author: WATSON, Justice.

text:
    STATE of Louisiana v. Rae MORGAN.
    No. 67050.
    Supreme Court of Louisiana.
    Oct. 6, 1980.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff -appellee.

      Milton P. Masinter, New Orleans, for defendant-appellant.
   WATSON, Justice.

Defendant, Rae Morgan, was convicted at a bench trial of attempted prostitution in violation of LSA-R.S. 14:82 and 14:27 and sentenced to serve one year in parish prison. The sentence was suspended and defendant was placed on active probation for five years. She was required to serve ninety days in parish prison and remain out of the French Quarter during probation. In addition she was fined $125 plus $67.50 court costs, or thirty days in the parish prison. Defendant urges five assignments of error in this appeal.

FACTS

At approximately 12:10 A.M. on March 27, 1979, New Orleans City Police Officer Wayne Jusselin noticed Rae Morgan and another woman stop an unknown male near the entrance to the Royal Sonesta Hotel in the French Quarter. Officer Jusselin overheard the defendant ask the unknown man if he were looking for a couple of ladies to have a party with. When the man failed to show any interest, Ms. Morgan rubbed the man’s arm while the other woman leaned over and rubbed him on the stomach, proposing sex with both of them for $50. (Tr. 5) At this point, the man shook his head in a negative manner and departed. Rae Morgan looked up, observed two officers walking up Bourbon Street, grabbed the other woman by the arm, and said, “Come on, girl, police;” (Tr. 5). As the woman started to walk away, the defendant noticed Officer Jusselin standing there and said, “Oh, girl, they got us.” (Tr. 6) The other woman continued to walk away, so Ms. Morgan called, “Hey, . .. you had better come back here; they got us.” (Tr. 6) The two were placed under arrest.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant contends that error patent on the face of the record exists because the bill of information states that she was a prior offender. It is contended that the prior offense is not an element of the offense and is relevant only for sentencing purposes. The bill of information says:

“. .. that one Rae Morgan . . . committed prostitution in that she solicited an unknown person with the intent to engage in indiscriminate sexual intercourse with the said unknown person for compensation in the amount of Fifty ($50.00) Dollars, the said RAE MORGAN having previously been convicted of prostitution in case No. 255 420, Sec. ‘C’ of the docket of the Criminal District Court for the Parish of Orleans, State of Louisiana,

When an accused has been fairly informed of the nature of the charge and has not been prejudiced by surprise or lack of notice, technical deficiencies in a bill of information may not be questioned after conviction. State v. James, 305 So.2d 514 (La., 1974); State v. Marmillion, 339 So.2d 788 (La., 1976).

Defendant’s assignment would lack merit even if it had been raised timely. Ms. Morgan was charged as a second offender under LSA R.S. 14:82. As in the case of weapon concealment, LSA-R.S. 14:95, the offense of prostitution provides for enhanced penalties for recidivist offenders. Reference to the prior conviction was required in order to state the essential facts constituting the offense charged. State v. Pounds, 359 So.2d 150 (La., 1978) held that there was no error in charging defendant with carrying a concealed weapon in a bill of information referring to two previous convictions. The reference was necessary under LSA C.Cr.P. art. 483 in order to fully charge the offense and inform the defendant that she was being prosecuted as a second offender.

This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO

It is asserted that the trial judge erred in denying defendant’s motion for a directed verdict on the ground that there is no evidence that she sought compensation for sexual intercourse, an essential element of the offense.

Defendant clearly participated in the solicitation of the unknown male and the fact that her companion named the price is immaterial. A rational factfinder could have found beyond a reasonable doubt that Rae Morgan participated in the joint offer of sex for money. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Also see Pilon v. Bordenkircher, 444 U.S. 1, 100 S.Ct. 7, 62 L.Ed.2d 1 (1979), which stated that “the Thompson ‘no evidence test’ is constitutionally inadequate . . .”, 100 S.Ct. 8, and remanded for reconsideration in light of Jackson.

This assignment lacks merit.

ASSIGNMENTS OF ERROR NUMBERS THREE AND FOUR

Defendant contends the trial court erred in adjudicating her a second offender, because her previous conviction of prostitution was founded upon an unconstitutional gender-based statute. At the time of defendant’s first offense in 1976, the statute read, “Prostitution is the practice by a female of indiscriminate sexual intercourse with males for compensation.” This attack on the constitutionality of that statute was rejected in State v. Devall, 302 So.2d 909 (La., 1974) and State v. Butler, 331 So.2d 425 (La., 1976). Devall held that lawmakers were constitutionally free to exclude male prostitution from the statute on the reasonable basis that it does not constitute as serious a social problem as female prostitution.

These assignments are without merit.

ASSIGNMENT OF ERROR NUMBER FIVE

Defendant argues that the special condition that she remain out of the French Quarter in New Orleans for the length, of her probation constitutes a “banishment” in violation of the prohibition against cruel and unusual punishment in the Eighth Amendment of the United States Constitution. See Dear Wing Jung v. United States, 312 F.2d 73 (U.S. 9 Cir. 1962).

Defendant compares her exclusion from the Quarter to that in Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958) where “denationalization” of an American convicted of wartime desertion was invalidated. Ms. Morgan contends that her ban from the French Quarter is void because it is the substantial equivalent of the loss of citizenship struck down in Trop. Other states have invalidated conditions requiring that a probationer leave a particular city, county or state. See, for example, Hoggett v. State, 101 Miss. 269, 57 So. 811 (1912); People v. Baum, 251 Mich. 187, 231 N.W. 95 (1930); In re Scarborough, 76 Cal.App.2d 648, 173 P.2d 825 (1946); and Weigand v. Commonwealth, 397 S.W.2d 780 (Ky., 1965). However, the French Quarter is a small geographical area; an historical district of New Orleans with carefully delineated boundaries. In addition to antiquity, it is noted for night life, drinking, and prostitution. A restriction against entering a relatively small geographical area of one city can hardly be equated with loss of citizenship, or banishment from a city, county or state. Compare State v. Chestnut, 11 Utah 2d 142, 356 P.2d 36 (1960); State v. Collett, 232 Ga. 668, 208 S.E.2d 472 (Ga., 1974); and Wilson v. State, 151 Ga.App. 501, 260 S.E.2d 527 (Ga., 1979). Moreover, the condition of probation is reasonably related to Ms. Morgan’s rehabilitation.

LSA C.Cr.P. art. 895.A provides:
“A. When the court suspends the imposition or execution of sentence and places a defendant on probation, it shall require the defendant to refrain from criminal conduct and it may impose any specific conditions reasonably related to his rehabilitation, including any of the following: “That the defendant shall:
% * # * *
“(8) Refrain from frequenting unlawful or disreputable places or consorting with disreputable persons; . .. ”.

A trial judge has wide latitude in imposing conditions of probation. State v. Credeur, 328 So.2d 59 (La., 1976). The proviso that defendant remain out of the French Quarter is apparently based upon the theory that Ms. Morgan’s rehabilitation would best be served by removing her from an environment in which offenses of prostitution are frequently committed. The condition is reasonable and within the trial judge’s discretion.

The assignment has no merit.

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

AFFIRMED.

DENNIS, J., specially concurring.

      . When there is “no evidence”, there is also, of course, insufficient evidence to convince a reasonable trier of fact.


source: Caselaw Access Project

author:
DIXON, Chief Justice.
     MARCUS, Justice

license: Public Domain

text:
    Jules DUSANG v. HENRY C. BECK BUILDERS, INC. and Aetna Life and Casualty Insurance Company.
    No. 67111.
    Supreme Court of Louisiana.
    Oct. 6, 1980.

      Joseph M. Singerman, Singerman, Cosen-tino, Broussard, Toups & Troyer, New Orleans, for plaintiff-applicant.
    Lawrence J. Duplass, Johnson & Duplass, New Orleans, for defendants-respondents.
    Darleen M. Jacobs, New Orleans, amicus curiae for Gary Taintor.
   DIXON, Chief Justice.

The plaintiff Jules Dusang brought this suit against his employer, Henry C. Beck Builders, Inc., and its insurer, Aetna Life and Casualty Insurance Company, for workmen’s compensation benefits. The trial court awarded the plaintiff compensation benefits of $95.00 per week for total and permanent disability. A five judge panel of the Fourth Circuit Court of Appeal amended the trial court’s decision in a three-two decision; 379 So.2d 775. The appellate court held that the evidence supported the trial court’s finding that the plaintiff suffered substantial pain even though he continued to work regularly after his accident; however, the court held that the plaintiff was only entitled to an award of benefits based on partial disability. Application for rehearing was denied and this court issued a writ of review on May 30, 1980.

This case presents two principal issues: whether the plaintiff did in fact suffer substantial pain even though he worked regularly after his accident, and whether an injured worker who continues to work (in the same job or in a job similar to the one he had before his injury) but in substantial pain, should be considered totally or partially disabled under the amended version of the Louisiana Workmen’s Compensation Act (R.S. 23:1221). The plaintiff argues that the appellate court was correct in finding that he continued to work in substantial pain, but was wrong in finding him partially, rather than totally, disabled.

The plaintiff was employed as an iron-worker and a welder by Henry C. Beck Builders, Inc. when he slipped and fell while walking across a wet concrete floor on September 21, 1976, injuring his right shoulder and wrist. He was treated, returned to work, but continued to have pain.

It is well settled that:

“. . . a claimant will not be held to be disabled within the meaning of the Workmen’s Compensation Act solely because he suffers some residual pain and discomfort when he attempts to work following a work-connected accident. The residual pain or discomfort in such a circumstance will be considered as being disabling only if it is substantial or appreciable pain. Glidden v. Alexandria Concrete Company, 242 La. 626, 137 So.2d 894 (1962); Jackson v. American Mutual Liability Insurance Co., 242 So.2d 903 (La.App. 3 Cir. 1971).
The claimant who alleges disability because of inability to perform his usual and regular duties without substantial or appreciable pain must establish the existence of that condition to a reasonable certainty and by a fair preponderance^ of testimony. Ball v. American Marine Corporation, 245 La. 515, 159 So.2d 138 (1964); Johnson v. R. P. Farnsworth and Company, 186 So.2d 405 (La.App. 1 Cir. 1966).” Breaux v. Kaplan Rice Mill, Inc., 280 So.2d 923, 925 (La.App. 3d Cir. 1973).

