author: WATSON, Justice. BLANCHE, Justice

text:
    Larry KRAAZ and Joyce Kraaz v. LA QUINTA MOTOR INNS, INC.
    No. 81-C-0937.
    Supreme Court of Louisiana.
    March 1, 1982.

      William H. Howard, III, and Jesse R. Adams, Jr., of Phelps, Dunbar, Marks, Clav-erie & Sims, New Orleans, for defendant-applicant.
    George P. Vedros, & Ralph L. Barnett, of Barnett & Vedros, Gretna, for plaintiff-respondent.
   WATSON, Justice.

The primary issue is the delictual liability of an innkeeper for an employee’s negligence which is a substantial factor in the armed robbery of a guest. A secondary issue is the quantum of damages awarded plaintiffs.

Plaintiffs, Larry and Joyce Kraaz, are in an itinerant business: buying, selling, racing and betting on horses. Their only permanent home is the residence of his parents in Chicago.

On December 31, 1978, Mr. and Mrs. Kraaz were attending the race meeting at the Fair Grounds and were staying at the La Quinta Motor Inn in Metairie, Louisiana. At approximately 4:00 A.M. the seventeen year old desk clerk, David Ulmer, was approached by two men. One of them identified himself as Benson in 233, who had lost his key. Since there was a Benson registered in 233 and no room key available, Ulmer gave the man a pass key to all the rooms in the motel. This was contrary to company policy. Subsequently, Ulmer became apprehensive, discovered that Benson knew nothing about the key request, and observed two men coming from the direction of the Kraaz’s room, one of them with a gun in his waistband.

In the interim, the two men had unlocked the door of the room occupied by Mr. and Mrs. Kraaz and broken the chain. They hog-tied Larry Kraaz, physically abused Joyce Kraaz, and took a package containing about $23,000 from Mrs. Kraaz’s purse. They also took a .25 caliber Smith & Wesson automatic but overlooked another $15,-000 in cash which was lying near the gun. The thieves also failed to find an additional $3,000 in the purse. The money was intended for the purchase of race horses. The testimony was that these are generally cash transactions.

Thomas Tomillo, a horse trainer, testified that he was training two horses for Kraaz in December of 1978 and working with him on the purchase of additional horses. Mrs. Kraaz gave him between $1,000 and $1,500 that day from the package which was stolen that night. It originally contained $25,000.

Larry Kraaz said he was knocked out of bed and pinned down on the floor by two men with a gun. His wife started screaming and got hit in the face. Kraaz feared he would be killed and his wife raped and killed. He heard the hammer clicking on a large caliber weapon being held against his head. After he was tied with wire and his mouth taped, they mauled his wife and put her in the bathtub. Then they came out of the bathroom, picked up her purse, emptied it out, grabbed the bundle of cash and ran. Kraaz broke the wire, threw his pants on and reached for his pistol, but it was gone. He got a .44 magnum from his car and tried unsuccessfully to intercept the thieves at the back door of the motel. While chasing through the motel with his gun, Kraaz observed the elderly security guard sound asleep on the steps behind the office. Since the crime, Joyce Kraaz has become paranoid about motels and Larry has lost her companionship. She had previously travelled around the country with him ten months of the year. Now Joyce Kraaz feels more secure in Chicago, where there are other people and a dog in the house. After the accident, he described her as “a complete basket case”.

One of the two assailants wore a mask. Joyce Kraaz was convinced that she and her husband would be killed, because she could identify the man without the mask. Her mouth, leg and hip were bruised and swollen. She remained in the room until her husband took her to the hospital that afternoon about 5:00 P.M. She could not walk and thought her hip might be broken. The emergency room doctor told her that the swelling was just a very bad bruise and would go away in time. She has been too frightened and uncomfortable to resume her former life and now takes sleeping pills and tranquilizers regularly. She has lost weight and has no appetite. Because she needs help, she intends to undergo therapy with a Chicago psychiatrist.

Dr. Terry E. Passman, a board certified psychiatrist, saw Joyce Kraaz shortly after the robbery on January 3, 1979. He described her as extremely frightened, apprehensive, and essentially unable to function. He gave her some medication to calm her down enough to converse. Dr. Passman diagnosed an acute traumatic neurosis. Despite her total incapacity, he decided hospitalization might aggravate the anxiety. Sodium Amytal, an extremely strong sleeping drug, was administered intravenously at a hospital emergency room to help her over the initial period of shock. According to Dr. Passman, Joyce Kraaz had experienced several traumatic incidents as an adolescent, which she had repressed. The experience at the La Quinta broke down this defense mechanism and caused an exaggerated reaction to the situation. In Dr. Pass-man’s opinion, Mrs. Kraaz could have lived a normal life except for this incident.

Dr. Passman saw Joyce Kraaz again on January 17 when she was still extremely upset, crying and fearful, with a feeling of impending doom. Another tranquilizer was prescribed. On January 22, she was less anxious, but still had problems at night. The incident had created a fear of rape which had adversely affected her sex life with her husband, previously a strong point in the marriage.

Dr. Passman next saw Joyce Kraaz on January 29. She had improved, but still had early morning awakening, a symptom of depression, fear and guilt. She was still extremely anxious and her sex life unsatisfactory. When she next came to New Orleans, Dr. Passman could not fit her into his schedule. Dr. Passman advised Joyce Kraaz to continue psychotherapy.

Mr. Kraaz became convinced that the sessions with Dr. Passman were doing his wife more harm than good because she was so upset afterward. His solution was to let time take care of the problem, but this did not work. She went back to Dr. Passman. On March 18, 1980, Dr. Passman described Joyce as haggard and tense. Her marriage and sex life have been significantly impaired by the crime. On March 20, Larry Kraaz told Dr. Passman their sex life is terrible and the marriage is deteriorating. Dr. Passman discussed the need for future treatment with both Mr. and Mrs. Kraaz and recommended therapy at least twice a week for two years, possibly longer. He referred them to several psychiatrists in Chicago. According to Dr. Passman, his current fee is $65 a session and this is comparable to Chicago fees.

Detective Alfred Cantrell of the Jefferson Parish Sheriff’s Department participated in the investigation. He confirmed that a key had been used to open the door, the chain lock was broken, and a large roll of cash remained on the night stand. The detective did not count the roll which Larry Kraaz said contained $15,000. Gary Croutcher, the manager of the motel, told Cantrell they had been having security problems.

An earlier incident at the motel involved W. L. Quattlebaum, Jr., an insurance company employee, who also owns, buys and sells race horses. Someone knocked on his door the night before the Kraaz robbery and identified himself as the manager. Quattlebaum cracked the door and saw a man wearing a ski mask and gloves. He managed to push the door closed and reported the attempted robbery to the motel office. Although the desk clerk said he would take care of calling the police, the police never came.

A notice allegedly posted on the door of the Kraaz room quotes some “Louisiana Hotel Laws” in very small print. The entire notice measures approximately three inches by seven inches. The last two items are LSA-C.C. arts. 2968 and 2971. C.C. art. 2968 reads as follows:

“Every landlord or keeper of a public inn or hotel, shall be required to provide with an iron chest or other safe deposit for valuable articles belonging to his guests or customers, and each landlord or hotel keeper shall keep posted upon his doors and other public places in his house of entertainment, written or printed notices to his guests and customers that they must leave their valuables with the landlord, his agent or clerk, for safe keeping, that he may make safe deposit of the same in the place provided for that purpose.”

When such a safe is provided and a notice to that effect is “conspicuously posted”, liability is limited to $100. LSA-C.C. art. 2971. Significantly, Civil Code article 2969 exempts from this limitation losses which “occur through the fraud and negligence of the landlord, or some clerk or servant provided by him in such inn or hotel.” Laubie v. Sonesta Intern. Hotel Corp., 398 So.2d 1374 (La., 1981) held that the limitation of liability in LSA-C.C. art. 2971 only applies to the innkeepers’ contractual liability as a depositary. The innkeeper remains liable for damages resulting from fault on the part of him or his employees.

Neither the investigating officers nor the Kraazs saw the notice allegedly posted in the room. Joyce and Larry Kraaz both said they didn’t know the La Quinta had a safe.

Gary Croutcher, the manager at La Quin-ta, testified that he checked the Kraaz room for damage between 9:00 and 10:00 A.M. the day after the accident and observed a notice posted behind the door. Joyce Kraaz testified in rebuttal that Croutcher did not appear in her room that morning. According to Croutcher, the housekeeper is instructed to automatically replace any missing notices. The La Quinta has six safes. Croutcher admitted that he had not pointed out the notice to Mr. and Mrs. Kraaz or anyone else at the time of the crime and had not been asked about it until three or four weeks before trial. There is no sign at the registration desk advising that there is a safe for valuables. Croutcher’s testimony was contrary to that of Detective Alfred Cantrell and other witnesses in many particulars.

The trial court concluded that La Quin-ta’s employee was grossly negligent in providing a pass key to criminals and the motel was liable for the Kraazs’ damages. Mrs. Kraaz was awarded $3,500 for physical injuries, $30,000 for traumatic neurosis, and future medical expenses of $13,000. Mr. Kraaz was awarded $2,500 for his physical and mental pain and suffering and $23,000 for the lost cash. The trial court was not satisfied that there was a notice posted on the motel door, but stated that, even if present, it was not sufficient to alert the Kraazs to the fact that a depositary was available for the protection of their valuables. The Court of Appeal affirmed. Kraaz v. La Quinta, 396 So.2d 455 (La.App. 4 Cir. 1981). A writ was granted to review the judgment. 401 So.2d 992 (La., 1981).

Defendant relies heavily on LSA-C.C. art. 2970 which provides:

“He [the innkeeper] is not responsible for what is stolen by force and arms, or with exterior breaking open of doors, or by any other extraordinary violence.”

