author: LARRY G. SMITH, Judge.

text:
    DEPARTMENT OF REVENUE, Appellant, v. Raymond A. BICHIMER and Charles J. Bichimer, Jr., Appellees.
    No. UU-95.
    District Court of Appeal of Florida, First District.
    Dec. 4, 1980.
    Jim Smith, Atty. Gen. and Joseph C. Mel-lichamp, III, Asst. Atty. Gen., for appellant.
    Robert S. Goldman, Tallahassee, for ap-pellees.
   LARRY G. SMITH, Judge.

The Department of Revenue appeals a summary final judgment voiding the Department’s assessment of documentary stamp tax and surtax, under Sections 201-02(1) and 202.021(1), Florida Statutes (1977), on an assignment of lease received by appellees. The Department based its assessment upon its contention that the unpaid balance of certain unassumed mortgages on the leasehold property must be considered as part of the consideration paid for the assignment, and should therefore be included in computing the amount of tax. The trial judge, relying on this court’s ruling in Department of Revenue v. Dix, 362 So.2d 420 (Fla. 1st DCA 1978), determined that the amount of the unassumed mortgages could not be considered as a part of the consideration for the assignment, and therefore could not be included in computing the tax. We affirm.

Appellees received an assignment from Stanley J. Harte of Harte’s interest as tenant under a shopping center lease between Harte and Alison Mortgage Investment Trust, as landlord. The lease covers land initially owned by Harte, then conveyed by warranty deed to the trust. At the time of conveyance the land was encumbered by certain mortgages securing debts incurred by Harte (and others) in connection with construction of buildings and improvements on the property. There was no assumption of the mortgage indebtedness by the trust. The warranty deed conveyed land only, expressly excepting and reserving ownership of all buildings and above ground improvements in Harte. As a part of the transaction between the trust and Harte, they entered into a lease agreement as landlord and tenant, respectively, covering both the land and the buildings and improvements. Harte thereafter assigned all of his rights and interests as tenant under the lease to appellees. Appellees did not assume the mortgages, but the assignment provides that it is “subject to” the mortgages, and the lease itself provides that any default under existing mortgages is a ground for default under the lease. Appellees have made payments on the mortgages since the assignment.

In Department of Revenue v. Dix, supra, this court held that unassumed existing mortgages on real property do not form a part of the documentary stamp tax consideration on an assignment of a leasehold interest in the property, even where the assignee makes the mortgage payments subsequent to the assignment. In the case of an assignment of a lease, where the assignee does not assume the underlying mortgage indebtedness, the amount of such mortgages is not a “reasonably determinable” consideration, and no tax is due on the mortgage amount. See DeVore v. Gay, 39 So.2d 796 (Fla.1949). Distinguishing Kendall House Apartments, Inc. v. Department of Revenue, 245 So.2d 221 (Fla.1971), in which the tax was held applicable to a fee conveyance subject to a mortgage the Dix court stated (id. at 422):

However, the assignees of leaseholds are not like fee purchasers. The assignee of a leasehold not assuming the mortgage need not pay the entire mortgage obligation to protect his leasehold. He need pay the mortgage to protect his interest only as long as his leasehold interest continues, and that interest may terminate in any of a multitude of ways. The economic burden of paying the mortgage is contingent upon continuation of the leasehold. It is executory, and therefore cannot support a documentary stamp tax.

It is also noteworthy that here, as in the Dix case, the economic burden of making mortgage payments is “coextensive with the economic burden of paying rent,” so that the mortgages do not form a reasonably determinable consideration upon which to found a documentary stamp tax.

The Department urges that the decision in Dix is not controlling because title to the buildings, which remained in Harte under the terms of Harte’s warranty deed to the trust, was “conveyed” to appellees by means of the instruments sought to be taxed-the assignment of lease from Harte to appellees. See Kendall House Apartments, Inc. v. Department of Revenue, supra, and Florida Department of Revenue v. De Maria, 338 So.2d 838 (Fla.1976). We disagree with the Department’s interpretation of the transaction between the parties because although it is true that Harte’s warranty deed to the trust conveying title to the land excepted or excluded the buildings, the deed itself was given contemporaneously with a lease agreement between the trust and Harte in which the rights and interests of the parties with respect to the buildings were more specifically spelled out. We think it is clear from an examination of the lease that the lease, rather than the deed, controlled the disposition and use of the buildings as between the parties. The lease provides that the buildings “shall be surrendered to landlord upon the expiration or earlier termination of this lease, without payment therefor by landlord.” The terms of the lease required Harte (as tenant) to make all repairs necessary to keep the buildings in good order and condition; it prohibited the removal, demolition or alteration (except minor alterations) of the buildings without consent of the trust (as landlord); and the lease required the tenant to rebuild or replace any building damaged or destroyed by fire or other casualty. The landlord was also given the right of entry of the buildings for inspection and for the purpose of repairing or rebuilding in event of the tenant’s failure to do so. In sum, without further elaboration, we find the substance or effect of the lease is virtually indistinguishable from the typical commercial lease of its kind in which the landlord is the legal title holder of both the land and the buildings.

We are obliged “to look through the mere form ... to the substance of the transaction.” River Park Joint Venture 315076 v. Dickinson, 303 So.2d 654 (Fla. 1st DCA 1974). Accordingly, we hold that the mere fact that Harte reserved ownership of the buildings in his warranty deed to the trust (for reasons which are not explained nor deemed pertinent to this proceeding), does not alter the effect of his contemporaneous lease agreement in which his ownership interest in the buildings was totally subordinated to the landlord and tenant relationship created by it. Under the lease, any default in payment of rent, or any number of other provisions, allows termination by the landlord, which in turn operates as a surrender of all buildings and improvements to the landlord. We agree with ap-pellees contention that Harte retained no interest in the buildings that would continue beyond the expiration or earlier termination of the lease. His assignment to appel-lees could convey no greater rights, and we view the document in question as an assignment of lease, just as the parties themselves described it and its wording indicates that it is.

AFFIRMED.

SHIVERS, J., and MASON, ERNEST E., Associate Judge, concur.


source: Caselaw Access Project

author: MILLS, Chief Judge.

license: Public Domain

text:
    I. Irving WEINTRAUB, Appellant, v. Clara L. WEINTRAUB, Appellee.
    No. UU-157.
    District Court of Appeal of Florida, First District.
    Dec. 4, 1980.

      Selig I. Goldin of Goldin & Cates, Gaines-ville, Guyte P. McCord, III, of Spector & Tunnicliff, Tallahassee, for appellant.
    No Appearance for appellee.
   MILLS, Chief Judge.

After the trial court had entered a final judgment of dissolution of marriage and that final order was appealed to this court and after both the trial court and this court denied motions to stay, appellant-husband filed a motion for contempt based on appel-lee-wife’s failure to comply with the final judgment in that she allegedly failed to deliver or make available personal property called for in the judgment.

The trial court entered an order entitled “Order Denying Parties’ Motions for Contempt Judgments” in which it asserted it had no jurisdiction to grant or deny the motion at issue here and another motion by the appellee-wife or to even entertain them. It is from this order that appellant-husband appeals. We reverse.

The trial court has the authority to enforce its orders, judgments, and decrees when enforcement of the award has not been stayed or superseded. Glasser v. Hacket, 37 Fla. 358, 20 So. 532 (1896); Coggan v. Coggan, 183 So.2d 839 (Fla.2d DCA 1966). Accordingly, we reverse and remand to the trial court for its consideration of appellant’s motion for contempt on the merits.

REVERSED and REMANDED.

BOOTH and LARRY G. SMITH, JJ., concur.


author: ROBERT P. SMITH, Jr., Judge.

text:
    Edwin TEMPLETON, Appellant, v. DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Appellee.
    No. WW-329.
    District Court of Appeal of Florida, First District.
    Dec. 4, 1980.

      Clifford L. Davis, Tallahassee, for appellant.
    Enoch J. Whitney and Judson M. Chapman, Tallahassee, for appellee.
   ROBERT P. SMITH, Jr., Judge.

After being notified that the Department of Highway Safety and Motor Vehicles would cancel his dealership license on December 20, 1979, for his failure to conduct his dealership at the registered location, appellant Templeton on December 18 sent the Department a letter requesting a Section 120.57 hearing, to which he was, of course, entitled. Capeletti Brothers, Inc. v. Dept. of Transportation, 362 So.2d 346 (Fla. 1st DCA 1978). The Department misplaced the letter and cancelled Templeton’s license without a hearing. Although the purported cancelation was of no legal effect, for reasons stated in Capeletti, it placed a cloud upon and apparently deterred the routine annual renewal of Tem-pleton’s license on January 1. Moreover, Templeton apparently was subjected to criminal charges for conducting a used car business without a license during the period that elapsed before he was afforded a hearing. Templeton was given a hearing in April 1980, after which the Department on May 22 entered an order properly cancelling Templeton’s license on substantial competent evidence supporting the charge. We affirm that order, but in doing so declare, for such collateral benefit as it may be to Templeton, that until May 22, 1980 he was entitled to licensure and should be considered as having held a license notwithstanding the purported revocation of December 20, 1979, and its sequelae.

