author: JASPER E. JONES, Justice Ad Hoc. LEMMON, Justice,

text:
    STATE of Louisiana v. Steve GREEN.
    No. 81-KA-1456.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S; Korns, David Plavnicky, Michael Campbell, Asst. Dist. Attys., for plaintiff-appellee.
    Syed Izfar, William O’Hare, Morris Bor-enstein, John Standridge, of Loyola Law School Clinic, New Orleans, for defendant-appellant.
   JASPER E. JONES, Justice Ad Hoc.

Steve Green was charged by a bill of information with armed robbery of George Dwelle on January 23, 1980, in violation of LSA-R.S. 14:64. He was tried by a jury of twelve on May 8, 1980 and found guilty as charged. The trial judge sentenced Green to forty years at hard labor without benefit of parole, probation or suspension of sentence.

About noon on January 23, 1980, the defendant walked into the Commonwealth Savings and Loan Association at 140 Caron-delet Street in the City of New Orleans, and approached a counter where George Dwelle, a vice president of the association, was working. The defendant opened a black satchel, drew a pistol, advised Dwelle that it was a robbery and demanded “all the money.” Dwelle told the defendant he could not get into the cash drawers, whereupon the defendant pointed the gun at Dwelle and told him “either get into the cash drawers or you’re dead right here. I’ll shoot you.” Though it was later established that the pistol which defendant pointed at Dwelle was a toy cap pistol, Dwelle believed it to be a real gun and was very frightened by the gun and immediately commenced delivering to the defendant approximately twenty-three hundred dollars from the cash drawers of the Commonwealth.

As the robbery was in progress Morris H. Levy, a director of Commonwealth, came into the area where the robbery was taking place and observed several frightened female employees of Commonwealth and saw the defendant with the gun taking the money from Dwelle. Levy demanded that defendant get out of Commonwealth and the defendant then pointed the barrel of the pistol in the direction of Levy and went out of Commonwealth onto Carondelet Street taking the black bag with the money in it and his pistol. Levy chased the defendant across several parking lots and down several streets in the area. During the chase the defendant pointed the gun at Levy several times, and each time Levy, who believed the gun was real, would duck behind a parked car or a building in order to protect himself from the danger of being shot. When the defendant turned one street corner, Levy hesitated to immediately pursue him because of fear of being shot, and temporarily lost sight of the defendant; however, in a very few minutes he met the defendant walking down the sidewalk directly toward him. Levy then grabbed the defendant, who at this time did not have the pistol in his hand, and a very short time later police officers who had been alerted of the robbery and of Levy’s pursuit of the defendant arrived at the scene and removed the toy cap pistol from the defendant and seized the black bag containing the money which defendant had taken from Dwelle at the Commonwealth.

On appeal the defendant relies upon three assignments of error for reversal of his conviction and sentence.

ASSIGNMENT OF ERROR NO. 1

The defendant argues his motion for a new trial should have been granted under the provisions of LSA-C.Cr.P. art. 851 because the verdict is contrary to the law and the evidence for the reason that the state failed to prove he was armed with a dangerous weapon when he took the money from Dwelle, which is an essential element of the crime of armed robbery.

LSA-R.S. 14:64 provides:

A. Armed Robbery is the theft of anything of value from the person of another or which is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.
B. Whoever commits the crime of armed robbery shall be imprisoned at hard labor for not less than five years and for not more than ninety-nine years, without benefit of parole, probation or suspension of sentence.

The defendant’s argument is that the toy cap pistol was not an inherently dangerous weapon and that the manner in which he used it could harm no one.

LSA-R.S. 14:2(3) defines dangerous weapons to include:

“... includes any gas, liquid, or other substance or instrumentality, which in the manner used, is calculated or likely to produce death or great bodily harm.”

The defendant relies upon Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), which sets forth the test by which the evidence must be viewed to determine if it will support a conviction as follows:

“Instead the relevent question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. at 2789.

The defendant contends because the cap pistol could not shoot anyone and because he never threatened to strike Dwelle or any other employee of Commonwealth with it, that the jury could not within the Jackson v. Virginia test have found that the essential element of the crime “armed with a dangerous weapon” to have been established beyond a reasonable doubt.

The use of an inherently harmless object in a manner that creates circumstances likely to produce death or great bodily harm results in the inherently harmless object being a dangerous weapon within the provisions of LSA-R.S. 14:2(3) and 14:64. State v. Levi, 259 La. 591, 250 So.2d 751 (1971); State v. Gould, 395 So.2d 647 (La.1980); State v. Byrd, 385 So.2d 248 (La.1980).