The Court of Appeal held that Civil Code art. 2970 was not applicable because, even though the chain on the door was broken, the initial entry to the room was made with a pass key. Laubie also involved a forcible entry; a chain lock was severed. Laubie states that LSA-C.C. art. 2970, like LSA-C.C. art. 2971, relates only to the innkeeper’s contractual obligations as a depositary. 398 So.2d 1377. If a forcible armed entry were unaccompanied by fault on the part of the innkeeper or his employees, there would be no liability. However, that is not the case. The elderly security guard was asleep. The seventeen year old boy on duty gave a pass key to the entire motel to two strangers. There was unquestionably negligence. Since the pass key was a key element in the robbery, Civil Code article 2970 does not exonerate the innkeeper from liability.

Defendant also relies upon Robbins v. Pontchartrain Apartment, 175 La. 278, 143 So. 263 (1932). In Robbins, the trial court’s determination that the landlord’s clerk was negligent was reversed. Leaving the safe unlocked at 3:00 A.M. was held to be “not negligence”. 143 So. 265. That somewhat dubious conclusion distinguishes the matter from this one.

An innkeeper does not insure his guests against the risk of injury or property loss resulting from violent crime. LSA-C.C. art. 2970, supra. The innkeeper’s position vis-a-vis his guests is similar to that of a common carrier toward its passengers. Wilson v. Iberville Amusement Co., 181 So. 817 (Orl.App.Ct.1938). Thus, a guest is entitled to a high degree of care and protection. See Galland v. New Orleans Public Service Inc., 377 So.2d 84 (La., 1979), and Green v. TACA, 304 So.2d 357 (La., 1974). The innkeeper has a duty to take reasonable precautions against criminals. Safeguarding the room keys is a minimum requirement. The duty to avoid handing a pass key to any stranger is even stronger. Breach of this duty was a direct cause of plaintiffs’ physical, emotional and financial damages. La Quinta’s employee, Ulmer, was at fault in giving the two armed robbers a pass key. The employer is liable for the resulting damages. LSA-C.C. arts. 2315; 2320.

The attitude of La Quinta’s management toward the safety of its guests is emphasized by Quattlebaum’s testimony about the lack of interest in the attempted robbery of his room. See Nordmann v. National Hotel Co., 425 F.2d 1103 (5 Cir. 1970). In Quattlebaum’s case, the thief’s lack of a key enabled him to avoid being robbed.

Contributory negligence of the Kraazs in having the money with them is urged as a defense. Mere possession of money does not constitute negligence. The trial court was unconvinced that a notice about safe keeping was posted in the room. The trier of fact was well justified in disregarding Croutcher’s testimony to the contrary. Even if posted and adequate, the notice was certainly not conspicuous. The Kraazs could not foresee that assailants would open their room door with a pass key in the middle of the night, leaving them no time to defend themselves or call for help. They were not negligent.

There is no abuse of discretion in the award of damages. LSA-C.C. art. 1934. The facts more than amply support the amounts awarded.

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

AFFIRMED.

BLANCHE, J., dissents and assigns reasons.

MARCUS, J., dissents for reasons assigned by BLANCHE, J.

BLANCHE, Justice

(dissenting).

Plaintiff, a horse-racing man who makes his living betting horses, called his wife in Chicago to bring him $25,000 out of the refrigerator where they kept their life savings. After a day at the Fairgrounds flashing their bank roll around, plaintiffs went out to dinner and then retired to their room in the LaQuinta Inn. In their possession at that time was $41,000 in cash. Although plaintiffs have a permanent home in the residence of their parents in Chicago, they are usually on the road, as the majority notes, travelling around the country about ten months of the year. Thus, staying in motels should not be an unfamiliar surrounding, nor should hotel and motel rules concerning the deposit of valuables be unknown, especially to racing enthusiasts who carry such big bank rolls.

With regard to whether or not the notice was posted, I believe the notice required by C.C. art. 2968, that a safe was available, was posted. The only positive testimony on this issue came from the manager of the hotel, who stated that it was hotel policy for the maids to check for the notice each day as part of the cleaning routine and to replace it if it were missing. Additionally, he said he checked for the notice the day after the incident and it was posted on the door at that time. The testimony of the two detectives who came to the room in connection with the criminal investigation was of little assistance due to the fact that they said they did not recall seeing the notice, but added that they were not looking for it, because they were only interested in gathering evidence for the criminal investigation and had no interest in potential civil liability. Mr. Kraaz’ testimony was to the effect that he did not believe the notice was posted, but did not really remember. Because of the indefinite nature of the testimony of the officers and Mr. Kraaz, I find the hotel manager’s testimony persuasive.

With regard to the law, whose plain, unambiguous provisions were disregarded, the liability of an innkeeper for valuables is governed by C.C. arts. 2968, 2969 and 2971. The majority opinion relies on this Court’s interpretation of these Codal provisions in Laubie v. Royal Sonesta International Hotel Corp., 398 So.2d 1374 (La.1981). That decision held that the above mentioned Civil Code articles only limited an innkeeper’s liability as a depositary, but did not restrict his delictual liability. Laubie overruled a long line of prior jurisprudence which held that the articles limited an innkeeper’s liability on either basis and, to the extent the majority relies on that case, I am unable to agree. An interpretation that these articles limit an innkeeper’s liability only as a depositary renders C.C. art. 2971 useless. The innkeeper would only have occasion to rely upon the limitation of liability found in C.C. art. 2971 if the loss occurred through fraud or negligence, because without fraud or negligence, he is not liable at all. See C.C. art. 2969. The requirements found in C.C. art. 2968 are that an innkeeper (1) shall provide an iron chest or other safe deposit for valuable articles belonging to his guests or customers and (2) post notices of the availability of the safe. If the innkeeper complies with these two requirements, C.C. art. 2969 provides that he shall not be liable for any valuables unless the loss occurs' through the fraud or negligence of the landlord, or some clerk or servant employed by him. At this point, it would appear that the innkeeper might be liable if the loss of the valuables occurs because of negligence on his part; however, C.C. arts. 2968 and 2969 should not be viewed in isolation and must be read in pari materia with C.C. art. 2971, which provides that no innkeeper shall be liable under the provisions of C.C. arts. 2965-2970 to any guest in any sum exceeding one hundred dollars unless a greater liability has been contracted for in writing if the innkeeper has posted the notice required in C.C. art. 2971. When the applicable articles are interpreted together, the result clearly limits the liability of an innkeeper to one hundred dollars, even if his negligence has been a factor in the loss and this restriction should be recognized to constrain his liability both as a depositary and under a delictual theory. Negligence is specifically mentioned in C.C. art. 2969, and the innkeeper’s liability for it is clearly limited in C.C. art. 2971; the intent to allow the innkeeper a measure of protection should not be circumvented by an interpretation that would protect him as a depositary but leave him totally vulnerable under a delictual theory.

Considering the nature of the hotel business, the fact that the rooms are available to public access, and the number of people who are in and out of hotel rooms on a day to day basis (hotel guests, visitors, hotel employees and others), there is always the potential for burglary. Realistically, in almost any instance of burglary, it is arguable that the hotel was negligent in some way. If the rule is established that innkeepers are liable for valuables, including large sums of money, where some degree of negligence can be established on the part of the hotel or one of its employees, the burden placed on the innkeepers of this state will be unduly inequitable and onerous. It is patently unfair to provide no limit on the amount a guest may claim, even if the innkeeper is negligent in some respect, when the innkeeper provides a safe deposit and notice that it is available and the guest instead chooses to undertake the safekeeping of his valuables himself.

For the reasons stated above, I am unable to agree with the majority opinion; therefore, I respectfully dissent.

      . At age thirteen, Joyce Kraaz saw her mother’s jaw broken by her stepfather. The stepfather had made frightening sexual advances toward her.

        . LSA-C.C. art. 2971 provides:
      “No landlord or innkeeper shall be liable under the provisions of the foregoing six articles to any guests or party of guests occupying the same apartments for any loss sustained by such guests or party of guests by theft or otherwise, in any sum exceeding one hundred dollars, unless by special agreement in writing with the proprietor, manager or lessee of the hotel or inn a greater liability has been contracted for.
      "Provided that no guest shall be held bound by the limitation of value established in this Article unless this Article is conspicuously posted in the guest room.”

      . LSA-C.C. art. 2969 provides:
      “Every landlord, hotel or inn keeper who shall comply with the requirements of the preceding articles [article], shall not be liable for any money, jewelry, watches, plate, or other things made of gold or silver, or of rare and precious stones, or for other valuable articles of such description as may be contained in small compass, which may be abstracted or lost from any such public inn or hotel, if the same shall not be left with the landlord, his clerk or agent, for deposit, unless such loss shall occur through the fraud or negligence of the landlord, or some clerk or servant employed by him in such inn or hotel; provided, however, that the provisions of this article shall not apply to a wearing watch, or such other articles of jewelry as are ordinarily worn about the person.”

      . A suspect had been arrested in the criminal investigation at the time this case came to trial. In this civil suit, a detective assigned to the case testified that the suspect said he was familiar with Mr. and Mrs. Kraaz from the racetrack and knew that they usually carried twenty-five to one hundred thousand dollars in cash with them. Although hearsay, and not relevant in the case presently before this Court, it certainly indicates that Mr. and Mrs. Kraaz made little effort to conceal or protect the large sums of money they frequently carried.


source: Caselaw Access Project

author:
WATSON, Justice.
     DENNIS, Justice,

license: Public Domain

text:
    STATE of Louisiana v. Roosevelt BATISTE.
    No. 81-KA-1071.
    Supreme Court of Louisiana.
    March 1, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry J. Morel, Jr., Dist. Atty., Abbott J. Reeves, John M. Crum, Jr., Kurt Sins, Jr., Asst. Dist. Attys., for plaintiff-appellee.
    Robert R. Faucheux, Jr., Reserve, for defendant-appellant.
   WATSON, Justice.