AFFIRMED.

THOMPSON, J., and WOODIE A. LILES (Retired), Associate Judge, concur.


author: PER CURIAM.

text:
    ALLSTATE INSURANCE COMPANY, Appellant, v. Alexander CHANDLER, Appellee.
    No. 80-718.
    District Court of Appeal of Florida, Third District.
    Dec. 16, 1980.
    Talburt, Kubicki & Bradley and Betsy E. Hartley, Miami, for appellant.
    Horton, Perse & Ginsberg, Ratiner & Glinn, Miami, for appellee.
    Before HUBBART, C. J., and HENDRY and SCHWARTZ, JJ.
   PER CURIAM.

The summary final judgment under review is reversed upon the appellee’s confession of error and the cause is remanded to the trial court with directions to enter a declaratory judgment that the $4,000 deductible in the subject insurance policy should be subtracted from the PIP benefits otherwise due each of the three injured insureds. § 627.739, Fla.Stat. (1979); see Industrial Fire and Casualty Insurance Casualty Co. v. Cowan, 364 So.2d 810 (Fla. 3d DCA 1978).


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

text:
    HIBERNIA NATIONAL BANK OF NEW ORLEANS v. Thomas BOLLETER, a/k/a Thomas W. Bolleter and Wanda T. Bolleter.
    No. 66157.
    Supreme Court of Louisiana.
    May 19, 1980.
    On Rehearing Nov. 10, 1980.

      Marshall J. Favret, New Orleans, for plaintiff-respondent.
    Elmer R. Tapper, Chalmette, for defendants-applicants.
   DIXON, Chief Justice.

This writ was granted to review the denial of the claim of Mrs. Wanda T. Bolleter for damages for malicious prosecution. Plaintiff bank brought suit on a note on October 8,1976 against Mr. and Mrs. Bolleter. Mrs. Bolleter answered, alleging that her signature was a forgery, and reconvened, claiming damages for harassment by employees of the bank in their efforts to collect the note. The bank then filed a third party petition against Mr. Wax, a branch manager, alleging that Mrs. Bolleter’s signature would not be on the note except for the violation by Wax of good “banking principals (sic) and policies.” Plaintiff dismissed its claim against Mrs. Bolleter on December 7, 1977, and the case went to trial on January 20, 1978. Mrs. Bolleter’s reconventional demand was dismissed and the Court of Appeal, 375 So.2d 690, affirmed the district court’s dismissal. We reverse the rulings of the lower courts and find that the record supports her cause of action for malicious prosecution.

In Robinson v. Goudchaux’s, 307 So.2d 287, 289 (La.1975), this court defined the elements necessary to support a claim for malicious prosecution:

“... (1) The commencement or continuance of an original criminal or civil judicial proceeding.
(2) Its legal causation by the present defendant against plaintiff who was defendant in the original proceeding.
(3) Its bona fide termination in favor of the present plaintiff.
(4) The absence of probable cause for such proceeding.
(5) The presence of malice therein.
(6) Damage conforming to legal standards resulting to plaintiff.”

There can be no dispute concerning proof of the first three elements. The lack of probable cause is also apparent. Probable cause to file suit is a question which depends upon the particular facts as perceived by the person bringing the action. This court has held that public policy requires that all persons have the right to resort to the courts for redress of wrongs, and the law protects them when they act in good faith and upon reasonable grounds in commencing a civil proceeding. Johnson v. Pearce, 313 So.2d 812 (La.1975). Therefore, in order for the bank to be justified in bringing suit against Mrs. Bolleter it must have had sufficient facts within its knowledge to believe that it was more probable than not that she had signed the note. The facts show that the bank had no reason to believe that Mrs. Bolleter had signed the note. When Mrs. Bolleter was first contacted by Mr. Mancuso, a representative of the bank, in December, 1975, she told him that she did not sign the note and that she knew nothing about the loan. Mr. Bolleter testified at trial that he also told Mr. Man-cuso that his wife did not sign the note. In January, 1976, one month after her initial contact with the bank, Mrs. Bolleter, through her attorney, furnished the bank with three samples of her signature. Mr. Richard, the bank employee who authorized the filing of suit, admitted at trial that it was apparent that the signature on the note and the signature on the cards supplied by Mrs. Bolleter were not the same. However, his belief was that claims like this (that a wife’s name on a note was forged) tended to evaporate from the heat of vigorous legal action. Plaintiff’s third party demand against Mr. Wax is evidence that the bank had no doubt that Mrs. Bolleter’s signature had been forged. Specifically, plaintiff alleged that by not being present at the closing of the loan to Mr. Bolleter, Mr. Wax made it possible for a third party to forge the name of Mrs. Bolleter to the note. Shortly before the case went to trial the bank dismissed its claim against Mrs. Bol-leter.

This court has held that where there is a lack of probable cause resulting from wanton and reckless disregard of the rights of the party sued, evincing absence of that caution and inquiry a party should employ before filing suit, malice will be inferred. Robinson v. Goudchaux’s, supra; Bladg v. Giacomino, 170 La. 638, 128 So. 661 (1930). Malice is inferred in this case because plaintiff proceeded either with inexcusable indifference to the distress and expense caused Mrs. Bolleter, or with the intention to use the baseless suit to collect from her.

Damages are also to be presumed in a case where all other elements of a suit for malicious prosecution are satisfied. Robinson v. Goudchaux’s, supra. As a result of the lawsuit, Mrs. Bolleter developed a nervous condition and found it necessary to seek medical help. Her monetary expenses include payment for the services of doctors, a handwriting expert, and her attorney. Although Mrs. Bolleter’s reconven-tional demand (filed in propria persona) only listed damages caused by “harassment,” C.C.P. 2164 provides that “[an] appellate court shall render any judgment which is just, legal, and proper upon the record on appeal.” The Official Revision Comment to that provision states that “the purpose of this article is to give the appellate court complete freedom to do justice on the record irrespective of whether a particular legal point or theory was made, argued, or passed on by the court below.” This court, therefore, should render such relief as the record supports. West v. Allen, 382 So.2d 924 (La.1980); Cox v. W. M. Heroman & Co., 298 So.2d 848 (La.1974).

The judgments of the courts below are reversed, and this case is remanded to the district court for further proceedings in accordance with this opinion, at plaintiff’s cost.

DENNIS, J., dissents with reasons.

BLANCHE, J., dissents with reasons.

MARCUS, J., dissents with reasons.

MARCUS, Justice

(dissenting).

I disagree with the finding of the majority that the record supports Mrs. Bolleter’s cause of action for malicious prosecution. In my view, the record fails to demonstrate the absence of probable cause for the proceeding instituted against Mrs. Bolleter and the presence of malice therein. Rather, plaintiff had probable cause to institute suit against Mrs. Bolleter, whose signature allegedly appeared on the note given by plaintiff to Mr. Bolleter for the purpose of obtaining her signature, despite her contention that the signature was forged. Accordingly, I respectfully dissent.

BLANCHE, Justice

(dissenting).

I agree with the court of appeal. Plaintiff’s problems were caused by her husband, who did not inform her that he had made the loan in question-a loan which may or may not have accrued to the benefit of the community.

DENNIS, Justice,

dissenting.

I respectfully dissent. Although the majority opinion has correctly stated the rule of law pertaining to presumed malice, that rule is incorrectly applied in this case. A presumption of malice does not arise from a finding that there existed no probable cause for the institution of the original action by Hibernia Bank against Mrs. Bolleter for collection of the promissory note. In order for malice to be presumed, there must have been a wanton and reckless disregard for Mrs. Bolleter’s rights by Hibernia. I do not believe that the evidence supports such a finding.

To support the presumption of malice, the majority relies on the following facts: both Mr. and Mrs. Bolleter said that the signature at issue was not hers; Mr. Richard testified that the signature at issue was dissimilar to those furnished by Mrs. Bolleter for comparison; the Bank instituted a third party demand against a bank officer who was responsible for the note’s validity, and, the suit against Mrs. Bolleter was dismissed before trial. These facts do not show a reckless and wanton disregard of Mrs. Bolleter’s rights. Moreover, the majority fails to note that a bank officer personally asked Mrs. Bolleter to submit an affidavit that the signature was a forgery. She refused to execute such an affidavit. A similar request was made through her attorney, but no affidavit was ever filed.

As is noted by the majority, persons are to be encouraged to enforce their rights through the orderly processes of the courts and not dissuaded from doing so. To insure the freest use of the system, it is required that plaintiff show defendant’s malice in instituting a prior unfounded suit, or show that the suit was instituted with no regard for the rights of plaintiff. Under the facts presented in this case, malice, actual or implied, has not been proven by the plaintiff.

ON REHEARING

CALOGERO, Justice.

On original hearing we reversed the trial and appellate court judgments in favor of plaintiff, Hibernia National Bank of New Orleans, and found in favor of Wanda Bol-leter on a claim for malicious prosecution. The Court majority correctly set out the elements necessary to support a claim for malicious prosecution and then, upon a thorough review of the record, found that the requirements necessary for Mrs. Bolleter to prevail had been proven. We remanded the case to the trial court for a determination of damages.

