text:
    STATE of Louisiana In the Interest of Merlin Joseph LEWIS.
    No. 7741.
    Court of Appeal of Louisiana, Third Circuit.
    July 30, 1980.

      Camp, Carmouche, Palmer, Barsh & Hunter, Adam L. Ortego, Jr., Lake Charles, for defendant-appellant.
    Ronald A. Rossitto, Asst. Dist. Atty., George Woolman, Chief Probation Officer, Lake Charles, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   GUIDRY, Judge.

Merlin Joseph Lewis was adjudicated a delinquent child in proceedings had in the Juvenile Court of the Parish of Calcasieu on February 8, 1980. This judgment was based on a finding that Merlin had committed the following offenses: (1) LSA-R.S. 14:108(b), resisting arrest; (2) LSA-R.S. 14:63.3, entry on or remaining in places after being forbidden; and, (3) LSA-R.S. 14:38, simple assault. In a judgment of disposition signed February 11, 1980, the trial judge ordered Merlin committed to the custody of the Department of Corrections for a term of six months.

This proceeding arises from an incident which occurred at the Sears and Roebuck Store in Lake Charles, Louisiana. On December 31, 1979, at approximately 5:30 p. m. Merlin was attempting to return a heater that his mother had bought at Sears. Merlin brought the heater to the office of Elizabeth Jegelewiez, a store manager, complaining that the heater did not work and demanded a refund. Jegelewiez, accompanied by Merlin, took the heater to be checked at the Quick Service Department. The heater apparently worked and Jegele-wicz informed Merlin that it was not normal procedure to give money back on something that was working properly. Merlin insisted on returning the heater and produced a receipt. The receipt however was for something else as it reflected a different stock number and price than that of the heater. Jegelewiez then escorted Merlin to the paint and electrical department where they sell heaters to see if perhaps someone there had waited on him and given him the wrong receipt. When Jegelewiez could not find anyone who had waited on Merlin she informed him that she could not give him a refund without a proper receipt, but if he would wait until the following day of business so that they could verify the sale she would then make a refund. Apparently unsatisfied with this result Merlin replied that he would not leave and wanted his money at that time. As Jegelewiez repeatedly explained why she would not make a refund Merlin became increasingly louder in his demand for a refund. Finally.Jege-lewicz told Merlin he was going to have to leave the store as he was being too loud and was creating a disturbance. Merlin reportedly said in a loud voice he was not going to leave the “damned” place until he got his money and that she could go ahead and call the police, which she did. Jegelewiez then escorted Merlin back to her office area where he took a seat in a chair in the entrance way of Jegelewicz’s office to await the arrival of the police.

Sergeant William E. Bushnell of the Lake Charles Police Department responded to the call put out by police headquarters which reported that an intoxicated black male subject was creating a disturbance in the paint section of Sears. Upon arrival at the store, Sgt. Bushnell was directed to Jege-lewicz’s office. Sgt. Bushnell talked first with Jegelewiez who pointed out Merlin as the one who created the disturbance and informed the officer that Merlin refused to leave after being so requested. Jegelewiez also related to the officer that because of Merlin’s demeanor it was her opinion that Merlin was under the influence of alcohol and also that it was her suspicion that the heater was a stolen item because of the improper receipt which was produced in the attempt to get a refund.

Sgt. Bushnell approached Merlin and asked him for identification. Merlin did not have any identification and was not responsive to the questions of the officer. At that point Sgt. Bushnell was within a couple of feet of Merlin and, according to Sgt. Bushnell, he could smell alcohol on Merlin. Sgt. Bushnell then informed Merlin he was under arrest for disturbing the peace. Merlin was still sitting in the chair and refused to go with Sgt. Bushnell despite repeated explanations by the officer that he was under arrest and that he had to leave the store at that time with the officer. Merlin advised Sgt. Bushnell that he was not under arrest, that he would not go to jail, and that if the officer tried to take him out of that chair he was going to whip the officer. Sgt. Bushnell then placed his left hand on Merlin’s right arm and told Merlin to come along. When Sgt. Bushnell pulled on Merlin, Merlin started to strike the officer with his left hand. Anticipating the blow, Sgt. Bushnell hit Merlin and pulled him from the chair. A scuffle ensued and Merlin was finally subdued. As Sgt. Bushnell was removing Merlin from the store Merlin tried to break away, but was again subdued by the officer and then taken to police headquarters by two officers who had arrived in a police unit.

On January 3, 1980, the State of Louisiana filed a petition in the Juvenile Court of the Parish of Calcasieu alleging that the Juvenile Court had jurisdiction over Merlin and requesting he be adjudicated a delinquent child. The petition specifically alleged that Merlin was under seventeen years of age and that his birthdate, as verified by school records, was July 31, 1963. Said petition charged Merlin with violating LSA-R.S. 14:103(A)(2), disturbing the peace; and LSA-R.S. 14:108(b), resisting arrest.

On February 1, 1980, over the objection of defense counsel, the State filed an amended and supplemental petition alleging Merlin additionally violated LSA-R.S. 14:63.3, entry on or remaining in places after being forbidden; and, LSA-R.S. 14:38, simple assault.

At the adjudication hearing on February 8,1980, Elizabeth Jegelewicz and Sgt. Bushnell testified on behalf of the State. The defense presented no evidence. Merlin, through counsel, did file a motion to dismiss alleging that LSA-R.S. 14:103(A)(2) is unconstitutional, that the arrest of Merlin was unlawful, and that Merlin therefore properly resisted his arrest. After the hearing, the trial court denied defendant’s motion to dismiss and concluded that the evidence warranted the requested adjudication of delinquency and found Merlin guilty of refusing to leave the Sears store after being instructed to do so, resisting Sgt. Bushnell’s arrest, and committing simple assault on Sgt. Bushnell. The trial court adjudicated Merlin innocent of the disturbing the peace charge. After a disposition hearing, conducted immediately after the adjudication of delinquency, Merlin was committed to the Department of Corrections. On this appeal of his adjudication of delinquency and commitment, Merlin relies on six assignments of error.

ASSIGNMENT OF ERROR NO. 1

Defendant contends that the trial court erred in allowing the original petition to be amended on February 1, 1980, one week prior to trial. In brief defendant asserts that by this amendment the State was attempting to legitimize an otherwise illegal arrest.

The question of whether the arrest of Merlin was lawful depends on the facts and circumstances existing at the time of arrest as shown by the evidence adduced at the hearing. Any subsequent actions, or pleadings in this case, taken by the State cannot ex post facto legitimize what would otherwise be an unlawful arrest.

The amending of a petition to adjudicate a child delinquent is specifically authorized by LSA-C.J.P. Article 50 which provides as follows:

“A. With leave of court, at any time, the district attorney or the person filing the petition may amend the petition to cure defects of form.
B. With leave of court, prior to the adjudication hearing, the district attorney or the person filing the petition may amend the petition to include new allegations of fact or requests for adjudication.
C. If a petition is amended prior to the adjudication hearing to include new allegations of fact or requests for adjudication, the child may request a continuance of the adjudication hearing. A continuance may be granted for such period as is required in the interest of justice.
D. In delinquency proceedings, after the commencement of the adjudication hearing, a petition shall not be amended to include new allegations of fact or requests for adjudication.”

The record shows that on the date the petition was amended the adjudication proceeding had not commenced as same had been refixed for February 8, 1980, by joint motion of counsel on February 1, 1980. We conclude that the trial court did not err in allowing the original petition to be amended as provided for by statute and that defendant’s first assignment of error is without merit.

ASSIGNMENT OF ERRORS NOS. 2 AND 4

Defendant contends the trial judge erred in denying the motion to dismiss. Defendant alleges as grounds therefor the unconstitutionality of LSA-R.S. 14:103(A)(2) and the propriety of Merlins resistance to what he asserts was an unlawful arrest. The latter ground constitutes defendant’s fourth assignment, i. e., that the trial court erred in failing to find that the defendant had properly resisted an unlawful arrest.

Defendant’s motion to dismiss was filed at the commencement of the adjudication proceeding on February 8, 1980, and a ruling on the motion was deferred until after the completion of the taking of evidence at the request of defense counsel. In such a context the substance of the motion to dismiss is more appropriately considered as a defense on the merits of the case rather than a request for the pre-adjudicatory relief of dismissal based on defects in the petition and defenses capable of determination as a matter of law.

Within this context the trial judge in oral reasons stated that he was not called upon to rule on the constitutionality of LSA-R.S. 14:103(A)(2) as this latter charge was dismissed on the basis of his finding there was not sufficient evidence to convict. We agree with the trial court that at the time the trial court was asked to rule on the matter, the question of constitutionality of LSA-R.S. 14:103(A)(2) had become moot. We conclude that the trial court made no error in this regard.

The merit of defendant’s argument that he was within his rights to resist the arrest by Sgt. Bushnell hinges on whether or not said arrest was lawful. A citizen has the right to resist an unlawful arrest. White v. Morris, 345 So.2d 461 (La. 1977). Whether an arrest is lawful depends upon whether probable cause exists. Article 213 of the Louisiana Code of Criminal Procedure, in pertinent part provides:

“A peace officer may, without a warrant, arrest a person when :
(3) The peace officer has reasonable cause to believe that the person to be arrested has committed an offense, although not in the presence of the officer ”

Our Supreme Court explained the concept of probable cause, i. e., “reasonable cause”, in State v. Billiot, 370 So.2d 539 (La.1979), as follows:

“Probable cause exists when the facts and circumstances known to the arresting officer, and of which he has reasonably trustworthy information, are sufficient to justify a person of ordinary caution in believing that the person to be arrested has committed a crime. State v. Davis. 357 So.2d 519 (La.1978); State v. Dunbar. 356 So.2d 956 (La.1978); State v. Johnson. 249 La. 950, 192 So.2d 135 (1966). To determine the existence of probable cause, the court must examine the “facts and circumstances within the arresting officer’s knowledge, and of which he has reasonably trustworthy information;’” State v. Linkletter. 345 So.2d 452 (La.1977); and do so in light of the experience of reasonable people, not legal technicians. Brinegar v. United States. 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). Probable cause is not absolute cause. Actions of lawmen, therefore, may be supported by less evidence than would justify a conviction. The strength of the requisite probable cause varies with the magnitude of the intrusion and the alternatives available to the peace officer. In the first instance the determination of probable cause is a matter for the trial judge depending, as it often does, upon factual determinations and the credibility of witnesses.”

