Sept. 11, 1981.
   In re State of Louisiana, through the Attorney general, William J. Guste, Jr., applying for writs of certiorari, prohibition and mandamus. Parish of West Feliciana. No. 6163-A.

Granted.


text:
    STATE of Louisiana v. Orman WALTERS.
    No. 81-K-2181.
    Supreme Court of Louisiana.
    Sept. 11, 1981.
   In re State of Louisiana through the District Attorney, Harry F. Connick, applying for writ of certiorari. Parish of Orleans. No. 281-043, Sect. “D”.

Granted.


text:
    STATE of Louisiana v. Monroe SMITH.
    No. 81-K-2199.
    Supreme Court of Louisiana.
    Sept. 11, 1981.
   In re Monroe Smith, applying for writs of certiorari, prohibition and mandamus. Parish of Jefferson. No. 81-754.

Writ granted; all proceedings are stayed pending further orders of this Court.


text:
    STATE of Louisiana ex rel. John Robert NICOLAUS v. Frank BLACKBURN, Custodian.
    No. 81-K-1695.
    Supreme Court of Louisiana.
    Sept. 11, 1981.
   In re John Robert Nicolaus, applying for writs of certiorari on writ of habeas corpus. Parish of East Baton Rouge. No. 4-75-8057.

Granted in part. The trial court is ordered to conduct an evidentiary hearing on relator’s claim that the state witness testified falsely about a deal with the district attorney for his testimony. Otherwise, denied.

MARCUS, BLANCHE and WATSON, JJ., dissent from order for evidentiary hearing.


text:
    STATE of Louisiana ex rel. Johnny Lee SULLIVAN v. Robert J. ZIBILISH, Appointed Counsel, O.I.D.P. Criminal Courts.
    No. 81-KH-2361.
    Supreme Court of Louisiana.
    Sept. 11, 1981.
   In re Johnny Lee Sullivan, applying for remedial writs. Parish of Orleans. ■ No. 276-394.

Pending further action by this Court, trial of this matter is hereby stayed.


text:
    STATE of Louisiana ex rel. Joseph ROSENTHAL v. Frank C. BLACKBURN et al., Warden, Louisiana State Penitentiary.
    No. 80-KH-2523.
    Supreme Court of Louisiana.
    Sept. 11, 1981.
   In re Joseph Rosenthal, applying for writ of habeas corpus. Parish of Orleans. No. 258-944.

Denied.


text:
    STATE of Louisiana ex rel. Frederick L. STANLEY v. STATE of Louisiana, et al.
    No. 81-KH-0226.
    Supreme Court of Louisiana.
    Sept. 11, 1981.
   In re Frederick Stanley, applying for writ of mandamus, remedial and supervisory writs. Orleans Parish. No. 60820. .

Denied. Relator must apply first to trial court.


text:
    STATE of Louisiana ex rel. Bilal Hameen SABIR v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-0257.
    Supreme Court of Louisiana.
    Sept. 11, 1981.
   In re Bilal Harneen Sabir, applying for writs of certiorari, habeas corpus, and mandamus. Parish of Orleans. No. 245-817.

Writ denied.


text:
    STATE of Louisiana ex rel. Henry HOWELL v. Municipal Court Judge, Eddie SAPIR; Richard Martin; Salvador Anzelmo, City Attorney of New Orleans.
    No. 81-KH-0450.
    Supreme Court of Louisiana.
    Sept. 11, 1981.
   In re Henry Howell, applying for writ of habeas corpus. Parish of Orleans.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Charles A. STEWART v. CRIMINAL DISTRICT COURT, ORLEANS PARISH, NEW ORLEANS, Louisiana.
    No. 81-KH-0607.
    Supreme Court of Louisiana.
    Sept. 11, 1981.
   In re Charles A. Stewart, applying for writ of mandamus or alternative supervisory writs. Parish of Orleans. No. 252-328 “B”.

Denied.


text:
    STATE of Louisiana ex rel. Irvin NOIL v. CRIMINAL DISTRICT COURT, PARISH OF ORLEANS.
    No. 81-KH-0987.
    Supreme Court of Louisiana.
    Sept. 11, 1981.
   In re Irvin Noil, applying for writs of habeas corpus. Parish of Orleans. No. 250-496.

Writ denied. Moot.


text:
    STATE of Louisiana ex rel. Guy L. BARROW a/k/a/ Ernest Ranker v. CLERK OF COURT, CRIMINAL DISTRICT COURT, PARISH OF ORLEANS, STATE OF LOUISIANA SECTION “D”.
    No. 81-KH-1002.
    Supreme Court of Louisiana.
    Sept. 11, 1981.
   In re Guy L. Barrow, a/k/a Ernest Ranker, applying for remedial writs. Parish of Orleans. Nos. 253-254 and 248-738.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Rickey TRUVIA v. Judge Israel M. AUGSUTINE, Jr.
    No. 81-KH-1199.
    Supreme Court of Louisiana.
    Sept. 11, 1981.
   In re Rickey Truvia, applying for writ of mandamus. Parish of Orleans. No. 257-168.