The bank filed an application for rehearing which we read as incorporating an exception of no cause of action, pled in these proceedings for the first time. We granted the rehearing primarily to consider that exception.

The facts pertinent to this inquiry are as follows. On January 28, 1975, a promissory note was executed for $11,255.40. Mr. and Mrs. Bolleter’s names and apparent signatures appeared on the note. Subsequent to a default on the note, plaintiff, being unable to locate Mr. Bolleter, contacted Mrs. Bolleter in December of 1975. At that time Mrs. Bolleter informed the plaintiff that the signature on the note was not hers. After being contacted again, on January 8, 1976, Mrs. Bolleter sent her husband’s attorney to the bank with three different samples of her signature to enable the bank officers to determine for themselves that the signature on the note purporting to be hers was in fact a forgery. As pointed out in the majority opinion, Mr. Richard admitted at trial that he could see that the signature on the note did not match those on the samples submitted by Mrs. Bolleter. Although Mrs. Bolleter was contacted several more times by the bank’s officers about the note, she repeatedly told them that the signature on the note was not hers and that she had received no money from the bank. Notwithstanding Mrs. Bolleter’s assertions that the signature was a forgery, and the bank officer’s own admission that the signature on the note did not match that of Mrs. Bolleter’s samples, the bank filed suit against both Mr. and Mrs. Bolleter on October 8, 1976. On November 10, 1976, Mrs. Bolleter filed an answer and a reconven-tional demand specifically stating that the signature on the note was not hers but rather was a forgery. Plaintiff maintained the action against Mrs. Bolleter for over another year, thereby causing her expense, and presumably consternation as well. However, on December 15, 1977 the bank dismissed its action against Mrs. Bolleter with prejudice. Trial of the lawsuit against Mr. Bolleter commenced on January 20, 1978.

Plaintiff correctly argues that termination of the civil proceedings which are contended to have been maliciously prosecuted is an essential element for a successful action for malicious prosecution. Robinson v. Goudchaux’s, 307 So.2d 287 (La.1975). It is argued that Mrs. Bolleter’s claim should be barred as not stating a cause of action because the reconventional demand which initiated the action was filed before the termination of plaintiff’s suit against her on the note, and no supplemental pleadings asserting the termination were thereafter filed in the trial court.

Plaintiff’s position is without merit. First of all, this Court on original hearing gave Mrs. Bolleter relief by applying C.Civ.P. art. 2164 and rendering a judgment which was determined to be “just legal and proper upon the record on appeal.” The posture of Mrs. Bolleter’s pleadings during the pendency of the litigation in the trial court is consequently not controlling. Furthermore, as relates to the possibility of denying Mrs. Bolleter relief for malicious prosecution because at the time the recon-ventional demand was filed the bank’s prosecution had not yet been terminated, we conclude that the pertinent point in time for construing the availability of a malicious prosecution action was, in this ease, at the outset of trial. When trial commenced, the bank’s lawsuit against Mrs. Bolleter had, on the bank’s own motion, been dismissed with prejudice. The exception of no cause of action is overruled.

One other matter we deem worth noting, bearing on the question of whether the record supports a finding of malice on the part of the bank, is the matter of the bank’s asking Mrs. Bolleter for an affidavit of forgery, and not receiving it prior to the decision to sue her. The bank argues that Mrs. Bolleter refused to sign an affidavit of forgery. Mrs. Bolleter testified that the “affidavit of forgery” she was told about purportedly was to be an attestation by her that her signature to the note had been affixed by her husband. Mr. Jones, a bank employee working in the collection department, read notations from his file on the Bolleter account which provided, “9/15. Phoned her attorney. Talked to him. Said he did not believe she [Mrs. Bolleter] would sign an affidavit against husband.” Mrs. Bolleter testified that if she had been asked to sign an affidavit only stating that the signature was a forgery, and not implicating her husband, she certainly would have signed it.

We concluded on original hearing, and again conclude here, that Mrs. Bolleter’s refusal to sign an affidavit implicating her husband is no indication to a reasonable person that she was refusing to swear to the pertinent matter under consideration, that is, that she had not placed upon the note the signature which, even to the bank officer, was obviously not her own. The ostensible refusal to sign the “affidavit of forgery”, upon which the bank presumably relied, does not excuse the bank’s actions in this case.

For the reasons assigned, we reinstate the original judgment and opinion of this Court.

DENNIS, J., dissents.

BLANCHE, J., dissents.

MARCUS, J., dissents.

LEMMON, J., recused.

       Chief Judge Frederick Stephen Ellis, Louisiana Court of Appeal, First Circuit, participated in this decision as an Associate Justice Ad Hoc.

       Honorable Paul B. Landry, Jr., participated in this decision as an Associate Justice Ad Hoc.

       There is of course a significant difference between asking Mrs. Bolleter to swear she did not sign the note and asking her to swear that her husband forged her name to the note. Mrs. Bolleter may well have been, indeed probably was, ignorant as to who placed her “signature” on the note.


author: DIXON, Chief Justice. MARCUS, Justice

text:
    STATE of Louisiana v. Walter CULBERTH, Jr.
    No. 66728.
    Supreme Court of Louisiana.
    Nov. 10, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Thomas Chester, Asst. Dist. Attys., for plaintiff-ap-pellee.
    Orleans Indigent Defender Program, Robert J. Zibilich, Dwight Doskey, New Orleans, for defendant-appellant.
   DIXON, Chief Justice.

On November 5, 1978 Annie Simms was walking with two companions, George Blanks and Warren Minor, toward a bus stop at the corner of Washington and South Claiborne Avenues. The defendant called her, and she walked back toward him. After a few moments the two men turned around to look for Annie, and saw the defendant stabbing her. When Minor approached, the defendant came toward him with his knife and said, “You’re next.” Minor threw a bottle at the defendant, and retreated behind a car. The defendant returned to the victim and stabbed her again. She died enroute to the hospital. The defendant confessed to the police and was charged with first degree murder. (R.S. 14:30). After a bifurcated trial held on May 30, 1979, a unanimous jury found him guilty as charged and recommended the death penalty.

Defense counsel contests the trial judge’s denial of the motion for mistrial he made in chambers. Defense counsel believes that remarks made by the prosecutor in his rebuttal argument called attention to the defendant’s failure to take the stand and therefore justify a mistrial under C.Cr.P. 770(3). We do not believe that the prosecutor’s comments can be construed as direct or indirect references to the defendant’s failure to testify. Defense counsel's argument that the prosecutor’s comment “there was no dispute as to the State’s case” is an unmistakable reference to the failure to take the stand also lacks merit. This remark is merely a reference to the fact that the defense presented no witnesses.

Defense counsel also calls for a mistrial under C.Cr.P. 775. He alleges that the prosecutor’s remarks regarding the defendant’s conduct at trial and his appeal for sympathy for the victim’s brother violated C.Cr.P. 774’s admonition to counsel not to appeal to prejudice. The trial judge thought the prosecutor’s remarks about the victim’s brother were logical inferences from the testimony, and he admonished the jury to disregard the state’s comments about the defendant’s conduct sufficiently to correct any error that might have existed.

Sentence Review

In Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), the United States Supreme Court approved the Georgia sentencing scheme which serves as the model for our sentencing procedure. (C.Cr.P. 905-905.9). To ensure that the death penalty is not arbitrarily or capriciously imposed, C.Cr.P. 905.9 requires this court to review every sentence to determine if it is excessive. Louisiana Supreme Court Rule 28, adopted pursuant to that article, states that in its review this court shall evaluate:

(a) whether the sentence was imposed under the influence of passion, prejudice or any other arbitrary factors, and
(b) whether the evidence supports the jury’s finding of a statutory aggravating circumstance, and
(c)whether the sentence is disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.”

Passion, Prejudice or Other Arbitrary Factors

Defendant also alleges that the jury’s finding of a nonexistent aggravating circumstance constituted prejudicial error, as it could have influenced the jury to recommend the death sentence. In his view, due process requires that an accused be given the opportunity to dispel false information which might influence a court or jury to impose a severe sentence. State v. Trahan, 367 So.2d 752 (La.1978); State v. Bosworth, 360 So.2d 173 (La.1978). At the sentencing hearing both parties stipulated that the defendant had three prior convictions, aggravated battery, theft and manslaughter. The jury apparently misunderstood the stipulation and returned with a finding of three aggravating circumstances, including a finding that the defendant had a previous conviction for an unrelated murder. A portion of the prosecutor’s speech in the sentencing phase of the trial might have contributed to the jury’s misunderstanding. In examining possible mitigating circumstances, the prosecutor said of the defendant:

“... He has a prior conviction for manslaughter of which he was on parole, released early, at the time this murder-first degree murder was committed. He had already killed a human being... . In addition to that, he has a prior aggravated battery by stabbing. Fortunately, this person wasn’t stabbed to death, but this victim in the aggravated battery was stabbed. So on two prior occasions his violent propensities had shown through and he killed somebody in one instance and the other instance he stabbed a person. So he hadn’t learned anything from his two prior confrontations with the law. In addition to that he had a felony theft conviction.... I submit to you that this isn’t a man who deserves a chance. . . . ” (Emphasis added).