In applying these principles to the case at hand, we find there was probable cause to arrest Merlin. Prior to placing Merlin under arrest Sgt. Bushnell had been informed by Jegelewicz, a store manager, that Merlin, apparently intoxicated, had created a major disturbance in the paint and electrical department using loud and profane language and had refused to leave the store after having been told to do so. While Jegelewicz was talking to Sgt. Bushnell, Merlin, sitting nearby, was uttering profanities in refutation to Jegelewicz’s statements. As Sgt. Bushnell attempted to explain the situation to Merlin and question him as to his identity and the incident, Merlin, who smelled of alcohol, was uncooperative and abusive in his language. The fact that Merlin remained in the store where he had been forbidden to remain constituted an offense in progress. From the totality of these facts and circumstances Sgt. Bushnell was of the opinion that he could not have left Merlin in the store without creating a further disturbance and that he had probable cause to arrest Merlin for drunk and disorderly conduct (disturbing the peace). We agree and conclude that the arrest of Merlin was lawful and he was without any right to resist said arrest.

We note that although the constitutional question concerning LSA-R.S. 14:103(A)(2) was pretermitted because of mootness, such issue would not affect our conclusion as to the lawfulness of the arrest of Merlin under said provisions. Although a different version of LSA-R.S. 14:103(A)(2) was held unconstitutional by the Louisiana Supreme Court in State v. Adams, 268 So.2d 228 (La.1972), the legislature amended said statute by Acts 1979, No. 222, Section 3, effective September 7, 1979, attempting to cure the constitutional defects pointed out in State v. Adams, supra. As of the date of arrest the amendment was in effect and no court has held it unenforceable because unconstitutional. Even should this amendment be subsequently declared constitutionally null and void, defendant was not legally entitled to resist an arrest based upon said statute, as amended. See City of New Orleans v. Lyons, 342 So.2d 196 (La.1977).

ASSIGNMENT OF ERROR NO. 3

Defendant contends the trial court erred in finding him guilty of refusing to leave the Sears store after being instructed to do so, resisting arrest and simple assault.

In a juvénile proceeding no child may be adjudged to be delinquent in the absence of proof beyond a reasonable doubt of every element of the offense alleged in the petition for the adjudication of delinquency. LSA-C.J.P. Article 73. See In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); State of Louisiana in the interest of Batiste, 359 So.2d 1077 (La.App. 3rd Cir. 1978), affirmed 367 So.2d 784 (La.1979).

We have carefully reviewed the record as to the factual and the legal conclusions made by the trial court regarding Merlin’s guilt in light of the evidence adduced and the essential elements of the offenses charged. We are satisfied that the State met its burden of proving beyond a reasonable doubt the delinquent acts for which Merlin was adjudicated a delinquent child and that the trial court made no error in so finding. We find no merit in defendant’s third assignment of error.

ASSIGNMENT OF ERROR NO. 5

Defendant argues that the doctrine of double jeopardy precludes an adjudication of guilt for simple assault after an adjudication of guilt is obtained for resisting arrest.

In the recent case of State v. Solomon, 379 So.2d 1078 (La.1980) our Supreme Court commented on the application in this state of the constitutional principle of double jeopardy:

“Both the Louisiana and the United States Constitutions provide that no person shall be twice put in jeopardy of life or liberty for the same offense. U.S. Const, amend. 5; La.Const. art. 1, sec. 15 (1974). Article 596 of the Louisiana Code of Criminal Procedure states that double jeopardy exists in a second trial only when the charge in that trial is:
(1) Identical with or a different grade of the same offense for which the defendant was in jeopardy in the first trial, whether or not a responsive verdict could have been rendered in the first trial as to the charge in the second trial; or
(2) Based on a part of a continuous offense for which offense the defendant was in jeopardy in the first trial, (emphasis added)
Thus, defendant submits for our review whether the burglary charge and theft conviction are the ‘same offense’ for double jeopardy purposes.
This Court has adopted the ‘same evidence’ test to determine the identity of offenses. This test holds that two offenses are the same for double jeopardy purposes if the same evidence is required for the conviction of each offense. If one offense requires proof of additional facts which the other does not, then the accused may be tried and convicted on both offenses unless the gravamen of the second offense is essentially included within the offense for which first tried, in which case the second prosecution is barred because of former jeopardy. State v. Nichols. 337 So.2d 1074 (La.1976); State v. Didier. 262 La. 364, 263 So.2d 322 (1972).
In applying this test, we have stated that double jeopardy exists when the two charges arise from identical conduct. State v. Bonfanti, 262 La. 153, 262 So.2d 504 (1972); State v. Didier. supra. Thus, simple battery and indecent behavior with juveniles were the same offense for double jeopardy purposes where both charges were based upon the defendant’s putting his hands up the prosecutrix's dress, State v. Bonfanti. supra. Similarly, malfeasance in office and a charge of robbery and theft as a principal were treated as the same offense where the defendant’s malfeasance consisted of his aiding and abetting the robbery-theft by failing to prevent it, to apprehend the participants, or to report the crime. State v. Didier. supra. ”

Defendant in the instant case, argues that the charges of simple assault and resisting arrest arose out of the same transaction which constitutes one offense and therefore the doctrine of double jeopardy should be applied.

We disagree that the actions of Merlin constituted one offense. While the charges for resisting arrest and simple assault may have arisen from the same delinquent episode or transaction, this factor does not preclude the state from adjudicating defendant guilty for both offenses. Our jurisprudence has consistently rejected the contention that an accused who commits separate and distinct offenses during the same criminal episode or transaction may not be prosecuted and convicted for each offense. See State v. Nichols, 337 So.2d 1074 (La.1976), and cases cited therein. This principle is equally applicable in a proceeding for the adjudication of a delinquent child.

Considering the principles as outlined in State v. Solomon, supra, and State v. Nichols, supra, we are convinced that defendant’s plea of double jeopardy is without merit. Merlin committed the offense of resisting an officer, as defined by LSA-R.S. 14:108 , when, after being told he was under arrest, he refused to go with Sgt. Bushnell and threatened to whip him if he attempted to remove him from the chair; when Merlin opposed the officer’s attempt to pull him from the chair; Merlin scuffled with and then attempted to breakaway from Sgt. Bushnell; and, additionally when he fought with two other policemen who had arrived as backup.

In contrast, the amended petition alleging Merlin violated LSA-R.S. 14:38 (simple assault), recites that “he (Merlin) did attempt to commit a battery upon, and did intentionally place Sergeant William Bushnell of the Lake Charles Police Department in reasonable apprehension of receiving a battery.” The essential elements to be proven for a conviction of simple assault are totally distinct and different from those necessary for conviction of resisting an officer. Furthermore, the gravamen of the offense of simple assault is clearly not essentially included within the offense of resisting an officer.

We conclude, therefore, that the trial court did not err by adjudicating Merlin guilty of simple assault in addition to resisting arrest.

ASSIGNMENT OF ERROR NO. 6

In defendant’s last assignment of error he argues that the age of the child is an essential element which the State must prove by competent evidence beyond a reasonable doubt and that in the instant case the trial court erred in concluding that there was sufficient proof of Merlin’s age.

The basis for defendant’s argument is that Article 73 of the Code of Juvenile Procedure provides that if the State files a petition requesting that a child be adjudicated a delinquent, the State bears the burden of proving beyond a reasonable doubt that the child committed the delinquent act alleged in the petition. The definition of delinquent act, LSA-C.J.P. Article 13(7), includes the language that a delinquent act means an act committed by a person less than seventeen years of age. The State’s petition specifically alleges defendant’s age as sixteen years old as verified by school records, however, said records or any other documentary evidence as to defendant’s age were not attached to the petition or made a part of the record. The only evidence that Merlin was a juvenile was Merlin’s own reported statement that he was a juvenile which was admitted into evidence as part of the res gestae over defendant counsel’s objection of hearsay.

Although evidence of age is necessary for jurisdictional purposes, it is not an essential element of the “delinquent act” which need be proven beyond a reasonable doubt. It is only the alleged “offense” which the child is accused of committing that need be proven beyond a reasonable doubt.

Defendant’s proper procedural vehicle to raise the question of jurisdiction of the juvenile court because of his age would have been by motion to dismiss under LSA-C.J.P. Article 65. As defendant did not move to dismiss under Article 65 or present any evidence contrary to the State’s specific allegation of defendant’s age, we cannot say the trial court erred in concluding there was sufficient proof of Merlin’s age so as to exercise jurisdiction over Merlin in this matter.

For the reasons assigned the adjudication of Merlin Joseph Lewis as a delinquent child and the commitment of Merlin Joseph Lewis to the Department of Corrections from which he appeals is hereby affirmed.

AFFIRMED.

      . This period of commitment represents the concurrent running of terms set by the trial judge for the discrete offenses set forth above, viz, 6 months for resisting arrest; 6 months for entry on or remaining in places after being forbidden; and, 90 days for simple assault.