Defendant, Roosevelt Batiste, was charged with the second degree murder of Reginald Holmes and convicted of manslaughter by a 10 to 2 jury verdict. LSA-R.S. 14:31. Defendant received a sentence of ten years at hard labor and has appealed, assigning three errors by the trial court.

FACTS

On April 19, 1980, Roosevelt Batiste and Reginald Holmes were both in Oscar Bar-dell’s bar. Batiste’s two stepdaughters told him that Reginald Holmes, “Scalp”, had been annoying them. Batiste attempted to remonstrate with Holmes and Holmes slung a bar stool at him. Batiste was standing near the center of the bar and Holmes was close to the telephone by the back wall. According to the photographs, Batiste was to the left of Holmes. Batiste said Holmes reached in his pocket. Thinking Holmes was armed with a knife, Batiste pulled his gun and started shooting. Batiste fired five times and hit Holmes three times. One shot hit the music box and another injured a bystander, Freddie Cook. Holmes staggered toward Batiste and grabbed him in a bear hug. Batiste’s stepson, LeRoy Bolden, seized Holmes around the neck with his left arm. Bolden hit Holmes with a gun and it fired up in the air. Bolden then shot Holmes in the forehead at close range.

Dr. Richard Tracy, a specialist in forensic medicine, testified that Holmes received four separate wounds. Two of the bullets entered the body from left to right. One of these passed through both lungs and the heart, then struck a rib and turned backwards. The second went through the abdomen. Another bullet entered the head at close range from right to left, the opposite direction from the two through the body. This bullet also had a slight angle from back to front. There was also a superficial bullet wound in the arm. Either one of two wounds, that in the head or that in the chest, would have caused Holmes’ death. (Tr. 64) Both should have caused an immediate collapse. The chest wound was fatal and the head wound was “immediately fatal”. (Tr. 60) The chances of surviving the shot in the abdomen would have been small. Holmes was living when all the wounds were inflicted.

The evidence establishes that the two body wounds, the one in the abdomen and the one in the chest, were fired by defendant Batiste from his position to the left of Holmes. The shot to the head was fired by Bolden. Either the chest wound or the head wound and possibly the abdominal wound would have caused the victim’s death.

There was evidence that Holmes customarily carried a knife and had inflicted knife wounds on other people. It was established that he had a bad reputation and was a violent man.

ASSIGNMENT OF ERROR NUMBER ONE

It is contended that Batiste was not advised of plea bargain negotiations between Bolden and the State and that Bol-den pled guilty to manslaughter prior to Batiste’s trial. Defendant argues that Bol-den’s guilty plea was exculpatory evidence which should have been furnished to him by the State. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); State v. Hicks, 395 So.2d 790 (La., 1981). Although Bolden’s guilty plea amounted to a confession, he was not a codefendant and his confession of guilt did not exculpate Batiste. LSA-C.Cr.P. art. 722. Moreover, the jury was fully aware that Bolden had shot Holmes in the head. Since Bolden’s guilty plea was based on facts which were presented to the jury, it could not have created any further doubt in their minds about Batiste’s guilt. State v. Manning, 380 So.2d 46 (La., 1980). In addition, the guilty plea was a matter of record which was readily available to the defense. State v. Hicks, supra.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO

Defendant contends that LeRoy Bol-den should have been required to testify at his trial.

Since there is no evidence that Batiste tried to obtain Bolden’s testimony, this assignment of error lacks merit. Bleach v. Blackburn, 631 F.2d 1168 (5 Cir. 1980). Compare State v. Mizell, 341 So.2d 385 (La., 1976).

ASSIGNMENT OF ERROR NUMBER THREE

It is contended that the sentence of ten years at hard labor is excessive. The trial court did not comply with LSA-C.Cr.P. art. 894.1 and failed to state the considerations and the factual basis for the sentence. The maximum sentence for manslaughter is twenty-one years at hard labor. LSA-R.S. 14:31. This sentence of less than half the maximum is not severe on its face. There appears no clear abuse of the trial court’s discretion in imposing sentence within the statutory limits. State v. Jones, 381 So.2d 416 (La., 1980).

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER FOUR

Although not formally assigned as error, the brief of defense counsel implies that the State failed to prove each element of the crime. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Manslaughter is the killing of a human being under certain mitigating circumstances which prevent the crime from being either first degree or second degree murder. The issue is whether both Bolden and Batiste can be guilty of killing Holmes.

Separate fatal wounds inflicted in one encounter by two individuals make each guilty of the homicide. “[B]oth shot ... in one encounter. The law will not stop, in such a case, to measure which wound is the more serious, and to speculate upon which actually caused the death... . ” Bennett v. Commonwealth, 150 Ky. 604, 150 S.W. 806 at 808 (1912). See Jordan v. State, 82 Ala. 1, 2 So. 460 (1887); Anderson v. State, 43 Tex.Cr.R. 275, 65 S.W. 523 (1901); Payne v. Commonwealth, 255 Ky. 533, 75 S.W.2d 14 (1934); Farley v. Commonwealth, 268 Ky. 277, 104 S.W.2d 972 (1937); Commonwealth v. Gross, 271 Ky. 455, 112 S.W.2d 689 (1938); Brinson v. State, 144 Fla. 228, 198 So. 15 (1940); Jones v. Commonwealth, 281 S.W.2d 920 (Ky.1955); Palmer v. State, 223 Md. 341, 164 A.2d 467 (1960). Compare People v. Lewis, 124 Cal. 551, 57 P. 470 (1899).

Bolden and Batiste jointly participated in the killing. Each was a principal in the crime. LSA-R.S. 14:24. Although there is no evidence of conspiracy, they were acting together. Holmes was fatally injured by Batiste and Bolden responded by inflicting another fatal wound while aiding Batiste. Bolden accelerated Holmes’ death, but Batiste had independently fired a fatal shot.

Bolden’s act cannot be insulated from Batiste’s, because the two were acting in concert. Holmes was sandwiched between them when the last “immediately fatal” shot was fired. Batiste’s actions caused Bolden’s intervention. Holmes’ death would have resulted from Batiste’s shots regardless of this intervention, and the intervention was also caused by Batiste’s actions. Batiste is responsible, because Bol-den’s interposition resulted from Batiste’s initial wrongful acts. Both are guilty.

This assignment of error lacks merit.

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

AFFIRMED.

DENNIS, J., concurs with reasons.

DENNIS, Justice,

concurring.

I respectfully concur. It does not seem necessary, however, to broach the complex subject of causation in this case. See., e.g., R. LaFave & A. Scott, Criminal Law § 35 (1972). I think the majority adequately justified its decision on the ground that the defendant was at least a principal to the crime. He was “concerned in the commission” and “aid[ed] and abetfted] in its commission.” La.R.S. 14:24.

       Judges Burrell J. Carter, Felix A. Savoie, Jr., and Melvin A. Shortess of the Court of Appeal, First Circuit, participated in this decision as Associate Justices Ad Hoc, joined by Justices Dennis, Blanche, Watson and Lemmon.

      . See Model Penal Code, Proposed Official Draft, 1962, Section 2.03(l)(a), as follows:
      “(1) Conduct is the cause of a result when:
      “(a) it is an antecedent but for which the result in question would not have occurred; and....”


author: DIXON, Chief Justice LEMMON, Justice,

text:
    Joseph JOHNSON, Jr. v. CONTINENTAL INSURANCE COMPANIES et al.
    No. 81-C-1270.
    Supreme Court of Louisiana.
    March 1, 1982.

      Gordon Hackman, Boutte, for plaintiff-applicant.
    Sidney L. Patin, of Henderson, Hane-mann & Morris, Houma, for defendants-respondents.
   DIXON, Chief Justice

Plaintiff was receiving weekly workmen’s compensation payments as a result of an August 14, 1978 injury he sustained while on his job. Benefits were terminated in August, 1979 by the compensation insurer, Continental Insurance Company. Plaintiff filed suit, and on March 26, 1980 the trial court rendered judgment ordering the payments of $130.00 per week during the period of plaintiff’s disability, not to exceed 450 weeks, expert fees of $600.00 and medical expenses. After the court denied defendant’s motion for a new trial, notice of the judgment was mailed on May 30, 1980.

On June 5,1980 defendant’s adjuster handling plaintiff’s claim requested issuance of a draft to plaintiff in the amount of $5703.10 for all unpaid compensation plus interest through June 9,1980. The adjuster simultaneously made a notation on the same written request, instructing the clerk to resume payment of plaintiff’s weekly benefits. The draft was issued and mailed to plaintiff’s employer; however, an administrative error in defendant’s office resulted in its failure to resume payment of the weekly compensation benefits. Upon discovering the error on July 21, 1980, defendant made a single payment of $910.00 to plaintiff to cover the seven week period in which plaintiff received no payments. This check was mailed to plaintiff’s employer, who informed plaintiff on July 26,1980 that the check had been received. Plaintiff’s daughter picked up the check that same afternoon.

On July 29, 1980, relying on R.S. 23:1333, plaintiff filed a motion to accelerate all overdue and future payments, alleging that defendant had failed to pay six successive installments as they became due. The trial court denied the motion, stating that R.S. 23:1333 applies only to an employer who does not have insurance under the workmen’s compensation statute. Additionally, the trial court determined that the statute only penalizes a “willful refusal” to pay benefits for six successive installments and concluded that “no willful refusal is present in this case.”