The defendant’s contention is without merit because the manner in which he used the toy pistol was “calculated or likely to produce death or great bodily harm” even though the defendant made no attempt to strike anyone with the toy pistol. Dwelle, Levy and several female employees of Commonwealth all believed that the toy gun was real and all were placed in fear of bodily harm by the defendant’s display of the weapon in the course of the robbery. Under these circumstances any witness to the robbery upon observing the life threatening situation could have attempted by the use of gun or other weapon to disarm the defendant and during such an altercation death or great bodily harm is likely to occur to the victim, to a witness, or to the defendant. The manner in which the defendant used the toy pistol and the effect this use had upon the employees of Commonwealth provided sufficient evidence within the Jackson v. Virginia rule for a jury to find the toy pistol to be a dangerous weapon within the provisions of LSA-R.S. 14:2(3) and 14:64.

For the reasons stated the trial judge committed no error when he denied defendant’s motion for a new trial.

ASSIGNMENT OF ERROR NO. 2

The defendant contends the trial judge erred when he refused to order a mistrial when a police officer testifying for the state referred to another crime which the defendant had committed, the evidence of which was inadmissible.

The following is a quotation from the transcript of the officer’s testimony relied upon by the defendant.

“By the State
On that date and around that time, did you have occasion to investigate a robbery that occurred downtown?
Officer's response
I did.
By the State
Did you handle any evidence in that? Officer’s response
Yes, I handled the currency that was recovered in the bank robbery, and also the Homestead robbery.”

The defendant contends- that this evidence mandates a mistrial under the provisions of LSA-C.Cr.P. art. 770, which requires the trial judge to order a mistrial when the judge, the district attorney, or a court official during a trial refers directly or indirectly to “another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible.”

In State v. Harris, 383 So.2d 1 (La.1980), this court pointed out that under our cases ordinarily a police officer is not classified as a court official under the provisions of LSA-C.Cr.P. art. 770:

“This Court has generally recognized that a police officer’s unsolicited, unresponsive reference to another crime by the defendant is not the comment of a court official under Article 770. Absent a showing of a pattern of unresponsive answers or improper intent by the police officer or prosecutor such comments would not fall within the purview of Article 770. State v. Schwartz, 354 So.2d 1332 (La.1978); State v. Hammontree, 363 So.2d 1364 (La.1978); State v. Martin, 376 So.2d 300 (La.1979).” Id. at 9.

There was no improper conduct by the prosecutor in this case and the response by the officer here shows no bad faith on his part and for these reasons no interpretation of the officer’s testimony could justify it being considered as covered by C.Cr.P. Art. 770.

It is significant that the transcript of the trial reflects the use of the term “bank” when referring to Commonwealth on numerous occasions and for this reason the trial judge concluded the officer’s answer to the question wherein he referred to bank robbery did not have a connotation to the jury that the defendant had committed a crime in addition to his robbery of Commonwealth, and for that reason the complained of testimony did not prejudice the defendant.

While we find no error in the trial judge’s evaluation of the testimony, we further note that a review of the complained of testimony clearly establishes that it neither directly nor indirectly connects the defendant to a bank robbery, and for that reason cannot be construed as a referral to “another crime committed or alleged to have been committed by the defendant.”

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 3

The defendant complains that his sentence of forty years for armed robbery committed with a toy pistol is excessive because it could not be properly categorized as having been committed with a dangerous weapon. He argues that his offense is more nearly comparable with the crime of simple robbery for which the maximum sentence is seven years. This argument is without merit for the reason that the manner in which this defendant used the toy pistol created a situation calculated to cause death or bodily harm and for this reason defendant’s crime is not comparable to simple robbery which is defined by LSA-R.S. 14:65 as theft by force or intimidation when not armed with a dangerous weapon.

The defendant further contends that the sentence should be vacated because the trial judge did not follow the sentencing guidelines as required by LSA-C.Cr.P. art. 894.1. The defendant contends that the cases of State v. Wright, 384 So.2d 399 (La.1980); and State v. Gist, 369 So.3d 1339 (La.1979), mandate that his sentence be vacated.

The defendant contends the sentence imposed upon him of forty years without the benefit of parole, probation or suspension of sentence is excessive and prohibited by La. Const. Art. 1, § 20 (1974), and should be vacated for this reason under the decision of State v. Sepulvado, 367 So.2d 762 (La.1979).

At the time of sentence the trial judge made only the following comments:

“BY THE COURT:
All right, Mr. Gallagher, I have to agree with you with regard to Mr. Green, that is, that the weapon that was used in this matter was a cap pistol incapable of shooting someone; however, to the contrary, Mr. Green has previously been convicted of an armed robbery in Georgia, and as such would be multiple billable by the state. Considering those facts, and considering the fact, in mitigation, and for the other reasons set forth in Article 895.1, and having previously convicted of armed robbery, and that any lesser sentence would derogate (sic) from the seriousness of the offense, it is the sentence of this Court that you serve forty years in the custody of the director of the Department of Corrections. I will grant him credit for time served from the date of his arrest,' January 23.”

