author:
E. L. GUIDRY, Jr., Justice Ad Hoc.
     DIXON, Chief Justice (concurring).

text:
    STATE of Louisiana v. Leslie Kyle ADAMS.
    No. 80-KA-1702.
    Supreme Court of Louisiana.
    Feb. 4, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leonard K. Knapp, Jr., Dist. Atty., Evelyn Oubre, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.
    Nick Pizzolatto, Jr., Caskey & Pizzolatto, Gregory D. Lyons, Lake Charles, for defendant-appellant.
   E. L. GUIDRY, Jr., Justice Ad Hoc.

Defendant, Leslie Kyle Adams, was charged with the crime of aggravated rape, a violation of R.S. 14:42. A jury of twelve found the defendant guilty as charged. Following his conviction, the defendant was adjudged a habitual offender pursuant to the provisions of the Louisiana Habitual Offender Law, La.R.S. 15:529.1, and sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. The defendant assigns twenty-seven (27) errors for reversal of his conviction and sentence.

FACTS

The defendant was convicted of the aggravated rape of Angela Beth Carter, his five year old stepdaughter. The record discloses the following facts. On August 4, 1979, Mrs. Pamela Adams, wife of the defendant and mother of the victim, was employed at a convenience store in Lake Charles, Louisiana. Mrs. Adams worked the 3:00 p. m. to 11:00 p. m. shift that evening. At approximately 9:30 p. m., the defendant arrived at the store accompanied by the victim whom defendant cared for while her mother worked. Mrs. Adams observed the child, uninjured and sleeping, in the backseat of defendant’s vehicle. Upon realizing that the defendant had been drinking, Mrs. Adams suggested that he and Angela go home. The defendant appeared to comply with her request. At approximately 10:30 p. m., Mrs. Adams, concerned for her daughter’s welfare, received permission to leave the store early and proceeded home. Arriving at her residence, Mrs. Adams discovered that neither the defendant nor the young child were home. At midnight that same evening, Mrs. Adams returned to the store to determine if the defendant and her child had been by the store. She observed the defendant in the store’s parking lot and noted that he appeared disgruntled and angry. She attempted to enter defendant’s vehicle, however the accused blocked her entry and drove off accompanied by the victim. Mrs. Adams noted that the child was in the backseat of the vehicle. Mrs. Adams approached Lake Charles Police Officer W. E. Bushnell early the following morning and requested that he locate her husband and child. The officer found the defendant at the Trail ways Bus Station at about 3:30 a. m. on August 5, 1979. Officer Bushnell noted that the child was in the backseat of defendant’s vehicle, however, due to his vantage point, could not determine if the child was injured. Defendant’s vehicle was later discovered parked on a Lake Charles street on the morning of August 5, 1979 with the defendant asleep in the front seat of the vehicle and the victim asleep in the backseat. Evidence adduced at trial indicated that the victim was injured and bleeding at this time. Defendant accompanied by the victim arrived at the trailer home of Pamela Arabie at 12:00 noon on August 5, 1979. Ms. Arabie discovered young Angela bleeding from the vaginal area with dried blood on her arms, legs and clothing. Shortly thereafter, a neighbor arrived at the Arabie trailer and defendant was persuaded to take the child to a hospital. At the hospital, the examining physician concluded that the child’s injuries were consistent with rape. Subsequently, the accused was arrested by the police in connection with the offense.

ASSIGNMENTS OF ERROR NUMBERS 2 AND 3

Defendant contends that the trial court erred in denying his motion for a change of venue. In addition, defendant alleges error on the part of the trial court in refusing defense counsel’s request for additional time to gather witnesses to testify in support of defendant’s motion.

La.C.Cr.P. art. 622 provides:

“A change of venue shall be granted when the applicant proves that by reason of prejudice existing in the public mind or because of undue influence, or that for any other reason, a fair and impartial trial cannot be obtained in the parish where the prosecution is pending.
In deciding whether to grant a change of venue the court shall consider whether the prejudice, the influence, or the other reasons are such that they will affect the answers of jurors on the voir dire examination or the testimony of witnesses at the trial.”

In order for a defendant to be entitled to have his trial moved to another parish he must prove more than a mere knowledge by the public of facts surrounding the offense. Defendant’s burden of proof is to show the existence of such prejudice in the collective mind of the community that a fair trial is impossible. State v. Sonnier, 379 So.2d 1336 (La.1980); State v. Matthews, 354 So.2d 552 (La.1978); State v. Sheppard, 350 So.2d 615 (La.1977). The granting or denial of the motion for change of venue rests within the sound discretion of the trial judge, and his ruling denying the motion will not be disturbed unless the evidence affirmatively shows that the ruling was erroneous and an abuse of judicial discretion. State v. Sheppard, supra; State v. Bennett, 341 So.2d 847 (La.1976).

In State v. Bell, 315 So.2d 307 (La. 1975) this court discussed those relevant factors which should be considered when determining the propriety of granting defendant’s request for a change of venue. Such considerations include (1) nature of pre-trial publicity and the particular degree to which it has circulated in the community; (2) the connection of government officials with the release of the publicity; (3) the length of time between the dissemination of the publicity and the trial; (4) the severity and notoriety of the offense; (5) the area from which the jury is to be drawn; (6) other events occurring in the community which either .affect or reflect the attitude of the community or individual jurors toward the defendant; and, (7) any factors likely to affect the candor and veracity of the prospective jurors on voir dire.

Defendant called representatives of the Lake Charles media to testify regarding publicity surrounding the instant offense. Testimony of witnesses indicated that the local television station and two area newspapers did not provide an unusual amount of publicity concerning the offense. Most of the news reports relative to the crime were published in close temporal proximity to the offense and defendant’s arrest or during the selection of the jury and commencement of trial approximately six months later. Presumably, those news accounts appearing during the selection process were not read or observed by the jurors. There was no testimony indicating any undue connection between government officials and the dissemination of publicity. The area from which the jury was drawn was a fairly populous parish of over 145,000 people. While the heinous nature of the offense cannot be denied, its notoriety was limited. Testimony received at the hearing failed to substantiate defendant’s claim that a fair and impartial trial in Calcasieu Parish was impossible.

Defendant challenges the trial court’s denial of his request for additional time to “round up” citizens in the community in order to sustain his venue request. This Court has previously authorized the “dry run voir dire” as a legitimate method of exploring community prejudice and pretrial publicity. In the “dry run voir dire”, potential jurors are called for questioning to determine the nature and extent of publicity and the community’s attitude toward the defendant. See State v. Bell, supra. Once this process is completed, if the motion for a change of venue is denied, the true voir dire begins.

In the instant case, the defendant via his request for additional time was apparently attempting to conduct “dry run voir dire”. At the time of defendant’s motion, the jury had already been selected. The testimony of witnesses called by defense counsel clearly indicated that the instant case had not been the subject of extensive pre-trial publicity. Further, the hearing on the motion was scheduled for the day following defendant’s request, thus the trial judge concluded that defense counsel had ample opportunity to gather all of the witnesses he needed to prove the validity of his request for a change of venue. We conclude that it was not unreasonable to deny defendant’s request for a continuance under the circumstances and discern no abuse of discretion on the part of the trial court.

Defendant’s assignments of error are without merit.

ASSIGNMENT OF ERROR NUMBER 5

Defendant contends that the State failed to prove the three essential elements of the instant offense, specifically, (1) corpus de-licti, penile penetration by the defendant of the victim's vagina; (2) venue in Calcasieu Parish; and, (3) the identity of the perpetrator.

The defendant was convicted of the aggravated rape of his five year old stepdaughter, a violation of La.R.S. 14:42 which provides in pertinent part:

“Aggravated rape is a rape committed where the anal or vaginal sexual intercourse is deemed without the lawful consent of the victim because it is committed under one or more of the following circumstances:
******
(3) Where the victim is under the age of twelve years. Lack of knowledge of the victim’s age shall not be a defense.”

Our court, in reviewing the sufficiency of evidence supporting a conviction, is governed by the standard of review enunciated in the U. S. Supreme Court case of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See also, State v. Holmes, 388 So.2d 722 (La.1980); State v. Byrd, 385 So.2d 248 (La.1980). This standard provides that the reviewing court must determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson, supra.

In the instant case, the State’s case was based entirely upon circumstantial evidence. The victim did not testify. La.R.S. 15:438 provides, “The rule as to circumstantial evidence is: assuming every fact to be proved, that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.”

The evidence at trial established that approximately one week prior to the offense, the victim had expressed apprehension at being left alone with the defendant. Further, the victim’s mother (and defendant’s wife), Mrs. Adams, testified that on the day prior to the rape, the victim’s grandmother informed her that she believed the defendant had had sexual contact with the victim on a prior occasion. Mrs. Adams stated that the child did not want her to go to work because the defendant “wanted to give her baths and take naps with her.”

The State established at trial that the victim was with the defendant at the time of the offense. A chronology of observations of the defendant accompanied by the child reveals that the defendant was observed with the child at approximately 9:30 p. m. and 12:00 midnight on August 4,1979 as well as 3:30 a. m., 7:30 a. m. and 12:00 noon on August 5,1979. Mrs. Adams testified that she observed her husband, the defendant, with her daughter, who appeared uninjured, at 12:00 midnight on August 4, 1979 and noted that her husband appeared to be “angry and cold.” She stated that she attempted to enter defendant’s vehicle, however the defendant refused to let her in the automobile. Lake Charles Police Officer W. E. Bushnell testified that he observed the defendant accompanied by the victim at the Lake Charles Trailways Bus Station at 3:30 a. m. on August 5,1979. He stated that the child was in the defendant’s car crying and pleading to be taken home. At 7:30 a. m. on August 5,1979, the defendant and the victim were again observed in the defendant’s automobile which was parked on Opelousas Street in Lake Charles. Mr. John Landos testified that he approached the parked vehicle and noted the victim asleep in the backseat with “bloodstains all over her legs, her pants, and her hands... ”. According to Landos, the defendant was asleep in the front seat of the vehicle.