The record is convincing that plaintiff is in pain; no evidence contradicts his testimony that it is constant. The pain interferes with overhead work and heavy lifting. Nevertheless, he continues to work as a welder, apparently performing all the duties his job requires, except for the heaviest. We find, as did the courts below, that he works in “substantial and appreciable” pain.

Prior to 1975, R.S. 23:1221 defined total disability as the inability of a workman “to do work of any reasonable character.” The courts construed this language broadly in favor of injured workmen, holding that an employee should be considered totally disabled whenever his injuries prevented him from performing work of the same or similar nature as that which he was accustomed to performing before his injury. Knispel v. Gulf States Utilities Co., 174 La. 401, 141 So. 9 (1932). The courts also held that an employee who was unable to perform his usual and normal duties without substantial pain was totally disabled. Brannon v. Zurich General Accident & Liability Ins. Co., 224 La. 161, 69 So.2d 1 (1953).

In 1975 the legislature amended the Workmen’s Compensation Act and redefined total disability, apparently in order to treat as partially disabled many claimants who previously would have been treated as totally disabled (although earning substantial wages) and to increase the benefits payable to totally disabled employees.

The amended act defines total disability as the inability “to engage in any gainful occupation for wages whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee, at the time of injury, was particularly fitted by reason of education, training, and experience ...” (R.S. 23:1221(1) and (2)). This new language suggests that a worker is totally disabled only if he cannot engage in any gainful occupation for wages. A person who can engage in a gainful occupation is not totally disabled, even if such occupation is not the same or similar to his old occupation and even if it is not one for which he is particularly fitted by education, training or experience. In their Louisiana Civil Law Treatise, Workers’ Compensation, Vol. 13, 2d Ed., § 272, 598, Malone and Johnson state that the new definition clearly reveals the legislature’s intent to overrule the liberal disability standard enunciated in Knispel v. Gulf States Utilities Co., supra.

Under the new act, an employee is deemed partially disabled if he is unable “to perform the duties in which he was customarily engaged when injured or duties of the same or similar character, nature, or description for which he was fitted by education, training, and experience ...” (R.S. 23:1221(3)). This amended statutory definition of partial disability is substantially the same as the traditional judicial definition of total disability, suggesting that the legislature wished to include in the partial disability category many of the cases previously treated as total disability cases.

Unfortunately, the new act does not address the question of whether an employee who returns to work after an injury, and continues to work while enduring substantial pain, should be considered totally or partially disabled. Some courts have construed the legislature’s failure to include language in the act legislatively altering or overruling the old jurisprudence as an expression of the legislature’s intent to leave the jurisprudence undisturbed. (See Phillips v. Dresser Engineering Co., 351 So.2d 304, 309, fn. 3 (La.App. 3d Cir. 1977)), writ den. 353 So.2d 1048 (La. 1978). They have followed the long standing jurisprudential rule that a worker who returns to work out of economic necessity but functions only with substantial pain is entitled to total disability benefits. Phillips v. Dresser Engineering Co., supra, and Jones v. Arnold, 371 So.2d 1258 (La.App. 3d Cir. 1979). Other courts have attempted to reconcile the jurisprudential rule with the express terms of the statute, holding that an injured employee should be considered totally disabled if he is unable to pursue any gainful employment without experiencing substantial pain. (Rachal v. Highlands Ins. Co., 355 So.2d 1355 (La.App. 3d Cir. 1978), writ den. 358 So.2d 645 (La. 1978); Simmons v. State of La. Dept. of Transportation and Development, 368 So.2d 770 (La.App. 2d Cir. 1979)). In Rachal and Simmons the claimants experienced back pain so severe that they had difficulty sitting or standing for long periods. The courts concluded that the claimants would experience pain in all types of work and therefore found them totally disabled. In both cases the courts rejected the appellants’ contentions that an employee could not be considered totally disabled if he could engage in some type of employment, even if he did so in substantial pain. Some courts have held that if an employee can work in some type of job without experiencing pain he should be considered partially disabled. In Conlay v. Houston General Ins. Co., 370 So.2d 196 (La.App. 3d Cir. 1979), the court found the claimant who suffered from a knee injury, partially disabled, because he could work in some position without experiencing substantial pain, even though it might not be his former occupation. Similarly, in Dufrene v. St. Charles Police Jury, 371 So.2d 378 (La.App. 4th Cir. 1979), the court deemed the claimant partially disabled because, while his wrist injury prevented him from continuing in his former occupation of heavy equipment operator, it did not keep him from engaging in lighter work of a similar nature.

Recently, in Whitaker v. Church’s Fried Chicken, Inc., 387 So.2d 1093, this court reversed the lower courts and found the claimant, a young man who worked as a janitor, totally disabled. The claimant had severely burned his legs and continued to suffer pain and itching from the scars. This court noted that the claimant was unqualified to take a sedentary indoor job which might alleviate his pain because of his physical and mental capacity and therefore was limited to janitorial work, a job in which he would continue to experience pain. In the ease at hand, testimony as to Mr. Dusang’s pain is not so strong as in Whitaker’s case. Dusang himself stated that the work as an electrician’s welder was easier than ironwork. Moreover, Dusang is not the marginal employee Whitaker is. Although Mr. Dusang did state that he would have more opportunities for work if he could work as an ironworker and welder, the testimony at trial does not clearly indicate that he would have great difficulty finding work.

Malone and Johnson have recommended that Louisiana courts adopt the “odd lot” doctrine in interpreting the new total disability provision. Under this doctrine a claimant is considered totally disabled if his injury makes him an “odd lot” in the labor market-in other words, if he can hold various jobs periodically, but the kind of work he can do is so limited that a reasonably stable market for it does not exist. An “odd lot” claimant need not be absolutely helpless to qualify for total disability status. If the claimant can prove that his physical condition, his mental capacity, his education, training, age or other factors combine to place him at a substantial disadvantage in the competitive labor market, he has made out a prima facie case for classification in the “odd lot” category. The employer or insurer must then show that some form of suitable work is regularly and continuously available to the claimant in the area where he resides.

While this court has not adopted the “odd lot” doctrine explicitly, elements of the doctrine have appeared in previous decisions of this court. In both Futrell v. Hartford Accident & Indemnity Co., 276 So.2d 271 (La. 1973) and Lewis v. St. Charles Parish Hospital Service District, 337 So.2d 1137 (La. 1976), this court held that claimants were totally disabled because their injuries substantially impaired their ability to compete in the labor market. In Futrell, Justice Barham stated:

“ ‘. . . The law fixes disability in terms of loss of earning capacity, which includes the extent of physiological impairment as only one factor. . . . loss of earning capacity . .. can be determined only by reference to the state of the labor market, hiring practices, the humanity of obliging a man to work in pain, and other broad policy considerations which the physician is not equipped nor authorized to evaluate.’ Malone, Louisiana Workmen’s Compensation § 272 (Supp. 1964). ...” 276 So.2d at 274.

Factors such as education, mental capacity and physical impairment also played a part in this court’s decision in Whitaker.

The “old lot” concept can also be applied to substantial pain cases, since a worker who, due to his injury, can function only with substantial pain or with the help of fellow workers may not be considered a particularly desirable employee. Thus, if a claimant’s pain appreciably limits the types of work available to him and greatly diminishes his ability to compete in the labor market, he could be treated as an “odd lot” worker and be awarded total disability status, unless there is proof that jobs are realistically available to him.

On the other hand, if a worker cannot perform the same work that he did before his injury because it causes him substantial pain, but he has the mental capacity and physical capability to perform other jobs which are available, he should be considered partially disabled. Such classification will protect him in any work in which he earns less than he did before his injury. Moreover, he will not be deprived of compensation on the theory that there is less strenuous work available, as the employer will have to prove the availability of other jobs.

In this case, even though we agree with the trial court and the Court of Appeal that Mr. Dusang works in substantial pain, he is not totally disabled. Except for the six weeks following his termination at Beck, Mr. Dusang has worked steadily following his injury. The pain has not been so disabling as to require him to be hospitalized or to miss work. While his coworkers testified that they needed to help him with heavy lifting following the accident, his foreman at Beck testified that he never had to substitute any employee for Mr. Dusang because of his inability to do the work. Mr. Dusang has been able to find work as a welder out of the electrician’s hall, and there is no clear evidence that he will not be able to find work in the future. At the time of trial he was earning more than he earned before his accident; the partial disability status will protect him in the future.

The judgment of the Court of Appeal is affirmed, at appellant’s cost.

MARCUS, Justice

(concurring).

I concur in the conclusion that, even though Mr. Dusang works in substantial pain, he is not totally disabled. Clearly, under the facts, he can and was engaged in a gainful occupation for wages. La. R.S. 23:1221(2). I also agree that he is partially disabled because he is able to perform duties in which he was customarily engaged when injured and duties of the same or similar character, nature, or description for which he was fitted by education, training and experience. La. R.S. 23:1221(3). Accordingly, I respectfully concur.

       Honorable Gerald P. Fedoroff, Judge, Civil District Court, Orleans Parish, participated in this decision as an Associate Justice Ad Hoc. Lemmon, J., recused.