In the recent cases of State v. Williams, 397 So.2d 1287 (La.1981) and State v. Martin, 400 So.2d 1063 (La.1981), this court stated that where the sentencing requirements of LSA-C.Cr.P. art. 894.1 and State v. Sepulvado, supra, have not been fully complied with by the trial judge that the sentence need not be vacated if the reasons for the sentence given by the trial judge supplemented by evidence found elsewhere in the records “clearly illumines the sentencing choice” and reflects upon appellate review that the sentence given is not excessive.

The evidence at trial established that the defendant placed Dwelle in grave fear for his life by pointing the pistol at him and by telling him that he would shoot him dead if he didn’t give him the money. The trial transcript further establishes that once the defendant obtained the money that on several occasions in an effort to retain it, he placed Levy in fear of his life by pointing the gun at him in an effort to stop Levy from pursuing him.

At a hearing to suppress an inculpatory statement held by the sentencing judge before the trial, a transcript of which is in the record, it was established that at the time of his arrest the defendant made to one of the arresting officers the following voluntary statement:

“He told me that he was recently paroled from Federal Prison for bank robbery in North Carolina and he wanted to see New Orleans and so he took a Greyhound bus to the city. He said he spent all his money and so he decided to rob banks and that he was lucky we caught him because he had robbed one bank that morning and we were lucky that we caught him on this one because he was going to rob three more.”

The trial judge from this statement was advised that the defendant had committed two felonies prior to the armed robbery of Commonwealth and that the defendant contemplated robbing three more banks.

The defendant’s sentence of forty years is substantially less than one-half of the maximum sentence of ninety-nine years provided for armed robbery. Our review of this sentence based upon the comments of the judge at the time of its imposition as illumined by the factors from the record referred to above establishes that the sentence is neither arbitrary nor excessive.

The conviction and sentence are AFFIRMED.

LEMMON, Justice,

concurring.

As this case demonstrates, the decision in State v. Byrd, above, was not intended to take every “toy pistol” case out of the category of armed robbery. The jury determined that the toy pistol in this case, although not inherently dangerous, was used in a manner which was likely to produce death or great bodily harm because of the highly charged atmosphere created by its use to intimidate the employees of the homestead. That finding is reasonably supported by the evidence. The fact that defendant employed a toy pistol (rather than one actually capable of firing) is therefore only a sentencing consideration in this case and does not necessarily defeat the state’s proof of an element of the offense of armed robbery.

       The Honorables Pike Hall, Jr., Charles A. Marvin, Jr. and Jasper E. Jones, Judges of the Court of Appeal, Second Circuit, participated in this decision as Associate Justices ad hoc, joined by Associate Justices John A. Dixon, Jr., Chief, Walter F. Marcus,. Jr., Fred A. Blanche, Jr. and Harry T. Lemmon.

      . LSA-C.Cr.P. art. 851 — “The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.
      The court, on motion of the defendant, shall grant a new trial whenever:
      (1) The verdict is contrary to the law and the evidence; .... ”

      . C.Cr.P. art. 770 — “Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:

      (2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible; . ... ”

      . R.S. 14:65: Simple robbery is the theft of anything of value from the person of another or which is in the immediate control of another, by use of force or intimidation, but not armed with a dangerous weapon. .
      Whoever commits the crime of simple robbery shall be fined not more than three thousand dollars, imprisoned with or without hard labor for not more than seven years, or both.

      .C.Cr.P. art. 894.1 — A. When a defendant has been convicted of a felony or misdemeanor, the court should impose a sentence of imprisonment if:
      (1) There is an undue risk that during the period of a suspended sentence or probation the defendant will commit another crime;
      (2) The defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution; or

        (3)A lesser sentence will deprecate the seriousness of the defendant’s crime.
      B. The following grounds, while not controlling the discretion of the court, shall be accorded weight in its determination of suspension of sentence or probation:
      (1) The defendant’s criminal conduct neither caused nor threatened serious harm;
      (2) The defendant did not contemplate that his criminal conduct would cause or threaten serious harm;
      (3) The defendant acted under strong provocation;
      (4) There was substantial grounds tending to excuse or justify the defendant’s criminal conduct, though failing to establish a defense;
      (5) The victim of the defendant’s criminal conduct induced or facilitated its commission;
      (6) The defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sustained;
      (7) The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the instant crime;
      (8) The defendant’s criminal conduct was the result of circumstances unlikely to recur;
      (9) The character and attitudes of the defendant indicate that he is unlikely to commit another crime;
      (10) The defendant is particularly likely to respond affirmatively to probationary treatment; and
      (11) The imprisonment of the defendant would entail excessive hardship to himself or his dependents.
      C. The court shall state for the record the considerations taken into account and the factual basis therefor in imposing sentence.

      . The apparently severe sentence in this case was justified because of defendant’s criminal history and inclination to commit armed robberies.


source: Caselaw Access Project

author: MARVIN, Justice Ad Hoc.

license: Public Domain

text:
    STATE of Louisiana v. James D. CANNON, Jr.
    No. 81-KA-1589.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Duncan Kemp, Dist. Atty., James Kuhn, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.
    André LePlace and C. Alvin Tyler, Baton Rouge, for defendant-appellant.
   MARVIN, Justice Ad Hoc.