State’s witness, sixteen year old Pamela Arabie, testified that she saw the defendant with the victim at 12:00 noon on August 5, 1979 when the defendant arrived at her trailer unexpectedly. Ms. Arabie stated that she immediately noticed the child’s bloody condition and shortly thereafter gave the child a bath and dressed her in clean clothing. Pamela testified that she repeatedly suggested that the defendant take the child to the hospital to which the defendant replied that the child needed only to rest. Subsequently, a neighbor arrived at the trailer and questioned the young child regarding her injuries. In response to the neighbor’s question as to who injured her, the victim replied that “daddy did it.” The defendant was then persuaded by the neighbor to take the child to the hospital.

Sheriff’s Deputy Bill Kwiatkowski testified that he was called to the hospital to investigate a report of an alleged rape and upon questioning the defendant he received vague answers by which the defendant disavowed any knowledge of the cause of the victim’s injuries. The examining physician, Dr. Lehrue Stevens, testified that he, too, questioned the accused and that the accused related a very confusing story to him.

Dr. Stevens testified that he examined the child upon her arrival at the hospital and concluded that the “hymen at least was stretched or torn... ”. Further, Dr. Stevens stated that his final diagnosis was that “there is definite evidence of a recent vaginal penetration, and the findings are certainly ... certainly consistent with rape in this young patient.” Upon cross-examination, Dr. Stevens stated that the type of injury suffered by the victim could have possibly resulted from the insertion of an adult’s finger into the child’s vagina. Admittedly, the medical examinations of the victim were inconclusive due to the disturbed condition of the child and the victim’s recent bath. However, as previously noted, when circumstantial evidence is utilized to prove the commission of an offense the test is that assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence. We recognize the possibility that the victim’s injuries could have been caused in a manner other than rape, however we conclude that such a possibility does not constitute a reasonable hypothesis when all of the evidence is considered. Further, in light of the numerous observations of the defendant with the victim throughout the crucial period during which the child was injured and after consideration of all the evidence, we conclude that the identity of the perpetrator was sufficiently established by the State at trial.

Defendant in his assignment of error alleges that the State failed to prove that Calcasieu Parish was the appropriate venue for trial. La.C.Cr.P. art. 611 provides that all trials shall take place in the parish where the offense has been committed unless a change of venue is obtained. This Court has held that in order for a conviction to stand, venue must be proved during the course of the trial. State v. Hollingworth, 292 So.2d 516 (La.1974). However, because venue is a special question, the scope of appellate review on that question is limited to determining whether there was some evidence, no matter how little, submitted to the jury to establish venue. State v. West, 319 So.2d 901 (La. 1975); State v. Rheams, 352 So.2d 615 (La. 1977). To sustain this proof, we have concluded that a trial court may take judicial notice of the fact that geographical locations mentioned by witnesses are within a particular parish, even if the parish is never specifically mentioned in the testimony. La.R.S. 15:422; State v. Batiste, 327 So.2d 420 (La.1976); Rheams, supra.

In the instant case, numerous witnesses reported seeing the defendant with the victim in and around Lake Charles, Louisiana, a city located in Calcasieu Parish, during the period of time at issue. Defendant in his statements to various persons indicated that he had driven to Shreveport or Vivian, Louisiana during the late evening of August 4th and early morning hours of August 5th. However, considering the number of times of those observations, it appears that any rational trier of fact would determine that venue was established by the State at trial. The jury obviously considered the virtual impossibility that the defendant could have made the approximately eight hour (round-trip) drive to Shreveport and still be observed in Lake Charles as frequently as the testimony received at trial indicated. Fully cognizant of the standard of review applicable to venue questions, we conclude that venue was sufficiently established at trial.

After viewing the evidence in the light most favorable to the prosecution, we conclude that any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Defendant’s assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER 6

Defendant contends that the trial court erred in allowing Pamela Irene Adams, the defendant’s wife, to testify against him at trial. The law applicable to the competency of a husband and wife to testify against each other in a criminal trial is embodied in La.R.S. 15:461 which provides in pertinent part:

“The competent witness in any criminal proceeding, in court or before a person having authority to receive evidence, shall be a person of proper understanding, but;
(1) Private conversations between husband and wife shall be privileged.
(2) Neither husband nor wife shall be compelled to be a witness on any trial upon an indictment, complaint or other criminal proceeding, against the other.”

This court has previously determined that this statute creates two distinct privileges. State v. Bennett, 357 So.2d 1136 (La.1978). In the Bennett case, this Court stated:

“The first of these is the privilege which attaches to private conversations between husband and wife and which may be asserted by the defendant-spouse. Secondly, the statute establishes a privilege in favor of a spouse called to testify against the other spouse by providing that neither spouse shall be compelled to be a witness against the other in a criminal proceeding. The exercise of this privilege rests with the testifying spouse alone and may not be invoked by the defendant-spouse. The statute, however, does not prohibit a spouse from waiving this privilege and voluntarily taking the stand against the other spouse to testify to non-privileged evidence. State v. Triplett, 313 So.2d 227 (La.1975).”

Defendant alleges that the witness was reluctant to waive her general husband-wife testimonial privilege and did so without understanding the instructions of the trial court. A review of the record discloses that the trial judge and the prosecutor painstakingly explained to the witness that she had the right to refuse to testify against her husband. Repeatedly Mrs. Adams was asked if she understood her rights and if she desired to waive her right not to testify. Upon questioning, Mrs. Adams indicated that she wanted to testify in the interest of her daughter. In response to the State’s question regarding whether her choice to testify was free and voluntary, Mrs. Adams answer affirmatively. After reviewing the record, we discern no evidence indicating that the witness waived her privilege without full knowledge as to her rights. On the contrary, the witness received a very careful, easily understood, and complete explanation of her rights and chose freely and voluntarily to waive the same. We conclude that defendant’s assignment of error pertaining to Mrs. Adams’ waiver of the general husband-wife testimonial privilege is without merit.

Defense counsel further contends that the trial court erred in allowing Mrs. Adams to testify regarding private conversations between herself and her husband. Defendant asserts that he, alone, may waive the testimonial privilege applicable to private communications between him and his wife. State v. Bennett, supra. The record discloses that the witness-spouse did make brief references during her testimony to private conversations between the defendant and herself, however, the content of those conversations were largely innocuous and to some extent, potentially exculpatory. In addition, we note that the record is devoid of any contemporaneous objection by defense counsel to the allegedly prejudicial testimony. It is well-settled that an appellate court is not required to reverse a judgment of conviction unless the trial court’s error constitutes a substantial violation of the constitutional right or the accused has otherwise been prejudiced. State v. Hopper, 253 La. 439, 218 So.2d 551 (La. 1969), cert. denied, 90 S.Ct. 545, 396 U.S. 1012, 24 L.Ed.2d 504. We acknowledge the error on the part of the trial court, however, discern no prejudice against the accused as a result of that error. Therefore, we conclude that defendant’s assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER 13

Defendant contends that the trial court erred in denying his motion for a mistrial grounded upon an alleged non-responsive answer by a state witness. Defendant in this assignment of error refers to the following exchange between defense counsel and the witness:

“Q. Isn’t ... isn’t it correct that Miss ... Miss Hungerford suggested that little Angie was ... was raped by her stepfather, Mr. Adams?
A. (No audible response.)
Q. Is ... isn’t that correct?
A. What she told me?
Q No, did she say that in ... while you were in the bedroom? Did she suggest
A. The little girl said it.”

Immediately following Ms. Arabie’s response, defense counsel asked to approach the Bench, thereafter, the Court called a brief recess. Following the recess, the trial judge instructed the jury to disregard both the question and the answer of the witness. Upon completion of Ms. Arabie’s testimony, defense counsel moved for a mistrial based upon the alleged prejudicial effect of the witness’ unsolicited remark. The trial judge denied defendant’s motion.

La.C.Cr.P. 771 provides that when a remark made by a witness is of such a nature that it might create prejudice against the defendant in the mind of the jury, an admonishment or a mistrial may be warranted. It is well-settled that the declaration of a mistrial is a drastic remedy mandated only where substantial prejudice deprives the accused of a reasonable expectation of a fair trial. State v. Overton, 337 So.2d 1058 (La.1976); State v. Redfud, 325 So.2d 595 (La.1976). Further, this Court has held that a mistrial is not warranted if within the sound discretion of the trial court an admonition is sufficient to preserve the defendant’s right to a fair trial. State v. Wesley, 347 So.2d 217 (La.1977); State v. Guillory, 340 So.2d 568 (La.1976). Obviously the trial judge determined that the circumstances of the instant case did not justify the declaration of a mistrial. After reviewing the record, we conclude that the trial judge did not abuse his discretion in denying defendant’s motion, especially in view of our conclusion regarding assignment of error number 14. This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER 14

Defendant contends that the trial court erred in allowing State’s witness, Patricia Hungerford, to testify regarding statements made to her by the victim. On direct examination, Ms. Hungerford testified that she asked the victim “who done (sic) this to her?”. The witness stated that the child responded that “daddy did it”. Defense counsel alleges that such testimony is inadmissible hearsay and so prejudicial as to mandate reversal of defendant’s conviction. We cannot agree.

The trial judge admitted the witness’ testimony pursuant to the res gestae exception to the hearsay rule. Res gestae is defined in La.R.S. 15:447 as events speaking for themselves under the immediate pressure of the occurrence through the instructive, impulsive, and spontaneous words and acts of the participants, and not the words of the participants when narrating the events. That which forms part of the res gestae is always admissible in evidence. Defense counsel argues that the victim’s statement does not constitute part of the res gestae as they occurred approximately eight to ten hours following the rape.

This Court has previously recognized that in prosecutions of sex offenses the better rule is that the original complaint of a young child is admissible when the particular facts and circumstances of the case indicate that it was a product of the shocking episode and not a fabrication. State v. Pace, 301 So.2d 323 (La.1974); State v. Noble, 342 So.2d 170 (La.1977). In Noble, supra, the prosecutrix was a four year old child who made her statements identifying the perpetrator to her grandmother a full two days after the offense. The statement was held admissible because the circumstances indicated that the statement was made at the first opportunity the child had to speak to a close family member. In the instant case, there was a lapse of approximately eight to ten hours between the offense and the victim’s statement to Ms. Hungerford. The record reflects that the victim’s statement was the first complaint by the child concerning the perpetrator of the rape. Further, it was the first opportunity for the child to state the person who was responsible for her injury. There is no indication in the record that the child’s statement was a product of fabrication, but rather, the circumstances reflect that the victim’s response was merely a truthful answer to an adult’s concerned inquiry. The child was upset and frightened and made her statement at the first reasonable opportunity under the particular facts and circumstances of this case. Accordingly, the trial judge did not err in allowing Ms. Hun-gerford to relate the child’s statements concerning the identity of the offender. Defendant’s assignment of error Number 14 is without merit.