The Court of Appeal affirmed the judgment of the trial court and stated that “the purpose of the penalty statute will be effectuated only if the penalty provision is applied against employers who willfully refuse to pay the installment payments.” 396 So.2d 2, 3 (La.App.1981). Writs were granted to reexamine the interpretation of R.S. 23:1333, which provides:

“If the employer against whom a judgment awarding compensation has been rendered becomes insolvent or fails to pay six successive installments as they become due, the installments not yet payable under the judgment shall immediately become due and exigible and the judgment shall become executory for the whole amount; but if the employee or his dependent is adequately protected by insurance and receives payments thereunder this right shall not accrue.”

Under its terms, R.S. 23:1333 allows the employee who has been judicially awarded compensation to accelerate the installments under his judgment when the employer fails to comply with its provisions. Generally, section 1333 provides two instances when installments not yet payable under the judgment may be accelerated — when the employer becomes insolvent or fails to pay six successive installments as they become due. The last sentence of the section contains the proviso that this right shall not accrue if the employee or his dependent is adequately protected by insurance and receives payment thereunder.

The acceleration provision in section 1333 permits the injured employee to liquidate his claim and places him in a favorable position in the employer’s insolvency proceedings, if any.

Courts have treated section 1333 as a penalty or forfeiture against the employer and have held, therefore, that this section must be strictly construed. Dixon v. King, 178 La. 1, 150 So. 385 (1933); Mason v. Costanza, 166 La. 323, 117 So. 240 (1928). Thus, judgments of acceleration of payments have been awarded only on infrequent occasions.

Eisel v. Caddo Transfer & Warehouse Co., 11 La.App. 408, 123 So. 496 (1929), was probably the first case in which a judgment of acceleration of payments was awarded. In that case, the plaintiff obtained a judgment awarding him compensation for 400 weeks. All payments were made to the plaintiff’s attorneys. Although the attorneys repeatedly requested that the defendant make regular weekly payments, they continued to accept the defendant’s quarterly payments. Defendant continued to make payments in this manner until December 31, 1927. In early January of 1928, counsel for plaintiff went to the defendant’s office, after telephoning, and made demand for payment, which was refused. Plaintiff’s counsel was informed that the defendant had decided not to make further payments to the plaintiff.

On February 28, 1928, at which time ten weekly payments were due, the plaintiff filed suit to have all future installments under the judgment decreed immediately due and payable on the ground that defendant had failed to pay six successive installments as they became due. The defendant resisted the suit on the grounds that no demand was made by the plaintiff, and that since the installments had been paid quarterly, the plaintiff had by custom and acquiescence waived his rights under the statute to be paid weekly. The district court rejected the plaintiff’s demand and dismissed his suit.

The Court of Appeal agreed with the defendant’s assertion that the plaintiff had by custom and acquiescence waived his right under the statute to be paid regularly each week. Nevertheless, that court stated:

“. .. the fact which is decisive of the point at issue and on which we rest our decision is that, after more than six successive payments were due under the judgment, demand was made for payment and the demand was refused; the reason given being that defendant had concluded to cease payments altogether.” 11 La.App. at 410, 123 So. at 497.

In reversing the judgment of the trial court and ordering the acceleration of future payments under plaintiffs judgment, the court stated:

“... where an employer has been condemned by final judgment to pay an employee weekly compensation and subsequently repudiates the obligation by refusing to pay on demand, the forfeiture must be declared when demanded under the plain letter of the law. ...” 11 La.App. at 411, 123 So. at 498.

In Cole v. Sears, Roebuck and Co., 389 So.2d 762 (La.App.1980), plaintiff was awarded $65.00 per week during the period of disability, not to exceed 500 weeks. The parties agreed that payments would be made every four weeks. Sears began to make payments according to this agreement, but subsequently developed a pattern of delinquency. This prompted repeated requests from counsel for plaintiff that Sears mail the compensation checks promptly each month as agreed.

At the time plaintiff filed the rule to accelerate payments under his judgment, Sears was delinquent seven weekly installments. Sears contended that the agreement between the parties that compensation be paid monthly rather than weekly deprives plaintiff of the benefit of section 1333. The trial court rendered judgment in favor of plaintiff making due and exigible all sums not yet payable under the judgment. The Court of Appeal affirmed, stating that “six successive installments” under section 1333 refers to weekly installments, regardless of whether an agreement has been made for a longer interval between payments.

The only case in which this court has awarded a judgment of acceleration of payments is Lytell v. Strickland Transportation Co., 373 So.2d 138 (La.1979). In Lytell, the plaintiff was awarded compensation “for a total of 396 weeks or until further determination” by the district court. The judgment also awarded some $1600.00 for medical expenses. The defendant applied for a new trial, which was denied, and it did not appeal. Neither did it make any payments on the judgment, despite repeated telephoned and written demands by the plaintiff upon members of the law firm representing the defendant. Two months after the delay for a suspensive appeal expired, the plaintiff filed a rule to have all future payments under his judgment declared immediately due and exigible, and the judgment made executory for the whole amount.

The trial court refused to apply the penalty on the basis of the defendant’s contention that section 1333 was not applicable to a judgment of disability (which normally awards compensation “during disability”), but only to a judgment awarding compensation for nondisabling specific injuries (which normally awards compensation for a fixed number of weeks). The defendant did not contest the plaintiff’s disability.

On review, this court expressed the view that the plain statutory intent of section 1333 is to apply the penalty to nonpayments of a judgment for disability, as well as nonpayments of a judgment for nondis-abling specific injuries. Consequently, we held that the plaintiff was entitled to a judgment decreeing all payments under his judgment immediately due and exigible.

The question of whether the penalty provision under section 1333 may be invoked has been before the court in the following additional cases:

In Mason v. Costanza, supra, this court refused to apply the penalty where it was determined that the employer who failed to pay six successive installments as they became due did not willfully refuse to make the compensation payments, but offered to make such payments only at his place of business.

Similarly, in Dixon v. King, supra, the penalty was not applied because at the time plaintiff sought to invoke the penalty, the defendant proved that the employee was no longer disabled.

And, finally, this court declined to apply the penalty in Crawford v. T. Smith & Son, Inc., 183 La. 103, 162 So. 814 (1935). In Crawford, the defendant obtained a judgment from the district court relieving it of the obligation of making further payments to the plaintiff, but that judgment was subsequently reversed by the Court of Appeal. After the judgment became final, the defendant tendered to the plaintiff all past due installments, which tender was refused on the ground that the defendant was bound to pay the remaining installments in a lump sum. The defendant refused to pay the balance in a lump sum, and the plaintiff filed suit to invoke the penalty under section 1333. The lower courts refused to apply the penalty.

In affirming the judgments of the lower courts, this court concluded that, under the circumstances of the case, there was no “willful refusal” to pay on the part of the defendant, for which reason it cannot be penalized.

Authorities examined offer little or no assistance in interpreting R.S. 23:1333. See A. Larson, Larson’s Workmen’s Compensation (1981); W. Malone & A. Johnson, Louisiana Civil Law Treatise: Worker’s Compensation (1980); W. Malone, Louisiana Workmen’s Compensation: Law and Practice (1951, Supp.1955); M. Mayer, Workmen’s Compensation Law in Louisiana (1937). However, no decision by this court or the courts of appeal has awarded a judgment of acceleration of payments when there was no “willful refusal” to pay after demand or the employee or his dependent was adequately protected by insurance and received payments thereunder.

In the instant case, defendant’s failure to pay six successive installments was due to an administrative error in its office. Defendant made prompt payment, however, when the delinquency was brought to the attention of its supervisory employees. Under these circumstances, defendant did not “willfully” refuse to pay.

The uniform interpretation of R.S. 23:1333 by the courts since the statute was enacted compels a conclusion that section 1333 should not apply to a situation where there was no “willful refusal” to pay. Other penalty provisions in the compensation act apply when the failure to pay or discontinuance of payment of a claim is found to be arbitrary, capricious or without probable cause. R.S. 22:658 (insurer); R.S. 23:1201.2 (uninsured employer).

For these reasons, the judgments of the lower courts are affirmed, at plaintiff’s costs.

LEMMON, J., concurs and assigns reasons.

LEMMON, Justice,

concurring.

R.S. 23:1333 was not designed to punish the arbitrary refusal by an insurer to make compensation payments under a final judgment or to provide an additional method for executing a compensation judgment. The statute was designed to protect an employee against the insolvency or approaching insolvency of an uninsured employer by granting the employee the right to obtain a judgment for the employer’s entire accelerated compensation liability when the employer either (1) becomes insolvent or (2) approaches insolvency, as evidenced by the failure to make six successive payments. The employee can then assert the entire claim (which has been reduced to judgment) in the bankruptcy proceeding or can enjoy a favorable secured position for the entire amount in the ranking of creditors of the employer.

Arbitrary refusal by an insurer to commence or reinstate compensation payments within 60 days after notice of finality of judgment (when refusal prior to judgment was not arbitrary) is punishable under R.S. 22:65s. The insurer in this case paid within 60 days.

      . The insurance adjuster made the proper notation on a written form to the computer clerk to place the plaintiff’s claim on the diary, which meant the computer would automatically print the check. The adjuster went on vacation shortly thereafter and the computer clerk failed to place the claim on the diary. The adjuster discovered the error about three weeks after she returned to work during a regular review of her files.

      . This section was included in the Compensation Act of 1914 (No. 20, § 33), • and was amended in 1918 (No. 38, § 1) to add the words “or his dependents” to the last sentence. Other insignificant changes were made to the wording of the section. In Mason v. Costanza, 8 La.App. 111 (1927), reversed on other grounds, 166 La. 323, 117 So. 240 (1928), Section 33 (R.S. 23:1333) was upheld against the claim that it amounts to a prohibited forfeiture. See W. Malone, Louisiana Workmen’s Compensation: Law and Practice Section 36 (1951, Supp.1955). This section became R.S. 23:1333, with only insignificant changes in wording, when the Revised Statutes were adopted in 1950.