This defendant pleaded guilty to the reckless operation of a motor vehicle and to possession of marijuana and appeals his sentence to two years at hard labor. LRS 14:99, LRS 40:966(D).

The bill of information, after reciting these two counts, contains the abbreviation, “Misd.”, which we interpret to mean misdemeanor. The bill does not include the charge that defendant had been previously convicted of the same offense. The prosecution for multiple offender possession of marijuana must include this charge. CCrP 483, State v. Bouzigard, 286 So.2d 633 (La.1973).

It is ordered that the sentence, imposed be set aside as illegal and the case is remanded with instructions to sentence defendant in accord with LRS 40:966(D)(1), CCrP 894.1.

      Judges Pike Hall, Jr., Charles A. Marvin, and Jasper E. Jones, of the Court of Appeal, Second Circuit, participated in this decision as associate justices ad hoc, joined by Chief Justice John A. Dixon, Jr., and Associate Justices Walter F. Marcus, Jr., Fred A. Blanche, Jr., and Harry T. Lemmon.


author: WATSON, Justice.

text:
    STATE of Louisiana v. Thomas A. LUND, Jr. and Herman O. Matthews.
    No. 81-K-1903.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, James A. Williams, Dolores V. Mason Smith, Asst. Dist. Attys., for plaintiff-relator.
    Lawrence J. Boasso, Frank Larre, Tilden Greenbaum, of Orleans Indigent Defender Program, New Orleans, for defendants-respondents.
   WATSON, Justice.

Defendants, Thomas A. Lund, Jr. and Herman 0. Matthews, were charged with unlawful possession of a controlled dangerous substance, Pentazocine, in violation of LSA-R.S. 40:967. The trial court granted defendants’ motions to suppress the evidence and the state obtained a writ of cer-tiorari.

FACTS

Shortly before 5:00 A.M. on January 16, 1981, Officers John Faust and John Evans were in the Club Desire and observed Matthews counting out pills into Lund’s hand. Lund was holding money in his other hand. Recognizing the pills as contraband, the officers placed Lund and Matthews under arrest and seized the pills. Officer Faust said that he and his partner entered the bar because it was unusual to see Lund, a white man, going into a place with a completely black clientele. Since the Club Desire is in a high crime area, the officers planned to advise Lund that he was in a dangerous place. Faust surmised that Lund might be a visiting sailor who was unfamiliar with the neighborhood.

The trial court concluded that the officers did not have an adequate reason to enter the bar and granted the motion to suppress.

CONCLUSION

The police officers’ reason for entering the Club Desire is irrelevant. It is a public establishment, which the officers were free to enter for any reason or no reason. Defendants had no reasonable expectation of privacy on the premises of the Club Desire. United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976). The officers had the right to accept the bar’s invitation to the public. Lewis v. United States, 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966). There was no intrusion into a protected place. State v. Dixon, 391 So.2d 836 (La., 1980).

After the police officers entered the Club Desire, they became inadvertent witnesses to criminal conduct. They observed contraband being exchanged. The officers had probable cause to believe that a crime was being committed in their presence. They had both a right and a duty to arrest the defendants and seize the contraband. LSA-C.Cr.P. art. 213(1); United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976). The trial court erred in granting the motion to suppress.

Accordingly, the writ is made absolute; the ruling of the trial court granting the motion to suppress is reversed; and the matter is remanded for further proceedings.

REVERSED AND REMANDED.

      . LSA-C.Cr.P. art. 213(1) provides:
      “A peace officer may, without a warrant, arrest a person when:
      “(1) The person to be arrested has committed an offense in his presence, and if the arrest is for a misdemeanor it must be made immediately or on close pursuit; * *


author: CALOGERO, Justice.

text:
    Patricia A. DILLON v. Hector MEDELLIN.
    No. 81-C-2012.
    Supreme Court of Louisiana.
    Jan. 25, 1982.

      F. Smith Knobloch of Knobloch & Knob-loch, Thibodaux, for plaintiff-applicant.
    Harry F. Cabral, Jr. of Cabral & Cabral, Metairie, for defendant-respondent.
   CALOGERO, Justice.

In this case, a woman who has lived in Louisiana with her child for over two years petitioned the district court in Thibodaux, Louisiana on September 5,1980 to enforce a custody decree in her favor rendered in the State of Texas on May 26, 1977. She sought enforcement under the Uniform Child Custody Jurisdiction Act, La.R.S. 13:1714(A).