ASSIGNMENT OF ERROR NUMBER 15

Defendant contends that the trial court erred in allowing the State to solicit opinion testimony from State’s witness, Patricia Hungerford. The allegedly inadmissible testimony resulted from the following exchange between the State and the witness:

“Q. Okay. Being a mother, could you see a difference in the child when she was in the presence of this man?
A. Yes, she was scared of him.”

Defense counsel alleges that the questioning by the State called for an opinion as to the state of mind of the rape victim which allegedly resulted in the introduction of highly prejudicial testimony.

La.R.S. 15:463 states the general rule that a witness can testify only as to facts within his knowledge and may not testify as to any impression or opinion that he may have. While it is well-settled that a lay witness may not give opinion testimony, it has also been determined that where the subject of such testimony is such that any person of experience may make a natural inference from observed facts, a lay witness may testify as to such inferences provided he also states the observed facts. State v. Roche, 341 So.2d 348 (La.1976) and cases cited therein.

In the instant case, the State questioned the witness regarding how the child reacted when the defendant was in the room with the victim. The witness responded that the child indicated that she desired to stay close to the witness and did not want to go near the defendant. These statements certainly provide an adequate factual basis for the witness’ natural inference that the child was afraid of defendant.

The record reflects that defense counsel’s objection to the question was sustained by the trial judge who immediately instructed the jury to disregard the question and answer. We conclude that the testimony was admissible since Ms. Hungerford’s statement was a natural inference from her observation of the victim’s behavior. Therefore, defendant’s assignment of error is without error.

ASSIGNMENT OF ERROR NUMBER 21

Defendant contends that the trial court erred in dehying his motion for a mistrial based upon a remark by State’s witness, Elizabeth Thibodeaux, which referred to the defendant having spent time in a rehabilitation center. Defense counsel avers that the witness’ statement made reference to inadmissible “other crimes” evidence. The alleged reference to “other crimes” occurred during the following exchange between the State and the witness:

“Q. Okay, What period of ... how long did they (victim and her mother) live with you during this marriage?
A. Up until he got out of Rehab.”

Immediately after Ms. Thibodeaux’s answer defense counsel moved for a mistrial which was denied by the trial judge.

La.C.Cr.P. art. 771 provides that if a witness makes a potentially prejudicial remark in front of the jury, the judge upon request of counsel shall admonish the jury to disregard the remark. A mistrial is justified only in those instances where the trial court in its discretion determines that an admonishment is insufficient to neutralize any prejudice resulting from the witness’ statement. In the instant case, Ms. Thibo-deaux’s answer was extremely ambiguous. The record contains no evidence to substantiate defendant’s contention that the term “rehab” referred to or was understood by the jury to refer to prior criminal activity. On the contrary, “rehab” could be interpreted to mean medical or mental hospitalization, physical therapy or even occupational rehabilitation. As previously noted herein, mistrial is a drastic remedy which is warranted only when a trial error results in substantial prejudice to the defendant depriving him of a reasonable expectation of trial. State v. Overton, supra. In the present case, we discern no abuse of the trial court’s discretion in its failure to declare a mistrial. In consideration of the ambiguity of the witness’ statement, an admonition was clearly sufficient to negate any prejudice which may have resulted from the remark. Defendant’s assignment of error is without merit.

We have carefully considered defendant’s other assignments of error in light of the record, briefs, and arguments of counsel and conclude that such assignments are without merit being controlled by well-established principles of law.

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

AFFIRMED.

LEMMON, J., concurs.

DIXON, C. J., concurs with reasons.

BLANCHE, J., concurs for reasons assigned by DIXON, C. J.

DIXON, Chief Justice

(concurring).

I respectfully concur, but do not agree that this court approved “dry run voir dire” in change of venue hearings. Nor do I agree with the statement that “some evidence, no matter how little,” is sufficient to prove venue.

       Judges E. L. Guidry, Jr., J. Burton Foret and P. J. Laborde, of the Court of Appeal, Third Circuit, participated in this decision as Associate Justices ad hoc, joined by Chief Justice John A. Dixon, Jr., and Associate Justices Walter F. Marcus, Jr., Fred A. Blanche, Jr., and Harry T. Lemmon.

      . After the original date of sentencing, the tried court set aside the sentencing of defendant as a multiple offender; however, as mandated by La.R.S. 14:42, the sentence to life imprisonment without benefit of parole, probation or suspension of sentence was reimposed.

      . Rape is defined in La.R.S. 14:41 as the act of anal or vaginal sexual intercourse with a male or female person, not the spouse of the offender, committed without lawful consent.


source: Caselaw Access Project

author:
DOUCET, Justice Ad Hoc.
     LEMMON, Justice,

license: Public Domain

text:
    STATE of Louisiana v. Bobby LEONARD.
    No. 80-K-1812.
    Supreme Court of Louisiana.
    Feb. 4, 1981.
    Rehearing Denied March 20, 1981.
    William L. Brooks, Amite, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Duncan Kemp, Dist. Atty., Abbott J. Reeves, J. Mark Rolling, Asst. Dist. Attys., Hammond, for plaintiff-respondent.
   DOUCET, Justice Ad Hoc.

On August 23, 1977, the defendant, Bobby Leonard, was initially charged by bill of information with two (2) counts of burglary allegedly committed on or about July 28, 1977, in violation of LA-R.S. 14:62.

The defendant was arraigned September 8, 1977; counsel was appointed and a plea of not guilty was entered. The minutes do not reflect that bail was set; however, the defendant obviously was released because on October 5, 1977, he was charged by bill of information with another count of simple burglary, allegedly committed on or about September 26, 1977. He was again arraigned and this time entered a plea of not guilty and not guilty by reason of insanity. On the 27th day of October, 1977, there was application made for a sanity hearing and Drs. Genovese and Forrest were appointed to examine the defendant.

A preliminary examination was held on November 10,1977, and probable cause was found.

On May 24,1978, a second application for the appointment of a Sanity Commission was filed, and Drs. Genovese and Strobach were appointed on that date.

The record reflects that throughout 1978 there were numerous trial continuations and sanity hearing continuations, however, no explanation for the continuances is given by the record.

On March 23, 1979, the defendant was charged by bill of information with simple escape from the parish jail in violation of LA-R.S. 14:110(A), attempted aggravated rape in violation of LA-R.S. 14:14, and with six (6) counts of aggravated burglary in violation of LA-R.S. 14:60, all of the offenses allegedly occurring on or about January 6, 1979.

The defendant was arraigned on these new charges on March 28,1979, and he pled not guilty. Trial was set for June 25, 1979. On May 9, 1979, the defendant again appeared in court, accompanied by his appointed counsel, for the purpose of changing his former plea of not guilty to that of not guilty by reason of insanity. This plea was entered and accepted by the court on all three bills of information, which charged a total of eleven felony offenses.

At the time of the change of his plea, the defendant offered to the court a report by Dr. Richard Strobach, one of the physicians previously appointed to make a psychiatric examination of the defendant. That report, which was marked as Defense Exhibit One, is a three page document addressed to the trial judge, written by Dr. Strobach on June 9, 1978, pursuant to his appointment to the Sanity Commission. The letter describes the doctor’s interview with the defendant and discusses the defendant’s social and psychiatric history and the various tests administered by Dr. Strobach. The letter concludes with the doctor’s expert opinion that the defendant was not able to participate in his own defense at that time (June 9, 1978). The doctor went on to point out that future mental status examinations would determine when the defendant’s “cognitive defect” had been sufficiently ameliorated for him to be tried.

The court accepted the defendant’s offer of the letter into evidence, and then ruled as follows:

Pursuant to this plea, it’s the sentence of the court that you be committed to East Louisiana State Hospital, Jackson, Louisiana, to be treated there until such time as they think you can be released.
As for — all three of them back there — actually they’re being released on a period of active probation, actually is what it is. That’s what it is, actually, a period of active probation, five years.

Pursuant to this ruling, the defendant was transferred to the Louisiana State Hospital at Jackson, Louisiana.

On July 20, 1979, the court ordered that the defendant be returned to the parish jail for further proceedings, and on September 11, 1979, the court ordered that the sentence rendered on May 9,1979, be “vacated and recalled.” On December 28, 1979, a new sanity commission was appointed, consisting of Drs. Strobach and Genovese, and on February 13, 1980, a sanity hearing was conducted. In a letter dated January 17, 1980, from Dr. Strobach to the court, which was introduced at the sanity hearing, Dr. Strobach opined that the defendant was then able to stand trial. In a letter dated February 5, 1980, from Dr. Genovese to the court, also introduced at the sanity hearing, Dr. Genovese similarly stated the defendant’s competence to stand trial. These doctors testified and the court ruled that the defendant was competent to stand trial.

Pursuant to this ruling the defendant filed a motion to quash the bills of information which was denied by the trial court. This Court granted defendant’s writs to consider the issue of double jeopardy.

The first issue discussed by the defendant and the state is the legality of the defendant’s pleas of “not guilty by reason of insanity.”

La.C.Cr.P. Article 552 provides in pertinent part:

There are four kinds of pleas to the indictment at arraignment:
(1) Guilty;
(2) Not guilty;
(3) Not guilty and not guilty by reason of insanity; or
(4) Nolo contendere.