      . Chapter 9 of the Code of Juvenile Procedure, entitled Pre-adjudication Motions and Relief, provides the following articles relevant to pre-adjudication relief:
      Art. 58:
      “A. All requests for relief prior to the adjudication hearing shall be made by written motion filed within fifteen (15) days after the child or his counsel has appeared to answer the petition.
      The motion shall state with particularity the grounds therefor and shall set forth the relief sought.
      B. The court may permit such requests to be made by oral motion.
      In the interest of justice, the court may allow additional time within which to make or file such motions.
      C. A motion may be granted without a contradictory hearing when movant is clearly entitled thereto without supporting proof. A motion shall not be denied without a contradictory hearing unless, assuming the facts alleged to be true, movant is not entitled to relief.”
      Art. 65:
      “Objections based on defects in the petition and defenses capable of determination as a matter of law may be raised by motion to dismiss.
      All other objections to the proceedings may also be raised by motion to dismiss.

      . The official revision comments to C.Cr.P. Article 213 read in pertinent part as follows:
      “(1) Instead of the phrase “felony or misdemeanor,” this article contains the term “offense.” Art. 933 defines “offense” to include both felony and misdemeanor, and “misdemeanor” to include violations of ordinances.
      By use of the term “offense” in Clause (3), the authority of a peace officer to make arrests for crimes committed out of his presence is broadened to include arrests for misdemeanors as well as for felonies. Accord: Ill.Code of Crim.Proc., § 107 — ”

      . LSA-R.S. 14:108 provides as follows:
      “Resisting an officer is the intentional opposition or resistance to, or obstruction of, an individual acting in his official capacity and authorized by law to make a lawful arrest or seizure of property, or to serve any lawful process or court order, when the offender knows or has reason to know that the person arresting, seizing property, or serving process is acting in his official capacity.
      The phrase ‘obstruction of as used herein shall, in addition to its common meaning, signification and connotation mean:
      (a) Flight by one sought to be arrested before the arresting officer can restrain him and after notice is given that he is under arrest.
      (b) Any violence toward or any resistance or opposition to the arresting officer after the arrested party is actually placed under arrest and before he is incarcerated in jail.
      (c) Refusal by the arrested party to give his name and make his identity known to the arresting officer.
      (d) Congregates with others on a public street and refuses to move on when ordered by the officer.
      Whoever commits the crime of resisting an officer shall be fined not more than five hundred dollars or be imprisoned for not more than six months, or both.

      . LSA-R.S. 14:36 provides:
      “Assault is an attempt to commit a battery, or the intentional placing of another in reasonable apprehension of receiving a battery.”
      LSA-R.S. 14:38 provides:
      “Simple assault is an assault committed without a dangerous weapon.
      Whoever commits a simple assault shall be fined not more than two hundred dollars, or imprisoned for not more than ninety days, or both.”

      . LSA-C.J.P. Article 13(7) provides:
      “ ‘Delinquent act’ means an act committed by a person less than seventeen years of age, and designated an offense under the statutes or ordinances of this state, or of another state if the act occurred in another state, or under federal law. It also includes a direct contempt of any court committed by a child and a constructive contempt of court committed by an adjudicated child who repeatedly disobeys the court’s judgment of disposition. A child adjudicated a delinquent for a constructive contempt of court shall not be considered to have been adjudicated a delinquent upon termination of the judgment of disposition for contempt. It does not include a traffic violation or an offense applicable only to children.”


source: Caselaw Access Project

author: DOMENGEAUX, Judge.

license: Public Domain

text:
    Don J. TASSIN and Gary Guillory, d/b/a Chicken Palace and Grocery, Plaintiffs-Appellants, v. STATE of Louisiana, THROUGH the DEPARTMENT OF PUBLIC SAFETY, OFFICE OF ALCOHOLIC BEVERAGE CONTROL, et al., Defendants-Appellees.
    No. 7762.
    Court of Appeal of Louisiana, Third Circuit.
    July 30, 1980.

      Riddle & Bennett, John T. Bennett, Marksville, for plaintiffs-appellants.
    Knoll & Knoll by Clark C. Roy, Marks-ville, Robert L. Roshto, Baton Rouge, for defendants-appellees.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   DOMENGEAUX, Judge.

This is an appeal from the denial of an application for a retail Class B beer permit. Don J. Tassin and Gary Guillory, d/b/a Chicken Palace and Grocery (hereafter referred to as plaintiffs or Chicken Palace) in the Town of Mansura (Town) applied for the beer permit in August or September of 1979. The Department of Public Safety, Office of Alcoholic Beverage Control (the State), refused plaintiff’s request on November 21, 1979, because plaintiffs had failed to obtain local permits as provided in La.R.S. 26:282 and 26:274.

After the State denied plaintiffs’ application, the plaintiffs appealed devolutively to the Twelfth Judicial District Court as provided in La.R.S. 26:104 and 302, naming the State and the Town as defendants. The District Court upheld the actions of both defendants and dismissed plaintiffs’ petition. An appeal to this Court followed.

The Town of Mansura refused to issue plaintiffs a local permit based upon the following town ordinance, adopted on November 14, 1977:

“Resolution No. 1179
On motion by I. B. Lemoine seconded by Edward Coco, and unanimously carried, that no beer or liquor permit shall be granted for any premises situated with in three hundred (300) feet of a building used exclusively as a church or school, and that the distance shall be measured as a person walks using the sidewalk from the nearest point of the property line of the church or school to the nearest point of the premises to be licensed.”

According to the Town, the permit was denied because the Chicken Palace was within 300 feet of a church. While plaintiffs have argued to the contrary, enough evidence was presented at the trial to establish that the plaintiffs’ place of business was within 300 feet of the church. Were it otherwise, plaintiffs would unquestionably have used such evidence (the actual measurement) to their advantage and this litigation would not have ensued.

Plaintiffs contend chiefly that the refusal to issue a local permit violated La.R.S. 26:80 C which provides:

“C. Governing authorities of parishes and municipalities may enact ordinances to prohibit the conduct of alcoholic beverage businesses within a certain distance of a parish or municipal playground or of a building used exclusively as a regular church or synagogue, public library, or school, except a school for business education conducted as a business college. No state or local permit shall be issued in contravention of any such ordinance.
In municipalities the prohibition may not extend more than three hundred feet from the church, synagogue, library, school, or playground. The measurement of this distance shall be made from the nearest point of the property line of the church, synagogue, library, playground, or school to the nearest point of the property line of the premises to be licensed.
Outside of municipalities, parish ordinances may extend the prohibition to a distance of five hundred feet of the church, synagogue, library, school, or playground. The measurement of this distance shall be made in the same manner as the measurement is made in municipalities.
The prohibition in this Subsection does not apply to any premises which are maintained as a bona fide hotel, railway car, or fraternal organization, nor to any premises which have been licensed to deal in alcoholic beverages for a period of one year or longer prior to the adoption of the ordinance.” (Emphasis added)

Plaintiffs’ position is that their premises have been licensed to do business for at least one year prior to the adoption of the previously quoted local ordinance, and that the Town, therefore, has no right to withhold from plaintiffs the local beer permit sought.

We disagree with plaintiffs’ contention that R.S. 26:80 C applies to the situation before us. R.S. 26:80 C is found in Chapter 1 of Title 26 (which contains Sections 1-219). Chapter 1 regulates the sale of alcoholic beverages and also contains provisions for the issuance of permits. However, the applicability of Chapter 1 is significantly limited by R.S. 26:2, which defines various terms for use within the Chapter. R.S. 26:2 provides in part:

“For purposes of this Chapter . (1) ‘Alcoholic beverages’ means any fluid or solid capable of being converted into fluid, suitable for human consumption and having an alcoholic content of more than six per cent by volume, including alcohol.” (Emphasis added)

Chapter 1, then, by its own provisions, expressly excludes from its coverage those alcoholic beverages having an alcoholic content of six per cent or less. Thus, Chapter 1 neither regulates the sale of beer, nor governs the issuance of beer permits. Consequently R.S. 26:80 C, which is found in Chapter 1, only limits the location of businesses seeking liquor licenses and not those seeking beer licenses.

Title 26, Chapter 2 (containing Sections 241-521) regulates the issuance of permits for dealers in beverages of low alcoholic content. R.S. 26:241(l)(a) defines beverages of low alcoholic content to mean “alcoholic beverages containing not more than six per cent alcohol by volume . . This definition includes beer. The applicable statute from Chapter 2 which limits the location of businesses seeking beer permits is R.S. 26:280. Sub-section C of 280 reads as follows:

“C. When prohibited by municipal or parish ordinance no permit shall be granted for any premises situated within three, hundred feet or less, as fixed by the ordinance, of a public playground or of a building used exclusively as a church or synagogue, public library, or school, except a school for business education conducted as a business college or school. In municipalities and in unincorporated areas which are divided into subdivisions with streets, blocks, sidewalks, etc., this distance shall be measured as a person walks using the sidewalk from the nearest point of the property line of the church or synagogue, library, playground, or school to the nearest point of the premises to be licensed.
Police juries may enact ordinances extending the distances between licensed premises and the property line of churches, synagogues, public library, or schools to five hundred feet.
The provisions of this section shall not apply to registered pharmacists or licensed drug stores, licensed under the laws of the state of Louisiana who are permitted to sell alcoholic beverages by prescription only, either of high or low alcoholic content under Chapter 1 or Chapter 2 of Title 26.
Should any premises licensed to deal in beverages of low alcoholic content be located within a distance less than that provided by a municipal or parish ordinance pursuant to this section from property which is purchased or acquired after the license was obtained for the construction, erection, movement or development of a public playground or a building used exclusively as a church or synagogue, public library, or school, except a school for business education conducted as a business college or school, such subsequent purchase or acquisition shall not be grounds for the revocation, withholding, denial or refusal to renew the permit on said premises either by state or local authorities.
In undeveloped rural areas, the distance shall be measured in a straight line from the nearest point to the nearest point of the respective premises.
The provisions of this section 1 shall not
!As it appears in Acts 1969, No. 144, § 1, which amended subsection C.”
be grounds for the revocation, withholding, denial or refusal to renew a Class B state and/or local permit to allow the sale of beverages of low alcoholic content by the package and for consumption off the licensed premises issued between July 31, 1968 and June 30, 1969.
The provisions of this Subsection shall not apply to municipalities with over 400,-000 population.
Amended by Acts 1962, No. 400, § 1; Acts 1968, No. 427, § 1; Acts 1969, No. 144, § 1.