      . Initially, the trial court made the plaintiffs rule absolute. However, the defendant’s motion for a new trial was granted and the judgment making the plaintiffs rule absolute was rescinded.

      . The court concluded that the defendant had a legal right to require the plaintiff to receive the payments at his place of business. La. Act No. 20 of 1914, § 8(7) provided, inter alia, that compensation payments were to be made as near as possible at the same place the injured employee was paid prior to the accident. This act became Section 1201 of Title 23 of the Revised Statutes, and it was amended in 1954 to provide for instances when compensation payments could be made by mail.

      . R.S. 22:658 (1950) provided a penalty of 12% of the total loss together with reasonable attorney fees in all insurance contracts (except life, health and accident policies) where the failure to pay a claim within sixty days of receipt of proof was found to be arbitrary, capricious or without probable cause. The statute did not, however, address the question of whether the injured worker was to be considered the “insured” under the policy issued to the employer. This court answered that question in the affirmative in Wright v. National Surety Corp., 221 La. 486, 59 So.2d 695 (1952), holding that the provisions of R.S. 22:658 apply to compensation insurers. The legislature codified this holding by amending the statute in 1952 (Act No. 417).
      Despite the amendment, there was no such provision making it possible to assess similar penalties against the employer. In 1958 the legislature enacted R.S. 23:1201.2 to provide basically the same penalties against the uninsured employer as R.S. 22:658 provided against the insurer. Additionally, R.S. 23:1201.2 made the penalties applicable to the uninsured employer who discontinues payments, when such discontinuance is found to be arbitrary, capricious or without probable cause; courts have held that the insurer who discontinues payments arbitrarily, capriciously or without probable cause is subject to the penalties. Johnson v. State Farm Mutual Automobile Insurance Co., 342 So.2d 664 (La.1977); Daigle v. Great American Indemnity Co., 70 So.2d 697 (La.App. 1954).
      The penalties under R.S. 22:658 and R.S. 23:1201.2 may be invoked regardless of whether there exists a prior judgment awarding compensation, upon arbitrary failure to pay the claim within sixty days of written notice (notice to the employer is considered notice to the insurer. R.S. 23:1162). See Malone, Workmen’s Compensation, 19 La.L.Rev. 110, 113 (1958).

      . Since there is no defense to a final judgment, any failure to pay is arguably arbitrary.

      . Plaintiff received the payment of the reinstated weekly benefits 57 days after finality of judgment.


author: LEMMON, Justice.

text:
    STATE of Louisiana v. Louis LEGRO.
    No. 81-KA-1311.
    Supreme Court of Louisiana.
    March 1, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Kay Kirkpatrick, Joe Lotwick, Bret Grayson, Asst. Dist. Attys., for plaintiff-appellee.
    M. Michele Fournet, Vincent Wilkins and David Randall Buckley of Office of Public Defender, Baton Rouge, for defendant-appellant.
   LEMMON, Justice.

In this appeal from a conviction of simple burglary and a sentence as a multiple offender to 20 years imprisonment, defendant questions the trial court’s jury instruction on circumstantial evidence and the exces-siveness of the sentence.

Officer Thomas, responding to a 3:00 a. m. call that a burglar alarm had sounded at a drugstore, drove up to the store and saw a black male standing in the doorway of the front door, loading a watch display case into a shopping cart. The plate glass in the front door had been broken out. When the suspect saw Thomas, he began running. Thomas followed in pursuit, but lost him and immediately broadcast over the police radio a description of the suspect, his clothing, and the area into which he had fled.

In the meantime Officer Dickinson had started in the direction of the drugstore after the first radio message. Upon hearing Thomas’ subsequent message, Dickinson stopped his vehicle along the suspected path of flight, about three blocks from the store. Almost immediately he observed a black male, fitting the suspect’s description, who was sweating profusely. Dickinson confronted the suspect (the defendant herein). After a brief struggle, the defendant was apprehended. While he was being handcuffed, defendant spontaneously announced, according to the officer, that “he [was] not worried about the burglary, that he [was] ready to go to Angola, that he [could not] make it on the street”.

Dickinson took defendant to the drugstore, where Thomas positively identified him as the man he had seen in front of the store seven or eight minutes earlier.

Defendant was charged with simple burglary and was convicted after a jury trial. On appeal defendant first contends that the trial court erred in failing to instruct the jury that a conviction could be based solely on circumstantial evidence only if the circumstances excluded every reasonable hypothesis of innocence. The trial court in its general charge explained direct and circumstantial evidence to the jury and gave examples of both types.

We reject defendant’s contention because the state’s case was not based solely on circumstantial evidence. The state introduced direct evidence of guilt by showing that defendant made a spontaneous in-culpatory statement at the time of his apprehension. State v. Martin, 376 So.2d 300 (La.1979). Therefore, defendant has suffered no prejudice from any asserted inadequacy in the jury instructions. See State v. Snedecor, 294 So.2d 207 (La.1974); State v. Eubanks, 232 La. 289, 94 So.2d 262 (1957), rev’d on other grounds, 356 U.S. 584, 78 S.Ct. 970, 2 L.Ed.2d 991 (1958).

Defendant also contends a sentence of 20 years is excessive for a non-violent economic crime.

The trial judge meticulously followed the guidelines of C.Cr.P. Art. 894.1 by weighing the aggravating and mitigating circumstances and individualizing the sentence to the particular crime and the particular offender. He reviewed defendant’s juvenile record of two adjudications and one parole violation and his adult record of nine convictions between 1966 and 1975. Because of defendant’s recalcitrant inclination to persist in criminal behavior over most of his 34 years, any contention that 20 years is unconstitutionally excessive, when the possible range was up to 24 years, is totally without merit.

The conviction and sentence are affirmed.

WATSON, J., concurs noting there was an eye witness which is direct evidence.

       Judges Melvin A. Shortess, Burrell J. Carter and Felix H. Savoie, Jr., of the First Circuit Court of Appeal participated in this decision as associate justices ad hoc, joined by Associate Justices Dennis, Blanche, Watson and Lemmon.

      . Defense counsel did not request a special instruction on the burden of proof required to support a conviction based solely on circumstantial evidence. Neither did defense counsel object to the instruction that was given prior to the beginning of jury deliberations. However, the instructions given were adequate to assure a fair trial, and we need not decide whether defense counsel’s procedural default precludes review of this issue. See State v. Mack, 403 So.2d 8 (La.1981).

      . Defendant argues on appeal that the evidence failed to exclude the reasonable possibility that someone broke the door and loaded the display case into the cart before defendant arrived at the scene. Although defendant has not assigned sufficiency of evidence as error, it is noteworthy that the evidence in this case (defendant’s standing in the doorway approximately three minutes after the alarm was triggered at 3:00 a. m., his placing of the display case into the cart and his flight) does exclude every reasonable hypothesis of innocence. The theory advanced by defendant is simply not plausible, and no other hypothesis of innocence appears even remotely likely.


author:
PRICE, Justice Ad Hoc.
     DENNIS, Justice,

text:
    STATE of Louisiana v. Alfredo Joseph MACHON, Jr.
    No. 81-KA-1374.
    Supreme Court of Louisiana.
    March 1, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Morgan J. Gou-deau, Jr., Dist. Atty., Robert Brinkman, Asst. Dist. Atty., for plaintiff-appellee.
    Dwight O. Reed, Opelousas, John H. Pu-cheu, Eunice, for defendant-appellant.
   PRICE, Justice Ad Hoc.

The defendant was indicted with six counts of passing counterfeit currency with knowledge that the currency was not genuine, and that the signature of the Secretary of the Treasury of the United States on the bills was a forgery in violation of La.R.S. 14:72. Following conviction by a jury of one of the counts of passing a forged $20 bill defendant was sentenced to serve seven years at hard labor. He has appealed his conviction and sentence relying on seven assignments of error.

The first four counts on which defendant was indicted and tried were based on his allegedly having passed four counterfeit $50 bills at Linzay Downs in St. Landry Parish on September 15, 1979. The fifth count on which he was convicted was based upon his allegedly having issued a counterfeit $20 bill at Richard’s Big Burger, a fast food outlet in Opelousas on May 9, 1979.

ASSIGNMENT OF ERROR NO. 1

Pursuant to a motion of defendant’s counsel alleging his mental incapacity to stand trial, a sanity commission was appointed and after a hearing the trial court ruled defendant did have the capacity to understand the proceedings against him and to assist in his own defense. The incorrectness of this ruling is urged in assignment of error No. 1.

At the hearing defendant’s present counsel and two other attorneys, who previously represented him, testified that defendant was unable to understand the seriousness of the charges against him and was unable to assist them in properly preparing a defense. The two physicians appointed to the sanity commission, one a psychiatrist and the other an internist, testified that from their examination defendant was fully capable of understanding the charge against him and could assist in his defense if he desired to.

Throughout the sanity hearing defendant insisted he was not insane and that this issue was projected by his attorneys over his objection. Defendant is a native of El Salvador who has spent a number of years in the St. Landry Parish area and attended high school in Opelousas. He apparently came from a prominent El Salvadorian family and had held a government office prior to the beginning of civil unrest in that country. He has resided in Opelousas the past several years and is now 41 years of age. Defendant speaks the English language fluently.

According to the testimony of his attorneys and the physicians who examined him, he adheres to a belief that he is the victim of a conspiracy among several city policemen against him. Defendant in his testimony explained he was not offering a defense because it was unnecessary as he was not guilty and had absolute faith that he could not be convicted in the American system under these circumstances. According to his attorneys, defendant’s preoccupation with the conspiracy theory has caused him to be unresponsive to their efforts to acquire sufficient information for an. adequate defense.