The State argues that on May 9,1979, the defendant entered a plea for which there is no statutory or jurisprudential basis and that it was therefore invalid. -

The defendant points out that he had previously pled “not guilty” and the transcript does not reflect that he withdrew that plea, therefore, when the court accepted his additional plea of “not guilty by reason of insanity", that plea was, in effect, combined with his earlier plea to produce the statutorily required “not guilty and not guilty by reason of insanity”. La.C.Cr.P. Article 561 authorizes the trial court to accept such a change of plea at any time before the commencement of the trial. It is clear that the present defendant’s intention was to change his plea pursuant to this Article. The defendant points out that the state did not at that time object to the precise wording of the plea and that therefore the state should now be estopped to deny the validity of the plea.

These technical arguments are advanced by the parties because the state maintains that since the plea was invalid, the sentence was illegal and the trial court properly vacated it some months later. The defendant maintains that the plea was valid, and further, that it was “tantamount to an alternative admission of criminal conduct”. State v. Clark, 305 So.2d 457 (La.1974). It is argued that this valid plea, and the evidence of insanity, as contained in the defendant’s Exhibit 1, fully supported the judge’s “verdict” and the resulting sentence was not illegal.

It is clear that the Criminal Code makes no provision for the plea of “not guilty by reason of insanity”. It is equally clear that the defendant intended to enter the dual plea of “not guilty and not guilty by reason of insanity” and that neither the prosecutor nor the trial judge noticed the failure of the defendant to use the exact wording provided by La.C.Cr.P. Article 552. Furthermore, the trial judge’s May 9, 1979, disposition of the case was unaffected by the defendant’s omission, and there is nothing in the record which suggests that this faulty plea was the basis of the trial court’s decision to vacate the sentence and recall the defendant. Therefore, it appears that this minor procedural error cannot support the trial court’s denial of defendant’s motion to quash.

The state next argues that even if this Court finds that the defendant’s plea was valid and was properly accepted that the sentence imposed was nonetheless illegal because under La.C.Cr.P. Article 654 specific procedures are outlined whereby a defendant, who is found not guilty by reason of insanity may be committed to a proper mental institution. This article requires that the court promptly hold a contradictory hearing to determine the defendant’s present mental fitness to be released on probation or discharged. No such hearing was ordered in the present case. The judge merely ruled that “it is the sentence of the court that you be committed to East Louisiana State Hospital, Jackson, Louisiana, to be treated there until such time as they think you can be released.” The state argues that this sentence was not proper and that Article 882 of the Code of Criminal Procedure allowed the subsequent vacating of that sentence. While this argument may have merit, the “correction” of the illegality of this sentence would not entail vacating the sentence and recalling the defendant for trial, but would, rather, require that a contradictory hearing be immediately scheduled.

Finally, the state argues that under La.C. Cr.P. Article 872: “a valid sentence must rest upon a valid and sufficient: ... (3) verdict, judgment or plea of guilty”. Because there was no trial, the state argues that there could be no valid verdict or judgment. No witnesses were called and, the state argues, the merely pro forma entry of Dr. Strobach’s letter (Defense Exhibit 1) into evidence could not constitute a sufficient basis for a verdict of not guilty by reason of insanity. We agree with this argument of the state. As this Court held in State v. Mims, 329 So.2d 686 (La.1976), a verdict of not guilty presupposes a trial in which the facts have been put in issue and determined in the defendant’s favor. The Mims court went on to note that a remand to the lower court for trial on the merits would not impinge the defendant’s guarantee against double jeopardy because La.C. Cr.P. Article 761 provides that a trial by a judge commences when the first witness is sworn. Similarly, under La.C.Cr.P. Article 592, “When a defendant pleads not guilty, jeopardy begins when the first witness is sworn at the trial on the merits.”

Applying the Mims reasoning to the present case, we find that a trial on the merits would not violate the double jeopardy guarantee because the defendant was never placed initially in jeopardy.

Addressing the defendant’s argument that when the trial court admitted into evidence Dr. Strobach’s letter, to the effect that the defendant was incompetent to stand trial, the court at that point began to hear evidence within the meaning of Serfass v. United States, 420 U.S. 377, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975). In that case, the Court held that in a non-jury trial, jeopardy attaches when the court begins to hear evidence. However, in that case, the court found that the petitioner therein had not ever been put to trial because he had never waived his right to a jury trial and therefore the trial court was without power to make any determination regarding the petitioner’s guilty or innocence. Similarly, the present defendant has not ever waived his right to a jury trial. The petitioner in Serfass also made the argument that the submission to the trial court of “evidentiary facts outside the indictment, which facts would constitute a defense on the merits at trial”, provoked the trial court’s ruling, and thus, that ruling, to dismiss the indictment, was the functional equivalent of a trial on the merits and jeopardy should have attached. The Serfass court rejected this argument noting that the defendant was not put in jeopardy at his motion to quash the indictment because he was not “subjected to the hazards of trial and possible conviction”. There was no risk of a determination of guilt so there was no jeopardy to attach.

Similarly, in the present case, the petitioner’s argument that the submission to the trial judge of Dr. Strobach’s letter constituted the initiation of jeopardy, must fail because the court appearance on May 9, 1979, was not a trial and the defendant could not have been convicted on that occasion. Since there was no trial, the “verdict” and “sentence” of May 9,1979, were void ab initio, and the trial judge’s subsequent recall and vacation of the sentence was clearly an acknowledgement by him of that fact.

Finally, the defendant argues that if his double jeopardy argument is rejected by this Court, as it is, then to recall the defendant for trial would, at the very least, constitute a violation of a plea bargain undoubtedly made by the defendant.

This argument is unpersuasive in view of the fact that there is no evidence in the record to support the underlying premise that the defendant’s plea was the product of a bargain made with the prosecutor. Even if such a bargain were in fact made, then, as the state points out, the withdrawal of the plea is the proper remedy for a violation of the terms of a plea bargain. Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); State v. Crosby, 338 So.2d 584 (La.1976).

The case is remanded for further proceedings consistent with this opinion.

CALOGERO, specially concurs and assigns reasons.

LEMMON, Justice,

Concurring in Denial of Application for Rehearing.

Defendant was not placed in jeopardy when the trial court on May 9, 1979 determined that defendant was then incapable of assisting in his own defense and accordingly ordered defendant to be committed to a mental institution pending his regaining the ability to assist in his defense. Although the trial court “accepted” a plea of not guilty by reason of insanity and characterized the commitment as a “sentence”, defendant’s sanity at the time of the offenses was never placed at issue, no evidence was ever offered or received on that question, and the trial court made no determination of that issue.

When the trial court subsequently vacated the order of commitment and had defendant returned for further proceedings, the contemplated proceedings will place defendant in jeopardy for. the first time.

Therefore, the motion to quash because of double jeopardy was properly denied.

       Judges CECIL C. CUTRER, JIMMY M. STOKER and NED E. DOUCET, JR., of the Court of Appeal, Third Circuit, participated in this decision as Associate Justices ad hoc, joined by Chief Justice JOHN A. DIXON, JR., and Associate Justices PASCAL F. CALOGERO, JR., JAMES L. DENNIS, and JACK C. WATSON.

      . My impression of this patient is that he has a classical anti-social personality disorder with a classical anti-social personality disorder promoting childhood background. In addition his drug abuse has caused him to develop a mild chronic psychosis that is schizophrenic-like. However, he is not schizophrenic. He has periods of psychotic symptomatology secondary to his drug abuse and thus he has a cognitive defect (difficulty with his memory and difficulty connecting thought processes, etc.). For this reason I feel he cannot participate in his defense at this time. His symptomatology needs to be treated with an anti-psychotic medication. Thus I recommend transfer to the forensic unit at East Louisiana State Hospital where he can be properly medicated. Repeat mental status examinations will determine when his cognitive defect has been ameliorated to the point where he can participate in his defense. Of course the patient will require outpatient follow-up at the Mental Health Center and I strongly recommend this be mandatory for the patient. One further note would be that although this patient’s symptoms could be treated in a prison or jail, it would be very risky because constant psychiatric supervision for the medication side effects would be required for the first few weeks. Thus in-patient treatment and further evaluation would be in the best interest of the patient. Finally, because he is quite clever and ambivalent about being medicated, I would strongly recommend judicial commitment for this patient. I certainly hope this report aids the court in determining its decision. Thank you very much,
      Sincerely,
      (s) Richard P. Strobach, M.D.
      Richard P. Strobach, M.D.

      . This sentence was also applied to two other defendants then present in the court room.


author: STOKER, Justice Ad Hoe.

text:
    STATE of Louisiana v. Dudley Patrick BEAVERS.
    No. 89-KA-1786.
    Supreme Court of Louisiana.
    Feb. 9, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Ralph Roy, Kay Kirkpatrick, Asst. Dist. Attys., for plaintiff-appellee.

      Murphy Bell, Baton Rouge, for defendant-appellant.
   STOKER, Justice Ad Hoe.

The defendant-appellant in this case appeals from a conviction of the offense of participating in a riot, a violation of the Louisiana Criminal Code as contained in LSA-R.S. 14:329.1 and 14:329.7. Appellant Dudley Patrick Beavers was before this court when he appealed a previous conviction. We reversed the previous conviction and sentence in State v. Beavers, 364 So.2d 1004 (La.1978). We remanded the case to the district court for a new trial. After the remand the appellant was again tried, was found guilty by the jury and sentenced to twenty years imprisonment at hard labor. It is from this conviction and sentence that appellant now appeals. In the previous appeal we characterized this case as:

“... one of the so-called ‘Black Muslim cases’ which have been reviewed by this Court.” See State v. Bell, 315 So.2d 307 (La.1975), 346 So.2d 1090 (La.1977); State v. Williams, 354 So.2d 562 (La.1978); State v. Eames, 365 So.2d 1361 (La.1978).

We said in 364 So.2d 1004:

“These cases arose out of a riot which erupted in Baton Rouge on January 10, 1972. On that day members of the Black Muslim sect parked several vehicles across an intersection of public streets. When police attempted to remove the vehicles and disperse the crowd, violence broke out, resulting in the serious bodily injury of a reporter and the deaths of two police officers and three black demonstrators.”