When the Texas-residing father filed a declinatory exception of lack of subject matter jurisdiction in the Louisiana proceeding for the reason that the Harris County, Texas court had modified its original decree (i.e., the one the mother was seeking to enforce) with an emergency ex parte order dated July 8, 1980, appointing him temporary managing conservator of the minor child pending the outcome of his suit to change the custody decree, the Louisiana court sustained the exception and dismissed the mother’s suit. She appealed to the First Circuit Court of Appeal which affirmed the lower court’s dismissal. Dillon v. Medellin, 402 So.2d 149 (La.App. 1st Cir. 1981).

We granted writs on the wife’s application to examine her substantial contention that Louisiana has jurisdiction over her action under the Uniform Child Custody Jurisdiction Act, La.R.S. 13:1700 et seq. For the reasons which follow, we find that Louisiana does have jurisdiction in this custody matter.

The pertinent facts are as follow: Patricia Dillon (formerly Medellin) was divorced from her husband in Harris County, Texas on May 26, 1977. She received custody of their minor child, Margarita Lourdes Medellin. Under the terms of the divorce decree, the father was given visitation privileges on alternating weekends and holidays, and for thirty days (30) during the summer months. In April, 1978, the mother and child moved to Louisiana, after which the mother remarried. Both mother and child have continued to reside in Louisiana for the more than two years before this suit was filed.

On July 8, 1980, just before the expiration of a thirty day child visitation period, the Texas father petitioned the Harris County, Texas court to modify the original custody decree, alleging that the court had continuing jurisdiction over the matter, and that the child’s circumstances had changed so materially that retention of custody with the mother would be injurious to the child’s welfare. The father attached to the motion an affidavit stating, in effect, that his four year old daughter had revealed to him during the visitation period in Texas that her mother and stepfather in the Thibodaux home were smoking marijuana daily, and that the stepfather had played sexual “games” with the child.

The mother filed a special appearance challenging the jurisdiction of the Texas court since she and her daughter had been Louisiana residents for more than six months prior to the filing of the modification petition by the Texas father. The father, before the special appearance motion hearing had been conducted, filed an original petition arguing as an alternative to his modification petition based on continuing jurisdiction, that the Texas court had original jurisdiction, especially under Tex.Fam. Code Ann. § 11.045(a)(2)(B) (Vernon Supp. 1980-81): the child was physically present in Texas and a serious immediate question existed concerning the child’s welfare.

On September 5, 1980, the mother petitioned the district court in Lafourche Parish to enforce the 1977 Texas custody judgment and to order that the child be returned to Louisiana and that the father’s visitation rights be terminated. On the rule to show cause, the district court sustained the father’s declinatory exception to the Louisiana court’s jurisdiction and dismissed the case on October 10,1980. The dismissal, for lack of jurisdiction, was appealed by the mother to the Louisiana Fourth Circuit Court of Appeal.

In the meantime, in Texas, by an order dated October 21, 1980, the Harris County district court denied the mother’s challenge to its jurisdiction and named the father temporary managing conservator under its original jurisdiction. Thereafter a default judgment was rendered on February 25, 1981 against the mother, who had made no general appearance and whose pleadings were stricken upon her failure to post a $2500.00 cost bond. In the default judgment, the father was given permanent custody and the mother was ordered to pay $10.00 per month as child support. From that order of the Harris County District Court, the mother appealed to the Texas Court of Civil Appeals. While the mother’s appeal was pending in the Texas appellate court, the Fourth Circuit Court of Appeal of Louisiana on June 29, 1981 affirmed the Lafourche Parish district court’s dismissal of the mother’s Louisiana case “because there is presently pending in the Texas court, under its original jurisdiction, a proceeding concerning the custody of Margarita.” From that judgment, the plaintiff mother sought a writ in this Court. We granted her writ on September 28, 1981.

Then, on October 29,1981, before the case was argued in this Court, the Texas Court of Civil Appeals reversed the Harris County district court’s resolution of the jurisdiction question and dismissed the father’s Texas case on due process and jurisdictional grounds. The Texas Court of Civil Appeals found that “[i]t would ... be inconvenient, if not impossible, to effectively develop those issues [the welfare and best interests of the child] in the Texas courts, and the mother would not be afforded due process of law if she is required to defend this action in the State of Texas.” Dillon v. Medellin, (Tex.Civ.App. 1st Dist. 1981), No. # 18054.

A copy of the opinion of the Texas Court of Civil Appeals was attached to the brief filed in this Court by relator. Counsel for the respondent was afforded an opportunity to respond to that submission and has not done so. Independent inquiry by this Court directed to the Clerk’s office of the Texas Court of Civil Appeals and Texas Supreme Court establishes, to our satisfaction at least, that after the opinion of the Texas Court of Civil Appeals was rendered, the husband sought a rehearing which was denied, and he then filed an application for writs in the Texas Supreme Court, which is pending at the present time. Thus, within the Texas court system the judgment of the Texas Court of Civil Appeals is not final. Nonetheless, because of that extant opinion, there is no outstanding modification decree of the Harris County, Texas district court favorable to the father. The judgment rendered in the district court was upset by the Texas Court of Civil Appeals. And as far as we can appreciate, the only valid outstanding Texas decree is the outset 1977 decree by which the wife was given custody of the child. This case is thus in a different procedural posture today than it was in when the Louisiana Fourth Circuit Court of Appeal decided this case and when we granted writs upon application of relator, Mrs. Dillon.