Denied.


text:
    STATE of Louisiana ex rel. Sterling COLLINS v. Honorable Rudolph BECKER, III, Judge, Criminal District Court, Section “E”, Parish of Orleans.
    No. 81-KH-1345.
    Supreme Court of Louisiana.
    Sept. 11, 1981.
   In re Sterling Collins, applying for writ of mandamus. Parish of Orleans. No. 237-931.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Clarence ALFRED v. Honorable Frank A. MARULLO, Jr., Judge, Criminal District Court, Section “D”, Parish of Orleans, et al.
    No. 81-KH-1431.
    Supreme Court of Louisiana.
    Sept. 11, 1981.
   In re Clarence Alfred, applying for writ of mandamus. Parish of Orleans. No. 238-293, Section “D”.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Lonnie COOLEY v. SIXTH JUDICIAL DISTRICT COURT, SECTIONS A & B.
    No. 81-KH-1397.
    Supreme Court of Louisiana.
    Sept. 11, 1981.
   In re Lonnie Cooley, applying for writ of mandamus. Parish of Madison. No. 81-61.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Lionel WALLACE, Sr. v. District Attorney, Ossie BROWN and Sheriff, Al Amiss.
    No. 81-KH-1434.
    Supreme Court of Louisiana.
    Sept. 11, 1981.
   In re Lionel Wallace, Sr., applying for writs of habeas corpus. Parish of East Baton Rouge. No. 1-80-439.

Writ denied.


author: CUTRER, Judge.

text:
    J. C. GILBERT and Barbara Jane Peck Gilbert, Plaintiffs-Appellees, v. The CATAHOULA PARISH POLICE JURY, Defendant-Appellant.
    No. 8409.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 5, 1981.
    George F. Griffing, Jonesville, for plaintiffs-appellees.
    John Sturgeon, Ferriday, for defendant-appellant.

      Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   CUTRER, Judge.

The plaintiffs, J. C. Gilbert and Barbara Jane Peck Gilbert, own land in Catahoula Parish adjacent to Gambrell Lane. Acting under authority of LSA-R.S. 33:1236(5), the Catahoula Parish Police Jury adopted Ordinance 4-5-76 designating all of Cata-houla Parish to be closed range with the exception of three specific areas. One of the areas excepted is a section of Gambrell Lane from its intersection at its southerly end with Louisiana Highway 15 and to the North until it reaches the North line of Section 34, TUN, R8E. In land designated closed range, livestock can only roam on land owned or leased by the owner of the livestock. In land designated open range the livestock is allowed to roam on any land located within the area. As a result, the plaintiffs are forced to maintain a fence along Gambrell Lane to keep livestock out of their planted fields. The ordinance specifically provides that no fences are required in the parish in those areas designated closed range.

The plaintiffs sought a declaratory judgment declaring the ordinance designating Gambrell Lane to be open range unconstitutional. The trial court found that the designation deprived the plaintiffs of certain property rights without due process of law and declared Ordinance 4-5-76, Section 9, Paragraph 2 designating Gambrell Lane to be open range unconstitutional.

The Catahoula Parish Police Jury appealed to this court. However, this court does not have appellate jurisdiction of this case. The Louisiana Supreme Court has exclusive appellate jurisdiction where an ordinance has been declared unconstitutional. Louisiana Constitution Article V, § 5(D).

IT IS ORDERED that this case be transferred to the Louisiana Supreme Court. All costs of this appeal and the transfer of this case to the Louisiana Supreme Court are to be assessed against the defendant-appellant. LSA-C.C.P. art. 2162; LSA-R.S. 13:4441-4442; In Re Gulf Oxygen-Welders Sup. Prof. Shar. P. & T. Agr., 291 So.2d 887 (La.App. 3rd Cir. 1974), reversed on other grounds, 297 So.2d 663 (La.1974); Derouen v. Kolb, 389 So.2d 761 (La.App. 3rd Cir. 1980).

APPEAL TRANSFERRED TO THE LOUISIANA SUPREME COURT.

      . LSA-R.S. 33:1236(5) provides, in part:
      “The police juries and other parish governing authorities shall have the following powers:
      ******
      “(5) To pass all ordinances and regulations in relation to the marking, the sale, destruction of cattle in general and especially of wild cattle which are not marked and also of horses and mules; and to take any measure concerning the policing of cattle in general in all the cases not provided for by law; to fix the time in which cattle may be suffered to rove in the parishes of this state, where that custom prevails, so that such roving may not be detrimental to the crops; to determine what animals shall not be suffered to rove, and in what cases they may lawfully be killed.”