At trial defense counsel did not object to these remarks nor to the two aggravating circumstances urged by the state and found by the jury. However, he did refuse to accept the finding of an unrelated murder conviction, noting that he had stipulated to a conviction for manslaughter, not murder, and that the statute specified murder.

Defense counsel now contends that none of the three aggravating circumstances found by the jury is supported by the record. Ordinarily, an objection which is not argued at trial is considered waived; however, since this court is empowered by the Louisiana Code of Criminal Procedure to undertake an independent review of all death sentences, defense counsel’s failure to object contemporaneously is not fatal. State v. Sonnier, 379 So.2d 1336 (La.1980). We believe that the prosecutor’s comments were prejudicial and may have contributed to the jury’s error. However, none of the aggravating circumstances cited by the jury is adequately supported by the record.

Statutory Aggravating Circumstances

C.Cr.P. 905.3 states that the death sentence can only be imposed if the jury finds beyond a reasonable doubt that at least one of the statutory aggravating circumstances set out in C.Cr.P. 905.4 is present. In every case where the death sentence is recommended this court must determine whether the aggravating circumstances cited by the jury are supported by the evidence. In this case, the state listed two aggravating circumstances supporting the death penalty. It contended that the defendant, by threatening Minor when he tried to intercede on the victim’s behalf, knowingly created a risk of death or great bodily harm to more than one person. It also asserted that the infliction of five stab wounds on the helpless victim constituted an especially heinous, atrocious or cruel manner of killing. The jury found both these grounds, as well as the third mentioned above-prior conviction of an unrelated murder.

The record indicates that the defendant was not convicted of an unrelated murder; he was originally charged with murder but pleaded guilty to manslaughter.

The evidence also does not support the conclusion that the defendant knowingly created a risk of death or great bodily harm to more than one person. In State v. English, 367 So.2d 815 (La.1979), this court stated that this aggravating circumstance is established when the defendant by a single and consecutive course of conduct contemplates and causes a great risk to more than one person. In this case, the defendant did not injure or kill anyone other than the victim. Although he told Minor “you’re next” when Minor approached him with a bottle, he did not pursue Minor when the latter ran behind a car. Instead he returned to stab the victim again. He did not attack anyone after the incident. The testimony of other witnesses also indicates that the defendant intended only to kill the victim.

Neither does the record support the finding that the offense was committed in an especially heinous, atrocious or cruel manner. Obviously, it was not intended that all murders fall in this category, even though it can be said that murder, itself, is a heinous, atrocious and cruel crime. We have stated that the concept of heinousness must necessarily include “some idea of torture or the pitiless infliction of unnecessary pain on the victim.” State v. English, supra, at 823. Such a construction is necessary to protect the statute from attack on grounds of vagueness and overbreadth and to provide adequate guidelines for those involved in the sentencing process. Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976). In this case the defendant did not torture or abuse the victim before her death. The wounds were inflicted to kill, not to maim or to inflict pain.

Since there is no reversible error in the guilt phase of the trial, the conviction is affirmed. Since none of the aggravating circumstances is supported by the record, the sentence is reversed and the case is remanded for resentencing.

MARCUS, J., concurs in part and dissents in part and assigns reasons.

MARCUS, Justice

(concurring in part and dissenting in part).

I concur in the affirmance of the conviction. I dissent from the reversal of the sentence as I consider that the record supports a finding that the offense was committed in an “especially heinous, atrocious or cruel manner.” As I interpret Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980), an offense is considered to have been committed in an especially heinous, atrocious or cruel manner if there is evidence of serious physical abuse of the victim before death. In the instant case, defendant stabbed the victim several times causing her to suffer physical injury and then stopped to threaten a would be rescuer. When the rescuer retreated behind a car, defendant returned to the victim and stabbed her again. While the victim’s wounds later proved to be fatal, she did not die instantly as did the victims in Godfrey, but rather suffered until she expired en-route to the hospital. Henee, I consider that an aggravating circumstance did exist.

      . Defense counsel objected to these comments:
      “... And there’s something else you can look to in this trial, and it infuriated me during this trial, and I think it infuriated you. Did you see that murderer’s attitude (pointing to the defendant) during the course of that trial? Did you see him laugh and snicker, thinking this was a joke, while the witnesses were on the stand? He thinks this is an actual joke. He thinks it’s funny that Annie Simms is dead, that he stabbed her to death all those times. Well I don’t think it’s funny, and with the homicide in this city, none of you should think it’s funny. ... It’s time to say, ‘we’ve had enough of this foolishness, . .. and Walter Cul-berth, we’ve had enough.’ This is a first degree murder and if there’s any sympathy in this case, it’s for the victim whose brother had to come in and identify her body today; it’s not going to be for the murderer because we’ve had enough of these homicides.”

      . “The following shall be considered aggravating circumstances:
      (a) The offender was engaged in the perpetration or attempted perpetration of aggravated rape, aggravated kidnapping, aggravated burglary, or armed robbery:
      (b) The victim was a fireman or peace officer engaged in his lawful duties;
      (c) The offender was previously convicted of an unrelated murder, aggravated rape, or aggravated kidnapping;
      (d) The offender knowingly created a risk of death or great bodily harm to more than one person;
      (e) The offender offered or has been offered or has given or received anything of value for the commission of the offense;
      (f) The offender at the time of the commission of the offense was imprisoned after sentence for the commission of an unrelated forcible felony;
      (g) The offense was committed in an especially heinous, atrocious or cruel manner.” C.Cr.P. 905.4.

      . See Godfrey v. Georgia, 446 U.S. 420, 426-429, 100 S.Ct. 1759, 1764-1765, 64 L.Ed.2d 398, 406 (1980), where the United States Supreme Court recently reversed a death sentence based on a jury’s finding that the offense was outrageously or wantonly vile. The defendant had killed his wife and mother-in-law with a shotgun and injured his daughter. The Supreme Court held that the offense did not involve the depravity of mind, torture, or aggravated battery required to support a finding of this aggravating circumstance. The Court reaffirmed that states must tailor their law “in a manner that avoids the arbitrary and capricious infliction of the death penalty” and “channel the sentencer’s discretion by 'clear and objective standards.’ ”


author: DIXON, Chief Justice

text:
    DeEtte Barber GARRETT et al. v. PIONEER PRODUCTION CORPORATION et al.
    Nos. 66968, 66970.
    Supreme Court of Louisiana.
    Nov. 10, 1980.

      Cassidy & Millican, F. Jefferson Millican, Jennings, Liskow & Lewis, Robert T. Jor-den, Lawrence P. Simon, Jr., and Kerry M. Massari, Lafayette, for defendants-applicants in 66968; for defendants-respondents in 66970.
    A. N. Yiannopoulos, Baton Rouge, Seidel & Bailey, George W. Hardy, Fred K. Bailey, Lafayette, for plaintiffs-respondents in 66968 and for plaintiffs-applicants in 66970.
   DIXON, Chief Justice

This petitory action was brought to determine the various parties’ ownership and mineral rights in property underlying certain streets in the City of Jennings, Louisiana. The plaintiffs include claimants to title and their lessees; the defendants are the City of Jennings and its lessees. Both groups claim to hold a valid interest in the mineral rights. Essentially, the controversy involves two disputes: whether the streets were dedicated to public use by the plaintiffs’ ancestors in title so that full ownership is in the city and, if not, whether the leases held by the defendants-lessees should be dissolved. All parties applied for review of the decision of the Court of Appeal. Garrett v. Pioneer Production Corp., 378 So.2d 945 (La.App.3d Cir. 1979).

The plaintiffs’ ancestors in title, Amanda and Austin Barber, acquired title to two tracts of land known as Barber’s Addition and Barber’s Subdivision in 1891 and 1901. Their titles can be traced to the sovereign. Beginning in 1901, the Barbers sold parcels of land in the addition and subdivision, regularly designating the lot and block number in the act of sale. In 1905, plats were recorded for both Barber’s Addition and Barber’s Subdivision. No signatures appear on these plats, and it is not known who filed them. Subsequent to the recordation, some lots were sold by the Barbers with reference to the plats, while other lots were sold without any such reference. In 1910, the Calcasieu Parish Courthouse was destroyed by fire; many of the records relevant to this case are taken from the files of a Lake Charles abstractor.

It is the defendants’ contention that the filing of the plats, pursuant to Act 134 of 1896, effected a statutory dedication of the streets to public use, vesting full ownership in the city of all streets appearing on the plats. Alternatively, the defendants argue that a formal, nonstatutory dedication occurred, again vesting full ownership in the city. The plaintiffs’ position is that the filing of the plats was not proved to have been performed by the owners of the land, and that the plats themselves are not in substantial compliance with the statute. While plaintiffs concede that some form of dedication occurred, they argue that a non-statutory, implied dedication merely gives the public a servitude on the property, not ownership.