Appellant Beavers was first tried in 1977. The reason for our reversal and remand for a new trial in 364 So.2d 1004 was the use by the trial judge of special verdicts. After remand the bill of information was amended. The pertinent parts of the amended bill read as follows:

“... Dudley Patrick Beavers on or about the tenth (10th) day of January, 1972, committed the offense of rioting by participating, violating Louisiana Revised Statutes 14:329.1, 14:329.7, in that you participated in a riot which resulted in the deaths of Ralph Hancock and Dewayne Wilder against the provisions of La.R.S. 14:329.1 [and] 14:329.7. More specifically, the above violations occurred in that you willfully participated in a public disturbance involving you and others acting together and in concert by blocking the 1300 block of North Boulevard with parked vehicles and a line of human beings, involving you and others, across North Boulevard, thereby creating a confrontation with police authorities and physically attacking said authorities when they attempted to remove said obstructions causing a public disturbance from which the deaths of Ralph Hancock and Dewayne Wilder resulted, all in violation of the aforementioned provisions of law, and additionally, specifically in violation of the aforementioned provisions

The Louisiana Criminal Code provisions under which the charges were framed, LSA-R.S. 14:329.1 and 14:329.7, provide:

“§ 329.1 Riot
A. A riot is a public disturbance involving an assemblage of three or more persons acting together or in concert which by tumultuous and violent conduct, or the imminent threat of tumultuous and violent conduct, results in injury or damage to persons or property or creates a clear and present danger of injury or damage to persons or property.
“§ 329.7 Punishment
A. Whoever willfully is the offender or participates in a riot, or is guilty of inciting a riot, or who fails to comply with a lawful command to disperse, or who is guilty of wrongful use of public property, or violates any other provision hereof shall be fined not more than five hundred dollars or be imprisoned not more than six months, or both.
B. Where as a result of any willful violation of the provisions of R.S. 14:329.-1-14:329.8 there is any serious bodily injury or any property damage in excess of five thousand dollars, such offender shall be imprisoned at hard labor for not more than five years.
C. Where, as a result of any willful violation of the provisions of R.S. 14:329.-1-14:329.8, the death of any person occurs, such offender shall be imprisoned at hard labor for not to exceed twenty-one years.”

Appellant makes numerous assignments of error. Both appellant and the State have grouped various assignments together for treatment in their briefs submitted to this court. We will deal with them in the same groupings.

ASSIGNMENTS OF ERROR NUMBERS 1, 2, 4, 6, and 7

Assignment Number 1.

In appellant’s brief with reference to assignments 1, 2, 4, 6, and 7 counsel states that the “major thrust of these assignments of error is directed toward the obvious unconstitutionality of the Riot Statute ...” Other than the matters to be discussed below counsel has directed no specific arguments to the issue of constitutionality of the statutes under which defendant-appellant was convicted. The constitutionality of these statutes has been upheld by this court. State v. Douglas, 278 So.2d 485 (La. 1973). See State v. Williams, 354 So.2d 562 (La.1978) and Douglas v. Pitcher, 319 F.Supp. 706 (E.D.La.1970).

In assignment of error number 1 appellant urges that the bill of information does not charge a crime cognizable under Louisiana law. Appellant’s theory is that he has been charged simply with rioting under LSA-R.S. 14:329.1. Appellant argues that this provision of law merely defines a riot but it does not proscribe' conduct. Then appellant argues that LSA-R.S. 14:329.7 prescribes various penalties for proscribed conduct set forth in LSA-R.S. 14:329.2-329.-6.

There is no merit to assignment number 1. Beavers was not charged with “rioting” under LSA-R.S. 14:329.1 alone. He was charged under section 329.1 and section 329.7. The latter section provides in pertinent part as follows:

“A. Whoever willfully is the offender or participates in a riot ... or violates any other provision hereof shall be fined not more than five hundred dollars or be imprisoned not more than six months, or both.
******
“C. Where, as a result of any willful violation of the provisions of R.S. 14:329.-1-14:329.8, the death of any person occurs, such offender shall be imprisoned at hard labor for not to exceed twenty-one years.”

Clearly under the provisions of section 329.7 anyone who participates in a riot (as riot is defined in section 329.1) is guilty of a crime. The authorized punishment varies with the seriousness of the consequences or results of the riot as specified in subsections A, B, and C of Section 329.7. A riot is defined in section 329.1 in such terms that a reasonable person would be able to understand the prohibited conduct. A person is given notice that if he engages in such conduct he commits a crime for which a punishment is provided.

Therefore, appellant Beavers was charged with a crime cognizable under Louisiana law.

Assignment Number 2.

Assignment number 2 presents a number of arguments. One position is somewhat similar to that urged in assignment number 1 in that appellant argues that there is no such crime as “Participating in a Riot”. Appellant further contends that the Amended Bill of Information is duplicitous in that it purports to charge him with the violation of two statutes because of a single course of conduct arising out of the incident of January 10, 1972. Assignment number 2 also raises notions of double jeopardy and collateral estoppel based on the contention that appellant has already been acquitted of the criminal conduct set forth in the Amended Bill of Information in 354 So.2d 1004.

In appellant’s first trial the Bill of Information charged him with rioting by inciting, participating and wrongful use of public property in violation of LSA-R.S. 14:329.1, 329.2, 329.4(1), (2) and 329.7. The trial judge furnished the jury with three separate verdict sheets as described in 364 So.2d 1004. The sheets purported to contain various responsive verdicts the jury could return. We held that the verdicts listed on the sheets were special verdicts or special interrogatories and the trial judge committed reversible error in receiving and recording them. The verdicts were not responsive to the single charge of rioting upon which the defendant was tried. Also the procedure followed by the trial judge prevented the jury from reaching a general verdict (which was within its prerogative) and that the trial judge selected a general verdict based on the answers to the interrogatories. We reversed the conviction and sentence and remanded the case for a new trial.

Two of the three sheets handed to the jury referred to participating or inciting a riot. (One related to the misdemeanor form of the crime and the other to the felony forms of the crime.) The third sheet related to wrongful use of property, LSA-R.S. 14:329.4. In following the verdict forms the jury found Beavers guilty of participating in a riot in both the misdemeanor and felony forms, and guilty of wrongful use of property but not guilty of inciting a riot. We dealt with appellant’s first conviction and sentence based on these special verdicts in 364 So.2d 1004 and reversed, holding that the trial judge committed error in receiving and recording the special verdicts. In our opinion handed down in the first appeal we set aside and did not reach the question of whether it was proper to try the defendant on a charge of rioting which could be committed by one of several criminal acts because the defendant did not object to the form of the bill of information or the jury’s instructions. For purposes of that review we assumed that the single crime hypothesis was correct although we expressed doubts as to its validity in footnotes. After our reversal and remand the bill of information was amended as noted above. We do not have before us now the same form of charge as was involved in the prior appeal.

The double jeopardy violation alleged by defendant is grounded upon the assumption that this Court’s reversal of defendant’s original conviction left intact the jury’s special verdict acquitting him of inciting to riot. The flaw in this logic stems from the fact that defendant was originally charged with the single offense of rioting. Finding that the five “special verdicts” returned by the jury were not responsive to this charge, this Court reversed defendant’s conviction and remanded the case for a new trial. Since the single conviction of “rioting” was reversed at defendant’s behest, the jury’s incidental verdict acquitting defendant on charges of inciting could not form the basis for a claim that the accused’s retrial was barred by the constitutional prohibition against twice being placed in jeopardy for the same offense. LSA-C.Cr.P. art. 591; State v. Jackson, 332 So.2d 755 (La.1976).

In any event, defendant was not charged with inciting to riot at his trial on remand. For this reason, the accused’s present double jeopardy claim is grounded upon the mistaken assumption that inciting to riot and participating in a riot are one and the same offense. LSA-R.S. 14:329.2 specifically defines inciting to riot as “the endeavor by any person to incite or procure any other person to create or participate in a riot.” Under this definition, an accused may incite a riot without actually participating in one; likewise, under LSA-R.S. 14:329.7, an accused might participate in a riot without procuring others to do so. See State v. Douglas, supra. Since each of these offenses requires proof of an additional fact that the other does not, the prosecution of defendant on charges of participating in a riot would not violate the double jeopardy clause even if the defendant had actually been acquitted on an earlier “inciting” charge. Brown v. Ohio, 432 U.S. 161, 167, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977); State v. Doughty, 379 So.2d 1088 (La.1980); State v. Solomon, 379 So.2d 1078 (La.1980).

We find no merit in assignment of error number 2.

Assignment Number 4.

The arguments advanced in appellant’s brief under assignment of error number 4 are a repetition of the arguments put forward under the assignment discussed above. On appellant’s behalf it is urged that there is no such crime as rioting. Also it is urged that since the jury in the first trial found him not guilty of inciting a riot, he cannot be tried now for the “rioting”. These arguments have been addressed above and are without merit. Appellant also alleges in his assignment number 4 that prosecution under the Amended Bill of Information has prescribed under the articles on limitations. LSA-C.Cr.P. art. 577 et seq. We find no merit in this argument.

Assignment Number 6.

In this assignment defendant-appellant urges that as a factual matter he did not violate the statute even if the statute is valid and he was validly charged. Additionally, defendant-appellant relies on collateral estoppel. On January 10, 1972, members of the Black Muslim sect parked several vehicles across an intersection of public streets. When police attempted to remove the vehicles and disperse the crowd, violence broke out, resulting in the serious bodily injury of a reporter and the deaths of two police officers and three black demonstrators.

Testifying at his trial on remand, defendant stated that he and other members of the Black Muslim group had traveled to Baton Rouge to inquire into the jailing of three fellow Muslims on charges of unauthorized solicitation. On January 10, 1972, the group met in front of the Temple Theater in Baton Rouge. Efforts by newsmen to cover this meeting ended with the beating of television reporter Bob Johnson. Police then moved in to disperse the group, who had formed a line across North Boulevard. Defendant admitted participating in the attempt to block North Boulevard, but claimed that he left the scene as soon as the first order to disperse was given. Defendant further denied any participation in the ensuing scuffle between police and others of the Black Muslim group. Following the incident, defendant fled to Houston, Texas, where he was apprehended in late 1975.

Appellant contends that he committed no act at the scene except to stand in line prior to the ensuing violence. Beavers testified that, although he stood in line in the attempt to block North Boulevard, he left when ordered to do so by the police. He claimed he was almost a block away when the shooting began. Appellant Beavers argues that assuming that he told the truth, and assuming he was validly charged, the State is foreclosed from bringing a second prosecution growing out of a single course of conduct.