R.S. 280 C does not contain the exception found in 80 C for “premises which have been licensed to deal in alcoholic beverages for a period of one year or longer prior to the adoption of the ordinance.” The exception was formerly contained in 280 C but was deleted by Act No. 400 of the Regular Session of the 1962 Legislature. Hence, the exception is no longer available to persons seeking beer permits, although it continues to exist for persons seeking liquor permits under 80 C.

Three exceptions not found in 80 C are created" by the third, fourth, and sixth paragraphs of 280 C. Since the plaintiffs’ establishment is located within 300 feet of a church, the Town ordinance adopted in 1977 permits the Town to refuse to issue plaintiffs a Class B beer permit in accordance with the provisions of 26:280 C. It is incumbent upon plaintiffs to prove that they fall within one of the three exceptions mentioned in 280 C in order to prevail here and obtain their permit. Since there is no evidence in the record that plaintiffs fall within one of the exceptions, the judgment of the District Court denying plaintiffs’ application for a beer permit is affirmed.

For the above reasons, the judgment of the District Court in favor of the Town and the State is affirmed. All costs are assessed against the plaintiffs.

AFFIRMED.

      . § 282:
      “The collector with respect to state permits and municipal authorities or parish governing authorities with respect to local permits may withhold the issuance of permits in the manner and under the terms and conditions specified in this Chapter.”
      § 274:
      “No person shall do any act for which a permit is required by this Chapter or by local authorities acting hereunder unless he holds the proper state and local permits; provided, however, that no local permit shall be necessary unless the local governing authority has adopted an ordinance requiring a local permit. .


text:
    VALLEY ELECTRIC MEMBERSHIP CORP., INC., Plaintiff-Appellant, v. Teddie R. DOWDEN et ux., Defendant-Appellee.
    No. 7795.
    Court of Appeal of Louisiana, Third Circuit.
    July 30, 1980.

      Whitehead & McCoy, Charles R. Whitehead, Jr., Natchitoches, for plaintiff-appellant.
    James R. Mitchell, Leesville, for defendant-appellee.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   DOMENGEAUX, Judge.

Just compensation for the taking of a servitude is the only issue to be resolved by the Court in this expropriation proceeding. The parties stipulated at the commencement of trial that the purpose of the taking is public and necessary and that the plaintiff has the legal right to expropriate. Louisiana Constitution of 1974, Article 1, Section 4; La.R.S. 19:2.

Plaintiff, Valley Electric Membership Corp. (VEMCO), seeks to expropriate a servitude over a tract of land owned by defendants Teddie R. Dowden and his wife, Donna Chance Dowden. The Dowden tract contains 22.7 acres of land, has about 1253 feet of frontage on Louisiana Highway 8 (the main traffic artery between Leesville and Alexandria), and has situated upon it the Dowden residence and several outbuildings. The land is traversed by Mosquito Creek, which only recently has been rechan-neled and dredged, and the land has been largely cleared and the surface partially leveled.

VEMCO intends to construct a 69 KV power transmission line across the Dowden property. For this purpose it needs a servitude 100 feet in width for a distance of 1191 feet, together with a 5-foot by 10-foot extension for a guy wire. The taking encompasses an area of 2.76 acres.

In addition to lay witnesses and a survey- or, three appraisers testified at the trial. Mr. Charlie McCain and Mr. M. C. Gehr testified on VEMCO’s behalf. They appraised the value of the 2.76 acre servitude at $15,000.00 and $13,800.00 respectively. Neither believed that the remaining property would be damaged by the servitude. Consequently, neither included an amount for severance damages.

Mr. Normand Terry appraised the property and testified on behalf of the Dowdens. Mr. Terry valued the 2.76 acre servitude at $29,500.00. He also felt that the remaining land did suffer some damage as a result of the servitude and estimated the amount of these damages at no less than $7,700.00.

The trial court relied upon the appraisal of Mr. Terry and awarded the Dowdens $37,200.00 ($29,500.00 as the value of the servitude and $7,700.00 in severance damages). Taxed as costs of the proceedings was the surveyor’s (Mr. Charles C. Wise’s) expert fee of $100.00 and Mr. Terry’s fee, which was fixed at $750.00. Costs of the proceedings were borne by VEMCO.

VEMCO has appealed and argues that the trial court committed manifest error (1) by awarding $29,500.00 for the 2.76 acre expropriation, and (2) in making an award for severance damages. VEMCO argues that the value of the taken land is considerably less than Mr. Terry’s appraisal because the land is low-lying, is flood prone, and must be built up considerably before a subdivision may be constructed, and because the area represented by the creek is inherently worth less than the rest of the land. Unlike plaintiffs expert appraisals, Mr. Terry’s appraisal did not include deductions for these alleged drawbacks.

VEMCO’s other contention is that the remainder of the Dowden property is not damaged by the taking since the servitude roughly follows the creek bed and does not affect property outside of the creek. We reject VEMCO’s argument and affirm the trial court’s judgment.

In a well-reasoned opinion, Judge Roy B. Tuck, Jr. summarized the testimony and the reports of each of the three appraisers and then explained why he relied upon Mr. Terry’s appraisal. We find that his opinion ably and correctly disposes of VEMCO’s arguments and we therefore quote the pertinent parts of that opinion, as follows:

“. . . Mr. McCain testified that, in his opinion, the property of Mr. Dowden fronting the highway to a depth of two hundred fifty feet (250) from the highway had a highest and best use as commercial property and that the remainder of the Dowden tract had a highest and best use for potential residential development . . .

Based upon his comparables [omitted here], as adjusted by him, Mr. McCain concludes that that portion of the subject property which is best suited for commercial usage would have a value of Twenty Thousand Dollars ($20,000.00) per acre and that the portion of the subject property best suited for residential development would have a value of Twelve Thousand Dollars ($12,000.00) per acre, both classifications of use being subject to deduction for additional fill considered by Mr. McCain to be necessary.

In computing the value of the taking Mr. McCain considered the residential property and the commercial property separately and, although he admitted that such practice is not customary appraisal procedure, Mr. McCain made certain computations excluding or reducing the value of that portion of the property lying within Mosquito Creek. He considered that the portion of commercial property taken consisted of 0.58 acres of which 0.19 acres lay in the creek leaving a remainder of 0.39 acres. Using a price of Twenty Thousand Dollars ($20,-000.00) per acre Mr. McCain concluded, after deducting an estimated cost for filling of Two Thousand Five Hundred Seventeen Dollars ($2,517.00) and a Fifteen per cent (15%) residual value of Seven Hundred Ninety-Two Dollars ($792.00) and adding back a Fifty per cent (50%) value of the servitude for the creekbed that the compensation due for the taking of that portion best suited to commercial use was the sum of Five Thousand Five Hundred Eighty-Five Dollars ($5,585.00).

For the remaining portion best suited to residential development Mr. McCain considered that there was a total of 2.18 acres of which 0.36 acres lay in the creek leaving a remainder of 1.82 acres. Using a land value of Twelve Thousand Dollars ($12,-000.00) per acre and deducting fill cost estimated by him in the amount of Eleven Thousand Seven Hundred Forty-Six Dollars ($11,746.00) and a Fifteen per cent (15%) residual value in the amount of One Thousand Five Hundred Fourteen Dollars ($1,514.00) and adding back Fifty per cent (50%) of the easement value for that portion lying in the creek, Mr. McCain estimated the value of that portion to be the sum of Nine Thousand Four Hundred Twenty-Nine Dollars ($9,429.00). He then added the two figures arriving at the sum of Fifteen Thousand Fourteen Dollars ($15,-014.00) rounded to the total of Fifteen Thousand Dollars ($15,000.00) as just compensation due.

Mr. McCain did not consider that there was any damage to the remaining property and, consequently, allowed no severance damage.

Also testifying for the plaintiff as an expert appraiser was Mr. M. C. Gehr of Alexandria, Louisiana. Mr. Gehr considered that all of the property subject of this action had a highest and best use as property for potential residential development .

Mr. Gehr computes the value of the servitude as a whole. He is of the opinion that the land taken in servitude will have a residual value of Two Thousand Eight Hundred Dollars ($2,800,00). Based upon a land value of Six Thousand Dollars ($6,000.00) per acre and a quantity taken of 2.76 acres, he concludes that the total value of the 2.76 acres is Sixteen Thousand Six Hundred Dollars ($16,600.00) from which he deducts the sum of Two Thousand Eight Hundred Dollars ($2,800.00) [residual value of the servitude to the Dowdens] leaving a value of Thirteen Thousand Eight Hundred Dollars ($13,800.00) for the taking.

Mr. Gehr was of the opinion that the remaining land would not be damaged as a result of the taking and, consequently, allowed no severance damages.

Called by the defendant to testify as an appraiser was Mr. Norman D. Terry [sic] of DeRidder, Louisiana. Mr. Terry was of the opinion that that portion of the subject property fronting the highway to a depth of approximately two hundred and nine feet (209) had a highest and best use as commercial property and that the remainder of the subject property had a highest and best use for residential development .

Mr. Terry considered that the subject property contained six (6) acres of commercial property which he valued at Twenty Thousand Dollars ($20,000.00) per acre and 16.7 acres of property best suited for residential development which he valued at Eleven Thousand Dollars ($11,000.00) per acre for a total valuation of the subject property, less any structural improvements, of Three Hundred Three Thousand Seven Hundred Dollars ($303,700.00). Dividing the total valuation by the total acreage he concluded that the property, considered as a whole, had a per acre value of Thirteen Thousand Three Hundred Seventy-Eight Dollars and Eighty-Five Cents ($13,378.85) which he rounded to Thirteen Thousand Three Hundred Seventy-Nine Dollars ($13,-379.00) per acre. This appraiser figured that the total value of the 2.76 acres taken in servitude was Thirty-Six Thousand Nine Hundred Twenty-Six Dollars ($36,926.00) and that the owner would retain a twenty per cent (20%) residual value giving an indicated value of the servitude of Twenty-Nine Thousand Five Hundred Dollars ($29,-500.00).