Act 134 of 1896 (basically the same as R.S. 33:5051) stated:

“Section 1. Be it enacted by the General Assembly of the State of Louisiana; That whenever the owner or owners of any real estate situated in this State shall desire to lay off the same into squares or lots with streets or alleys between such squares or lots and with the intention of selling or offering for sale any of said squares or lots it shall be the duty of such owner or owners of such real estate, before selling any square or lot or any portion of same, to cause to be made and filed in the office of the Keeper of Notarial Records of the parish wherein such property is situated and copied into the Conveyance Record book of such parish, a correct map of the real estate so divided, which said map shall contain the following:
1. The section township and range in which such real estate lies or subdivision thereof according to government survey.
2. The number of squares by numerals from 1 up, and the dimensions of each square in feet and inches.
3. The number of each lot or subdivision of a square and its dimensions in feet and inches.
4. The name of each street and alley its length and width in feet and inches.
5. The name or number of each square or plat dedicated to public use.
6. A certificate of the Parish Surveyor of the parish wherein the property is situated in the correctness of the map.
7. A formal dedication made by the owner or owners of the property or their duly authorized agent of all the streets, alleys and public squares or plats shown on the map to public use.
See. 2. Be it further enacted, etc., That any person or persons, agent or attorney in fact who shall violate any of the provisions of this act shall be deemed guilty of a misdemeanor and upon conviction before the District Court shall be fined not less than ten dollars nor more than five hundred for each offense.
Sec. 3. Be it further enacted, etc., That it shall be the duty of all clerks and exofficio recorders and notaries public in all the parishes of this State, the parish of Orleans excepted, to refuse to place on record any deeds of sale of property coming under the provisions of this act, until the provisions of this act shall have been complied with; and to report to the District Attorney all violations of this act.”

The statute only speaks of dedication “to public use.” It does not explain or define the nature of the right acquired by the public through dedication. In fact, the legislature of this state has never enacted a comprehensive scheme of dedication to public use. For this reason, the subject of dedication has been a controversial one, and the task has fallen to the courts to decide the nature and effect of dedication.

Before Act 134 was enacted, the issues of dedication to public use and the nature of the public’s interest in public property were frequently litigated. Consistent with provisions of the Civil Code, and relying upon Roman, French and Spanish law, the earliest reported decisions squarely held that the soil underlying public roads was owned by the public. Morgan v. Livingston, 6 Mart. (O.S.) 19 (1819); Renthorp v. Bourg, 4 Mart. (O.S.) 97 (1816); Mayor, Etc., of New Orleans v. Metzinger, 3 Mart. (O.S.) 296 (1814). However, confusion arose as to what constituted a “public road.” Hatch v. Arnault, 3 La.Ann. 482 (1848), discounted the applicability of ancient Roman law on the subject, observing that the roads in the “infant colony” of Louisiana were simply not comparable to Roman highways, “as permanent as the labor of man could make them.” 3 La.Ann. at 485. This reasoning took into account the fact that roads in Louisiana were often washed away by inundation and the changing of river courses, and were sometimes abandoned along with the settlements they served. The court believed that the majority of roads in Louisiana could be classified according to the French system as “chemins publics,” constructed on land subject to private ownership. The court conceded that a few “grands chemins,” or highways, existed in Louisiana, and recognized that these roads were subject to public ownership. This decision obviously limited the principle set forth in earlier cases establishing public ownership of public roads. Note, “The Effect of Dedication to Public Use in Louisiana,” 13 Tul.L.Rev. 606 (1939). By its own terms, however, the reasoning employed in the decision is now archaic. Were we to classify the ownership of roads in terms of their relative permanence, the large majority of roads in Louisiana, privately owned or otherwise, could be classified as “grands chemins.” We do not believe that the matter of ownership can be determined by the relative stability of road beds; nor do we believe that the obscure distinction between “chemins publics” and “grands chemins” is of continuing vitality.

However, the Civil Code does appear to make some distinction between different types of roads. C.C. 454 and 458 (1870) classify city streets as public property. C.C. 453 and 482 (1870) refer to “roadsteads,” “highways,” and “high roads,” apparently classifying them as public property as well. To the contrary, C.C. 658 (1870) deals with “public roads” that are built on the soil of privately owned estates, declaring that the public is limited to a servitude of use over such property. The indication given in this article that such “public roads” are largely rural is borne out by early jurisprudence. Landry v. Gulf States Utilities Co., 166 La. 1069, 118 So. 142 (1928); Hatch v. Arnault, supra. Different results were obtained in the case of urban areas such as city streets, public squares and quays. City of Shreveport v. Walpole, 22 La.Ann. 526 (1870); City of Baton Rouge v. Bird, 21 La.Ann. 244 (1869); Pickett v. Brown, 18 La.Ann. 560 (1866). In these cases the courts clearly found that the ownership of public places was in the public; the public interest was not limited to a servitude. Whatever ambiguities may exist in decisions prior to the passage of Act 134, there can be no doubt that the prevailing view was that ownership of municipal streets would ordinarily vest in the public body. These early decisions are also informative as to the nature of the interest acquired by the public when property was dedicated to public use. In Pickett v. Brown, supra, and City of Shreveport v. Walpole, supra, the area disputed by the parties was a tract of land between Commerce Street and the Red River, in the City of Shreveport. The original incorporators of the city had designated this particular property as “open space” on a map which was filed along with an act of partition. No use was ever made of this property except by the city. Both courts, considering all the circumstances, concluded that the original owners of the tract intended to dedicate the property to public use, and affirmed the city’s title to the property. The same result was reached in City of Baton Rouge v. Bird, supra, where the ownership of public squares was in question. Once the intent to dedicate was inferred from the circumstances of the case, the court had no difficulty in deciding that title should vest in the public. In cases where no intent to dedicate was found, the courts uniformly held that the property in dispute was subject to private ownership. Leland University v. City of New Orleans, 47 La. Ann. 100, 16 So. 653 (1895); Mendez v. Dugart, 17 La.Ann. 171 (1865); Municipality No. 2 v. Orleans Cotton Press, 18 La. 122 (1841). Significantly, all of these decisions deal with property within municipalities, such as city streets and public squares.

From the foregoing we conclude that public ownership of property dedicated to public use is sanctioned by the Civil Code and was generally favored by law before the passage of Act 134 of 1896, especially with regard to property within municipal limits. It is relevant to note that prior to the advent of the mineral industry in Louisiana, the subject of public ownership of dedicated property was important only insofar as it governed the use to which dedicated property could be put. By itself, ownership of the soil underlying public streets was of no economic value. If dedicated property was exclusively subject to public use, there was no reason for the original owner to attempt to retain ownership while granting the public a servitude, since the economic value of the property was thought to consist entirely in its surface use rather than in the minerals below. Property owners were simply not concerned with retaining ownership of the soil underlying a road except to the extent that they could reclaim the surface use of the property. This was especially true in the case of municipal streets and public squares, since there was little likelihood that such streets and squares would ever be abandoned by the public. When such streets were infrequently abandoned, the courts looked with disfavor upon claims of private ownership:

“... We think it may be safely asserted that much harm may result from the retention in remote dedicators of the fee in narrow strips of land, valueless for many years, because of their public or quasi-public use which, on the abandonment of such use, become valuable for private purposes. Certainly such agreements are likely to be productive of disputes and litigation.” Richard v. City of New Orleans, 195 La. 898, 928, 197 So. 594, 603-604 (1940).

See also Wilkie v. Walmsley, 173 La. 141, 136 So. 296 (1931). Arising out of this context, there can be little doubt that the legislative intent advanced by Act 134 was to retain the jurisprudential rule that dedication of municipal streets vested ownership in the public. The jurisprudence is now well settled that a statutory dedication vests full ownership in the municipality, parish, or State of Louisiana, depending upon where the street or road is located. Pioneer Production Corp. v. Segraves, 340 So.2d 270 (La.1976); Parish of Jefferson v. Doody, 247 La. 839, 174 So.2d 798 (1965); Arkansas-Louisiana Gas Co. v. Parker Oil Co., 190 La. 957, 183 So. 229 (1938). See also Chevron Oil Co. v. Wilson, 226 So.2d 774 (La.App.1969).

Further support for the rule that statutory dedication vests ownership in the public is provided by Act 151 of 1910 (now substantially embodied in R.S. 48:701), which gave parishes and municipalities the authority to revoke the dedication of streets to public use. Upon revocation, the ownership of the property underlying the streets was to revert to the contiguous landowners. This statute obviously is based upon a legislative assumption that dedication of streets to public use vests ownership in the municipality or parish. Martin v. Fuller, 214 La. 404, 37 So.2d 851 (1948). The parties to the present case do not dispute the effect which has been given to Act 134. Indeed, when the jurisprudence has consistently established a uniform interpretation of a statute that governs property rights, that jurisprudence constitutes a “rule of property” which must be followed absent a legislative mandate to the contrary. St. Martin Land Co. v. Pinckney, 212 La. 605, 33 So.2d 169 (1947); Daigle v. Calcasieu Nat. Bank in Lake Charles, 200 La. 1006, 9 So.2d 394 (1942); Frost-Johnson Lbr. Co. v. Sailing’s Heirs, 150 La. 756, 91 So. 207 (1922); Cunningham v. Steidman, 133 La. 44, 62 So. 346 (1913); Lepine v. Marrero, 116 La. 941, 41 So. 216 (1906); Levy v. Nitsche, 40 La.Ann. 500, 4 So. 472 (1888); Otho Farmer's Heirs v. Fletcher, 11 La.Ann. 142 (1856).