      . After the accident he saw a Dr. Paine, an industrial doctor, who diagnosed his problem as tendonitis and administered an electrical heat treatment. A week later the plaintiff’s wrist had improved but the pain in his shoulder continued to give him discomfort while working. He was referred to an orthopedic surgeon, Dr. Alldredge, who saw him on October 22, 1976, and diagnosed the condition as biceps tendonitis of the right shoulder and sprain of the right wrist. X-rays of the shoulder and wrist revealed no abnormality; shoulder and wrist motion were normal but there was some soreness. At this visit and at subsequent visits on October 27, November 2 and November 8, Dr. Alldredge gave Mr. Dusang cortisone injections for the shoulder pain. The wrist did not need treatment. In his deposition, Dr. All-dredge stated that he thought Mr. Dusang’s condition was improving with each visit because he continued to work and his complaints of pain diminished. He testified that a patient with Mr. Dusang’s condition nearly always recovers completely without any permanent disability and without needing surgery. However, he acknowledged that in unusual cases a person could continue to have pain and to require surgery. On January 21, 1977, Mr. Dusang’s employment was terminated because the iron-working phase of the construction project was completed. He received unemployment compensation for about six weeks; he then worked briefly at two other jobs and at the time of trial was working at the nuclear plant at Taft as an electrician’s welder, a job which he alleged was less strenuous than ironworking. At trial Mr. Dusang testified that he still experienced pain and that the pain had only left him briefly when he received the cortisone shots. He remarked that he had continued to work despite the pain because he had a family to support. In answer to the question, “Can you do any type of work today without that shoulder or wrist bothering you?” Mr. Dusang answered no.
      On February 17, 1977, Mr. Dusang saw Dr. Adatto, an orthopedic surgeon, who diagnosed his condition as bicipital tendonitis of the right shoulder and mild reactive synovitis of the right wrist. Dr. Adatto found a mild limitation of the range of motion for the shoulder and wrist. He gave Mr. Dusang some medication and an injection. Mr. Dusang saw Dr. Adatto again on March 3 and March 10; he was still experiencing pain intermittently, and Dr. Adat-to suggested that if the medication and shots did not work, surgery might be the only logical approach. Mr. Dqsang last saw Dr. Adatto on July 21, 1977, at which time he told the doctor that he did not want surgery. Dr. Adatto then said there was nothing more to be done and recommended over the counter medication for the pain. At trial Dr. Adatto characterized the plaintiffs disability as less than five per cent for the shoulder; he found no disability of the neck or wrist. He noted that he was assigning this disability because motions such as flexing, extending and rotating the arm would produce more pain and discomfort than other activities because they stretched the bicipital tendon. He also testified that when a person had this type of trouble for a period of time, it was likely to be a chronic problem, curable only by surgery.
      Several coworkers also testified on plaintiff’s behalf that he complained of pain in his arm and shoulder almost every day while at Beck and at his current job. They stated that Mr. Dusang needed help lifting and could not do heavy work for himself as he had before his accident. The plaintiff’s wife testified that he had trouble sleeping and could not do chores around the house as he had before the injury.

      . “In any week in the future that the September, 1976 injury prevents plaintiff from earning full wages, benefits are due in the amount of the difference between the wages he was earning at the time of the injury and any lesser wages he actually earns in that week in any gainful occupation for wages, until there has been a payment of benefits for a total of 425 weeks or until the pain caused by the injury either becomes insubstantial or becomes totally disabling.” 379 So.2d 775, 778-779.


author: DENNIS, Justice.

text:
    STATE of Louisiana v. Nicholas L. JOHNSON.
    No. 67166.
    Supreme Court of Louisiana.
    Oct. 6, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Harold D. Marchand, Asst. Dist.” Atty., for plaintiff - appellee.
    Mack I. Frank, Baton Rouge, for defendant-appellant.

      . Other grounds appearing in the motion for a new trial were neither briefed nor argued, and therefore are considered as abandoned.

   DENNIS, Justice.

Defendant, Nicholas L. Johnson, was charged by bill of information with the crime of armed robbery, a violation of La. R.S. 14:64. After trial by jury, he was found guilty and sentenced to serve eight years at hard labor. On appeal, defendant relies on two assignments of error, both involving impermissible cross-examination of the defendant and his character witness about defendant’s prior criminal record. Although we find that the prosecution’s questioning was objectionable, we must affirm defendant’s conviction and sentence because he did not properly present the errors for our review. The abuses revealed in the record, however, move us to adopt safeguards for future cases.

The state’s case against the defendant consisted entirely of testimony given by one eyewitness, Edna Burke, an employee of a grocery store that was robbed on the morning of February 12, 1979. Ms. Burke testified that a man she identified as the defendant entered the store around nine o’clock a. m. while she was alone at the cashier’s counter, brandished a revolver partially protruding out of a paper sack, and indicated by motioning with the weapon that he wanted the money in the register. She emptied the register and the robber then fled the store on foot. According to Ms. Burke, the entire incident took less than two minutes, during which time she had the opportunity to get a good look at the man, whom she described as between 5'7" and 5'9" in height, with black hair, a heavy beard, and a smooth dark complexion.

Ms. Burke testified that about a month after the incident, the defendant entered the store to buy beer and cigarettes. At this time she immediately identified him as the man who had robbed the store and tried unsuccessfully to alert the store manager, John Lewis, to his presence. On several occasions thereafter the defendant, who admitted living in the neighborhood, would come and go from the store and the manager would be unsuccessful in stopping his employee’s suspect before defendant’s departure. Finally, on April 23, 1979, on a pre-arranged signal from Ms. Burke, Lewis caught sight of the defendant as he left the store and followed him to a carwash. Lewis then summoned police, who took the defendant into custody. Ms. Burke was brought to the scene and she identified the defendant as the same man who had robbed the store on February 12. Defendant was then arrested for armed robbery.

At trial, defendant placed himself at work pouring concrete forms during the day of February 12, 1979. Two defense witnesses corroborated this story. Robert Williams, who along with the other witness, Anthony Roberts, operated an independent contracting business, testified that the defendant was employed by him at the time of the offense. On cross-examination, he conceded that it was possible for the defendant to have missed work on that particular day. Anthony Roberts testified that defendant was employed by his business on the day of the offense and would have been at work that day because he “never skipped a day” of work.

Defendant then called Roy Lee Jarrell, who had lived next door to the defendant for a year, and worked with him for two years in Baton Rouge, to testify as a character witness. Mr. Jarrell testified that he never had heard the defendant being accused of stealing, and otherwise knew him to be an honest person.

On cross-examination of Mr. Jarrell, the prosecution asked the witness three separate questions concerning the defendant’s prior criminal record: “Would it change your opinion of Mr. Johnson if I told you that in November of 1968, he was arrested for selling a narcotic drug?” “Mr. Jarrell, would it change your opinion about Mr. Johnson if I told you that in March of 1974 that he was arrested for possession of weapons and danger [sic] instruments?” “Would it change your opinion about Mr. Johnson if I told you that in July ’74 he pled guilty to criminal possession of a controlled dangerous substance?” Following the second question, defense counsel objected to any reference to arrests on cross-examination of the witness. After the third question, defense counsel objected on grounds that the question should include the specific possessory offense charged. All three defense objections were overruled.

Defendant Johnson followed Jarrell to the stand. On direct examination, defendant was asked whether the prior conviction was of a violent nature, or involved the traits of honesty or veracity, and whether he had ever been convicted of carrying a gun or any type of offense related to the possession of a gun. Defendant replied to all of these questions in the negative. On cross-examination, the prosecution elicited from the defendant that the conviction involved possession of marijuana, for which defendant had served time in jail. The prosecution then proceeded to go into an extended inquiry into the defendant’s prior arrests, including the details of the arrest for possession of a dangerous weapon. Defendant explained that this involved a blunt club found in the car he was driving at the time of the arrest for the narcotics violation. The club was not his but rather belonged to the owner of the car, and the charge was subsequently dropped. Defense counsel offered no objection to these questions.

On appeal, defendant assigns as error the trial court’s ruling on his objections to the interrogation of the character witness, Mr. Jarrell. He also assigns error to the denial of his motion for a new trial, which was based partially on the prosecution’s interrogation of Jarrell and also on the prosecution’s interrogation of the defendant regarding his previous arrests. In his brief, defendant argues that the questions put to the witness Jarrell were in improper form, and involved charges which were too remote and irrelevant to the offense charged. Defendant further maintains that the cross-examination of both Mr. Jarrell and the defendant about the defendant’s prior criminal record was an improper and highly prejudicial use of other crimes evidence which could have warranted a mistrial.

We agree that the potential for abuse of such evidence indicates that some regulation of character witness cross-examination is needed and adopt safeguards to be applied in future cases. However, these safeguards may not be applied in the present case to reverse defendant’s conviction because he did not preserve the error for our review by a properly grounded contemporaneous objection at trial.

In interpreting our statutory rules concerning character evidence, see La.R.S. 15:479 481, this Court has held that “it is not reversible error for the prosecution to question a defense witness about his knowledge of prior arrests of the defendant.” State v. Harvey, 329 So.2d 731 (La.1976); State v. Banks, 307 So.2d 594 (La.1975).

This type of rule has been criticized for a number of reasons both within and without our state. It trenches close to the widely condemned practice of proving other crimes extrinsically in order to show bad reputation as a logical result, presenting the danger that the jury, finding the prior crime, will shortcut the reputation process and use it more directly to convict in the case on trial. McCormick on Evidence, § 191, p. 457 (Cleary ed. 1972). See, Michelson v. United States, 335 U.S. 469, 477-87, 69 S.Ct. 213, 219-224, 93 L.Ed. 168, 174-179 (1948); 3 A. Wigmore, Evidence, § 988, pp. 920-21 (Chadbourn rev.1970). In order to alleviate some of the danger, the witness should not be asked “if he knows” that the accused has committed such other crimes, but only whether he “has heard” that defendant has committed particular acts inconsistent with the reputation vouched for on direct. McCormick, supra, at pp. 456-57. See also, G. Pugh and J. McClelland, The Work of the Louisiana Appellate Courts for the 1972-1973 Term-Evidence, 34 La.L.Rev. 443, 447 (1974). Even so, a rule permitting the cross-examiner to ask the character witness whether he “has heard” of other particular crimes of accused involving the same trait is pregnant with possibilities of destructive prejudice. McCormick, supra, at p. 457. Although the courts agree that propounding such a question in bad faith may be ground for reversal, establishing bad faith may be a hopeless task for an accused in the absence of judicial intervention. McCormick, supra, at p. 458; 3 A. Wigmore, supra, § 988.