Mr. Terry further concluded that the approximately seven (7) acres of potential residential property lying west of Mosquito Creek and south of the portion best suited to commercial use would be damaged by the imposition of the power line to the extent of ten per cent (10%) of it’s total present value. He based this judgment upon the fact that any proposed subdivision would have to be redesigned to accommodate the right of way and that it would be necessary to totally redesign streets. He felt that there would be some loss of lots because of the configuration of the remainder and the location of the power line thereon. Accordingly, it was his opinion that severance damages in the amount of Seven Thousand Seven Hundred Dollars ($7,700.00) being ten (10) per cent of the total value of seven (7) acres at Eleven Thousand Dollars ($11,-000.00) per acre would be necessary in order to compensate the landowner. Adding the value of the portion taken in servitude and the severance damages, Mr. Terry concluded that the total estimated just compensation was the sum of Thirty Seven Thousand Two Hundred Dollars ($37,200.00).

From the evidence it appears that the area in which the subject property is located has experienced considerable recent growth, that the subject property is adjacent to a major highway, adjacent to newer, better developed subdivisions and is convenient to hospitals, schools and churches. It also appears from the evidence that this area is beginning to experience considerable commercial development. For these reasons the Court finds it necessary to accept the opinion of Mr. McCain and Mr. Terry that the portion of the subject property fronting on the highway is best suited for commercial usage and that the remainder of the subject property is best suited for residential development and to reject the opinion of Mr. Gehr that the subject property has a highest and best use as residential and no commercial potential at this time.

It is remarkable to note that Mr. McCain arrives at a value of the commercial property ready to develop of Twenty Thousand Dollars ($20,000.00) per acre and a value of the residential portion of the subject property ready to develop of Twelve Thousand Dollars ($12,000.00) per acre. Mr. Terry calculates the value of the commercial property at Twenty Thousand Dollars ($20,-000.00) per acre and the value of the residential portion of the property at Eleven Thousand Dollars ($11,00.00) per acre. Mr. McCain then, of course, proceeds to deduct for additional fill and for the portion lying within the creek as the same was rechan-neled. There is considerable believable testimony to the effect that the existence of the creek does not greatly impair the utility of the property to be used for commercial purposes including the illustrations by Mr. Terry in his appraisal report (Exhibit D-6) reciting that Berry Town Shopping Center, Leesville, Louisiana, is built over a large drainage structure and small creek and that the same is the case of East Village Shopping Center, DeRidder, Louisiana and the structure housing Morris Tire Center in DeRidder, Louisiana. Considering this evidence and the admission by Mr. McCain that deducting for the area contained in a creek is not customary appraisal practice, it is the opinion of the Court that Mr. McCain, in his computations, should not have made this deduction and that the entire 2.76 acres included within the taking should be compensated at the full per acre value of the property less the residual value retained by the landowner. [Emphasis added].

The Court is also convinced by the testimony of Mr. Terry and the plaintiff [sic] Mr. Dowden (a builder and developer by occupation) that homes are customarily constructed on residential lots upon a pad of earth, the cost of which is passed on in the price of the house and is not attributable to the land upon which the same is constructed. Likewise the Court holds that the evidence, including the testimony of Mr. Charles C. Wise who ran a series of elevations upon the property and has observed it over an extended period of time, the testimony of Mr. James Armes who has observed the property over an extended period of time and the testimony of Mr. Dow-den himself that, since the deepening of the creek and the partial leveling of the subject property, there has been no flooding, it is improper to deduct from the value found any rough estimate of cost of fill which may not be necessary or required. It is the further opinion of the Court that the purpose of an appraisal by an expert is to determine the present value of the property being considered as of the date of the proposed expropriation.

The Court, having seen and heard the witnesses and having reviewed the reports prepared by the appraisers testifying herein, concludes that, taking into account size, location, configuration and proximity to the same facilities, the transactions referred to by Mr. Terry are more nearly comparable to the subject property than are the compara-bles used by Mr. McCain and Mr. Gehr. For example, the property subject of the sale by Mr. Clark to Vernon Beverage Company is different in nature. The Clark property is more rural in nature, is further remqved from the city, is lacking in certain utilities, contemplates gravel streets and contains no commercial area. By the same token, comparables (4) and (5) utilized by Mr. Gehr in his appraisal appear to be of very little assistance. The two sales considered there were obviously sales of improved rural residential property not necessarily adapted to either commercial use or to residential development in the sense of being readily susceptible of subdivision.

Consequently, the Court is of the opinion that the sum of Twenty Nine Thousand Five Hundred Dollars ($29,500.00), as determined by Mr. Terry, is an appropriate figure which would adequately and justly compensate the landowner for the property taken herein.

As pointed out in Louisiana Power and Light Company v. Churchill Farms, Inc., (La.1974) 292 So.2d 183, there is no magic formula for the determination of severance damages. In the instant matter, neither Mr. Gehr nor Mr. McCain feel that any damage will result to the remainder. As pointed out hereinabove, Mr. Terry felt that approximately seven (7) acres of residential property lying west of Mosquito Creek would be damaged to the extent of ten per cent (10%) of it’s total value. The Court accepts Mr. Terry’s judgment in this matter and feels that his judgment is adequately corroborated by his testimony, by the testimony of Mr. Wise and by the testimony of Mr. Dowden. Reference to exhibit D-3 indicates that the center line of the servitude and presumably the electric wires and supporting structures would pass directly over at least eight (8) of the possible lots to be derived from subdividing that property. There can be no question but that unsightliness and possible fear of the power line would make these lots less desirable to a purchaser with an alternative. Southwest Louisiana Electric Membership Corporation v. Duhon, (La.App. 3rd Cir. 1975) 313 So.2d 366; Rehearing denied June 18, 1975; Writ refused September 17, 1975. The evidence further demonstrates that primary access to this tract of potential residential property is from the stub of Kimberly Drive as the same now exists. To subdivide the property differently would likely necessitate a different access and potential loss of certain of the properties available without the existence of the power line. Accordingly, the Court is of the opinion that the evidence adequately demonstrates that the noncommercial portion of the subject property lying west of Mosquito Creek will be damaged by the taking and construction of the power line and that the estimate of ten (10%) per cent vouched by Mr. Terry is not an unreasonable estimate of that damage.”

For the reasons expressed by the trial judge, whose opinion has been substantially reproduced above and is adopted by this Court, we affirm the award to the Dowdens of $37,200.00 as just compensation for the servitude taken over their land. The judgment is also affirmed in all other respects. Costs of this appeal are assessed against VEMCO.

AFFIRMED.


text:
    James R. CARPENTER, Plaintiff-Appellant, v. Donald Lee WILLIAMS et ux., Defendants-Appellees.
    No. 7909.
    Court of Appeal of Louisiana, Third Circuit.
    July 30, 1980.
    Book & Stainback, James E. Stainback, Lake Charles, for plaintiff-appellant.
    Henderson, Hanemann & Morris, Charles Hanemann, Houma, for defendants-appel-lees.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   MOTION TO DISMISS

DOMENGEAUX, Judge.

This matter is before us at this time on a motion to dismiss the appeal taken by plaintiff from a judgment rendered below sustaining defendants’ declinatory exception of venue and transferring plaintiff’s suit to the Fifteenth Judicial District Court for the Parish of Lafayette.

On January 4, 1980, plaintiff, James Carpenter, filed suit against defendants, Donald Lee Williams and Joe Renda Sue Williams, seeking specific performance of a contract to sell a certain home and lot in Calcasieu Parish.

In response to the suit, defendants, residents of Lafayette Parish, filed a declinato-ry exception contending • that the Fourteenth Judicial District Court in Calcasieu Parish was not a court of proper venue.

Following a hearing on the exception, the trial judge rendered judgment maintaining the declinatory exception of venue and transferring the proceedings to the Fifteenth Judicial District Court for the Parish of Lafayette. Plaintiff perfected an appeal from this ruling. In response to plaintiff’s appeal, defendant filed the instant motion to dismiss.

C.C.P. art. 2083 provides:

“An appeal may be taken from a final judgment rendered in causes in which appeals are given by law whether rendered after hearing or by default, and from an interlocutory judgment which may cause irreparable injury.”

In Ford, Bacon & Davis Construction Company v. Doga, 365 So.2d 1143, (La.App. 3rd Cir. 1978) this court stated:

“A judgment which sustains an exception to venue is an interlocutory judgment which may not be appealed without a showing of irreparable injury. Hobbs v. Fireman's Fund American Ins. Cos., 293 So.2d 608 (La.App. 3rd Cir. 1974), writ den. 296 So.2d 832; Broussard v. Liberty Mutual Ins. Co., 204 So.2d 714 (La.App. 3rd Cir. 1967); Thibaut v. Thibaut, 346 So.2d 809 (La.App. 1st Cir. 1977). LSA-C.C.P. Art. 2083.”

In the present action, appellant has not shown that he will suffer any irreparable harm as a result of the court’s ruling sustaining the declinatory exception of venue. Having failed to show any irreparable harm, plaintiff’s appeal from the interlocutory order must be dismissed at his costs. The appellees’ motion to dismiss is granted.

APPEAL DISMISSED.


author: GUIDRY, Judge.

text:
    Pearl BELL, Plaintiff-Appellee, v. Louis BELL, Defendant-Appellant.
    No. 7957.
    Court of Appeal of Louisiana, Third Circuit.
    July 31, 1980.

      Wilford D. Carter, Lake Charles, for defendant-appellant.
    Kimball, McLeod & Dow, William L. McLeod, Lake Charles, for plaintiff-appel-lee.
    Before GUIDRY, FORET and CUTRER, JJ.
   GUIDRY, Judge.