In order to effect a statutory dedication, complete and detailed compliance with the statute is not required; substantial compliance will suffice. Parish of Jefferson v. Doody, supra; Metairie Park v. Currie, 168 La. 588, 122 So. 859 (1929). In the present case, the plats filed in 1905 fail to conform with the provisions of Act 134 in several respects. The plats were not recorded prior to the first sales, as required by § 1 of the act; all of the streets shown on the plats are not named, as required by § 1(4); and the plats contain neither a surveyor’s certificate nor a formal dedication, as required by § 1(6) and (7). In all other respects, the plats satisfactorily meet the provisions of the act. In Parish of Jefferson v. Doody, supra, the court concluded that the failure to include a survey- or’s certificate and a dedicatory clause did not prevent the plat from being in substantial conformity with the law. The omission of a surveyor’s certificate was ruled to be insignificant because it did not “render ineffective the plain intent of the subdivider to irrevocably dedicate the streets,” 247 La. at 855, 174 So.2d at 803. Similarly, the absence of a dedicatory clause was found to be insubstantial because the court believed that:

“... implicit in the act of filing of a plan of subdivision in the map book of the parish, showing squares, lots, streets, alleys and walkways, is the intent on the part of the subdivider of dedicating the streets, walks and alleys to the public use.. .. ” 247 La. at 854, 174 So.2d at 803.

In 1929 this court considered the effect of the absence from the plat of a formal act of dedication of the streets in Metairie Park v. Currie, supra. The only penalty under the statute, said the court, was a fine on the owner, and the streets became dedicated as soon as a lot was sold in accordance with the plat:

“Defendant seems to contend that the owner of the subdivision is required by Act 134 of 1896 to imprint upon the map a formal act of dedication. If this be the case, the only penalty incurred under the statute for failure to comply with this requirement is a fine to be imposed on the owner or his agent. The title to the lot purchased is not affected by failure to observe this requirement of the statute, and, as the streets are shown and named in the Zander plan, they become dedicated to public use as soon as a lot is sold in accordance with the plan. Jaenke v. Taylor, 160 La. 109, 106 So. 711.” 168 La. at 595, 122 So. at 862.

In the present case, the trial court ruled that the subdividers achieved substantial compliance with the statute, despite the plats’ insufficiencies. The Court of Appeal overturned this conclusion chiefly on the ground that there was “no proof that the Barbers were responsible for the recordation.” 378 So.2d at 949.

If the fact of dedication is doubtful, “the conduct of the parties in interest . . . may be considered as corroborative evidence.” City of Alexandria v. Thigpen, 120 La. 293, 297, 45 So. 253, 255 (1907). A search of the record reveals that in at least one instance prior to 1905 the Barbers made a sale that referred to an unrecorded plat. In a sale executed on 10 December 1902, Austin and Amanda Barber sold to Robinson Coleman a parcel of land in Barber’s Addition; the deed describes the tract and recites that it was “named in unrecorded plat as lot sixteen.” The description and designation of this lot accurately follow the plat of Barber’s Addition that was subsequently filed in 1905. This evidence is conclusive proof that the Barbers were aware that the plats existed; it is circumstantial proof that the Barbers were responsible for preparing the plats. The record also reveals that in sales made prior to 1905, the Barbers consistently designated the lot and block number of the property sold, in precise conformity with the plats later filed. This fact further substantiates the idea that the Barbers caused the plats to be prepared prior to making any sales.

Furthermore, after the recordation of the plats in 1905, many of the sales made by the Barbers were “according to plat,” some of them designating the number of the page and book of conveyances where the plats could be found. Rather than disavow the plats, the Barbers expressly relied upon them in marketing their property, ratifying the filing and dedicating the streets.

The 1905 plats have been official records for more than thirty years. They qualify as “ancient documents.” R.S. 13:3729. According to R.S. 13:3730, it is “unnecessary to prove the execution of such a document, the mere fact of such instrument having been recorded for a period of thirty years, as herein provided, being sufficient to establish a prima facie presumption of the execution and of the genuineness of such instrument.” The plaintiffs have presented no proof sufficient to overcome this presumption; in fact, the use which their ancestors made of the plats after they were filed is supportive of the presumption. See Carrollton Railroad Co. v. Municipality No. Two, 19 La. 62 (1841).

Because the Court of Appeal was in error in determining that there was no proof that the Barbers filed the plats in question or subsequently ratified the filing, there is no need to address the issue of nonstatutory dedication. It is enough that the plats were filed in substantial compliance with Act 134, and that the plaintiffs’ ancestors in title, rather than objecting to or disavowing the plats, expressly relied upon them in their transactions involving the property. To conclude that the Barbers did not intend to statutorily dedicate the streets is to indulge in speculation that the record does not justify.

In holding that the City of Jennings has title to the disputed property underlying the streets shown on the plats, it follows that the city’s mineral lessees are entitled to be maintained in their leases. However, there is some discrepancy in the record as to Carter Street, which does not appear on either plat, and another road described by the plaintiffs as “the former road running south from South Street.” No statutory dedication has been proven as to these roads. In 1924, Amanda Barber sold a tract of land adjoining the latter road, designating the road as the eastern boundary line of the tract. Under R.S. 9:2971, a conveyance in these terms creates a conclusive presumption that the vendor is transferring all interest in the road, up to the center line, to the vendee. Despite the fact that the legislature intended this provision to have retroactive effect (see R.S. 9:2972), no such effect has been given it. State of Louisiana, through the Department of Highways v. Tucker, 247 La. 188, 170 So.2d 371 (1965). We do not rule on the correctness of this decision; instead, we note that the statute cannot avail to the city’s benefit in any case, since the city was not the vendee. Moreover, the language of the act of sale does not evidence an intent to convey ownership to the public body, nor does it fall within the category of a formal dedication. The City of Jennings, on the record before us, does not have a legitimate claim to the ownership of this property; nor can it claim anything other than a servitude over the property underlying Carter Street, which was never statutorily or formally dedicated to public use. Because the city has neither the ownership of the two properties nor an “executive interest” in the mineral rights, it cannot validly grant a mineral lease over the two streets. R.S. 31:15-16, 116. The city’s lessees cannot be maintained as to these two strips of land.

The judgment of the Court of Appeal is reversed; it is ordered that the City of Jennings be recognized as the owner of the streets shown on the plats and described in the decision below. 378 So.2d at 951-952. The city, however, is not to be recognized as the owner of Carter Street or the former road running south from South Street, which do not appear on any recorded plat. It is further ordered that the lessees and assignees of the City of Jennings be maintained in their mineral interests as to the property owned by the city; and that the plaintiffs’ lessee-assignees are entitled to cancellation of that portion of the lease which the city granted over property that it does not own. The matter is remanded to •the trial court for an accounting of all sums that may be due to plaintiffs, consistent with this decision. The plaintiffs are cast for costs of these proceedings.

       Watson, J. recused. Judge Pike Hall, Jr., Court of Appeal, Second Circuit, participated in this decision as an Associate Justice Ad Hoc.

      . Until 1913, Jefferson Davis Parish (where Jennings is located) was a part of Calcasieu Parish, and all mortgage and conveyance records were kept in the Calcasieu Parish Courthouse.

      . The provisions of Act 134 of 1896 were substantially reenacted by Act 80 of 1922; both acts were repealed and supplanted by Act 51 of 1930. The major provisions of Act 134 are now embodied in R.S. 33:5051.

      . It is argued that the plats do not show that the Barbers were responsible for filing them. No requirement for such formality is found in Act 134 of 1896; there is a requirement for a “formal dedication made by the owner” of all streets, etc.

      .A partial list of post-1905 sales in which the . Barbers made reference to recorded plats follows. Although Amanda Barber is designated as the vendor in all but one of the sales, the sales regularly recite that she is “authorized,” “aided” or “assisted” by her husband Austin Barber, who also signed all of the deeds “to authorize my wife.”
      Except for one or two sales, which refer to a “subdivision,”, these deeds convey land in “Barber’s Addition.” However, the “Addition” and the “Subdivision” were commonly interchanged in describing the property. E. g., the following sales use the terms “as per plat” or “according to plat:”
      Amanda E. Barber to William Allen (1906); Amanda E. Barber to Thomas Brown (1907);
      Amanda E. Barber to Emma Daniels (1909);
      Amanda E. Barber to The City Lodge No. 113 Knights of Pythias (1911);
      Austin M. Barber to Ellinor Simpson (1913);
      Amanda E. Barber to Alfred East (1914);
      Amanda E. Barber to Joe Reed (1919);
      Amanda E. Barber to Frances Chavis (1921);
      Amanda E. Barber to Ida Jones (1922);
      Amanda E. Barber to Phyllis B. Edwards (1924);
      Amanda E. Barber to John Reed (1929);
      Amanda E. Barber to Josephine Taylor (1931). This list is not exhaustive. The records also indicate that one of the plaintiffs in this action sold property in Barber’s Addition “as per plat of record.” Sale by Mrs. Ella Elliot, Lewis M. Barber and Mrs. DeEtte Barber Garrett to Odessa Henry (1948).