Wigmore and McCormick recommend that the trial judge, before permitting the prosecuting attorney to cross-examine the character witness on rumors of misconduct of the accused, should question the prosecutor in the absence of the jury, as to whether he has credible grounds for asking the question. McCormick, supra, § 191; 3 A. Wigmore, supra, § 988. Several jurisdictions have approved, recommended, or required this or a similar practice. Michelson v. United States, supra; State v. Hinton, 206 Kan. 500, 479 P.2d 910 (1971); Miller v. State, 418 P.2d 220 (Okl.Cr.1966); People v. Yoshio Futamata, 140 Colo. 233, 343 P.2d 1058 (1959); People v. Dorrikas, 354 Mich. 303, 92 N.W.2d 305 (1958); State v. Steensen, 35 N.J.Super. 103, 113 A.2d 203 (1955).

The Superior Court of New Jersey has formulated perhaps the most thoughtful-guidelines to assist trial judges in determining whether the prosecutor has reasonable grounds for cross-examining the character witness about convictions, arrests or other misconduct of the accused. In determining whether to allow the cross-examination, the trial court should conduct a preliminary inquiry out of the presence of the jury and he should satisfy himself:

“(1) that there is no question as to the fact of the subject matter of the rumor, that is, of the previous arrest, conviction, or other pertinent misconduct of the defendant;
“(2) that a reasonable likelihood exists that the previous arrest, conviction or other pertinent misconduct would have been bruited about the neighborhood or community prior to the alleged commission of the offense on trial;
“(3) that neither the event or conduct nor the rumor concerning it occurred at a time too remote from the present offense;
“(4) that the earlier event or misconduct and the rumor concerned the specific trait involved in the offense for which the accused is on trial; and
“(5) that the examination will be conducted in the proper form, that is: ‘Have you heard,’ etc., not ‘Do you know,’ etc. [citations omitted]
“And if the conclusion is reached to allow the interrogation, the jury should be informed of its exact purpose either at the conclusion thereof or in the charge.” State v. Steensen, 35 N.J.Super. 103, 113 A.2d 203, 206 (1955); accord, State v. Hinton, 206 Kan. 500, 479 P.2d 910 (1975); Miller v. State, 418 P.2d 220 (Okl.Cr. 1966); cf. People v. Robinson, 70 Mich.App. 606, 247 N.W.2d 308 (1976); State v. Briscoe, 78 Wash.2d 338, 474 P.2d 267 (1970).

In reviewing the questions propounded by the state in the instant case, we are convinced that the asserted dangers of our present practice are real and that some regulation of character witness examination is necessary. The legitimate function of the prosecution in subjecting the character witness’s testimony to the crucible of cross-examination to enable the jury to assess his familiarity with defendant’s reputation and the quality of his report thereof can be performed without the suggestion or assertion of facts in such a way as to arouse undue prejudice within the jury. In order to promote this legitimate function of the prosecution and to insure that a defendant is protected from possible abusive cross-examination, we conclude that the safeguards which have been advocated by the scholars, Wigmore and McCormick, approved by the United States Supreme Court in Michelson v. United States and articulated by the New Jersey Superior Court should be adopted as fully set forth earlier in this opinion.

Defendant may not avail himself of these safeguards, however, because he failed to make a contemporaneous objection on these grounds at trial. A defendant is limited on appeal to the grounds for the objections articulated at trial. Generally speaking, a new basis for an objection, albeit meritorious, cannot be raised for the first time on appeal. La.C.Cr.P. art. 841; State v. Ferguson, 358 So.2d 1214 (La.1978); State v. Holstead, 354 So.2d 493 (La.1977); State v. Marks, 337 So.2d 1177 (La.1976).

Defendant’s contemporaneous objection following the second question to any reference to arrests on cross-examination of the character witness was properly overruled. There is no such blanket prohibition against all questions about arrests. The character witness may be asked whether he “has heard” of previous arrests under the safeguards set forth above. That the question elicited the witness’s opinion instead of his knowledge or reputation was clearly erroneous, La.R.S. 15:479, but defendant failed to object on this basis. Nor could defendant claim reversible error in the prosecution’s failure to specify in the third question the particular controlled dangerous substance involved in defendant’s prior conviction. Inquiry into reputation of prior convictions is also permissible on cross-examination, under the safeguards adopted herein, and the nature of the offense was sufficiently delineated to elicit an intelligent response from the witness. Again, an objection to inquiry into the witness’s opinion rather than the defendant’s reputation would have been apt, but it was not made.

We are also prevented from ruling on the propriety of the prosecution’s cross-examination of the defendant about his pri- or arrests, for no contemporaneous objection was made for the trial judge’s consideration. La.C.Cr.P. articles 841, 851; State v. Collins, 359 So.2d 174 (La.1978); State v. Bernard, 358 So.2d 1268 (La.1978).

Because we find no reversible error in those matters properly before us on appeal, we affirm defendant’s conviction and sentence. However, in future cases prejudicial error resulting from a trial court’s failure to enforce the safeguards adopted herein during the cross- examination of character witnesses will require reversal, if properly objected to an assigned.

AFFIRMED.

WATSON, BLANCHE and MARCUS, JJ., concur in result.


author: MARCUS, Justice. LEMMON, Justice, BLANCHE, Justice

text:
    STATE of Louisiana v. Marc Robert SNODDY.
    No. 67200.
    Supreme Court of Louisiana.
    Oct. 6, 1980.

      Paul J. DeMahy, St. Martinville, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Kay Kirkpatrick, Asst. Dist. Atty., for plaintiff-respondent.
   MARCUS, Justice.

Marc Robert Snoddy was charged by bill of information with the carrying of a concealed weapon on his person in violation of La.R.S. 14:95. After a bench trial, defendant was found guilty as charged and sentenced to pay a fine of one hundred dollars plus costs and in default of payment to serve ninety-one days in the parish jail. Execution of the imprisonment portion of the sentence was suspended and defendant was placed on active probation for one year. Defendant’s application to this court under our supervisory jurisdiction was granted. He argues three assignments of error. Finding merit in one of the assigned errors, we need not consider the remaining two.

ASSIGNMENT OF ERROR NO. 1

Defendant contends the trial judge erred in denying his motion to suppress a handgun seized from his person by a police officer. He argues that the officer had no reasonable cause to stop and frisk him; therefore, the evidence was inadmissible as “fruit of the poisonous tree.”

At the commencement of trial, defendant’s previously filed motion to suppress was referred to the merits.

On March 19, 1979, two sheriff deputies drove to defendant’s residence to attempt to execute a bench warrant for the arrest of defendant’s brother, Dale Snoddy. Defendant lived in a secluded rural, heavily wooded area with no street lighting. According to Sergeant Maranto, he observed defendant at the gate area of his driveway holding a shotgun. As the patrol car turned into the driveway, he placed the shotgun on the fence post. The officer stated that he had not been to defendant’s residence before and, although he did not know who defendant was, he knew that defendant was not, in fact, Dale Snoddy for whom the warrant had been issued. The deputies then ordered defendant to raise his hands and approach the car. Defendant was then frisked and an automatic handgun was found in his right front pants pocket underneath his untucked shirt.

Defendant testified that he had been visited several times during the preceding four days by various deputy sheriffs and bail bondsmen looking for his brother and that he had repeatedly informed them that his brother had moved out of his house three weeks earlier and was allegedly residing with his girlfriend. On the night in question, defendant had been awakened by his girlfriend, Cindy Mullens, who had been watching television in the den of his house when she heard footsteps outside. Defendant placed a pistol in his right front pants pocket, grabbed his shotgun, and went outside to investigate. Defendant stated that he was standing inside his fenced property holding the shotgun when the unmarked police car approached and the previously related events occurred.

In determining the validity of the seizure of the gun as a result of the frisk, there are two actions of the officers that must be examined: the initial detention of the defendant and the subsequent frisk. If either action is not justified, the evidence obtained is inadmissible. State v. Jernigan, 377 So.2d 1222 (La.1979), cert. denied, U.S. -, 100 S.Ct. 2930, 65 L.Ed.2d 816 (1980).

The fourth amendment to the federal constitution protects people against “unreasonable searches and seizures.” Measured by this standard, La.Code Crim.P. art. 215.1, as well as our federal and state jurisprudence, recognizes the right of a law enforcement officer to temporarily detain and interrogate a person whom he reasonably suspects is committing, has committed or is about to commit a crime. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Jernigan, supra; State v. Chopin, 372 So.2d 1222 (La.1979). We have held that reasonable cause for an investigatory detention is something less than probable cause and must be determined under the facts of each case by whether the officer had sufficient knowledge of facts and circumstances to justify an infringement on the individual’s right to be free from government interference. State v. Jernigan, supra; State v. Chopin, supra; State v. Taylor, 363 So.2d 699 (La.1978); State v. Drew, 360 So.2d 500 (La.1978); State v. Dixon, 337 So.2d 1165 (La.1976). The United States Supreme Court has recognized that a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest. Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979); Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); Terry v. Ohio, supra. As the Supreme Court stated in Brown, “we have required the officers to have a reasonable suspicion, based on objective facts, that the individual is involved in criminal activity,” citing Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), and United States v. Brignoni Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). Once a lawful detention is made, a police officer is justified in frisking the suspect for weapons under circumstances when he reasonably suspects that he is in danger of life or limb. La. Code Crim.P. art. 215.1(B); Adams v. Wil liams, supra; Terry v. Ohio, supra; State v. Jernigan, supra; State v. Hunter, 375 So.2d 99 (La.1979).