We are tempted to resolve this litigation simply by relying upon the opinion of the Texas Court of Civil Appeals and upon the information we have obtained from the Texas court system about the status of the Texas litigation. That information would emasculate the very foundation of the decisions we review, (the dismissal of the wife’s Louisiana lawsuit by the district court and Court of Appeal), that is, the pendency in Texas of a child custody award deemed by the lower courts to be preclusive of their assuming jurisdiction under R.S. 13:1705. If there is no custody judgment favoring the father pending in the Texas courts, there is no longer, even arguably, any bar to the mother’s Louisiana suit. There would surely be jurisdiction in Louisiana under La.R.S. 13:1702 for this Louisiana resident mother to enforce the two year old original custody decree in her favor.

Nonetheless, because there may be some procedural problem about taking cognizance of information we have secured concerning the Texas proceedings subsequent to the district court judgment, we choose instead to decide this case by examining the legal issues which prompted our granting relator’s writ.

When we granted this writ we were interested in scrutinizing the Uniform Child Custody Jurisdiction Act as adopted in Louisiana (La.R.S. 13:1700 et seq.) to determine its proper application in the fact situation presented in this case.

We will therefore consider the case simply on the basis of the record as it existed when the case was presented in the district court and the Court of Appeal. In that posture there is simply an outstanding Texas modification decree of February 25, 1981 granting custody to the Texas father under the Texas court’s original jurisdiction because “the child is physically present in [the] state and there is a serious immediate question concerning the welfare of the child.” Tex.Fam.Code Ann. 11.045(a)(2)(B). With an extant custody decree of another state, Louisiana courts may not take and settle a custody matter between the same parties unless the court of the other state no longer has, or has declined to take, jurisdiction and unless the Louisiana court itself has jurisdiction. See La.R.S. 13:1713(A).

The question presented therefore is whether the Texas district court had jurisdiction in this instance to award custody to the father. Another way of looking at the legal question is this: if the roles of the Texas and Louisiana courts were reversed, and the father was the Louisiana resident asking our courts to grant him custody of his child, a Texas domicilary, would a Louisiana court be the proper forum for resolving this custody matter? If that reverse situation were the case, we believe that under Louisiana’s Uniform Child Custody Jurisdiction Act Louisiana would not be a proper forum for litigating the custody matter. If this were not so, there would be no case for which the Uniform Child Custody Jurisdiction Act is designed that would accord respect to the domicile state, for all that an asylum state parent would have to do, when the child is physically present in the asylum state during a visitation period, is to charge in the asylum state court that there exists in the domicile state conditions which create an emergency and present an immediate serious question of the child’s welfare.

We conclude for the reasons which follow that the Louisiana court has jurisdiction in this matter. Coincidentally, this same result was reached by the Texas Court of Appeals, although for different reasons.

Louisiana has adopted the Uniform Child Custody Jurisdiction Act. (Act. No. 513 § 1, effective Oct. 1,1978). In the Commissioners’ Prefatory Note to this Act as it appears in 9 Uniform Laws Annotated, Master Edition, at 111, it is noted:

There is growing public concern over the fact that thousands of children are shifted from state to state and from one family to another every year while their parents ... battled over their custody in the courts of several states ...
When a decree has been rendered awarding custody to one of the parties, ... those who lose a court battle over custody are often unwilling to accept the judgment of the court. They will remove the child in an unguarded moment or fail to return him after a visit and will seek their luck in the court of a distant state where they hope to find—and often do find—a more sympathetic ear for their plea for custody.

The Uniform Child Custody Jurisdiction Act was designed to solve the precise problem presented in this case: a Louisiana domiciled mother is asked to answer charges brought in a Texas lawsuit initiated by the Texas father in a Texas district court before her child can be returned to Louisiana at the end of the court ordered thirty day Texas visitation period, where the Texas father has heard during the visit some disconcerting tales of incidents allegedly occurring in Louisiana in the home of the mother and stepfather. Clearly the proper court for deciding the custody ramifications of incidents taking place in a Louisiana home, involving Louisiana domiciliar-ies, is a Louisiana court.