Both physicians, while admitting defendant’s alien background and his obsession with the conspiracy theory make it more difficult for defendant to assist in his defense, are of the opinion he has the necessary mental capacity to understand and assist if he desired to.

C.Cr.P. 641 provides:

Mental incapacity to proceed exists when, as a result of mental disease or defect, a defendant presently lacks the capacity to understand the proceedings against him or to assist in his defense.

The incapacity must be shown by the defendant by a clear preponderance of the evidence. State v. Veal, 326 So.2d 329 (La.1976); State v. Flores, 315 So.2d 772 (La.1975). The trial judge’s determination of capacity to stand trial is entitled great weight. State v. Morris, 340 So.2d 195 (La.1976); State v. Holmes, 393 So.2d 670 (La.1981).

We agree with the trial court’s ruling that the defendant failed to prove his incapacity to stand trial. The defendant’s reluctance to furnish information to his attorneys so that they could properly defend him was due to his firm belief in his innocence and his obsession with an alleged conspiracy against him. His uncooperativeness reflects a personality disorder, but does not constitute a mental disease or defect. Also, the testimony of the examining physicians shows that the defendant understood the charges against him.

This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 3

Defendant filed a motion to sever the trial of the five counts of forgery because of the possible prejudice and confusion that would result in the minds of the jury if all five counts were tried together. The trial judge denied the motion and the defendant contends that this is reversible error. The state argues that this issue is moot because of the five counts, count one was dismissed by the state at the close of its case, and the jury found the defendant not guilty of counts two, three, and four.

Joinder of offenses is governed by C.Cr.P. 493 which provides:

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

The article dealing with severance of offenses is set forth below:

Art. 495.1 Severance of offenses
If it appears that a defendant or the state is prejudiced by a joinder of offenses in an indictment or bill of information or by such joinder for trial together, the court may order separate trials, grant a severance of offenses, or provide whatever other relief justice requires.

The defendant has a heavy burden of proof when he alleges prejudicial joinder. For an appellate court to reverse the trial court’s ruling, there must be a clear showing of prejudice. State v. Washington, 386 So.2d 1368 (La.1980).

We held in State v. Carter, 352 So.2d 607 (La.1977) that in deciding whether the join-der of similar offenses necessitates a severance because of possible prejudice to the defendant, the trial court should generally follow the guidelines and safeguards enunciated in State v. Prieur, 277 So.2d 126 (La.1973). This decision was rendered prior to the 1978 amendment to Art. 495.1.

In State v. Washington we held that the principles of Carter still control when the joinder of offenses could have a prejudicial effect on a defendant. We also stated that the 1978 amendment to Art. 495.1 allows the trial courts greater flexibility in deciding whether a severance of offenses is warranted in a particular case.

To prove the crime of forgery, the state must prove an intent to defraud. La. R.S. 14:72. Subject to the guidelines of Prieur, evidence of similar acts is admissible to prove this intent. La.R.S. 15:445.

In the instant case, four of the counterfeit bills were passed in September 1979, while the fifth issuance of the forged bills occurred in May 1979. These bills formed part of the money the defendant purchased on the black market in South America. He told the secret service agents that he did not know this money was counterfeit. Thus, intent became a crucial issue in this case, and the state properly joined the five separate offenses to prove this intent. Any prejudicial effect the joinder may have had was outweighed by its probative value. Also, the jury’s return of not guilty verdicts on counts, two, three, and four suggests that it was not confused by the joinder and was able to compartmentalize the evidence as to each count.

This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 4

After the reading of the indictment the state moved to amend the first count of the indictment to show that the amount of the forged bill was actually $20 instead of $50. The defendant objected to the amendment and the trial court overruled the objection. The defendant contends the trial court erred in allowing this substantive amendment.

C.Cr.P. 487 provides for the granting of a mistrial whenever a defect of substance in the indictment is discovered after the beginning of trial. However, the insertion in the indictment of an incorrect amount of the forged bill does not constitute a substantive defect. The amount of the forged bill is not one of the elements of the crime of forgery. The defendant has failed to show any prejudice as a result of the trial court’s ruling. See State v. O’Quinn, 342 So.2d 202 (La.1977).

This assignment lacks merit.

ASSIGNMENTS OF ERROR NOS. 5 AND 6

By these assignments the defendant contends the trial court erred in permitting the state to introduce defendant’s in-culpatory statement into evidence because the notice required by C.Cr.P. 768 showed incorrectly the name of the officer taking the statement and where it was given.

The notice given to the defendant prior to trial contained the inculpatory statements by defendant in an interview conducted at the Opelousas Police Department. The notice listed secret service special agent Robert Blossman as the interviewer. However, even though Blossman was present at the interview, secret service special agent Kenneth Vittitow actually conducted the interview at the Opelousas Police Department.

We find that the defendant has failed to show any prejudice by the state’s error. The notice contained the entire statement that was to be used by the state, and was sufficient to permit the defendant to adequately present his defense and avoid being surprised. See State v. Qualls, 353 So.2d 978 (La.1978).

This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 7

The defendant was sentenced to serve seven years at hard labor. The maximum penalty which could have been imposed for a violation of La.R.S. 14:72 is a $5,000 fine and imprisonment at hard labor for ten years. The defendant contends the sentence is excessive, and that the trial court did not follow the sentencing guidelines provided for in C.Cr.P. 894.1.

Defendant, a 41-year-old male, was born in El Salvador. He completed the 12th grade at Opelousas High School. He is divorced and has two daughters, but has not seen his family since 1978 and does not support them. His last employment was as an oilfield worker in June 1980. Prior to that, the defendant held a high position in the El Salvadorian government. He claims to have owned several companies in El Salvador prior to his leaving that country due to political upheaval there.

In imposing sentence, the trial court noted that the defendant has not had consistent employment while in the United States, and is in destitute circumstances. In the trial court’s opinion the defendant began passing counterfeit money as an easy method of raising money. It stated that the defendant had been apprehended by the police on a marijuana charge, and that the defendant associated with known criminals. The trial court further noted that the jury’s finding of not guilty on three of the four counts of forgery did not necessarily infer that the defendant had engaged in the passing of counterfeit money on only one occasion. It assumed the jury believed that the state had proved beyond a preponderance of the evidence the defendant’s guilt on the three counts.

Louisiana Constitution, Article 1, Section 20, prohibits the imposition of excessive punishment. In State v. Sepulvado, 367 So.2d 762 (La.1979), we held that a sentence, although within the statutory limit, might violate a defendant’s constitutional right against excessive punishment. While a trial court is given wide discretion in the imposition of sentences within statutory limits, and the sentence imposed will not be set aside as excessive in the absence of an abuse of that discretion, the trial court does not have unbridled discretion in imposing sentence. See also State v. Tilley, 400 So.2d 1363 (La.1981).

Although the trial judge adequately complied with the sentencing guidelines of C.Cr.P. 894.1, we find that the sentence is excessive. The defendant, a first time offender, was convicted of passing one $20 counterfeit bill. The sentence imposed for this offense was in the upper range of the statutory maximum and included hard labor, although hard labor is not mandated by La.R.S. 14:72. While we find no error in the determination of the trial court that a suspended sentence and probation were not appropriate to rehabilitate the defendant, we find that the sentence of seven years at hard labor for a first offender for passing one counterfeit $20 bill is excessive. In our view the range of a constitutionally permissive sentence under the circumstances here presented would be from the statutory minimum to three years.

Accordingly, the defendant’s conviction is affirmed, but the sentence imposed is vacated and set aside, and the case remanded to the trial court for resentencing in accordance with the views expressed herein.

WATSON and MARCUS, JJ., concur in remand for resentencing.

DENNIS, J., concurs with reasons.

DENNIS, Justice,

concurring.

I respectfully concur, although I disagree with the treatment of the severance issue and have reservations about defendant’s mental capacity to proceed.

      Judges O. E. Price of the Court of Appeal, Second Circuit, John C. Boutall, Court of Appeal, Fourth Circuit, and Fred W. Jones, Jr., Court of Appeal, Second Circuit, participated in this decision as Associate Justices Ad Hoc, joined by Justices Pascal F. Calogero, Jr., Walter F. Marcus, Jr., James L. Dennis, and Jack C. Watson.

      . Counsel for defendant concedes in brief that there is no basis in law for assignment of error No. 2, and it has therefore been abandoned.

      . Prior to this amendment, Art. 495.1 provided in Part:
      The court, on application of the prosecuting attorney, or on application of the defendant shall grant a severance of offenses whenever:
      (a) if before trial, it is deemed appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense;


author:
MELVIN A. SHORTESS, Justice Ad Hoc.

      DENNIS, Justice,

text:
    STATE of Louisiana v. Raymond BARROW.
    No. 81-KA-1426.
    Supreme Court of Louisiana.
    March 1, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Cliff Strider, Asst. Dist. Attys., for plaintiff-appellee.
    Martin E. Regan, Jr., New Orleans, for defendant-appellant.
   MELVIN A. SHORTESS, Justice Ad Hoc.

On September 18, 1980, the Orleans Parish District Attorney’s Office filed a bill of information against Raymond L. Barrow (defendant) and Robert Wilson, Jr., charging that on September 7, 1980, they committed a simple burglary of the building located at 818 North Broad Street in New Orleans, owned by Antonio Fuentes, with the intent to commit a theft therein, in violation of La.R.S. 14:62. Barrow and Wilson pled not guilty and jointly filed a motion to suppress identification which was heard and denied. They exercised their right to a jury trial which began on February 10, 1981. A six-person jury found defendant Barrow guilty as charged and found Wilson not guilty. On February 20, 1981, the defendant’s motion for a new trial was denied and he was sentenced to serve twelve years in the custody of the Department of Corrections, with credit for time served. The defendant appeals his conviction and makes four arguments from eleven assignments of error.