In the instant case, Sergeant Maran-to testified that he had received no reports of criminal activity in the area. The acts of defendant patrolling his property at night with a shotgun in a secluded area certainly did not constitute criminal activity. Moreover, as the patrol car approached defendant, he immediately put his shotgun down. Defendant’s behavior from the time the deputies first spotted him until he was frisked was non-assaultive or criminal. He willingly complied with the order to raise his hands and approach the patrol car to be searched. While not knowing who defendant was, Sergeant Maranto knew that defendant was not Dale Snoddy, the subject of the bench warrant. Moreover, the officers had no reason to believe that defendant was illegally carrying a concealed weapon. We reject the state’s argument that under the facts of this case it was reasonable to conclude that defendant was illegally carrying a concealed weapon on his person because of his possession of a shotgun, particularly in view of the fact that at the time of the stop defendant had already set aside the shotgun. Finally, the deputies did not see the bulge in defendant’s pants pocket until he had lifted his hands above his head and placed them on the patrol car to be frisked.

Accordingly, we conclude that none of the circumstances preceding the officers’ detention of defendant justified a reasonable suspicion that he was involved in criminal activity. Hence, the evidence obtained as a result of the unlawful detention is inadmissible. Since, the detention of defendant was unjustified, we need not consider the reasonableness of the subsequent frisk. The trial judge erred in denying defendant’s motion to suppress.

DECREE

For the reasons assigned, defendant’s conviction and sentence are reversed and the case is remanded to the district court for further proceedings in accordance with law and the views expressed herein.

DIXON, C. J., concurring.

LEMMON, J., concurs and assigns reasons.

BLANCHE, J., dissents and assigns reasons.

LEMMON, Justice,

concurring.

When the police officers entered defendant’s property for the purpose of executing a bench warrant for the arrest of defendant’s brother, who had fled from a criminal trial, and were confronted at the entrance to the property by defendant carrying a shotgun, they were justified for the purpose of self -protection in frisking defendant for weapons, even though defendant had put down the gun when they identified themselves. In my opinion the pistol was not found as the result of an unreasonable search.

Nevertheless, I agree with the reversal of the conviction of illegal carrying of weapons. When defendant was awakened by the sound of intruders on his secluded rural property late at night, he was justified in placing a pistol in his pocket and a shotgun in his hands for the purpose of investigating the intrusion. R.S. 14:95 (if applicable at all on one’s private property) was not designed to prevent such conduct, and defendant was not guilty of a violation of that statute.

I concur in the result.

BLANCHE, Justice

(dissenting).

I am of the opinion that there was reasonable cause to search the defendant. Considering the past difficulties in attempting to serve a subpoena at the residence involved, observing the defendant carrying a shotgun during the night time, which may or may not be innocent conduct considering our game laws prohibiting hunting at night, I am of the opinion that the officers had every reason to search the defendant for their own safety. It does not follow, as the opinion suggests, that it was unreasonable to conclude that defendant might be carrying a concealed weapon on his person inasmuch as he had already set the shotgun aside.

I respectfully dissent.

      . 383 So.2d 1256 (La.1980).

      . Only one of the two deputies, Sergeant Paul Frank Maranto, Jr., testified at trial.

      . Certainly the police officers would not have been liable for civil damages because of the search.


author: BLANCHE, Justice. DIXON, Chief Justice MARCUS, Justice

text:
    Melba Campbell ADAMS v. Dolvis Eric ADAMS.
    No. 67327.
    Supreme Court of Louisiana.
    Oct. 6, 1980.
    George O’Dowd, O’Dowd & O’Dowd, New Orleans, for plaintiff -applicant.
    John W. Robinson, Gretna, for defendant respondent.
   BLANCHE, Justice.

This case involves a challenge to the correctness of the trial court’s ruling, affirmed by the appellate court, La.App. 380 So.2d 73-7, that plaintiff/wife was “not without fault” in action for separation, thereby precluding her from any alimony after final divorce should one be granted later. We reverse.

Plaintiff, Melba Campbell Adams, sued Dolvis Adams for a separation based upon the ground of abandonment. Defendant/husband reconvened on the ground of cruelty and, while admitting that he left the matrimonial domicile, he alleged that he had just cause to leave because of his wife’s jealousy. Defendant claims that his wife had accused him of numerous illicit relationships with other women, and would pass up and down the highway next to his place of employment two or three times each week to check on him. Mrs. Adams did admit passing by her husband’s place of employment to check on him, but also explained that it was on the way to her daughter’s house, who lived only a few blocks away. She further admitted that, while at home one day, she overheard her husband talking on the phone and, when she walked into the room, he hung up. At that time, she told him that she was checking on him.

Upon conclusion of the testimony, the trial judge stated that the husband was not completely justified in abandoning his wife, but that the wife was not entirely blameless, evidently because of the foregoing evidence and, thus, granted the separation on the ground of “multiple fault”, which we interpret to mean “mutual fault”.

The judgment which was signed granted the separation in favor of Mrs. Adams upon the ground of abandonment, but added “[Tjhis court further finds that Melba C. Adams was 'not without fault’ in the separation.” Although there is an apparent discrepancy between a holding that Mr. Adams abandoned Mrs. Adams without lawful cause, while also stating that Mrs. Adams was herself at fault, the only part of the judgment appealed was the finding that Mrs. Adams was not without fault. Since the judgment of separation based upon abandonment is final, we are precluded from disturbing it at this time. See Howard v. Toye Bros. Yellow Cab Co., 226 La. 346, 76 So.2d 391 (La.1955); Standard Oil Co. of New Jersey v. Edwards, 32 So.2d 102 (La.App., 4th Cir. 1947).

Plaintiff argues that because the separation judgment grounded upon abandonment in plaintiff’s favor by definition means that plaintiff was without fault, this Court must defer to the final portion of the judgment and conclude that plaintiff was without fault. However, the better approach, where such an inconsistency is present, is to examine whether the record supports the finding at issue without regard to other findings not before the Court. Dixon v. Dixon, 357 So.2d 856 (La.App., 4th Cir. 1978); Watson v. Watson, 372 So.2d 639 (La.App., 4th Cir. 1978). Thus, we only consider whether the lower courts erred in determining that plaintiff was at fault in causing the separation.

Civil Code art. 141 requires a court to grant a separation where both spouses are mutually at fault in causing the separation. The result of such a separation is that neither party can claim alimony, C.C. art. 141. The appellate courts of this state have correctly interpreted the word “fault” to mean conduct constituting an independent fault ground for separation under C.C. art. 138. Dixon v. Dixon, supra; Saucier v. Saucier, 357 So.2d 1378 (La.App., 4th Cir. 1978); Brocato v. Brocato, 369 So.2d 1083 (La.App., 1st Cir. 1979), writ denied, 371 So.2d 1341 (La.1979); Watson v. Watson, supra.

Civil Code art. 160, dealing with alimony after a final divorce, requires freedom from fault on the part of the claimant spouse as one prerequisite to an award of alimony. In interpreting this requirement, this Court stated in Pearce v. Pearce, 348 So.2d 75, 77 (La.1977):

“We have held that, under this statute respecting an award of alimony to a wife without ‘fault’, the word ‘fault’ contemplates conduct or substantial acts of commission or omission by the wife violative of her marital duties and responsibilities. A wife is not deprived of alimony after divorce simply because she was not totally blameless in the marital discord. Vicknair v. Vicknair, 237 La. 1032, 112 So.2d 702 (1959); Davieson v. Trapp, 223 La. 776, 66 So.2d 804 (1953); Breffeilh v. Breffeilh, 221 La. 843, 60 So.2d 457 (1952); Adler v. Adler, 239 So.2d 494 (La. App. 4th Cir. 1970). To constitute fault, a wife’s misconduct must not only be of a serious nature but must also be an independent contributory or proximate cause of the separation. Kendrick v. Kendrick, 236 La. 34, 106 So.2d 707 (1958).

Although not specifically mentioning C.C. art. 138(l)-(8), or C.C. art. 139 by name, this language clearly indicates that only such conduct as will entitle one spouse to a separation or divorce under these articles is sufficient to deprive the other spouse of alimony after a final divorce.

Having determined that “fault” for purposes of permanent alimony preclusion is synonymous with the fault grounds for separation and divorce, it need only be decided whether plaintiff’s actions would have been sufficient to allow defendant to obtain a judgment against plaintiff under C.C. art. 138. We conclude that they were not.

Defendant’s claim in reconvention was that plaintiff was guilty of cruel treatment toward defendant. The Civil Code provides that a separation on the ground of cruelty may be granted only when it is “of such a nature as to render their living together insupportable”, C.C. art. 138(3). We find that mere accusations by plaintiff of an illicit affair between defendant and another woman, and unintrusive rides by plaintiff past defendant’s work place, did not constitute acts of such a severe nature as to allow the rendition of a judgment of separation against plaintiff. See Barron v. Barron, 279 So.2d 208 (La.App., 2d Cir. 1973).

Other evidence shows that the conduct on the part of the wife did not take on such quality as to render their further living together insupportable until the defendant’s 17 year old daughter left the matrimonial domicile. The evidence relative to this issue revealed that the plaintiff had reared the defendant’s daughter in her home since the mother’s death. At that time, the child was 11 years old and, evidently, as she grew older, difficulties arose between stepmother and defendant’s daughter. Finally, the daughter moved out of the matrimonial domicile to live with an aunt, at which time she was 17 years of age. Within two or three weeks thereafter, the defendant followed suit and moved to his brother’s house.

In conclusion, we find the evidence unconvincing and far short of proving by a preponderance theory that defendant left the matrimonial domicile because of his wife’s accusations of mistrust.

For the reasons assigned, the judgment of the court of appeal affirming the trial court’s determination of fault on the part of Mrs. Adams is reversed.

REVERSED.

DIXON, C. J., concurs with reasons.

MARCUS, J., concurs and assigns reasons.

LEMMON, J., concurs for the reasons assigned by DIXON, C. J.

DIXON, Chief Justice

(concurring).