Louisiana’s jurisdiction is clearly set forth in its Uniform Child Custody Jurisdiction Act, La.R.S. 13:1702, which reads as follows:

A. A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
(1) This state (i) is the home state of the child at the time of commencement of the proceeding, or (ii) had been the child’s home state within six months before commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons; and a parent or person acting as parent continues to live in this state; or
(2) It is in the best interest of the child that a court of this state assume jurisdiction because (i) the child and his parents, or the child and at least one contestant, have a significant connection with this state, and (ii) there is available in this state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships; or
(3) The child is physically present in this state and (i) the child has been abandoned or (ii) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent; or
(4) (i) It appears that no other state would have jurisdiction under prerequisites substantially in accordance with Paragraphs (1), (2), or (3), or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child, and (ii) it is in the best interest of the child that this court assume jurisdiction.
B. Except under Paragraphs (3) and (4) of Subsection A, physical presence in this state of the child, or of the child and one of the contestants, is not alone sufficient to confer jurisdiction on a court of this state to make a child custody determination.
C. Physical presence of the child, while desirable, is not a prerequisite for jurisdiction to determine his custody. (Emphasis provided.)

Under R.S. 13:1702(A)(1) and (2), Louisiana is a proper forum, for Louisiana is the home state of the child (Margarita) at the time of the proceeding; Louisiana had been Margarita’s home state for more than six months before commencement of the proceeding; she was absent from the state because of her retention by a person claiming custody, and her mother continues to live in Louisiana. (La.R.S. 13:1702(A)(1)). Secondly, it may be said that it is in the best interest of Margarita that a Louisiana court assume jurisdiction because Margarita and her mother have a significant connection with this state and there is available in this state substantial evidence concerning Margarita’s present care, protection, training, and personal relationships- (La.R.S. 13:1702(A)(2)).

The only statutory provision which might vest jurisdiction in an asylum state is La. R.S. 13:1702(A)(3) which speaks of the child’s being physically present in the (asylum) state and there being an emergency situation. However the comments to that paragraph in § 3 Uniform Child Custody Jurisdiction Act, 9 Uniform Laws Annotated, Master Edition 124, which is identical with La.R.S. 13:1702(A)(3) notes that the provision:

retains and reaffirms parens patriae jurisdiction, usually exercised by a juvenile court, which a state must assume when a child is in a situation requiring immediate protection. This jurisdiction exists when a child has been abandoned and in emergency cases of child neglect. Presence of the child in the state is the only prerequisite. This extraordinary jurisdiction is reserved for extraordinary circumstances. See Application of Lang, 9 App.Div.2d 401, 193 N.Y.S.2d 763 (1959). When there is child neglect without emergency or abandonment, jurisdiction cannot be based on this paragraph. (Emphasis provided.)

We construe this emergency provision as permitting a state, otherwise without jurisdiction over a visiting child or her non-resident mother, to take jurisdiction in a custody matter only if the immediate needs of the child require it because the child has been abandoned or otherwise mistreated, abused, or neglected. The statute contemplates that conditions in the asylum state and the immediacy of those conditions will provide both the necessity and the justification for the asylum state’s assuming jurisdiction over a custody matter not otherwise within its province. .Such a situation is not presented by Dr. Medellin’s petition to the Texas court. We do not construe La.R.S. 13:1702(A)(3) to mean that a child visiting an asylum state may be found to be in an emergency state of mistreatment, abuse, neglect or dependency because of allegations concerning conditions purportedly existing in the home state, conditions more appropriately and conveniently subject to the scrutiny of the courts of the domicile state.

Although the express language of the equivalent Texas emergency provision (Tex. Fam.Code Ann. § ll:045(a)(2)(B) varies from the Louisiana statute (La.R.S. 13:1702(A)(3)), the source reference for both the Texas and the Louisiana statutes is § 3 Uniform Child Custody Jurisdiction Act, 9 Uniform Laws Annotated, Master Edition. Thus the comments appearing there and referred to earlier in this opinion are equally as relevant to the Texas provision.

We conclude that under the Uniform Child Custody Jurisdiction Act, its Louisiana provision La. 13:1702(A)(3), as well as its counterpart Texas provision (Tex.Fam. Code Ann. § ll:045(a)(2)(B) which is similar but not identical with La. 13:1702(A)(3) because Texas has not adopted the Uniform Child Custody Jurisdiction Act), jurisdiction over the custody of the child Margarita does not vest in the Texas courts. There was therefore no jurisdiction in the Harris County, Texas court when, on February 25, 1981, it modified the original decree of the Texas court dated May 26, 1977 by which the then Mrs. Medellin (now Dillon) was awarded custody of her child, Margarita.

When the courts of another state do not meet the jurisdictional requirements of Louisiana law in custody matters, the Louisiana courts need not defer to those courts. As relates to simultaneous proceedings in other states, La.R.S. 13:1705(A) relative to those proceedings recites that Louisiana courts shall not exercise their jurisdiction only if the court of another state is exercising its jurisdiction “substantially in conformance with this Part [La.R.S. 13:1700 et seq.]” (Emphasis provided.) Likewise, La. R.S. 13:1712 relative to recognition of out of state custody decrees states that Louisiana will recognize such a decree of another state only when such decree was rendered by a court of another state “which had assumed jurisdiction . .. substantially in conformance with this Part [La.R.S. 13:1700 et seq.]” (Emphasis provided.)