We do not consider that the ease would be altered even if appellant’s version of the facts should be accepted. Considering the definition of rioting contained in LSA-R.S. 329.1, leaving upon police request after having participated in a riot which resulted in deaths would not make defendant-appellant any less culpable. The time when he, defendant, left the scene is of no moment once it is established that he had participated in the start of the affair.

We see no merit to assignment of error number 6 insofar as it is based on collateral estoppel as laid down in State v. Cain, 324 So.2d 830 (La.1975). Appellant’s position here is substantially the same as the double jeopardy argument which we have addressed above.

Assignment Number 7.

In his brief before this court appellant concedes that assignment of error number 7 is no more that a cumulation of the arguments advanced under assignments numbered 1, 2, 4 and 6.

ASSIGNMENTS OF ERROR NUMBERS 3 and 11

By assignment number 3, defendant contends that the trial court erred in denying his pretrial motion for a change of venue on grounds that widespread publicity of the January 10, 1972, riot and the subsequent arrests and trials of ten Black Muslims allegedly involved had generated such feelings of prejudice in the public mind as to deny him a fair and impartial trial.

A lengthy hearing on defendant’s change of venue motion was begun on March 3, 1980. At this hearing the defense produced fourteen witnesses, including representatives of Baton Rouge’s three television stations; representatives of the Capital City Press; five attorneys who had served as counsel in previous Black Muslim trials arising out of the January 10th riot; the mayor of Baton Rouge, Woodrow W. Dumas; and a professor of clinical psychology from Louisiana State University, Dr. Ralph Dreger.

The testimony of these witnesses was substantially similar to that presented in the earlier Black Muslim cases and considered by this Court in State v. Bell, 346 So.2d 1090 (La.1977) and State v. Williams, 354 So.2d 562 (La.1978). Here, as in those cases, witnesses from the news media testified that news coverage of the incident and its immediate aftermath was extensive, and that Baton Rouge citizens appeared quite aroused and racially divided at the time. However, according to these media witnesses, the Black Muslim incident lost its priority news classification following the original trial of the accused’s co-defendants in April, 1973. Since that time, publicity concerning the trials of various Black Muslim defendants has been much less intense. Only witnesses who had previously served as counsel for one or more of these Black Muslim defendants felt that Beavers would have a difficult time obtaining a fair trial in Baton Rouge in 1980. Despite this apparent suggestion that the lapse of time since the incident would allow the accused to receive a fair trial, the trial judge refused to rule on defendant’s motion until voir dire examination revealed the nature and extent of any possible bias against the accused.

Evidence adduced during voir dire examination failed to establish clearly the existence of such prejudice in the collective mind of the community as to make a fair trial impossible. LSA-C.Cr.P. art. 622; State v. Smith, 340 So.2d 222 (La.1976); State v. Clark, 340 So.2d 208 (La.1978); State v. Felde, 382 So.2d 1384 (La.1980). Of thirty prospective jurors called for examination, only two were excused for cause on grounds having anything to do with defendant’s motion.

The present case was not tried until March of 1980 by which time the public’s familiarity with the case had faded to an extent far beyond that which existed at the time of co-defendant Bell’s trial in 1976 (State v. Bell, 346 So.2d 1090). The ameliorative effects which this passage of time had upon the accused’s ability to receive a fair trial were vividly demonstrated by the ease with which jury selection was completed. In State v. Bell, supra, one hundred fifty-four potential jurors were excused because they indicated that they had a fixed opinion in the case, or because they expressed some doubt about whether they could put any past publicity out of their minds. In the present case only two jurors were excused for these reasons. Otherwise, the testimony presented here in support of defendant’s request is essentially the same as that considered by this Court in State v. Bell, supra and State v. Williams, supra. Here, as in those cases, it cannot be said that the trial court abused its discretion in denying defendant’s motion for a change of venue. State v. Matthews, 354 So.2d 552 (La.1978); State v. Sonnier, 379 So.2d 1336 (La.1980).

Through assignment of error number 11, appellant complains of the failure of the court to grant a new trial on the same grounds which was the basis of the pretrial motion for a change of venue. As proof of the widespread prejudice which appellant contends prevented him from receiving a fair and impartial trial he points to the actions of two jurors when the jury was polled following the rendition of the verdict. These two jurors voted not guilty in the jury room, but when polled and asked if the guilty verdict was their verdict, they answered “yes”. Appellant claims that these two jurors changed their vote in open court out of fear of the public. We do not know why these two jurors indicated they voted guilty when they actually had voted not guilty. We cannot infer a fear inspired by such public feelings that would justify granting a new trial to enable the defendant to be accorded a change of venue.

We find no merit in assignments of error numbers 3 and 11.

ASSIGNMENT OF ERROR NUMBER 5

In this assignment, defendant claims that the trial court erred in permitting the prior testimony of an unavailable state witness to be introduced at his trial on remand.

On Friday, January 7th, some three days prior to the incident alleged herein, members of the Black Muslim sect held a “community meeting” at the Temple Theatre Roof Garden. At defendant’s original trial, the state called a Mr. Frank Millican to testify as to the events which transpired at this meeting. According to Millican, a Black Muslim leader spoke at this meeting and urged the audience to meet with him in front of the Temple Theatre on Monday, January 10th at noon. While warning his audience not to bring any weapons, the speaker claimed that “he was going to show them how to beat the city fathers and take Baton Rouge and give it back to the black people.” However, Millican did not recall seeing the defendant at this meeting.

At the time of defendant’s remand trial, Mr. Millican was attending to business in Washington, D. C., and therefore, failed to answer his subpoena. Defense counsel did not dispute the unavailability of this witness or the relevance of his testimony to issues presented at trial, but instead argued that since the charge against his client was no longer “inciting to riot,” the admission of Millican’s transcribed testimony would effectively deprive the defendant of his right to confront the witness against him.

Again this contention is based upon the inaccurate characterization of the original charge filed against defendant as one of “inciting to riot”. The accused was originally charged with the all-encompassing offense of “rioting,” an offense which, in the state’s theory, included both averments of inciting to riot and participating in a riot. While the defendant’s second trial involved only a participation allegation, it is clear that this charge also formed part of the original prosecution.

More serious questions regarding the sufficiency of the state’s proof of Mr. Milli-can’s unavailability, as well as the propriety of admitting the remarks of the Black Muslim leader made on January 7th have not been urged by the defense herein. In any event, the defense was not prejudiced by the admission of Millican’s testimony since similar statements were attributed to the Muslim leader by other state witnesses.

ASSIGNMENT OF ERROR NUMBER 8

In this assignment, defense counsel argues that the trial court erred in refusing to declare a mistrial in face of repeated attempts by the state to suggest that defendant was directly responsible for the beating of news reporter Bob Johnson. In support of this contention, counsel’s assignment notes only one instance in which such a suggestion was allegedly made, that being the following remarks of prosecutor Ralph Roy during closing argument:

“[Muslim leader Upton] talked about white devils killing people and, you know, that kind of talk to such an extent that Maurice Cockerham — again, a man who was doing a job — worked for the news media — Bob Johnson. Those people weren’t cops. Those people didn’t go over there to provoke anything. They had their cameras. They were trying to publicize the incident as is their job. Well, they were literally run off and beaten and, you know, by who? I don’t know.”

At trial these statements elicited an immediate, two-pronged defense objection: the defense first argued that these remarks were designed to inflame juror sensibilities by attributing responsibility for Johnson’s injuries to defendant; alternatively, defendant claimed Roy’s allusion to the Johnson beating constituted an impermissible other crimes reference. LSA-C.Cr.P. art. 770; State v. Prieur, 227 So.2d 126 (La. 1973). Both objections were overruled and Mr. Roy continued this line of argument as follows:

“As I said, at one point not too far removed from the time that the police officers got there, Bob Johnson and Maurice Cockerham were attacked by I don’t know who. I don’t claim to know. And I want to remind you that there is no charge here involving Bob Johnson much less that this defendant is charged with having done anything — having anything to do with Bob Johnson. I mention this for two reasons. First of all, it did happen right at the time of this offense or right before it. And secondly, I offer it because this was at high noon or a little past in broad daylight, and I say to you that in the line of human experience and practical everyday living that it’s hard to believe that anyone around there in that general area would not have been knowledgeable on this pursuit and beating.”

Contrary to defendant’s assertions, the prosecutor’s remarks painted an accurate picture of evidence adduced at trial. Maurice Cockerham, a television news editor, testified that he heard Upton speaking to a gathering crowd from the roof of a Cadillac which had been used to block North Boulevard. According to this witness, Upton referred to whites as white devils and as serpents and made several references to killing whites which Upton said was required by their teachings. Upton also told the crowd, “We have come here today to meet the white devil and kill him.” He then turned and pointed at Cockerham and two other newsmen (including Johnson) saying, “There are three of the white devils here today, but there will be more later.” In Cockerham’s account, these remarks were made at approximately 12:30 P.M. Shortly thereafter, the newsmen attempted to leave the scene, but their path was blocked by one of the Muslims. As the three continued their efforts to get away, they were set upon by the crowd, and Johnson, who was unable to escape, was severely beaten. After departing the scene, Cocker-ham contacted the police whose arrival minutes later led to the violent confrontation which resulted in five deaths.

Under this version of the facts, defendant was not directly implicated in the beating of Mr. Johnson, but his knowledge of the crowd’s violent propensities could certainly be implied. In view of the fact that defendant claimed to be a law-abiding citizen who withdrew from the scene in compliance with a police order to disperse, evidence that he had remained on the scene even after the violent beating of Mr. Johnson gave rise to a clear inference of willful participation in an affair which not only threatened injury but had already produced injury.

Under these facts, the confrontation between the Muslims and authorities followed quite closely upon the heels of Johnson’s injury and in fact, formed with it, one continuous transaction. As such, evidence of Johnson’s injury was properly admissible as part of the res gestae of the January 10th offense. LSA-R.S. 15:448; State v. Joseph, 341 So.2d 861 (La.1977); State v. Tornabene, 337 So.2d 214 (La.1976).