I respectfully concur, being of the opinion that “fault” which forfeits alimony need not be conduct serious enough to furnish grounds for a separation suit by the husband. If the wife’s misconduct is of such a serious nature that it substantially caused or contributed to the breakdown of the marriage, she should not be considered without fault in her claim for alimony.

MARCUS, Justice

(concurring).

In my view, to constitute fault to preclude alimony after divorce, a wife’s misconduct must not only be of a serious nature but must also be an independent contributory or proximate cause of the separation. Such was not the case here. Accordingly, I respectfully concur.

      . La.C.C. art. 143; Callahan v. Callais, 224 La. 901, 71 So.2d 320 (La.1954); Maynor v. Maynor, 234 So.2d 426 (La.App., 1st Cir. 1970); Laurent v. Laurent, 347 So.2d 312 (La.App., 4th Cir. 1977).

      . It is important to note that a separation based upon a husband and wife living separate and apart for one year, voluntarily and without reconciliation, C.C. art. 138(9), is not based upon the fault of either party. Further, we need not decide at this time whether “irreconcilable differences” constitute fault for purposes of alimony preclusion.

      . See Footnote 2, above.


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

text:
    STATE of Louisiana v. Charles D. WILLIAMS.
    No. 67330.
    Supreme Court of Louisiana.
    Oct. 6, 1980.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., J. Kevin McNary, Asst. Dist. Atty., for plaintiff-appellee.
    Steve Lemoine, New Orleans, for defendant- appellant.
   DENNIS, Justice.

Defendant, Charles D. Williams, was convicted of obtaining credit with a stolen credit card, La.R.S. 14:67.3 (Supp.1964) and sentenced to two years in jail. We reverse his conviction and sentence, finding merit in his assignment of error based on a lack of constitutional proof of an essential element of the crime, viz., that defendant obtained credit. Since there was a constitutionally sufficient evidentiary basis for the jury to find the defendant guilty of an attempt to obtain credit with a stolen card, a lesser offense included within the charged crime, and since the jury necessarily made such a determination in this case, the case is remanded to the trial court with instructions to enter a judgment of conviction of attempt to obtain credit by use of a stolen credit card and to sentence the defendant accordingly.

On October 12, 1978, the defendant entered a J. C. Penney’s store in New Orleans accompanied by a young woman. After shopping for some time, the woman brought several items to a cashier who proceeded to total their prices on her register. The defendant was standing several feet away from the young woman and whispered to her briefly during the transaction. The woman handed the cashier a Penney’s credit card to pay for the items and a credit slip was made out and signed. The items of clothing were put into a bag along with a copy of the sales slip. The cashier then entered the account number on the credit card into the store’s computer and was alerted that the card was stolen by a code appearing in the machine. The cashier then asked the woman for identification bearing her picture. When the woman was unable to comply, the cashier summoned her supervisor. Store personnel in the credit department confirmed that the card was stolen by calling the owner whose phone number was found in their records. A police officer working in the store on a paid detail then placed both the woman and the defendant under arrest. The merchandise never left the cashier’s side.

The defendant does not question that the state proved beyond a reasonable doubt that he acted with intent to defraud and that he indirectly used a credit card belonging to another without authority. But he argues that no trier of fact could have found beyond a reasonable doubt from the evidence that he “thereby obtain[ed] credit or the privilege of making a deferred payment for the purchase or acquisition of money, goods or services . . . . ” La.R.S. 14:67.3 (Supp.1964). Accordingly, he contends that the trial court erroneously rejected his motion for a new trial based on the constitutional insufficiency of the evidence.

In reviewing the denial of a motion for new trial based on insufficiency of the evidence, we must determine whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of facts could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The issue, therefore, is whether any rational jury could have found beyond a reasonable doubt from the evidence in this case that Williams obtained credit for the purchase or acquisition of money, goods or services.

The words of the statute in effect at the time of the offense clearly require the prosecution to prove that the defendant actually obtained credit by unauthorized use of a credit card. La.R.S. 14:67.3 (Supp.1964). The words “taking” and “obtain” have been used advisedly in our criminal code, and the latter requires both that someone lost and that the offender or someone else gained by “obtaining.” See L.S.A.-R.S. 14:67, Reporter’s Comment on obtaining by false pretenses.

In our review of the record we are unable to discover any evidence from which a trier of fact reasonably could find that the defendant obtained or gained credit. The goods were never delivered to the defendant or his companion. The store clerk never entrusted the merchandise to them or granted them the privilege of making a deferred payment. Instead, the computer system performed according to its design; it prevented a delivery of goods on credit based on a stolen credit card.

Accordingly, we must set aside the defendant’s conviction and sentence for obtaining credit by use of a stolen credit card. However, defendant is not entitled to be discharged or receive a new trial. Attempted acquisition of credit with a stolen credit card, a lesser included offense, was necessarily found in this case by the jury, and there is sufficient evidence in the record to support such a finding beyond a reasonable doubt. See State v. Byrd, 385 So.2d 248 (La.1980). Accordingly, the defendant’s conviction and sentence are set aside, and the case is remanded to the trial court with instructions to enter a judgment of conviction of attempt to obtain credit with a stolen credit card and to impose a sentence for this crime.

CONVICTION AND SENTENCE SET ASIDE; REMANDED FOR JUDGMENT OF CONVICTION OF LESSER INCLUDED OFFENSE AND SENTENCE.

BLANCHE, J., concurs and dissents for the reasons assigned.

MARCUS, J., dissents, and assigns reasons.

WATSON, J., dissents for the reasons assigned.

BLANCHE, Justice

(concurring in part; dissenting in part).

I concur as there is “no evidence”, Thompson v. Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960), of an essential element of the crime, i. e., the obtaining of credit with a stolen credit card and that “any rational trier of fact”, Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) could have found that the state failed to prove this element of the crime beyond a reasonable doubt. To have done otherwise, the jury would have had to disregard the instructions given them by the trial judge that the state bore the burden of proving each and every essential element of the crime charged to their satisfaction and beyond a reasonable doubt.

As one may observe, we have never faced the issue in a case where our review of the evidence does not coincide with the jury’s review of the same evidence and usually, we do a routine venturing that the defendant would be guilty under either standard. See this writer’s opinion in State of La. v. Entertainment Specialists, 386 So.2d 653 (La.1980), where we found that there was “no evidence” of the defendant’s guilt of obscenity, but would have also reached the same result under the “rational trier of fact” standard of Jackson. Also see Justice Dennis’ dissent in State of Louisiana v. Holmes, 388 So.2d 722 (1980) where, in his opinion, a rational trier of fact would not have found Holmes guilty of first degree murder and likewise, there was “no evidence” of his intent to kill the victim.

This writer sought at first to resist the rule previously because it completely erodes our constitutional provision limiting our review to questions of law, La.Const. art. 5, § 5(C), and we should not have done away with our own constitutional mandate without at least giving it a decent burial.

While this writer must accept Jackson as the law of the land, he would make these observations. The terms “preponderance of the evidence”, “manifest error”, and “clearly wrong” as defined in opinions of this Court in civil cases, are not easily understood and, because of their subjective nature, a judicial determination thereof is often elusive. Approval of convictions in serious criminal cases wherein lengthy sentences are imposed, first degree murder cases in which the death penalty is imposed, close “some evidence” factual cases which result in conviction, will surely provoke an assortment of ideas from the members of this Court as to what constitutes the “rational trier of fact”. By its definition, such a fact-finder should not be “manifestly erroneous” or “clearly wrong”. “In the light most favorable to the prosecution” is due for its share of explanations, though this writer believes that they are no more than empty words when we make up our minds what the rational trier of fact should have found.

Finally, this writer suggests that there should be some limitation on “due process” in the case of criminal appeals. The present practice of prisoners is to use the Great Writ (habeas) as another attempt at an appeal and now, with the Jackson standard, it seems that convicted felons would state a good case when they ask either this Court or the Federal Courts how it would view, or how any succeeding new court or judge would view, the sufficiency of the evidence on which they were convicted. Somewhere, there has to be a stopping point, and this writer believes it should not be enlarged by our review as to the sufficiency of the evidence after a jury has found the defendant guilty on evidence which it believed established his guilt beyond a reasonable doubt. After all, we don’t see or hear the witnesses and the appreciation of the evidence should always be superior to our own when one considers the inherent dangers in reviewing a cold, cold record.

With regard to the remand to the trial court with instructions to enter a judgment of conviction as to a lesser included offense, I dissent for the reasons assigned by Justice Watson in State v. Byrd, 385 So.2d 248 (La.1980).

MARCUS, Justice

(dissenting).

I agree that there is no evidence of an essential element of the crime for which defendant was charged and convicted. Therefore, he should be discharged. I respectfully dissent.

WATSON, Justice,

dissenting.

I dissent from the remand for resentenc-ing for the reasons expressed in my dissent in State v. Byrd, 385 So.2d 248 (La., 1980).

      . This case is distinguishable from State v. Victor, 368 So.2d 711 (La.1979), in which the offender, who committed a “taking” under La. R.S. 14:67, exerted control over a television adverse to the owner’s dominion by hiding it in a box before reaching the cashier. The defendant in the present case did only what is expected and encouraged by owners of self-service stores; he and his companion selected and presented items to the cashier for payment.

      . Specific intent, an essential element of an attempted crime, La.R.S. 14:27, was also required by the charged offense in this case, and necessarily found by the jury when it found defendant guilty as charged. La.R.S. 14:67.3 punishes one who “with intent to defraud knowingly” uses a credit card to obtain credit. Proof of specific intent is required where the statutory definition of a crime includes the intent to produce or accomplish some prescribed consequence (the frequent language being “with intent to . . . ”). State v. Johnson, 368 So.2d 719 (La.1979); State v. Elzie, 343 So.2d 712 (La.1977).


author: MARCUS, Justice.

text:
    STATE of Louisiana v. Terry Anthony GLASS.
    No. 80-K-1847.
    Supreme Court of Louisiana.
    Oct. 6, 1980.