      . Had the Barbers wished to retain ownership of the soil underlying the streets, they could have filed plats with an express stipulation to that effect. Wilkie v. Walmsley, supra.

      . The defendants have alternatively argued that the sale of lots with reference to a recorded plat effects a “formal,” nonstatutory dedication, vesting ownership in the public. See, e. g., Richard v. City of New Orleans, supra; Metairie Park v. Currie, supra; Jaenke v. Taylor, 160 La. 109, 106 So. 711 (1925); Ross v. City of Covington, 271 So.2d 618 (La.App.1972), writ denied 273 So.2d 844 (La.1973) (“On the facts found by the Court of Appeal, there is no error in the judgment of the Court of Appeal.”); Banta v. Federal Land Bank of New Orleans, 200 So.2d 107 (La.App.1967), writ denied 251 La. 46, 202 So.2d 657 (1967) (“The judgment complained of is correct.”); Esposito v. Gaudet, 8 So.2d 783 (Orl.La.App.1942); Kemp v. Town of Independence, 156 So. 56 (La.App.1934); Sliman v. Mayor and Board of Aidermen, 145 So. 410 (La.App.1933). See also A. Yiannopoulos, Property § 63, 2 La.Civ.Law Treatise (2d ed. 1980); Comment, “The Third Dimension of Dedication in Louisiana,” 30 La. L.Rev. 583 (1970). However, in James v. Delery, 211 La. 306, 29 So.2d 858 (1947), this court held that when property is sold with reference to a subdivision map, the owner creates a servitude of passage over the streets shown on the map. Earlier cases have been entirely ambiguous as to the nature of the right acquired by the public when a subdivider sells with reference to a recorded plat. Iseringhausen v. Larcade, 147 La. 515, 85 So. 224 (1920); Flournoy v. Breard, 116 La. 224, 40 So. 684 (1906).


author: BLANCHE, Justice.

text:
    STATE of Louisiana v. Thomas DUNCAN.
    No. 66986.
    Supreme Court of Louisiana.
    Nov. 10, 1980.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
    James A. McPherson, New Orleans, for defendant-appellant.
   BLANCHE, Justice.

Defendant, Thomas Duncan, was indicted by the State of Louisiana for an alleged violation of La.R.S. 14:118, the statute which proscribes actions constituting “public bribery.” According to the bill of information filed in this matter, on the 21st day of June, 1979, defendant “.. . being then and there a public employee, did commit public bribery by accepting and offering to accept, directly or indirectly, the sum of Twenty-Six Dollars and Fifty Cents ($26.50) in United States Currency from one KERMIT RICHARD, with the intent to influence his conduct in relation to his public employment and duty as a Driver’s License Inspector of the Louisiana Department of Public Safety . . . ”. A jury returned a verdict of guilty following defendant’s trial on this charge. The trial judge sentenced defendant to pay a fine of $500 or to serve one year in Parish Prison, and to serve two years in Parish Prison, but suspended the prison sentence and placed Duncan on two years inactive probation. Defendant raises ten assignments of error in contesting his conviction. We find no merit in these assignments and affirm the jury verdict below.

On June 21, 1979, undercover police officer Kermit Richard went to the driver’s license office where defendant was employed as a driver’s license officer and posed as a French seaman attempting to secure a Louisiana driver’s license. For purposes of this undercover investigation, he had obtained a “landing permit” or “seaman’s pass”, and had a note of introduction to the supervisor or manager at this particular office indicating that he could not speak English and requesting the supervisor to aid him in obtaining a driver’s license. The first two driver’s license officers Richard approached told him that the supervisor was out and that Richard would have to come back later or wait until he returned.

The following account of what occurred next is taken from the testimony of Officer Richard. Richard left the office to wait outside, observed the defendant walking out of the office and handed him the note of introduction and the landing permit. Defendant Thomas Duncan looked at these papers, indicated he would be going to lunch at that time, then pointed to his watch requesting that Richard return at 2:45 that afternoon. Richard testified that he showed defendant thirty dollars as he handed him the above papers.

When defendant returned to the office, he motioned for Richard to come to him and he filled out an application for the “seaman’s” driver’s license. The undercover officer posing as a seaman had placed his papers and the thirty dollars on defendant’s desk, and as defendant filled out Richard’s application, he took the money and placed it in his desk drawer. Officer Richard testified that he spoke only French during the entire time he spent at the driver’s license office and pretended he could not speak or understand English. Without any formality other than asking Richard if he could drive a car and filling out Richard’s application, defendant issued the undercover officer a temporary driver’s license.

Defendant’s version of the facts substantially differs from the above. Defendant testified that he was only trying to help the “seaman”. According to defendant Duncan, he asked “seaman” Richard questions from the application form and received what he considered to be answers. He stated that he was under the impression that a seaman’s pass or a landing permit was acceptable as identification for someone seeking a driver’s license. Driver’s license officer Cyril Miller testified that the seaman’s pass, alone, was insufficient identification to secure a driver’s license. District Supervisor Vincent Mancuso testified that it was insufficient identification.

Defendant maintained that he gave applicant Richard an eye test, showed him pictures of road signs from the examination book which he was able to distinguish, and gave him a driving test. Supervisor Man-cuso stated that an eye test, an examination and a driving test are prerequisites to the issuance of a new license. Again, Officer Richard testified that he was asked only if he could drive a car before defendant Duncan filled out the application form and gave him the license. The police officer denied taking an eye test, an examination or a driving test.

The facts surrounding the exchange of funds for the license are very much in dispute. Defendant claims that Richard gave him folded up money which he assumed, without counting, was $4.00. Duncan stated he then placed the money in his desk and gave the “applicant” fifty cents in change, since the license fee was $3.50. Richard testified that he showed defendant $30.00 prior to the license “application process”, then gave Duncan a twenty dollar bill and a ten dollar bill as Duncan filled out Richard’s application, and that Duncan placed this money in his desk drawer.

Assignment of Error Number 1

Defendant first alleges that the public bribery statute under which he was convicted (La.R.S. 14:118) is unconstitutional in that it is overbroad, vague and does not apprise men of common intelligence of what it prohibits. This precise constitutional attack was launched against the public bribery statute in State v. Smith, 252 La. 636, 212 So.2d 410 (La.1968). This Court correctly rejected that attack in Smith, and for the same reasons, reaffirms herein the constitutionality of La.R.S. 14:118. The legislature has amended the public bribery statute since Smith, but only to add or to clarify a class of persons to which the statute is applicable. The amendment is not relevant to the facts of this case and in no way affects the accuracy of this Court’s prior conclusion in Smith.

Assignment of Error Number 2

Defendant contends that he was entrapped by the undercover officer whom he was convicted of bribing. Defendant did not, at any point, raise this defense of entrapment in the trial court, but addresses it for the first time in his brief on appeal. Issues and objections not raised at the trial level will not be considered on appeal unless an error is alleged that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence. La.C.Cr.P. arts. 841 and 920; State v. Madison, 345 So.2d 485 (La.1977). Even had the defense of entrapment been properly before the court, there is no evidence to support the allegation. The undercover officer merely furnished the opportunity for the commission of this crime. In fact, the record shows that the key to Duncan’s defense was his denial that he ever received more than the proper license fee, and defendant himself argues that he may be guilty of malfeasance in office, but not of bribery, due to the procedure he followed in issuing the license.

Assignment of Error Number 3

Defendant alleges that the state must prove specific intent on his part to commit public bribery before he can be convicted of that crime, and maintains that this essential element was not proven. Jurisprudence establishes that where the statutory definition of a crime includes the intent to produce or accomplish some prescribed consequences, proof of specific intent is required. State v. Johnson, 368 So.2d 719 (La.1979). Included within the definition of public bribery is the language “with the intent to influence his conduct in relation to his position, employment or duty.” The statute does require proof of an intent to produce the consequence of influencing conduct. Defendant is correct in his contention that the state must prove specific intent to influence his conduct in relation to his position, employment or duty to convict him of public bribery.

The record shows that the state did meet its burden of proof in this respect. Undercover police officer Kermit Richard testified that he offered defendant $30.00 in order to obtain a driver’s license for which the standard fee is $3.50. According to Richard, defendant accepted the $30.00 and issued a driver’s license to him without administering any written, oral or driving tests of his knowledge or skills. Intent, absent an admission of such by a defendant, must necessarily be proven by inferences from surrounding facts and circumstances. See La.R.S. 15:445. Inferences from the facts as developed at trial support a finding that defendant accepted something of value from Officer Richard with the intent to influence his conduct in relation to his position, employment or duty.

This assignment is without merit.

Assignments of Error Numbers 4, 8 & 9

In these assignments defendant basically argues that there was insufficient evidence to convict him. In reviewing defendant’s conviction, this Court examines the record to determine if, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Williams, 389 So.2d 384 (decided simultaneously with this case). We conclude that there was sufficient evidence to prove the essential elements of this crime.