We find no merit in appellant’s assignment of error number 8.

ASSIGNMENT OF ERROR NUMBER 9

By this assignment, defendant argues that the trial court committed reversible error in allowing the prosecution, during closing argument, to urge the jury to view closely an unedited film of the North Boulevard incident, which had been admitted into evidence and viewed by the jury earlier during the trial.

The propriety of allowing a jury to view during deliberations a film which has been previously admitted into evidence presents an issue which has never been decided by this Court. Any problems which grow out of such a course of trial procedure need not be reached by us in this case. The jury was not in fact allowed to view the film in the jury room. When the jury foreman formally requested permission to view the film introduced at trial, the trial judge sided with the defense, ruling that a review of the film during jury deliberation would be improper. The judge instructed the bailiff to inform the jury that the court itself had denied the request.

For the foregoing reasons we find no merit to appellant’s assignment of error number 9.

ASSIGNMENT OF ERROR NO. 10

By this assignment, defendant claims that thé trial court erred in delivering its charges to the jury without first allowing the defense ample time for perusal of the charges. Counsel for the defendant claims that as a result he was forced to make a general defense objection to the charges in their entirety.

This contention is totally without merit. At the start of trial, the trial judge handed defense counsel a copy of his proposed instructions, stating that he would accept any suggestions for modification until such time as the charge was actually delivered. Defense counsel immediately objected to the trial court’s proposed list of responsive verdicts, which included both attempted participation and rioting wherein property damage exceeding $5000 results. Counsel for the state acquiesced in both of these deletions, but the trial court inadvertently failed to strike the language referring to property damage.

Immediately prior to instruction, defense counsel was allowed to read the prosecution’s copy of the proposed charges when it appeared that his own copy had been misplaced. At this point, counsel lodged a general objection to the court’s entire charge. Such a groundless objection will not properly preserve an alleged error for review on appeal. LSA-C.Cr.P. art. 841; State V. Williams, 366 So.2d 1365 (La.1978); State v. Hysell, 364 So.2d 1300 (La.1978); State v. Petta, 359 So.2d 143 (La.1978). As concerns proposed jury instructions, the equitable argument that the trial court’s haste prevented a proper objection has also been rejected. State v. Corey, 339 So.2d 804, 813 (La.1976); State v. Tarrance, 252 La. 396, 211 So.2d 304 (1968). In any event, defense counsel had abundant opportunity here to note his objections to the proposed charges.

For the first time in brief defendant-appellant raised the objection that the court had failed to charge the jury on specific intent. This objection would lack merit even if it had been timely raised. The trial court’s failure to charge that specific intent is an element of the offense of riot participation was clearly proper. Only general intent is required for the crime of riot participation. As a result of the tumultuous gatherings which riot legislation proscribes, it is entirely foreseeable that great property damage and personal injury may occur, although not specifically intended. LSA-R.S. 14:10.

Appellant further argues under assignment number 10 that “rioting” is not legislatively defined to be criminal. The objection that “rioting” has not been made criminal by the legislature has already been discussed.

Lastly, defendant does not reurge his contention that the responsive verdict list was flawed by its reference to resulting “property damage”. In any event, this language in no way prejudiced the defendant, since no finding of property damage was made by the trier of fact.

Assignment of error number 10 is without merit.

ASSIGNMENT OF ERROR NUMBER 12

By this assignment, defendant argues that the trial judge erred in denying his motion to recuse all judges of the Nineteenth Judicial District Court and in failing to recuse himself for purposes of the hearing on this motion.

In a handwritten motion filed on the date scheduled for his change of venue hearing, defense counsel claimed that his involvement in a federal case recently decided by the United States Fifth Circuit Court of Appeal had aroused feelings of bias and hostility toward him by judges of the Nineteenth Judicial District Court and that, for this reason, defendant Beavers would be unable to receive a fair trial before any of the judges of that court.

In support of this motion, defense counsel called Robert Williams, another Baton Rouge attorney, who had served as counsel for several plaintiffs in a recent federal case filed against the judges of the Nineteenth Judicial District Court. Murphy Bell, defendant’s present counsel, was one of these plaintiffs. The precise nature of this suit was never disclosed. During the pendency of this federal suit, another judge of the Nineteenth Judicial District Court (not the trial judge in this case) told Williams that “they were, and I refer to the judges, ‘beat our butts in court on the federal court suit.” Because of this remark and defense counsel’s status not only as a plaintiff but also as lead counsel in the federal suit, it was argued that none of the judges of the Nineteenth Judicial District Court could properly sit in judgment on the instant charge. The trial judge denied the defendant’s motion which is now reurged on appeal.

In pertinent part, LSA-C.Cr.P. art. 671 provides:

“In a criminal case a judge of any court, trial or appellate, shall be recused when he:
“(1) Is biased, prejudiced, or personally interested in the cause to such an extent that he would be unable to conduct a fair and impartial trial; ...”

Article 674 further provides, in relevant part:

“... If a valid ground for recusation is set forth in the motion, the judge shall either, recuse himself, or refer the motion for hearing to another judge or to a judge ad hoc, as provided in Article 675.”

Under the jurisprudence interpreting there articles, a motion for recusal must set forth allegations of fact which state a statutory cause for recusation before the trial judge is required to refer the motion to another judge. State v. Collins, 288 So.2d 602 (La. 1974). Where, as here, the motion is based on mere conclusory allegations, the trial court does not err in refusing to refer the motion to another judge for hearing. State v. Maduell, 326 So.2d 820 (La.1976).

In the present case, the testimony, even that of Mr. Williams, provided absolutely no evidence of words or conduct which might indicate bias or prejudice on the part of the trial judge. Even as concerns the alleged bias of the other judges, Williams conceded that the remark about “beating his butt” was made humorously and in jest. Under these circumstances, the trial judge was correct in dismissing the accused’s motion without referring the matter to another judge.

Thus, assignment of error number 11 is without merit.

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

AFFIRMED.

DIXON, C. J., specially concurring.

       Judges CECIL C. CUTRER, JIMMY M. STOKER, and NED E. DOUCET, Jr., of the Court of Appeal, Third Circuit, participated in this decision as Associate Justices Ad Hoc, joined by Chief Justice JOHN A. DIXON, Jr., and Associate Justices PASCAL F. CALOGERO, Jr., JAMES L. DENNIS, and JACK C. WATSON.

      . LSA-R.S. 14:329.1-329.8 were originally adopted by the Louisiana Legislature as sections of Act Number 176 of 1969. They were transferred into the Louisiana Criminal Code (Title 14 of the Louisiana Revised Statutes) in their present form with the section numbers indicated. There is no doubt as to the intercon-nexity of all the sections.

      . This complaint is made on the basis that the conduct appellant was alleged to have committed on January 10, 1972, occurred prior to the adoption of Act 528 of 1975 by the Louisiana Legislature. This act repealed Articles 491 and 492 of the Code of Criminal Procedure and amended article 493 to permit joinder.

      . In the Beavers’ appeal, 364 So.2d 1004 at 1007 we summarized the jury’s special verdicts as follows:
      “After further deliberation, the jury returned three separate verdicts: guilty of participating in a riot (a misdemeanor carrying a penalty of up to $500 fine or six months imprisonment); guilty of participating in a riot in which the death of any person occurs (a felony carrying a penalty of up to twenty-one years imprisonment at hard labor); and guilty of wrongful use of public property in which the death of any person occurs (a felony carrying a penalty of up to twenty-one years imprisonment at hard labor). The jury also returned two verdicts of acquittal: not guilty of inciting to riot; and not guilty of inciting to riot in which the death of any person occurs. The trial judge received and recorded all three of the guilty verdicts.”

      .See footnotes 1 and 2 in 364 So.2d 1004 at 1008.

      . Apparently, members of the Black Muslim sect were not directly responsible for the beating of Mr. Johnson. In any event, this incident forms no part of the present charges against defendant Beavers.


author: BLANCHE, Justice

text:
    Warren LESTER v. REBEL CRANE AND SERVICE COMPANY and Insurance Company of North America.
    No. 67542.
    Supreme Court of Louisiana.
    March 13, 1981.
   BLANCHE, Justice

(dissenting).

I respectfully dissent from the majority holding for the following reasons. In its effort to overrule the lower courts’ findings that plaintiff’s suit has prescribed, the majority has relied upon a factual premise which this writer believes is unsupported by the record. More significantly, this opinion is in contravention to the clear wording of R.S. 23:1209 and the prior jurisprudence interpreting that provision.

According to the majority, plaintiff’s suit for workmen’s compensation disability benefits has not prescribed, although filed over 4% years after plaintiff’s accident, because plaintiff’s employer paid him wages in lieu of compensation and this payment interrupted the prescriptive period. I agree that where an employer discourages his employee from seeking workmen’s compensation benefits by paying the employee’s salary in lieu of compensation the prescriptive period is interrupted during such payments. However, the facts in the instant case do not indicate that plaintiff was led to believe he was receiving workmen’s compensation disability benefits or a substitute for those benefits from his employer and was thereby discouraged from seeking workmen’s compensation benefits, i. e. was lulled into a false sense of security.

The majority opinion found no need to determine whether the payments of salary to plaintiff were actually made “in lieu of compensation”. The opinion states that it was stipulated that these wages were paid in lieu of compensation and there was no need to factually determine whether plaintiff was discouraged from seeking workmen’s compensation benefits by the continuation of his salary during periods of disability. The majority relies solely on an affidavit signed by the president of defendant company to the effect that plaintiff was paid wages “in lieu of compensation” during certain periods of plaintiff’s absence from work due to his injury and subsequent complications. A factual determination of whether wages were paid in lieu of compensation is not possible by a mere reference to a statement in an affidavit by a company employee that he was familiar with the company payroll records and that plaintiff was paid his salary “in lieu of compensation” at certain times. In fact, at the trial of the exception of prescription, counsel for defendant attempted to point out that the statement in the affidavit was intended only as a reference to the fact that defendant did supplement plaintiff’s workmen’s compensation benefits to equal the amount of his regular salary and paid plaintiff his regular salary in full when plaintiff received no disability benefits.