      Gilmer P. Hingle, Smith & Hingle, Monroe, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., Walter Lee Perkins, Jr., Asst. Dist. Atty., for plaintiff-respondent.
   MARCUS, Justice.

Terry Anthony Glass was charged in the same information with seven counts of simple burglary of an inhabited dwelling in violation of La.R.S. 14:62.2. Defendant entered a plea of not guilty to all seven counts at the arraignment but later withdrew his former plea and entered a plea of guilty to four counts of simple burglary pursuant to a plea bargain with the state. He was sentenced on counts one and two to four years at hard labor on each count, the sentences to run concurrently with each other. On counts three and four, he was sentenced to four years at hard labor on each count, the sentences to run concurrently with each other but consecutively with those of counts one and two. In effect, he was sentenced to two consecutive terms of four years each for a total of eight years. At a hearing on defendant’s motion to set bail after sentence pending appeal, the trial judge refused to allow bail, ruling that such was discretionary under La. Const, art. 1, § 18 and La.Code Crim.P. art. 314, and in exercising that discretion, denied bail. Upon defendant’s application, we granted certiorari to review the correctness of these rulings.

Defendant contends the trial judge erred in ruling that La.Const. art. 1, § 18 and La.Code Crim.P. art. 314 confer a discretionary right to allow bail in this case. Alternatively, he argues that the trial judge abused his discretion in denying bail.

Article 1, section 18 of the 1974 Louisiana Constitution provides in pertinent part:

After sentencing and until final judgment, a person shall be bailable if the sentence actually imposed is five years or less; and the judge may grant bail if the sentence actually imposed exceeds imprisonment for five years.

Defendant argues that this provision allows bail after sentence until final judgment if a sentence of five years or less is actually imposed on each count. Therefore, since the sentence imposed on each of the four counts of simple burglary is four years, the right to bail is mandatory, not discretionary, and the trial judge’s refusal to allow bail was error.

The trial judge, however, interpreted the constitutional and statutory provisions as requiring him to aggregate the sentences imposed on all four counts to which defendant pleaded guilty, thereby resulting in a sentence actually imposed in this case of eight years. Therefore, since the sentence exceeded imprisonment for five years, it was discretionary with him whether bail would be allowed pending final judgment.

The narrow issue presented for our determination is whether the right to bail after sentencing and until final judgment should be based on the total sentence actually imposed in the case or rather on the individual sentences imposed on each count. It requires an interpretation of the above quoted constitutional provision.

We consider the better interpretation of this provision to be one that places the right of bail after sentencing and until final judgment upon the total sentence actually imposed on defendant in the case. We are of the opinion that the emphasized language in the constitutional provision, “After sentencing and until final judgment, a person shall be bailable if the sentence actually imposed is five years or less; and the judge may grant bail if the sentence actually imposed exceeds imprisonment for five years,” clearly indicates the total sentence actually imposed in the case. “After sentencing” and “final judgment” refer to phases in a single criminal proceeding or case and “the sentence actually imposed” refers to the total sentence imposed in that case rather than the separate sentences imposed on each count for which defendant was convicted.

In interpreting an accused’s constitutional right to a jury trial in a serious crime exceeding the possible penalty of six months imprisonment under La.Const. art. 1, § 17 in a case where defendant was charged with nine counts of aggravated assault in the same information, we held in State v. McCarroll, 337 So.2d 475 (La.1976):

A jury trial was also required in this case by the wording of our constitutional provision, ... which hinges the right not upon the penalty carried by the particular charge for which an accused is tried, but upon the punishment which may be imposed in each case. La.Const. Art. 1, § 17 (1974). Therefore, where two or more charges are joined for trial the trial to a jury must be determined by the total punishment which may be imposed in that case.

Similarly, where two or more counts are joined in the same indictment for trial, the right to bail after sentencing and until final judgment must be determined by the total sentence actually imposed in that case.

We consider our interpretation of this constitutional provision to be in accord with the obvious purpose for which it was adopted, that is, to prevent a defendant upon whom a severe sentence has been imposed from absconding pending final judgment. The more onerous the sentence imposed, the greater the motivation for defendant to abscond. It is the total length of imprisonment facing the defendant, not the length of its parts, that would encourage a defendant to jump bail and make him a poor bail risk.

In sum, we conclude that “sentence actually imposed” in La.Const. art. 1, § 18 means the total sentence imposed in the case rather than the sentence imposed on each count for which defendant was convicted. Hence, in this case, since the total sentence actually imposed was eight years, the trial judge correctly concluded that defendant had no mandatory right to bail but rather it was discretionary with him.

Alternatively, defendant argues that the trial judge abused his discretion in denying bail pending appeal. At the hearing to fix bail, the trial judge noted that at the sentencing hearing, he did not fix bail for the reason that defendant was by his own admission guilty of seven separate burglaries of inhabited dwellings over a period of time rather than during a single night escapade. Under the circumstances, the trial judge obviously considered defendant a poor bail risk pending appeal. Hence, we are unable to say that he abused his discretion in denying bail.

DECREE

For the foregoing reasons, the rulings of the trial judge are affirmed.

      . 386 So.2d 1384 (La. 1980).

      . Article 314 of the Louisiana Code of Criminal Procedure parallels the constitutional provision and provides in pertinent part:
      After sentence and until final judgment, bail shall be allowed if a sentence of five years or less is actually imposed. Bail may be allowed after sentence and until final judgment if the sentence actually imposed exceeds imprisonment for five years.


author: PER CURIAM.

text:
    STATE of Louisiana v. Louis JONES.
    No. 67566.
    Supreme Court of Louisiana.
    Oct. 20, 1980.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Leon Cannizzaro, John Craft, Asst. Dist. Attys., for plaintiff appellee.

      Milton Masinter, New Orleans, for defendant-appellant.
   PER CURIAM.

Affirmed.

DENNIS, J., dissents, believing assignments of error numbers 4 and 5 have merit.


author: BLANCHE, Justice

text:
    STATE of Louisiana v. Erin HUNTER.
    No. 65512.
    Supreme Court of Louisiana.
    Oct. 28, 1980.
    For majority opinion see 387 So.2d 1086 (La.).
   BLANCHE, Justice

(dissenting).

I respectfully dissent. The statute leaves to the discretion of the juvenile judge which juvenile, who has committed first or second degree murder, manslaughter, aggravated rape, armed robbery, aggravated burglary or aggravated kidnapping may be transferred to the district court for trial and punishment as a major. While the new legislative scheme for juvenile transfer was obviously intended to broaden the circumstances under which juveniles might be tried as adults, the statute is permissive, and it does not mandate that in every case there shall be a transfer. Neither does it mean that juveniles so transferred are transferred in accordance with the whim of the trial judge.

The permissive language of the article, “may transfer”, should be read together with the entire juvenile code, and the constitutional enactments in dealing with juveniles. In State v. Everfield, 342 So.2d 648 (La.1977), this Court first noted the review by the United States Supreme Court of the procedures used in waiving juvenile court jurisdiction under a statute of the District of Columbia. Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed. 2d 84 (1966). Comparing our scheme with Kent criteria, in Everfield we found that the provisions for transfer in Louisiana comply with and go beyond the due process standards outlined in Kent. Revised Statute 13:1571.1 does not stand in isolation. A juvenile court may not take action in a juvenile transfer proceeding without due regard to the general guidelines in applying principles set down in the Louisiana Constitution, art. 5, § 9, in the Code of Juvenile Procedure (arts. 2, 84, 85, 86, et seq.), statutes such as R.S. 13:1571.1, et seq. and specific constitutional requirements as explained by this Court in Ever-field. The majority admits that these articles provide that non criminal treatment of a juvenile is to be favored and call for the least restrictive disposition which the court finds will be conducive to his welfare and the best interests of the state.

In my opinion, we should not have declared R.S. 13:1571.1 as unconstitutional. We should have found that R.S. 13:1571.4 was unconstitutional and at odds with the requirements of due process as it limited evidence contrary to the positive provisions of the Juvenile Code. Such a course would have given meaning to the statute as' intended by the legislature and would have been in accordance with our duty to interpret a statute so as to render it operative.


text:
    STATE of Louisiana v. Robert Earl PITTMAN.
    No. 67689.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re Robert Earl Pittman, applying for motion to remand. Parish of Washington.

Denied.


text:
    STATE of Louisiana ex rel. Joseph DUHON v. DEPARTMENT OF CORRECTIONS.
    No. 80-K-1452.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re Joseph Duhon applying for remedial writ. Parish of Lafayette. Nos. HC80 3, 41320, 41407, 43068.

Granted.


text:
    STATE of Louisiana v. Leon WILLIAMS, Jr.
    No. 80-K(A) 1444.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re State of Louisiana, through the District Attorney, Harry F. Connick, applying for remedial writs. Parish of Orleans. No. 275-051.

Granted.


text:
    STATE of Louisiana v. Tyronne HUNTER.
    No. 80-K-1443.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re State of Louisiana, through the District Attorney, Harry F. Connick, applying for writ of certiorari. Parish of Orleans. Nos. 259 -652 and 259 -520.

Writ granted.


text:
    STATE of Louisiana v. Harvey FAURIA, Alvin Blouin and Byron Blouin.
    No. 80-K-1438.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re State of Louisiana applying for writ of certiorari or review. Orleans Parish. No. 275 920.

Granted.


text:
    Roger Wayne SMITH v. CAJUN INSULATION, INC., et al.
    No. 80-C-1418.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re Roger Wayne Smith applying for certiorari or writ of review to the Court of Appeal, Fourth Circuit. No. 10981. Parish of St. John the Baptist.

Granted.


text:
    Alvin J. DUVALLE, Jr. v. LAKE KENILWORTH, INC., et al.
    No. 80-C-1405.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re Alvin J. Duvalle, Jr. applying for writ of certiorari, or review to the Court of ■Appeal, 4th Circuit. Parish of Orleans. No. 11156.