MOTION TO DISMISS

Defendant, Louis Bell, brings this appeal from a judgment rendered below finding defendant in contempt, sentencing him to serve ten days in the parish jail, and assessing attorney’s fees and court costs against him. This court issued an ex proprio motu order directing appellant to show cause why his appeal should not be dismissed for lack of jurisdiction.

On April 22, 1977, judgment was rendered decreeing a separation from bed and board between Pearl Bell and defendant, Louis Bell. Pearl Bell was awarded custody of the minor children of the marriage and alimony in the sum of $300.00 per month.

On December, 28, 1979, plaintiff filed a rule to show cause why defendant should not be held in contempt for his failure to pay alimony. After the hearing on the rule, on January 29, 1980, judgment was rendered finding plaintiff in contempt and sentencing him to serve ten days in the Calcasieu Parish Jail. The sentence was suspended on the condition that defendant pay $800.00 of arrearages immediately and the remaining balance within ten days of the judgment of contempt.

On March 15, 1980, plaintiff filed a rule directing defendant to show cause why he should not be held in contempt for his, failure to comply with the January 29, 1980 judgment.

After a hearing on the rule, the trial court rendered judgment on March 24, 1980 finding defendant in contempt for failure to obey the previous judgment of the court and sentenced defendant to serve ten days in the Calcasieu Parish Jail. The judgment also condemned defendant to pay attorney’s fees in the sum of $250.00 and court costs. Defendant perfected this appeal from the court’s ruling. This court issued a rule directing defendant to show cause why his appeal should not be dismissed.

The issue presented by the rule to show cause is whether this court has jurisdiction to review the judgment rendered below. Under LSA Constitution Article 5, the right of review in criminal matters is exclusively vested in the Supreme Court. Courts of Appeal are vested with appellate jurisdiction of all civil matters and matters appealed from family and juvenile courts, except criminal prosecutions of persons other than juveniles. LSA-Constitution Article 5 § 10.

In Dove v. Dove, (Docket No. 7721), 386 So.2d 127 (La.App. 3rd Cir. 1980), where this court was faced with the issue of whether we had jurisdiction to review a contempt sentence, we stated,

“. . . jurisdiction to review is depen-dant upon whether the trial court in the instant proceeding imposed a civil or criminal sanction at the contempt hearing.”

In State v. Austin, 374 So.2d 1252 (La., 1979), the Supreme Court was faced with the issue of whether a contempt judgment in a civil proceeding for non-payment of child support involved the imposition of a criminal sanction. In that case, the court stated:

“The merit of the defense position turns initially on whether the trial court imposed a civil or criminal sanction at the contempt hearing. Distinguishing between the two penalties is not an easy task. As pointed out by the Court in Louisiana State Board of Medical Examiners v. Bates, 258 La. 1049, 249 So.2d 127, 131 (1971), ‘. . .the similarity between criminal and civil contempt is striking. . . . (T)hey are almost identical, being governed by the ■ same procedure and by penalties which are not too disparate.’
“The United States Supreme Court has focused on the purpose of the contempt penalty imposed, rather than the character of the underlying proceeding, in distinguishing between the two kinds of contempt. In Schillitani v. United States, 384 U.S. 364, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966) defendants called before a grand jury investigating narcotics offenses refused to .testify, notwithstanding a grant of immunity. The trial court found them in contempt and sentenced them to two years’ imprisonment, stipulating that they could win release by testifying. Defendants challenged the sentence on grounds the contempt proceeding had neither been initiated by indictment, nor tried to a jury. Despite the criminal nature of the proceedings, the United States Supreme Court denominated their refusal to testify a civil contempt, one which was therefore not governed by principles of criminal law. The Court announced ‘The test may be stated as: what does the court primarily seek to accomplish by imposing sentence?’ It concluded that while defendants ‘. . were ordered imprisoned for a definite period, their sentences were clearly intended to operate in a prospective manner — to coerce, rather than punish. As such, they relate to civil contempt.’ The Court explained its result: ‘. . . the act of disobedience consisted solely “in refusing to do what had been ordered” . . . not “in doing what had been prohibited.” And the judgments imposed conditional imprisonment for the obvious purpose of compelling the witnesses to obey. When the petitioners carry “the keys of their prison in their own pockets” . the action is essentially a civil remedy designed for the benefit of other parties and has quite properly been exercised for centuries to secure compliance with judicial decrees. ... In short, if the petitioners had chosen to obey the order they would not have faced jail.’ ”
“Applying the analysis of the United States Supreme Court, contempts punished under R.S. 13:4611(A)(4) may be either criminal (punitive) or civil (coercive), depending upon the purpose of the convicting court. The judgment of contempt reveals that the sentence imposed was suspended upon the condition that relator pay past due child support and medical bills in the sum of $809 and $100 attorney’s fees, all of which sums were paid. Therefore the intent of the court was clearly to compel obedience of its child support judgment, not to punish for defiance of the court’s order. Thus, the contempt sentence was distinctly civil in nature and relator’s double jeopardy arguments are unavailing.”

In the present action, an examination of the judgment reveals that the contempt sentence imposed upon defendant was a criminal sanction. The judgment provides, in pertinent part,

“IT IS ORDERED that LOUIS BELL be and is hereby adjudged to be in contempt of this Honorable Court for failure to heed the previous judgment of this Court for payment of child support, and accordingly LOUIS BELL be and he is hereby ordered to serve ten days in the Calcasieu Parish Jail commencing immediately.”

Clearly, the ten day jail sentence was not imposed for the purpose of compelling defendant’s compliance with the Court’s previous judgment ordering payment of child support arrearages. Rather, the sentence was imposed as punishment for defendant’s noncompliance with the previous order of the court. Under such circumstances, the sanction imposed was clearly a criminal sanction and exclusive jurisdiction to review the judgment lies with the Supreme Court.

Since this court does not have jurisdiction to review the matter in question, the defendant’s appeal is dismissed. The.appellant is hereby cast for all appeal costs to date.

In the interest of justice and under the authority of LSA-C.C.P. Art. 2162, appellant’s appeal is hereby transferred to the Supreme Court.

APPEAL DISMISSED AND TRANSFERRED.


author:
BOWLING, Justice,
      SUGG, Justice,

text:
    Larry FULGHAM v. STATE of Mississippi.
    No. 51922.
    Supreme Court of Mississippi.
    July 30, 1980.
    Butler & Butler, Jan R. Butler, Eupora, for appellant.
    Bill Allain, Atty. Gen., by Karen Gilfoy, Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, LEE and BOWLING, JJ.
   BOWLING, Justice,

for the Court:

Appellant was indicted, tried and convicted in the Circuit Court of Webster County for the sale of marijuana. On this appeal he alleges two assignments of error:

1. Appellant was denied his right to a fair trial by an impartial jury when the judge made statements in the presence of the jury panel concerning his personal feelings as to the sale of drugs.

2. Appellant was denied his right to a fair trial by an impartial jury when the District Attorney was allowed to make improper closing argument.

As to the first assignment of error, the record reveals the following: On November 20, 1978, Leland Sellars, Jr., and appellant, Larry Fulgham, were jointly indicted for the alleged delivery and sale of 109.9 grams of marijuana. A joint trial of the co-indict-ees was set for June 6, 1979. The record reveals the following as to what occurred at the outset of the trial:

Court having been called to order by proclamation of the Sheriff at nine o’clock A.M. on said date, the following transpired in open court in the presence of the jury panel.
The Court did cause to have called the matter of the State of Mississippi versus Leland Sellars, Jr. and Larry Fulgham, to which the District Attorney responded, informing the Court that he had been informed that the Defendant, Mr. Sellars, had an announcement to make regarding his involvement in this matter. At this time, Mr. Sellars, a co-indictee and co-defendant herein, did plead guilty to the offense charged, for which he was sentenced to serve a term of three years in the Mississippi State Penitentiary. The Court did then again call this cause, naming Larry Fulgham as the sole defendant herein, at which time counsel for defendant, Mr. Butler, moved the Court for a continuance, which the Court overruled, and the following statement was subsequently placed into the record.
BY THE COURT: Let the record show that the Defendant, through his counsel, made an ore tenus motion for continuance on the basis that the co-indictee had pled guilty to the Court in the presence of the jury and that the Judge made comments relative to his feelings on the sale of drugs. The Court notes that the Court made no comments as to Mr. Fulgham, or to his relation of guilt or innocence and the motion is overruled.

Therefore, we have the following undisputed situation. The case of the State against the jointly indicted defendants, Sel-lars and Fulgham, was called in open court in the presence of the entire jury panel. The district attorney, in open court and in the presence of the jury panel, informed the court that he had been informed that the defendant Sellars had an announcement to make. Sellars then pled guilty and was sentenced to a term of three years in the Mississippi State Penitentiary, all in open court and in the presence of the jury panel. The court then recalled the case, naming only appellant as the one to be tried. After appellant’s motion for a continuance, the court made the statement as shown above. In regard to appellant’s motion stating that the court had made comments relative to his feelings on the sale of drugs before the jury panel that was to immediately begin trying appellant, the court only said: “The court notes that the court made no comments as to Mr. Fulgham or to his relation to guilty or innocence and the motion is overruled.”

It is first noted that the court made no denial of appellant’s contention that he was prejudiced by the court’s remarks in the presence of the jury panel regarding the court’s feelings on the sale of drugs. The statement of the court by implication admits some type of statement but justified it on the basis that no comments were made about the remaining defendant in the indictment.

It would have been proper for the trial court to have waited until after appellant’s jury was selected and sent to chambers, or until after appellant’s trial, to have held the sentence proceedings regarding Sellars.

Evidently the sentence proceeding involving Sellars was not transcribed by the court reporter, as now is normally the case in such proceedings in the circuit courts of the State. If a recording had been made, certainly the court would have attached exactly what was said to the present record.