FACTS

Antonio Fuentes owned a used car lot at 818 North Broad Street in New Orleans. At approximately 10:30 p.m. on September 7, 1980, Fuentes and his wife went to the lot to check the premises. As he pulled into his driveway he saw an unfamiliar car with an open trunk and became suspicious. As he approached his door, he heard noises coming from inside the building so returned to his car to get a gun. He then proceeded to his building, turned off the burglar alarm and unlocked the doors. As he pushed the door open, he turned the light switches on and saw a man whom he subsequently identified as Raymond Barrow approximately ten feet away holding a stereo speaker in one hand and a bag in the other. When the defendant saw Fuentes, he dropped what he was holding and hurriedly exited the building through a hole in a wall which had apparently been made to afford access and by-pass the alarm system. Fuentes went outside to attempt to stop the burglar and fired a couple of shots but the burglar escaped through a hole in the fence which encircled the car lot. Fuentes heard someone screaming words like, “Get out, get out,” and noticed Robert Wilson outside the lot near the unfamiliar automobile. Fuentes apprehended Wilson, brought him inside and telephoned the police. The police arrived shortly thereafter and Fuentes gave them a description of the burglar. (Tr. 50-52, 55-61).

Officer Harold Lewis of the New Orleans Police Department was taking Wilson to central lockup when he noticed a man who fit Fuentes’ description of the burglar walking near the corner of Broad and Lafayette Streets. Lewis apprehended the man, frisked him, and found some jewelry in his pants pocket. He placed the man in his squad car and returned to the used car lot. Fuentes identified the man, Raymond L. Barrow, as the burglar. Fuentes also identified a watch, pendant, necklace and chain and said the last time he had seen these items they had been in the center drawer of his desk. Officer Lewis had obtained this jewelry when he searched the defendant. Fuentes also identified some stereo components which Officer Lewis had recovered from defendant’s pocket. (Tr. 62-67, 171— 176, and 178).

Donald Thomas, a State witness, testified that he saw the defendant in his back yard shortly after he heard gunshots on September 7, 1980, and that defendant told him there was a white man shooting at him. Thomas also identified the shirt and pants defendant was wearing that night. (Tr. 146-150).

Defendant took the stand in his own defense and denied committing the burglary. He testified that he knew Fuentes from some illegal drug dealings; that he had sold Fuentes catnip for $400 claiming it was marijuana; that Fuentes swore he would get even with him; that Fuentes had seen him earlier that day and was therefore able to identify his clothing; that the jewelry came from a paper bag which Officer Lewis took from Robert Wilson, a man he did not know. (Tr. 226-232).

Robert Wilson testified that he did not know defendant and that he was at the scene of the crime because he had mechanical problems with his car. (Tr. 259-261).

Argument No. 1 (Assignments of Error Nos. 3 and 4)

Defendant argues that the trial court erred in denying him an opportunity to fully examine a State witness. During the Fuentes cross-examination, defense counsel asked about any previous conversations or dealings he might have had with Donald Thomas. Fuentes testified that the first time he had ever seen Thomas was when they met in court for this trial; that he had spoken to Thomas on the telephone about the subpoenas they had both received in connection with this matter; that he and Thomas did not discuss the facts of the case or what happened on the night in question. (Tr. 106-109). When counsel attempted to question Fuentes about a second conversation he had with Thomas, an objection of irrelevancy was sustained by the trial court. The defense now submits that this ruling prevented a full cross-examination of the witnesses against him in violation of his rights as guaranteed by La.R.S. 15:485, and by Article 1, Section 16, of the Louisiana Constitution of 1974.

The record clearly shows that the defense cross-examined Fuentes at length and in great detail about his relationship with Donald Thomas. Fuentes stated again and again that he and Thomas only saw each other casually in court; that they had never discussed what happened on the night of the burglary or any other matter related to the present proceedings. Thomas’ testimony fully corroborated Fuentes’ assertions in this regard. Thomas testified he did not know Fuentes until he saw him at the courthouse; that he previously spoke to Fuentes on only one occasion and that was when he got a subpoena to appear in court. (Tr. 150).

Much discretion is vested to the trial judge on questions of relevancy of evidence. His. rulings will not be reversed in the absence of a clear showing of abuse of discretion. [State v. Walker, 344 So.2d 990 (La.1977)]. Defense counsel is correct in his assertion that he has the right to cross-examine and impeach witnesses sworn by the State, but he does not even allege how this continued line of questioning would have impeached Fuentes. Even if it is assumed that a proper foundation was laid for impeachment, same could have been properly excluded as impeachment on a collateral fact. La.R.S. 15:494; State v. Monroe, 397 So.2d 1258 (La.1981).

These assignments lack merit.

Argument No. 2 (Assignments of Error Nos. 6 and 11)

The defense argues that the trial court erred in denying his motion to voir dire a member of the jury who indicated during trial that he was worried about continuing to sit on the jury. Freddie Dowen was duly empaneled by the State and the defense and sworn as a juror in this case. After several days of testimony, during a short recess before closing arguments, Francis Hirstius, the minute clerk, reported to the trial judge in the presence of opposing counsel, that Dowen had approached him concerning a problem he had. The trial judge thereupon conducted a hearing in chambers in the presence of counsel and put Hirstius under oath. The pertinent portions of this chambers hearing are quoted as follows:

BY THE COURT:
You told me that one of the jurors confronted you as they were leaving to take the last recess and made a statement to you. Will you tell us what that statement is, what his statement was?
BY THE MINUTE CLERK:
He said that he lives in the neighborhood of the alleged offense, and he gets off the bus every afternoon at Orleans and Prieur in that area and sees what goes on in that area concerning dope and that if he had known that the trial was going to concern the area he lives in that he would have asked to be excused. He said it’s worried him ever since yesterday when it was first brought up about the dope deal between Fuentes and Barrow.
BY THE COURT:
Did he make any statement that he could not render a fair and impartial verdict according to the law and the evidence?
BY THE MINUTE CLERK:
He said it was worrying him, and it’s been constantly on his mind and when he got to that point I told him not to discuss it in front of the rest of the jury. He did say he was worrying and kind of like grabbed his chest. I don’t know what that means, whether he’s trying to infer if he knew before the trial it concerned that area he would have asked to be excused.
(Tr. 306-307).

The matter was discussed on the record in chambers, and out of an abundance of caution, the trial judge recessed the trial until the following morning so all sides could research the issue further. The following morning defense counsel requested that Dowen be voir dired outside the presence of the other jurors to determine whether he could render a fair and impartial decision. The Assistant District Attorney indicated he had no objection so long as the voir dire was limited to whether or not Dowen would follow the law as to any observation which he may have. The trial judge denied the motion to voir dire and indicated that he felt the jurors could follow his instructions and render a fair and impartial verdict. After the jury brought in a verdict of guilty as charged as to defendant, and not guilty as to Wilson, the court polled the jurors at defendant’s request. When Freddie Dowen was asked, “Is that your verdict,” the following dialogue took place between him and the trial judge:

BY THE COURT:
Mr. Dowen (Freddie Dowen), is that your verdict?
BY THE JUROR:
Is this a yes or no? I’ve been trying to get something out, but nobody...
BY THE COURT:
The foreman handed me this verdict. Is that your verdict or not?
BY THE JUROR:
I said, “Yes,” but I didn’t write it down.
BY THE COURT:
Is it your verdict or not?
BY THE JUROR:
Just in talking I said it, but I didn’t write it down.
(Tr. 354).

Defense counsel renewed his motion to have the court conduct a voir dire, but the trial judge denied the motion. Counsel has candidly told this court that a motion for mistrial was not made because he was uncertain if there was any grounds for same, not knowing what Dowen’s problem was and not being afforded an opportunity to conduct the voir dire. Defendant concedes that there could be no mandatory grounds for a mistrial without some disclosure on the record by Dowen of his incompetence. While the better procedure may have been to conduct a voir dire outside of the presence of the jury to ascertain the juror’s problem first hand, we are not prepared to find under the facts presented here that the trial judge abused his discretion in failing to do so. He had the sworn statement from his minute clerk that Dowen’s problem concerned the fact that he lived near the burglary site and had to travel the area almost daily. The trial judge, mindful of the absolute requirement that the jury remain completely inviolate and untainted throughout the trial, was obviously of the opinion that chances for mistrial would increase had Dowen been voir dired. Had peremptory reasons for Dowen’s removal been present, counsel certainly could have presented same in his motion for new trial after having had the opportunity to depose Dowen. The record today is as questionable as it was then, which lends support to the trial judge’s opinion that Dowen’s only problem was the proximity of his home to the scene of the crime. These assignments are without merit.

Argument No. 3 (Assignment of Error No. V

Defendant argues that the trial judge erred in overruling his objection to improper personal opinion by the Assistant District Attorney during closing argument. Defense counsel in his closing argument mentioned the State’s failure to produce the burglar’s fingerprints. On rebuttal, the prosecutor made a statement to the effect that he had handled over 500 cases in the past year and only had five cases where prints had been made.

A resort to personal experience goes beyond the proper scope of argument. C.Cr.P. Art. 774. We have held, however, that before a case will be reversed on the grounds of improper argument, we must be convinced that the remarks influenced the jury and contributed to the verdict. State v. Carthan, 377 So.2d 308 (La.1979). Here, the facts the jury could consider included Fuentes’ eye witness identification of the defendant, Officer Lewis’ discovery of items taken in the burglary in defendant’s' pockets, and the corroborating testimony of Donald Thomas placing defendant in his back yard adjacent to Fuentes’ car lot at the time in question. It does not appear likely that a reasonable jury would have been swayed one way or the other by the debate over the fingerprint evidence. This assignment is without merit.