Granted.

LEMMON, J., recused.


text:
    Henry F. WILLIAMS v. WINN-DIXIE OF LOUISIANA, INC.
    No. 80-C-1384.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re Henry F. Williams, applying for certiorari, or writ of review to the Court of Appeal, First Circuit. No. 13200.

Writ granted.


text:
    STATE of Louisiana v. Ruben DeLaROSE.
    No. 80-K-1377.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re Rockwood Insurance, applying for writs of certiorari. Parish of Ouachita. No. 36,831.

Granted.


text:
    STATE of Louisiana ex rel. Will FORD v. CRIMINAL DISTRICT COURT, SECTION “C”, PARISH OF ORLEANS.
    No. 67427.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re Will Ford applying for writ of mandamus. Parish of Orleans. Number unknown.

Writ granted and the matter is hereby transferred to the district court.


text:
    STATE of Louisiana v. Patricia J. KNOWLES.
    No. 80-K-1540.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re Patricia J. Knowles applying for writs of certiorari, review and mandamus. Parish of Ouachita. No. 39176.

Granted.


text:
    STATE of Louisiana v. Blaise J. MANZELLA.
    No. 80-K-1496.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re Blaise J. Manzella, applying for remedial writs and stay order. Parish of Orleans. No. 272-684.

Granted.


text:
    STATE of Louisiana v. Louis WICKER.
    No. 80-K-1480.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re State of Louisiana through the District Attorney, Harry F. Connick, applying for writs of certiorari, prohibition, and mandamus. Parish of Orleans. No. 234-477.

Granted.


text:
    STATE of Louisiana v. Debbie Lynn ROME.
    No. 80-K-1970.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re Debbie Lynn Rome, applying for writs of certiorari, prohibition and mandamus. Parish of Calcasieu. Nos. 2035-77, 2036-77.

Granted.


text:
    STATE of Louisiana v. Eric JOHNSON.
    No. 80-K-(A)-1689.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re State of Louisiana through the District Attorney, Harry F. Connick, applying for remedial writs. Orleans Parish. No. 276-249.

Granted.


author: CALOGERO, J.,

text:
    STATE of Louisiana ex rel. Arthur JOHNSON v. Frank C. BLACKBURN et al., Warden, Louisiana State Penitentiary.
    No. 67237.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re Arthur Johnson applying for reconsideration of denied writ of May 9, 1980. Parish of Jefferson.

Motion denied.

CALOGERO, J.,

concurs in the denial. Contrary to relator’s contention he was not sentenced as a multiple offender.


text:
    STATE of Louisiana ex rel. Antonio MELENDEZ v. Frank BLACKBURN, Warden, et al., Louisiana State Penitentiary.
    No. 66453.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re Antonio Melendez applying for reconsideration of denied writ of March 14, 1980. Parish of Ouachita. No. 37,957.

Application denied. Relator may yet raise in the district court such contentions as have not heretofore been raised.


text:
    STATE of Louisiana ex rel. Darrell TAYLOR v. STATE of Louisiana.
    No. 66450.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re Darrell Taylor applying for writs of prohibition and certiorari. Orleans Parish. No. 241-109.

Denied.


text:
    In re Angela Mary REILLY.
    No. 80-0-1447.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re Louisiana State Bar Association, applying for rehearing of granted writ of July 3, 1980.

Rehearing denied.

MARCUS, BLANCHE and WATSON, JJ., would grant the rehearing.


text:
    STATE of Louisiana ex rel. Robert RUSSELL v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 67106.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re Robert Russell, applying for writ of mandamus. Parish of Orleans. Nos. 185-557 and 558.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Joseph SIEGEL v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 66957.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re Joseph Siegel applying for reconsideration of denied writ of June 13, 1980. Parish of East Baton Rouge. No. 1-74-8052B.

Writ denied.


text:
    STATE of Louisiana ex rel. Arthur GARDNER v. Honorable David T. CALDWELL, Judge, 2nd Judicial District Court.
    No. 66818.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re Arthur Gardner, applying for writ of mandamus. Parish of Bienville. No. 17360.

Denied.


text:
    STATE of Louisiana ex rel. Lionel McGRUDER v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 66516.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re Lionel McGruder, applying for writ of habeas corpus. Parish of Orleans. No. 255-056.

Denied on showing made.


text:
    STATE of Louisiana ex rel. Jimmy MOORE v. Frank J. SHEA, Judge, Division “G”, Orleans Parish Criminal District Court, State of Louisiana.
    No. 67388.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re Jimmy Moore applying for writ of mandamus. Parish of Orleans. No. 266673.

Denied.


text:
    STATE of Louisiana ex rel. Willie James WOODS v. Warden Hayden J. DEES, Dixon Correctional Institute.
    No. 67308.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re Willie James Woods, applying for writ of certiorari. Parish of Orleans. No. 259-156.

Denied.


text:
    STATE of Louisiana ex rel. Vernell RICHARDSON v. Judge Israel AUGUSTINE, Jr., et al.
    No. 67270.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re Vernell Richardson applying for motion to proceed in forma pauperis and writ of mandamus. Parish of Orleans. No. 237-504.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Albert BREELAND v. Frank BLACKBURN, Warden Louisiana State Penitentiary, et al.
    No. 67809.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re Albert Breeland, applying for writ of mandamus. Parish of Orleans, Criminal District Court. No. 271-500.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Mark Dwayne SMITH v. Frank BLACKBURN, Warden Louisiana State Penitentiary.
    No. 67685.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re Mark Dwayne Smith applying for writ of mandamus. Parish of St. John The Baptist. No. 5-75.

Writ denied. Moot.


text:
    STATE of Louisiana ex rel. Frank BENNETT v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 67470.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re Frank Bennett, applying for writ of habeas corpus. Parish of St. Mary. No. 94,781.

Denied.


text:
    STATE of Louisiana ex rel. William POWELL v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 67406.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re William Powell, applying for writs of habeas corpus. Parish of Orleans. Nos. 245-703 and 245 -542.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Eugene JACKSON v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 67238.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re Eugene Jackson applying for writ of certiorari, prohibition, mandamus or ha-beas corpus. Parish of Madison. No. 269-74.

Granted. An evidentiary hearing is ordered to determine if relator is entitled to an out of time appeal.

BLANCHE, J., would deny the writ.


text:
    STATE of Louisiana ex rel. Sidney CAMILLE v. CRIMINAL DISTRICT COURT, SECTION “G”, PARISH OF ORLEANS.
    No. 80-K-1413.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re Sidney Camille applying for writ of mandamus. Parish of Orleans.

Denied.


text:
    Judith GRUNDY, wife of Barney H. Westbrook v. Barney H. WESTBROOK.
    No. 80-C-1415.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re Barney H. Westbrook applying for certiorari, or writ of review to the Fourth Circuit Court of Appeal. No. 10,853. Parish of Jefferson.

Denied.


text:
    STATE of Louisiana v. Franklin KIRBY.
    No. 80-K-1430.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re Franklin Kirby, applying for writs of certiorari, prohibition, mandamus. Parish of East Baton Rouge, 19th Judicial District Court. No. 1-80-62.

Denied.


text:
    STATE of Louisiana ex rel. Norman BATES v. Honorable Israel AUGUSTINE, Jr., Judge, Section “I”, Criminal District Court.
    No. 80-K-1411.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re Norman Bates applying for writ of mandamus. Parish of Orleans. Number 257 -740 “I”.

Writ denied. Moot.


text:
    Hosie R. GATLIN a/k/a H. R. Gatlin and Hazel Gatlin v. WALLACE HOMES, INC.
    No. 80-C-1400.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re Hosie R. Gatlin, a/k/a H. R. Gatlin & Hazel Gatlin, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. No. 13,219. Parish of East Baton Rouge.

Denied.


text:
    STATE of Louisiana v. Ray VEILLON.
    No. 80-K-1399.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re Ray Veillon applying for writs of certiorari, prohibition, and mandamus. Parish of Evangeline. No. 21,928.

Writ denied.


text:
    Betty BRUNEY, Individually and on Behalf of her Minor Children v. CITY OF LAKE CHARLES AND HARTFORD ACCIDENT AND INDEMNITY COMPANY.
    No. 80-C-1389.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re Betty Bruney et al., applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Calcasieu. No. 7581.

Denied.


text:
    LOUISIANA NATIONAL LEASING CORPORATION v. E. CLARK MATTER CONSTRUCTION COMPANY et al.
    No. 80-C-1385.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re E. Clark Matter and Kathleen D. Matter, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. Nos. 13,213 and 13,214.

Denied.

WATSON, J., to grant.


text:
    STATE of Louisiana ex rel. Raymond BRADFORD v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 80-K-1381.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re Raymond Bradford, applying for remedial writ. Parish of Orleans, Criminal District Court. No. 260-656.

Denied.


text:
    STATE of Louisiana ex rel. Warren BATISTE v. STATE of Louisiana.
    No. 80-K-1368.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re Warren Batiste applying for remedial writ. Parish of Orleans. No. 266-727.

Denied. Appeal pending.


text:
    STATE of Louisiana v. McArthur JOHNSON.
    No. 80-K-1376.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re McArthur Johnson, applying for writs of certiorari, prohibition and mandamus. Parish of Bossier, 26th Judicial District Court. No. 54-874.

Denied.


text:
    E. Bradford HOLBROOK v. Loella May FRANZ, wife of/and J. Paul Barilleau.
    No. 67839.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re Loella May Franz, wife of/and J. Paul Barilleau, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. No. 13,199. Parish of Livingston.

Denied. Judgment not final.


text:
    STATE of Louisiana ex rel. Ulysses D. SMITH v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 67819.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re Ulysses D. Smith applying for writ of mandamus. Parish of Orleans. No. 270-325.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Ronald S. MONROE v. STATE of Louisiana.
    No. 67817.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re Ronald S. Monroe applying for remedial writ. Parish of Orleans. No. 261-647.

Denied.