We hold that it was reversible error for the court to have conducted the above set out proceedings regarding the plea and sentencing of the co-indictee Sellars in the presence of the jury panel that was about to begin appellant’s trial. As hereinbefore stated, we admittedly do not have a record of the language used in these proceedings. We do have a motion by appellant’s attorney that the court, although admittedly without any intent to prejudice, made statements regarding his personal views on drugs.

The guilt or innocence of the appellant is immaterial in deciding this question. It is elemental that every accused, although not entitled to a perfect trial, is entitled to a fair trial. There could be no question but that probable prejudice was injected into appellant’s trial by the foregoing occurrences. This Court has spoken a number of times on the matter of comments made by the trial court in the presence of the jury. Stewart v. State, 263 So.2d 754 (Miss.1972); Travelers Indemnity Co. v. Rawson, 222 So.2d 131 (Miss.1969); Pearson v. State, 254 Miss. 275, 179 So.2d 792 (1965); Young v. Anderson, 249 Miss. 539, 163 So.2d 253 (1964); Dickerson v. Koeing, 242 Miss. 17, 133 So.2d 721 (1961); Collins v. State, 99 Miss. 47, 54 So. 665 (1910); Green v. State, 97 Miss. 834, 53 So. 415 (1910).

In Collins, supra, this Court said:

The common law, since trial by jury was secured by Magna Charta, the twenty-sixth section of our Constitution, and various criminal statutes of this state, guarantee to a person charged with a crime a fair trial by an impartial jury. This guaranty is to every person, high or low, rich or poor, guilty or innocent. The appellant in this case was denied this right. Here we have the judge, in the presence of the jury before whom the appellant was to be tried, by the character of questions put to her, bringing her cause into contempt. We reiterate what the court said in Green v. State [97 Miss. 834], 53 So. 415: “It is a matter of common knowledge that jurors, as well as officers in attendance upon court, are very susceptible to the influence of the judge. The sheriff and his deputies, as a rule, are anxious to do his bidding; the jurors watch closely his conduct, and give .attention to his language, that they may, if possible ascertain his leaning to one side or the other, which, if known, often largely influences their verdict. He cannot be too careful and guarded in language and conduct in the presence of the jury to avoid prejudice to either party. . The Court will not stop to inquire whether the jury was actually influenced by the conduct of the judge. All the authorities hold that, if they were exposed to improper influences, which might have produced the verdict, the presumption of law is against its purity; and testimony will not be heard to rebut this presumption. It is a conclusive presumption.”

By quoting and citing the above cases, we do not mean to imply that the trial judge in this case intentionally committed acts to prejudice appellant’s case. Regardless of what was said during the sentencing procedures of Sellars, the fact that both men were called for trial in the same case with one changing his plea and being sentenced in the presence of the jury panel that was to try both at the same time would, in all probability, cause the jury to consider this situation as laymen. The error was emphasized in the closing argument of the district attorney when he stressed that Sellars and Fulgham were involved “together.”

As to the second assignment of error, the language complained of by appellant and alleged to have been error is the following, said by the prosecuting attorney in his closing argument:

Ladies and gentlemen, opposing counsel has tried to make this appear as the Great State of Mississippi against the Defendant. Sure, this case is styled, State of Mississippi versus Fulgham, but who is the State of Mississippi? It’s the people, and you represent the people. And, you apply the laws. In essence, you become law enforcement personnel today.
You are law enforcers from the standpoint that you are the final decision makers and you apply the laws that the Court has instructed you on. Now, I’d like to compare our criminal justice system to a chain. Now, we’ve all heard the expression that a chain is no stronger than its weakest link. There are several chains here. You have the first link, law enforcement. Law enforcement has done its job. The next link, although it means nothing here, is the grand jury. The grand jury has indicted him. You will not consider that fact, but that link is in the chain. It’s strong. The prosecution is another link. We have to prosecute. ' Then, we get to the final link and that’s the jury. And, I emphasize that the chain is no stronger than its weakest link.

We do not think that this assignment of error, standing alone, would require a reversal. However, we do think that it went too far, both in instructing the jury as to their position as “law enforcement personnel” and in making the “grand jury link” of the chain the same as the other links. Clemons v. State, 320 So.2d 368 (Miss.1975); Stewart v. State, 263 So.2d 754 (Miss.1972); Adams v. State, 220 Miss. 812, 72 So.2d 211 (1954). On retrial this argument should be omitted.

REVERSED AND REMANDED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ, and WALKER, BROOM, LEE and COFER, JJ, concur.

SUGG, J, dissents.

SUGG, Justice,

dissenting:

I dissent because this is a case which should be affirmed under Mississippi Supreme Court Rule ll.

The record shows that the judge “made comments relative to his feelings on the sale of drugs.” The record does not disclose the comments made by the judge so -we do not know whether he made mild or inflammatory statements in the presence of the jury. It is well settled that, on appeal, this Court, “May not act upon or consider matters which do not appear in the record and must confine itself to what actually does appear in the record.” Shelton v. Kindred, 279 So.2d 642, 644 (Miss.1973). Moreover, the burden rests on the appellant to see that the record contains all data essential to an understanding and presentation of matters relied upon for reversal on appeal. Willenbrock v. Brown, 239 So.2d 922 (Miss.1970). These cases were quoted with approval in Johns v. State, 366 So.2d 244 (Miss.1979).

We should not be called on to indulge in surmise and conjecture as to what the judge said. If the comments of the trial judge were so harmful that the defendant was prejudiced thereby, defendant should have requested that the judge’s statements be included in the record if the court reporter recorded the statements; if not, defendant should have requested a bill of exceptions in which the language of the judge was set forth.

I agree with the majority that it was error to permit the codefendant, Sellars, to plead guilty in the presence of the jury, but am of the opinion that we should treat this as harmless error under Mississippi Supreme Court Rule No. 11. The evidence of the guilt of the defendant was beyond a reasonable doubt and was uncontradicted. We should not require another trial because it does not affirmatively appear from the whole record that defendant’s conviction has resulted in a miscarriage of justice.

If the defendant had introduced any evidence which would cast doubt on his guilt, I would agree with the majority; however, under the evidence of this case no impartial jury could return a verdict other than guilty.

      . No judgment shall be reversed on the ground of misdirection to the jury, or the improper admission or exclusion of evidence, or for error as to the matter of pleading or procedure, unless it shall affirmatively appear, from the whole record, that such judgment has resulted in a miscarriage of justice.


author: BOWLING, Justice,

text:
    Charles A. CARTER v. STATE of Mississippi.
    No. 51991.
    Supreme Court of Mississippi.
    Aug. 13, 1980.

      John R. Poole, William Goodman, Jackson, for appellant.
    Bill Allain, Atty. Gen., by Susan L. Runnels, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
    Before ROBERTSON, P. J., and WALKER and BOWLING, JJ.
   BOWLING, Justice,

for the Court:

Appellant, Charles A. Carter, appeals from his conviction of false pretense in the Circuit Court of the First Judicial District of Hinds County. The indictment was issued on July 7, 1978, charging appellant with the false pretense that allegedly occurred in June, 1972. The indictment was prepared and rendered under Mississippi Code Annotated section 97-19-39 (1972), which reads as follows:

Every person who, with intent to cheat or defraud another, shall designedly, by col- or of any false token or writing, or by another false pretense, obtain the signature of any person to any written instrument, or obtain from any person any money, personal property, or valuable thing, upon conviction thereof, shall be punished by imprisonment in the penitentiary not exceeding three years, or in the county jail not exceeding one year, and by fine not exceeding three times the value of the money, property, or thing obtained.

Appellant assigns several alleged errors resulting in his conviction. We need only to consider whether or not the evidence presented by the State was sufficient to come within the provisions of the above statute. We find that the State clearly and without any doubt failed to present a case under the charge in the indictment, and it follows that the cause should be reversed and appellant discharged.

At the outset, and as hereinafter discussed, we point out that in the entire transaction in question Bankers Trust Savings & Loan Association lost nothing, but conversely, it gained. The appellant gained nothing.

At all times during the period in question appellant was chairman of the board of Bankers Trust Company, the parent corporation of Bankers Trust Savings & Loan Association, of Jackson, Mississippi. He was an attorney and a certified public accountant. In addition to being the head of a law firm, he had other business interests. The entire matter began when appellant entered into a business transaction with one D. C. Taylor of Greenville, Texas. This relationship started in the first part of 1971. Taylor owned a motel in Greenville and other Texas property. The motel was in serious financial difficulty. Appellant, having previously known Taylor, and at Taylor’s request, agreed to personally assist Taylor in his financial trouble in Texas. Neither Bankers Trust nor the Savings & Loan Association had any involvement whatever in that transaction. In fact, neither company was qualified legally to do any business in the State of Texas. Appellant loaned Taylor a considerable amount of his admittedly personal funds. The motel was saved because of appellant’s assistance to his acquaintance, Taylor. In addition to financial assistance, appellant assisted in accounting and operating procedures involving the motel. Good business practice dictated that appellant secure his personal investment in the Texas property. Therefore, he requested and received security instruments to protect his loan to Taylor. It so happened that at the time Taylor owned some mostly undeveloped property near Columbus, Mississippi, known as Eastwood Hills Subdivision. In securing his personal involvement with Taylor and the saving of his property in Texas, the security agreements included a second deed of trust on the Eastwood Hills Subdivision property.’ It is clear from the record that this was only incidental to the main business transactions in Texas. The second deed of trust on the Mississippi property was not recorded and appellant at no time has attempted to gain by that instrument.

In June, 1972, Taylor applied for a loan on the Eastwood Hills Subdivision property. Undisputedly, the sole purpose for the loan was to complete the paving of the subdivision streets. Taylor had a prior loan with Bankers Trust Savings & Loan Association for development of the subdivision, and in June, 1972, he owed the Savings & Loan Association a balance on that loan of $67,-082.60.