Whether wages were paid “in lieu of compensation” in a situation where the employee is not working is a factual determination that should be based on whether an employee was led to believe that the wages were actually workmen’s compensation disability benefits or a substitute for such benefits, and whether the employee therefore felt he need not file suit for those benefits. In Arnold v. Solvay Process Co., 207 La. 8, 20 So.2d 407 (1944) this Court affirmed the dismissal of a suit for disability benefits due to prescription and distinguished the situation where there is a recognition by the parties concerned that the employee has a just claim for disability benefits and that wages paid were in lieu or in the nature of compensation. The Court correctly noted that in such an instance the payments should interrupt the prescriptive period since the employer was lulling the employee into a false sense of security thereby inducing them to withhold prosecution of his workmen’s compensation claim.

In a case where full pay sick leave benefits are paid to an employee and the employee was not under the impression that this pay was workmen’s compensation or in lieu thereof, this payment should not interrupt the one year prescriptive period for filing suit for workmen's compensation benefits. Dupaquier v. City of New Orleans, 260 La. 728, 257 So.2d 385 (1972); Blanchard v. Liberty Mutual Insurance Co., La. App., 280 So.2d 592 (3d Cir. 1973). The facts in the instant case are unlike those in Dupaquier where, based upon information distributed to employees, plaintiff-employee reasonably believed that sick leave benefits he received included workmen’s compensation and he withheld filing for benefits until after his sick leave expired.

The evidence indicates that the plaintiff was not lulled into a false sense of security (i. e. believed that he was receiving wages as a substitute for workmen’s compensation and therefore need not file suit for those benefits). Plaintiff testified that he had in the past received full wages while he was ill and unable to work, in accordance with his employer’s sick pay policy. The president of defendant company testified that he always paid his full time employees, such as Warren Lester, their full wages while they were ill and unable to work. Both plaintiff and the president of defendant company testified that when plaintiff received workmen’s compensation disability payments, plaintiff’s employer supplemented these payments to equal plaintiff’s regular salary. Plaintiff gave no other testimony as to what he believed to be the character of the wages he received from his employer while unable to work. After reviewing all of the evidence adduced at the trial of the exception, I do not believe the majority conclusion that plaintiff received wages “in lieu of compensation” can be supported. There is no indication that plaintiff was under any impression other than that he was receiving sick pay benefits from his employer, just as he had in the past on occasions when he was ill prior to his injury. The thrust of the majority opinion is to unjustifiably penalize an employer who pays full wages to employees who are ill or who supplements workmen’s compensation payments to equal full salary in accordance with a sick pay policy, where the employees are not misled as to the character of those payments.

Even assuming for the sake of argument that plaintiff was paid his salary in lieu of compensation, plaintiff’s suit for disability benefits prescribed by the clear terms of R.S. 23:1209 prior to any payments “in lieu of compensation”. According to this statute, where workmen’s compensation payments have been made, the one year limitation for filing suit is interrupted. However, the suit becomes prescribed one year after the last payment is made. In this case, the last disability payment was made to plaintiff on May 5, 1975. Plaintiff’s suit prescribed one year after that date. Brister v. Wray Dickinson Co., 183 La. 562, 164 So. 415 (1935); Blanchard v. Liberty Mutual Ins. Co., supra; Matthews v. New Orleans Public Service, Inc., La.App., 349 So.2d 408 (4th Cir. 1977).

The holding and wording of the majority opinion raises several questions as to the future interpretation of R.S. 23:1209. The majority first notes that the two year prescriptive period in R.S. 23:1209 is not applicable to this case since plaintiff’s injuries manifested themselves at the time of the accident, but the opinion goes on to hold that the payment of wages in lieu of compensation interrupted the two year prescriptive period provided in R.S. 23:1209. In the view of this writer, there is no separate two year prescriptive period aside from the instance where injuries do not immediately manifest themselves, and wages paid in lieu of compensation would interrupt the normal one year prescriptive period.

Further, it is uncertain which factors or combination of factors present in the instant case were necessary for a holding that plaintiff’s suit had not prescribed. The majority notes that each of plaintiff’s complications (incisional hernias) manifested themselves within one year of each other (although more than one year elapsed between the payments of salary the majority considers to be in lieu of compensation and which, according to the majority, interrupted prescription). The opinion does not indicate the significance of this recurrence within one year of each prior occurrence of hernias. Neither does the majority set out any time frame in which the payment in lieu of compensation must first occur in order to interrupt the “two year” prescriptive period referred to. The opinion also does not address the issue of how long a payment of salary while a worker is unable to work will serve to interrupt prescription. Apparently, the majority has held that the interruption continues despite the passage of one year after the time these payments “in lieu of compensation” are ended. In doing so, the majority opinion adopts a longer, indeterminate, prescriptive period in instances where salary is paid “in lieu of compensation” than where actual disability benefits are paid. See R.S. 23:1209.

The majority cites R.S. 23:1221(4) and a case interpreting that provision as an alternative justification for its holding that plaintiff’s suit has not prescribed. However, the majority omits the key fact that the cited provision refers only to instances of “inguinal hernias” (ruptures of groin tissue) and not to hernias that occur in surgical incisions. Neither the particular prescriptive period for filing suit in cases of inguinal hernias nor the other features of R.S. 23:1221(4) (such as its 30 day reporting requirement) are applicable to the facts of the present case. Any application of that provision to the instant facts would constitute an act of legislation by this judicial body.

I sympathize with the plight of Warren Lester who was clearly injured in the course of his employment and who may in fact medically qualify for total and permanent disability benefits. However, this plaintiff has not filed his suit for such benefits within any of the time frames set out in R.S. 23:1209 as interpreted by prior jurisprudence. The legislature has not, as of yet, seen fit to provide for longer prescriptive periods in situations such as Lester’s where medical complications continue to manifest themselves for years as a result of an injury, and the employee fails to file suit within one year of the accident or of the last disability payment, or within one year from the time an injury manifests itself, but within two years from the date of the accident. I would affirm the court of appeal determination that plaintiff’s suit has prescribed.


text:
    Lucius and Emmerean MACK v. Clara Belle TAYLOR et al. Octavia DICKERSON and John Dickerson v. Clara Belle TAYLOR et al.
    No. 80 C 1712.
    Supreme Court of Louisiana.
    Oct. 6, 1980.
   In re Lucius and Emmerean Mack and Octavia and John Dickerson, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Tangipa-hoa. Court of Appeals. Nos. 13261 and 13262.

Denied.


text:
    Derrell J. HEBERT et al. v. George E. BRAZZEL et al.
    No. 80-C-1922.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   In re Liberty Mutual Insurance Company, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Iberia. 393 So.2d 135.

Granted.


text:
    Ethel Lola AMBROSE v. William C. ROBERTS.
    No. 80-C-1891.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   In re William C. Roberts, applying for certiorari or writ of review, to the Court of Appeal, Third Circuit. Parish of Rapides. 393 So.2d 132.

Denied.

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


text:
    Derrell J. HEBERT v. George E. BRAZZEL et al.
    No. 80-C-1827.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   In re Maxine Romero, widow of Derrell J. Hebert, Derrell J. Hebert, Jr., and Shawn Elliot Hebert, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Iberia. 393 So.2d 135.

Granted.


text:
    Maxine ROMERO et al. v. George E. BRAZZEL et al.
    No. 80-C-1828.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   In re Maxine Romero, widow of Derrell J. Hebert, Derrell J. Hebert, Jr., and Shawn Elliot Hebert, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Iberia. 393 So.2d 141.

Granted.


text:
    Maxine ROMERO et al. v. George BRAZZEL et al.
    No. 80-C-1921.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   In re Liberty Mutual Insurance Company, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Iberia. 393 So.2d 141.

Granted.


text:
    Mrs. Daisy LeBLANC v. STATE of Louisiana, Through the DEPARTMENT OF CORRECTIONS et al.
    No. 80-C-1941.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   In re Mrs. Daisy LeBlanc, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 393 So.2d 125.

Denied. Result is correct.

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


text:
    STATE of Louisiana v. Luke PETROVICH, Albert J. Beshel, Lennard H. Mackenroth and Michael E. Kirby.
    No. 80-K-2491.
    Supreme Court of Louisiana.
    Nov. 21, 1980.
   In re Luke Petrovich, Albert J. Beshel, Lennard Mackenroth and Michael E. Kirby, applying for remedial writs. Parish of Plaquemines. Nos. 58258, 58259, 58260 and 58261.

Granted.


text:
    The DELTA NATIONAL BANK OF YAZOO CITY v. M. G. HOLDER.
    No. 80-C-2527.
    Supreme Court of Louisiana.
    Nov. 21, 1980.
   In re The Delta National Bank of Yazoo City, applying for writs of certiorari, review, and mandamus. Parish of St. Charles. No. 21824.

Writ granted.


text:
    STATE of Louisiana v. Anthony Don DICK.
    No. 65745.
    Supreme Court of Louisiana.
    Nov. 21, 1980.
   In re Anthony Don Dick, applying for supervisory and remedial writs. Parish of Bossier. No. 56818.

Denied.


text:
    STATE of Louisiana ex rel., Morris Frank KING v. Frank C. BLACKBURN, Warden et al.
    No. 67832.
    Supreme Court of Louisiana.
    Nov. 21, 1980.
   In re Morris Frank King, applying for remedial writs. Parish of St. Bernard. Nos. 40-728, 40-729, and 40-730.

Denied.


text:
    STATE of Louisiana ex rel., Lawrence DAVIS v. Frank C. BLACKBURN, Warden.
    No. 80-K-1427.
    Supreme Court of Louisiana.
    Nov. 21, 1980.
   In re Lawrence Davis, applying for remedial writ. Parish of Ascension. No. 27521.

Denied.


text:
    STATE of Louisiana ex rel. Raymond RIDGEWAY, Jr. v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 80-KH-1616.
    Supreme Court of Louisiana.
    Nov. 21, 1980.
   In re Raymond Ridgeway, Jr., applying for remedial writs. Parish of Orleans. No. 266-062.

Denied.

CALOGERO, J., would grant and order an evidentiary hearing.