Argument No. 4 (Assignment of Error No. 10)

This argument also takes issue with portions of the State’s closing argument which are alleged to be highly prejudicial and improper. Defendant complained of the following comments by the prosecutor during closing argument:

The State of Louisiana says it’s against the law. There’s a reason for it. It could have very well happened that reason took place that night, but Mr. Fuentes decided not to shoot Mr. Barrow. I don’t know why. I’m glad he didn’t. But that is why we have the crime of burglary. Next time this happens maybe Mr. Barrow will bring his gun in and the victim would be shot. That’s why it’s against the law.
BY MR. REGAN:
Objection. Mr. Barrow bringing a gun in the next time, Your Honor? That is improper argument.
BY THE COURT:
Complete your case.
BY MR. REGAN:
Well, it’s improper argument at this point, Your Honor. He’s trying to inflame the jury with the possibility of “next time,” and the possibility of this man carrying a gun. There’s no “next time.” It’s far beyond the scope of any summation.
BY THE COURT:
Objection overruled.
BY MR. REGAN:
Please note my objection.
(Tr. 352-353).

A prosecutor’s predictions as to the consequences of a not guilty verdict, or the societal costs of such a result, are clearly improper and should be avoided. C.Cr.P. Art. 774, State v. Hayes, 364 So.2d 923 (La.1978); State v. Kaufman, 304 So.2d 300 (La.1974). Notwithstanding this improper argument, as previously discussed in Argument No. 3 above, the State’s overwhelming evidence of defendant’s guilt made it unlikely that these comments influenced the jury or contributed to its verdict. State v. Carthan, supra. This assignment of error is without merit.

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

AFFIRMED.

DENNIS, J., concurs with reasons.

DENNIS, Justice,

concurring.

I respectfully concur, disagreeing only with the treatment of the harmless error issues. As appellate judges, our focus should be on whether there is a reasonable possibility the error contributed to the conviction, not whether we think the evidence is overwhelming or whether we as jurors would have voted to convict. La.Const. art. 5, § 5; La.C.Cr.P. art. 921. See State v. Gibson, 391 So.2d 421 (La.1980).

       Judges Melvin A. Shortess, Burrell J. Carter, and Felix H. Savoie, Jr., of the First Circuit Court of Appeal participated in this decision as associate justices ad hoc, joined by Chief Justice Dixon and Associate Justices Calogero, Marcus and Dennis.

      . “A mistrial may be ordered, and in a jury case the jury dismissed, when:
      (1) The defendant consents thereto;
      (2) The jury is unable to agree upon a verdict;
      (3) There is a legal defect in the proceedings which would make any judgment entered upon a verdict reversible as a matter of law;
      (4) The court finds that the defendant does not have the mental capacity to proceed;
      (5) It is physically impossible to proceed with the trial in conformity with law; or
      (6) False statements of a juror on voir dire prevent a fair trial.
      Upon motion of a defendant, a mistrial shall be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized by Article 770 or 771.” C.Cr.P. Art. 775.

      . C.Cr.P. Art. 851; C.Cr.P. Art. 855.


author: PRICE, Justice Ad Hoc .

text:
    STATE of Louisiana v. Debrah CRAWFORD.
    No. 81-KA-1496.
    Supreme Court of Louisiana.
    March 1, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Lowen B. Lof-tin, Dist. Atty., E. Rudolph McIntyre, Jr., Asst. Dist. Atty., for plaintiff-appellee.
    Donnie L. Ellerman, Winnsboro, for defendant-appellant.
   PRICE, Justice Ad Hoc .

Defendant, Debrah Crawford, was indicted by a Franklin Parish Grand Jury for the second degree murder of her nine-month old daughter, La.R.S. 14:30.1. Following a trial by jury, the defendant was found guilty of manslaughter (La.R.S. 14:31) and was subsequently sentenced to 21 years at hard labor. She urges four assignments of error on this appeal.

ASSIGNMENT OF ERROR NO. 1

Defendant contends that the inordinate amount of time that elapsed between the initial request for the appointment of a sanity commission to determine her sanity at the time of the offense and the time the examination actually occurred deprived the examining physician of an opportunity to examine her at a time close in connexity to the commission of the offense.

The record shows that on March 12, 1980, defendant’s counsel moved in open court for the appointment of a sanity commission to determine the defendant’s sanity at the time of the commission of the offense. This motion, which was not supported by any allegations of her insanity, was denied. Subsequently on March 28, 1980, the trial court ordered that a hearing be held on April 9, 1980, to determine whether reasonable grounds existed to doubt the defendant’s capacity to proceed and whether a sanity commission should be appointed.

We find that the defendant has failed to prove any prejudice resulting from the trial court’s action in denying her request for the appointment of a sanity commission. A defendant is not entitled of right to an examination and evaluation of his sanity at the time of the offense. The necessity of appointing a commission for such a purpose lies within the sound discretion of the trial judge. C.Cr.P. 650; State v. Taylor, 347 So.2d 172 (La.1977). The accused bears the burden of establishing by a clear preponderance of the evidence reasonable grounds for the judge to believe that he is mentally defective or was at the time of the offense. Where no supporting evidence is produced, the exercise of discretion conferred on the trial court will not be disturbed. State v. Vincent, 338 So.2d 1376 (La.1976).

This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 2

By this assignment defendant argues that the trial court erred in allowing the state to exhibit X-rays and C.A.T. scan pictures to the jury without introducing them into evidence or identifying them properly as belonging to the deceased. She contends the X-rays and C.A.T. scan pictures were highly prejudicial and without probative effect.

Dr. Meade O’Boyle, a pediatrician with extensive experience in the treatment of children’s injuries, testified for the state regarding the skull injuries of the deceased. For the purpose of showing the location and extent of the deceased’s skull injuries, Dr. O’Boyle referred to X-rays and C.A.T. scan pictures taken of the deceased’s skull. These pictures were illuminated on a screen and then distributed to each juror. Defendant’s counsel objected to the use of these pictures as being non-probative and prejudicial. Because he agreed with the state that the pictures were shown for illustrative purposes only, the trial judge overruled the objection. We agree with the trial judge’s ruling. Any prejudicial effect the pictures might have had on the jury was outweighed by the probative value they had in explaining Dr. O’Boyle’s testimony. See State v. Vernon, 385 So.2d 200 (La.1980). We note that defendant’s counsel made no objection in the trial court to the state’s failure to properly identify the pictures or to their failure to introduce them into evidence. It is well settled that a new basis for objection is not permitted for the first time on appeal. State v. Motton, 395 So.2d 1337 (La.1981).

This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 3

Through the hearsay testimony of other witnesses, the defendant was able to inform the jury of her version of the events surrounding her arrest. She contends she was playfully swinging the deceased when she accidentally dropped her on the floor. To rebut this testimony the state called two of the treating physicians, Dr. Vernon T. Baldwin and Dr. O’Boyle. Their testimony was to the effect that the deceased’s injuries were not consistent with a simple fall on a carpeted floor, and that more than one blow to the head would have been necessary to have inflicted the amount of skull damage the deceased sustained. The defendant contends that both doctors were improperly allowed to testify beyond their expertise.

The record shows that Dr. Baldwin was stipulated to be an expert in the general practice of medicine. He testified that he had seen this type of injury once before. At no point during his testimony did defendant’s counsel object to his giving an opinion as to the cause of the deceased's injuries. Dr. O’Boyle was accepted as an expert in the field of pediatrics. In her past experience of treating cases of child abuse she had encountered many skull injuries similar to those suffered by the deceased.

In State v. Green, 273 So.2d 288 (La.1973), the state’s expert witness was allowed to testify that a blow with a certain instrument was compatible with the injuries received by the victim. The court held that his opinion was within the ambit of the medical expert’s training and experience and that the opinion had probative value.

We conclude that the training and experience of the state’s two expert witnesses combined with their actual knowledge of the deceased’s condition, properly qualified them to give their opinions as to the cause of the deceased’s skull injuries.

This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 4

Defendant contends the trial judge failed to properly consider the guidelines set forth in C.Cr.P. Art. 894.1 in imposing sentence. This article requires that the sentence be individualized. The trial judge is required to state for the record the considerations taken into account and the factual basis supporting them in imposing the particular sentence upon the individual before the court. The factors the trial judge should consider include the defendant’s personal history (e.g. age, marital status, dependents, family stability, employment, mental, emotional, and physical health); the defendant’s prior criminal record; the seriousness of the crime; the circumstances of the offense; the likelihood that defendant will commit another crime; and his potential for rehabilitation through correctional services other than confinement. State v. Jackson, 360 So.2d 842 (La.1978).

Although the trial judge did not particularize her reasons for imposing the maximum sentence by discussing all of the factors to be considered as set forth in the sentencing statute, she did state for the record why the sentence was imposed. The court declared that a maximum sentence was warranted in this case because of the brutal injuries sustained by the deceased infant who was incapable of having provoked such treatment. The court also noted that the jury had granted defendant all of the compassion she was entitled to by returning a verdict of manslaughter instead of the charged offense of second degree murder. The court obviously considered that any lesser sentence would deprecate the seriousness of the offense under the circumstances.

The record contains sufficient information on which this court can review the severity of the sentence. Also, the sentence imposed is within the penalty by statute for the offense and is not clearly excessive in view of the brutal injuries inflicted and lack of any mitigating circumstances. Therefore, we do not find it necessary to remand for further compliance by the trial court with sentencing guidelines. State v. Day, 391 So.2d 1147 (La.1980).

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

       Judges O. E. Price of the Court of Appeal, Second Circuit, John C. Boutall, Court of Appeal, Fourth Circuit, and Fred W. Jones, Jr., Court of Appeal, Second Circuit, participated in this decision as Associate Justices Ad Hoc, joined by Justices Pascal F. Calogero, Jr., Walter F. Marcus, Jr., James L. Dennis, and Jack C. Watson.