The procedures taken by the Savings & Loan Association in June, 1972, prior to increasing the loan for the purpose stated, were ample to determine if the loan was a good investment for the Association. Several representatives of the Savings & Loan Association and an independent realtor examined the property and reported to the Association’s Loan Committee'composed of four officers. The Committee did not include appellant. The regulations of the Association required that at least three members of the loan committee approve all loans. Undisputedly, the Savings & Loan Association was interested in making loans for developing subdivisions. In addition to the benefits of the loan itself,' the Association expected to finance the construction of future homes and receive benefits from assignments of mortgages thereon.

The loan committee determined that Taylor’s application constituted a good loan for the Association. It then entered into an agreement with Taylor, the agreement being handled by officers of the Association other than appellant, to increase the Taylor loan to $105,000. Taylor’s application was accepted by the loan committee. The necessary papers were prepared and forwarded to a reputable attorney in Columbus for the loan closing. On the Association’s instructions the papers were prepared and the loan funds were distributed as follows: $67,-082.60 to the Savings & Loan Association to pay the balance of the existing loan on the property; $2,100 to the Savings & Loan Association as its processing or discount fee; $50 for preparation of the loan papers; the balance of $35,767.40 was delivered to the Savings & Loan Association and placed in an escrow account to pay the cost of the street paving. Addition reveals that the above distributed loan funds constituted the exact amount of the loan and that Taylor received nothing.

We should stop here and state that the loan in question was paid in full, together with complete interest and to the entire satisfaction and full recovery of the Savings & Loan Association. This was done approximately four years before the present indictment was returned against appellant.

The sole argument of the State in attempting to justify this prosecution was that the incidental second deed of trust was placed on the property in connection with the extensive financial dealings in Texas between appellant and Taylor. As herein-before stated, at no time did appellant make any attempt to benefit from this second deed of trust. In fact, it was at his suggestion that after the loan in question was made the Savings & Loan Association entered into a joint venture with Taylor whereby the representatives of the Savings & Loan Association and Taylor would jointly place the lots in the subdivision on the market, would handle the sales jointly, and each would receive one-half of the profits from such lot sales. This completely nullified any possible benefit appellant could have had under his incidental and unrecorded second deed of trust. No attempt whatever was made by appellant to benefit therefrom. The evidence in the record is undisputed that on prior occasions appellant, as head of the lending institution, had assisted the Association by personally arranging for the securing of property on which the Association would then make proper, adequate and sufficiently secured loans and would then enter into joint venture agreements with the owner, as was done during the pendency of the loan in question. The only chance taken in these transactions to benefit the Association was the chance taken by appellant.

There are numerous cases interpreting the requirements to sustain a conviction under Code section 97-19-39, hereinbefore set out, and under which appellant was indicted. The basic three requisites were enunciated by this Court, through Chief Justice Gillespie, in the case of Hughes and Travis v. State, 326 So.2d 469 (Miss. 1976). There the Court said:

The State concedes that Neece v. State, 210 So.2d 657 (Miss. 1968), precludes a conviction for obtaining money by false pretenses unless there is a showing (1) that the pretenses were false, (2) that the defendant knew them to be false, and (3) that the pretenses were the moving cause by which the money was obtained. The third element, set out above, was explained and amplified in Breland v. State, 222 Miss. 792, 77 So.2d 300 (1955), where the Court said: “[A] material element of this offense [obtaining money by false pretenses] is that the false representation must have been relied on by the party defrauded.”

In Breland v. State, supra, the Court said of an indictment for false pretense involving the statute under which appellant was indicted that “another material element of this offense is that the false representation must have been relied on by the party defrauded.”

In Lee v. State, 244 Miss. 813, 146 So.2d 736 (1962), the Court, through Justice Rodgers, held that in a prosecution under the false pretense statute in question it is necessary for the State to prove beyond a reasonable doubt that the accused madeJ some false pretense in order to sustain a conviction. Admittedly the false pretense does not necessarily have to be shown by words alone. It may be shown by acts, conduct, or even silence. We do not find sufficient evidence in this record to hold that the State proved beyond a reasonable doubt that appellant made a false pretense that caused the Savings & Loan Association any detriment.

As hereinbefore stated, regardless of what was said or done, the Savings & Loan Association lost nothing as a result thereof, but, on the other hand, made money as a result of a legitimate business transaction approved by the duly authorized officials of the Association. This was done after the Association examined, investigated and processed the loan application according to its established rules and regulations.

In 35 C.J.S. False Pretense § 28, page 849, the prevailing rule is set out as follows:

In order for the offense to arise, a detriment or injury to the prosecutor has been required. Thus, while the statutes do not in express language require that the person from whom the property is obtained should be defrauded thereby, but only that it be obtained with intent to defraud him, nevertheless it is a general rule that the crime is not committed unless he is in fact defrauded, although under some statutes it has been said to be unnecessary that the victim be actually defrauded or injured. Hence, as a rule, the crime is not committed if the prosecutor gets out of the transaction just what he bargained for.

Under the above textbook quote, several Mississippi cases are annotated; Bruce v. State, 217 Miss. 368, 64 So.2d 332 (1953); Simmons v. State, 160 Miss. 582, 135 So. 196 (1931); Overall v. State, 128 Miss. 59, 90 So. 484 (1922).

In Overall, supra, in discussing the requisites of proving a charge of false pretense, it was stated:

. The main object of the statute is to protect purchasers against deceit and injury by sellers who know the property is encumbered, by requiring that the seller must disclose its exact status. So, if there is no deception of the purchaser, or, to put it in another way, if the purchaser knows what he is buying — knows there is a lien upon the property — and he purchases it, then he is not deceived and injured by the seller, and consequently nothing is obtained by false pretenses, and there is no violation of the law.

In Bruce v. State, supra, there was involved the identical false pretense statute with which we are involved in the case sub judice. The Court had the following to say:

Without regard to whatever offense the defendant may have been guilty of, it is well-settled under our decisions and by the textwriters that in order for one to be guilty of obtaining money under false pretenses, he must obtain the property of another by the false pretenses and to the detriment or injury of the person from whom he obtains the same.
In the case of Pippin v. State, 126 Miss. 146, 88 So. 502, 503, wherein this Court held that the rules of ownership of property obtained in false pretense cases is the same as in larceny, it was said: “This court has decided that the name of the party defrauded must be alleged and (the) proof must sustain the allegation. State v. Tatum, 96 Miss. 430, 50 So. 490; Hampton v. State, 99 Miss. 176, 54 So. 722; McAlpin v. State, 123 Miss. 528, 86 So. 339.” It is contended for the State, however, that the indictment is under Section 2149, Code of 1942, and that it is only necessary to prove the occurrence of those facts which constitute the offense, as set forth in the statute, which by its terms does not require that the person from whom the money or property is obtained by false pretenses shall sustain an injury or be defrauded thereby. The pertinent part of the statute reads as follows: “Every person, who, with intent to cheat or defraud another, shall designedly, by color of any false token or writing, or by another false pretense . obtain from any person any money, personal property, or valuable thing, upon conviction . . . shall be punished'
The statute above quoted from is similar to that involved in the case of Simmons v. State, 160 Miss. 582, 135 So. 196, to the extent that neither of the statutes expressly require that the person from whom the money or other personal property is obtained shall be defrauded. In the Simmons case the statute declared one to be guilty of obtaining under false pretenses whatever he received from the person dealing with him, when he sold or encumbered any property on which there was a lien, without informing the person to whom he sells or encumbers the same, of the exact state of the property as affected by the lien, etc. In other words, the statute, by its terms, provides that one who does the thing mentioned therein shall be guilty of obtaining the money or property under false pretense. But the Court held that where the purchaser of the automobile there involved obtained a good title to the same, he was not defrauded and could not have sustained a loss since he could successfully assert his title against the claim of the person in whose favor the encumbrance on the automobile had been previously given. Such is the case as between the store owner, W. D. Bethea, and the operator of the filling station who had formerly cashed the negotiable instrument in question and had lost or had otherwise been deprived of the possession thereof.
The Court cited the Simmons case with approval in Martin v. State, 200 Miss. 142, 26 So.2d 169, and held, as was conceded by the Attorney General, that the purchaser must have been actually defrauded. In the Martin case the defendant was shown to have told the prosecuting witnesses that he and his associates had spent $4,000 to buy mineral lease, when in fact he had paid only $1,200 for the same. By means of this false representation, he induced the prosecuting witnesses to give him a check for $666.40 for a one-sixth interest in the lease which he as payee endorsed to one of his associates, and which was thereafter cashed. The Court held in effect that it was not only necessary to prove that money was obtained from the prosecuting witnesses on the check but that it was necessary to prove that they were actually defrauded. The State failed to prove that the lease was not worth what the defendant falsely claimed to have paid for the same. In other words, it is not sufficient to show that an accused has obtained money from another by false pretenses; it must be further shown that the person from whom the money is thus obtained was actually defrauded. (Emphasis supplied).

The loan to Taylor was made by Savings & Loan Association after full investigation by its duly authorized representatives and approved by the members of the loan board (none of whom was appellant). The Savings & Loan Association distributed no funds to anyone other than itself [except the $50 paid for preparation of papers]. The Association received all interest it requested. It asked for and received from Taylor a joint venture under which he and the Savings & Loan Association would share in any profits from the sale of lots. The loan was fully repaid. It is undisputed that this business venture was the type the Savings & Loan Association was looking for and was in the business to handle. It lost nothing, but on the other hand gained a profit. It received everything it requested or wanted. There was no fraud perpetrated on the Savings & Loan Association.

It is clear that the State in no way proved the charges in the indictment and it follows that this Court is required to reverse the cause and discharge the appellant.

REVERSED AND APPELLANT DISCHARGED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ„ and WALKER, BROOM, LEE and COFER, JJ., concur.

SUGG, J., took no part.