Defendant urged, in oral argument, that the testimony of undercover officer Richard as to his offer and defendant’s acceptance of $30.00 is insufficient to prove an essential element of the offense since defendant himself testified that he received what he believed to be $4.00 from Richard and gave him $.50 in change. Defendant is, in effect, arguing that a defendant cannot be convicted based upon the testimony of a state witness if the defendant testifies to the contrary. This argument has no merit. It is the duty of the trier of fact to resolve conflicts in testimony. Obviously the jury in the instant case believed the testimony of the undercover police officer rather than that of the defendant as to the events surrounding the exchange of money and the issuance of the driver’s license. Lack of corroboration of the officer’s testimony does not mean that this testimony constitutes insufficient evidence to sustain a conviction, especially in instances where, as in this case, the actions allegedly constituting the crime took place in the presence of only the defendant and the undercover police officer.

Defendant further contends that the evidence is insufficient to convict him since the $30.00 at issue was not “marked” by the investigating officers and was never recovered. The fact that there exists an alternative method of crime detection which may have facilitated proof of the crime and which might have been employed does not make the evidence actually presented at trial insufficient to sustain a conviction. In reviewing a conviction we look to what is in evidence in the trial court rather than what could have been presented in court had law enforcement officials chosen another method of crime detection. Viewing all of the evidence in the light most favorable to the prosecution, a rational trier of fact could certainly have concluded that all of the elements of this crime were proven beyond a reasonable doubt.

Assignment of Error Number 5

Defendant argues that hearsay testimony was improperly admitted in evidence. The testimony referred to by defendant is the statement by Officer Richard, “I was asked to participate in an investigation by the Internal Affairs Unit . . . Defendant objected as this statement was being made. The court instructed the witness as to what was hearsay and warned him not to make hearsay statements. The witness then repeated the above statement and defendant did not object again or ask that the remark be stricken from the record. Even assuming that defendant made a contemporaneous objection to this testimony, we find no merit in this assignment of error.

The statement at issue is not necessarily hearsay since its effect may have been only to explain the officer’s future actions in the investigation. Even if it was an assertion made to prove the truth of the matter stated, its admission in evidence does not mandate a reversal of defendant’s conviction. Assuming that hearsay was incorrectly admitted over proper objection, under the circumstances of this particular case, this was not an error affecting the substantial rights of the accused or otherwise warranting a reversal of defendant’s conviction under C.Cr.P. art. 921.

Assignments of Error Numbers 6 & 7

In these assignments of error, defendant complains of what he considers to be the improper admission of “other crimes” testimony in evidence. The testimony at issue was elicited from Officer Richard as he was questioned about his part in the investigation leading to the arrest of defendant. Richard testified that he showed defendant thirty dollars and stated “. . . apparently thirty dollars was a figure that was used in others . ..

Defendant did not object to this testimony nor did he request that the court admonish the jury or declare a mistrial. In any event, the statement made by the defendant does not appear to be a reference to any particular crime and is not a reference to any crime involving the defendant.

Assignment of Error Number 10

Defendant alleges in his last assignment of error that the trial judge improperly commented on the evidence under the guise of jury instructions. The statement defendant points to occurred when the judge, in refusing to give a special jury instruction, stated, “The court declines to give Special Charge Number One, it being covered in the general charge (Element of Crime).” This statement is simply a denial of the special charge because the general charge encompassed the special charge. This is not in any way a comment on the evidence and is clearly distinguishable from cases cited by defendant in which the judge refused to give a special charge on the ground that the evidence did not support it.

For the above reasons, we affirm the conviction and sentence of Thomas Duncan on the charge of public bribery.

AFFIRMED.


author: BLANCHE, Justice. DENNIS, Justice, LEMMON, Justice,

text:
    STATE of Louisiana v. Keith PARKER.
    No. 67274.
    Supreme Court of Louisiana.
    Nov. 10, 1980.
    Concurring Opinion Jan. 16, 1981.
    Paul T. Thompson, City Prosecutor, Baker, for plaintiff-relator.
    Julius X. Johnson, Director, Baton Rouge, J. Keith Mullins, Staff Atty., Larry Bossier, Staff Atty., Fawn Joder, Paula Cobb, William Dyess, Student Practitioner Southern University Clinical Law Corp., for defendant-respondent.
   BLANCHE, Justice.

This case comes before the Court on an application by the City of Baker, Louisiana for a Writ of Certiorari. We granted writs and reverse.

The record below indicates that on August 27, 1979 Keith Parker was operating an automobile in the City of Baker when he was stopped by Baker City Police. The city police issued Parker citations for Operating a Vehicle Without a Registration Certificate in violation of La.R.S. 47:506, Operating an Unsafe Vehicle in violation of La. R.S. 32:53 and Resisting an Officer in violation of La.R.S. 14:108. The officers arrested Mr. Parker and impounded the vehicle he was operating by contacting a towing service and instructing it to tow the vehicle to their parking lot. Parker initially pleaded not guilty to all of the above charges at his arraignment. He later changed his plea to guilty as to the Operation ojf a Vehicle Without a Registration and Operation of an Unsafe Vehicle charges after the prosecution filed a nolle prosequi on the Resisting an Officer charge.

The decision of the trial judge at issue in the' City of Baker’s writ application came after the guilty pleas were accepted, but prior to sentencing, when Keith Parker filed a Rule to Show Cause why the automobile he was operating at the time of his arrest should not be released to him and why the City of Baker should not be required to pay the costs of towing and storage of that auto. According to Parker, he had been having difficulty getting the automobile released to him by the towing company. At the hearing of the rule, he contended that the Baker City Police should not have towed his vehicle away since he lived only a block from the point where the officers stopped him, and since his mother and brother came to the scene and could have cared for his car. After a hearing on the matter, the judge ruled that the City of Baker policemen were justified in impounding Parker’s vehicle since it was unsafe to operate, and that Parker, not the City, should pay the reasonable costs of the towing and storage.

Although the issue was not raised in the Rule to Show Cause nor argued at the hearing, the trial judge went on to hold that the City of Baker was required by law to make an inventory of the contents of Parker’s impounded vehicle and give this inventory to Parker and to the towing company. The court stated that since no such inventory was taken, the City was to pay $100 to Keith Parker as a penalty. This $100 was credited against the fines Parker was sentenced to pay to the City for the above offenses. As authority for his holding, the trial judge cited C.Cr.P. art. 228, which provides:

“It is the duty of every peace officer making an arrest, or having an arrested person in his custody, promptly to conduct the person arrested to the nearest jail or police station and cause him to be booked. A person is booked by an entry, in a book kept for that purpose, showing his name and address, the offense charged against him, by whom he was arrested, a list of any property taken from him, and the date and time of booking. Every jail and police station shall keep a book for the listing of the above information as to each prisoner received. The book shall always be open for public inspection. The person booked shall be imprisoned unless he is released on bail.”

The City of Baker filed a Motion for New Trial and a Motion for Rehearing, questioning this' portion of the trial judge’s decision referring to the inventory requirement and penalty for failure to have an inventory taken. The judge granted the Motion for Rehearing, but after the argument on rehearing, reaffirmed his prior ruling.

In its application for a Writ of Certiorari, the City of Baker contends that: (1) there was no evidence in the record that the vehicle in question was not inventoried and, therefore, there is no basis in the record to support the judge’s ruling that an inventory is required and was not taken and that the City is liable to Keith Parker in the sum of $100 for the failure to inventory; (2) the judge was unable to rule as he did on the issue of an inventory where the issue was not raised in pleadings or in argument; (3) the judge deprived the City of due process of law when he ruled as he did on an issue not before the court, without allowing the City to present evidence and argument on that issue.

After a careful review of the record below, we agree that there is not a scintilla of evidence in this case as to whether an inventory of the contents of Keith Parker’s vehicle was taken or not. There is, therefore, no evidentiary basis for the trial judge’s ruling on the inventory issue, and it is settled law that a trial judge may not go beyond the evidence in reaching factual conclusions. Murray v. Kuhn, 345 So.2d 917 (La.App. 4th Cir. 1977). Consequently, we must reverse the lower court’s ruling on the Rule to Show Cause insofar as it deals with the issue of the necessity of an inventory by the City of Baker, and the penalty for the failure to take an inventory. Our decision on this issue necessarily renders unnecessary our consideration of the other assignments of error raised before this Court by the City of Baker.

DENNIS, J., concurs and assigns reasons.

DENNIS, Justice,

concurring.

This being the only matter before the Court, I join in the holding that the trial judge erred in assessing a fine against the city when no evidence had been introduced as to whether an inventory search of the impounded vehicle had been made. However, I question why the city found it necessary to impound Parker’s vehicle in the first place. The defendant lived only a block away and relatives were on the scene who could have arranged for the safekeeping and proper disposition of the vehicle.

LEMMON, J., concurs and assigns reasons.

LEMMON, Justice,

concurring.

The City Court did not have jurisdiction to adjudicate Parker’s civil claim against the City for damages, raised in this criminal matter by a rule to show cause. However, since the trial judge did not award damages for this claim, and since the trial judge’s $100 credit (imposed against the City as a “penalty” for failing to inventory the ear) has no evidentiary support and has been set ■ aside by the majority, I merely concur in that result.

      . Parker claimed the cost of towing and storage from the City.