Therefore whether we construe the Texas proceedings as existing simultaneously with the proceedings in the Louisiana courts (La. R.S. 13:1705(A)) or whether we construe the Texas proceedings as having concluded with a modification decree favorable to the father (La.R.S. 13:1712), the exercise of jurisdiction by the Texas courts in either case is not substantially in conformance with Louisiana law as set forth in La.R.S. 13:1700 et seq. The Lafourche Parish district court is not prohibited from exercising its jurisdiction over this custody matter. That Louisiana district court is not required to enforce the modification (favoring the father) of the original 1977 custody decree.

On the other hand under La.R.S. 13:1712, Mrs. Dillon’s petition seeking enforcement of the May 26, 1977 custody decree in her favor, one not jurisdictionally suspect as is her ex-husband’s later modification decree of February 25,1981, is statutorily authorized and is subject to the jurisdiction of the Louisiana district court. Dr. Medellin’s exception to the jurisdiction of the Louisiana court should not have been sustained.

Decree

The judgments of the Lafourche Parish District Court and the Fourth Circuit Court of Appeal sustaining defendant/respondent’s declinatory exception of lack of jurisdiction over the subject matter are reversed. The exception is overruled. Dismissal of Mrs. Dillon’s petition is reversed. The case is remanded to the district court for further proceedings.

REVERSED AND REMANDED.

      . La.C.C.P. art. 1391 permits us to take judicial notice of the statutes of every state in the United States. While court opinions are not specifically included in La.C.C.P. art. 1391, we probably could take cognizance of the Texas Court of Civil Appeals opinion both because its existence was tacitly acknowledged by respondent in his failure to protest, and because of the need for an expeditious resolution of the custody/conflicts matter. Nevertheless, it is not necessary that we do so. As will be evident in this opinion hereafter, we resolve this case without relying on any Texas proceeding beyond that of the district court which granted the pro-husband modification decree.

      . It is noteworthy that there has been no contradictory proceeding by any court concerning the validity of the father’s substantive allegations concerning the child’s welfare, i.e., marijuana use and “sexual games” in the child’s Louisiana environment.

      . It is significant that physical presence alone is not sufficient to confer jurisdiction. La.R.S. 13:1702(B)

      . We emphasize that this is a civil custody matter between competing parents. Thus we do not in this opinion address the different statutory provisions which allow the courts of this state upon application of the state to assume immediate jurisdiction for the protection of the child when extraordinary circumstances exist. See generally: La.Code of Juvenile Procedure: La.R.S. 14:74 et seq. “Offenses affecting the Family”: and Tex.Fam.Code Ann. § 17:01 et seq. “Emergency Procedures in suit by Governmental Entity,” (Vernon,' Supp. 1980-81).

      . As we stated earlier, the Texas Court of Civil Appeals came to much the same conclusion, but for different reasons. They found that although Tex.Fam.Code Ann. § 11.045(a)(2)(B), the emergency provision, might on its face give original jurisdiction to the district court, the jurisdictional provision is nonetheless subject to due process limitations, and due process was offended by requiring Mrs. Dillon under these facts and circumstances to litigate this custody matter in Texas.


author: BLANCHE, Justice. WATSON, Justice,

text:
    STATE of Louisiana v. Dick H. HEARIN, Jr., Walter D. Bankston and John A. Pritchett.
    No. 81-K-1509.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
    Rehearing Denied Feb. 19, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Glen Petersen, Kay Kirkpatrick, Asst. Dist. Attys., for plaintiff-applicant.
    L. Havard Scott, III, New Orleans, David Ellison, Rich Nevils, Baton Rouge, for defendants-respondents.
   BLANCHE, Justice.

The three defendants in this case were charged with simple battery by bill of information filed on March 19,1980. The charge stemmed from a fist fight which occurred on November 24, 1979 outside the Athens Restaurant and Bar in Baton Rouge. Lambros Randis, a Greek National employed at the Athens Restaurant, was badly injured in the altercation. Trial of the case was twice delayed and eventually rescheduled for October 30, 1980.

One week prior to trial, the state learned that Randis, the complaining witness, could not be located for service of subpoena. On October 23, 1980, the state met with defense counsel to discuss the upcoming trial. At that meeting, the state, with the consent of all defendants, agreed to dismiss charges because of its inability to locate the complaining witness.

Early in March of 1981, the state was able to contact Randis through his brother in New Orleans. On March 19, 1981, the state reinstituted prosecution by filing a new bill of information, again charging the defendants with simple battery. At the arraignment set for April 4, 1981, defense counsel filed a motion to quash this new bill as untimely. This motion was granted by the trial court and the bill of information filed on March 19, 1981 ordered quashed. On application by the state, we granted writs to determine the timeliness of this second bill of information.

Both the state and defense premise their arguments on C.Cr.P. art. 576, which reads as follows:

“Article 576. Filing of new charges upon dismissal of prosecution.
When a criminal prosecution is timely instituted in a court of proper jurisdiction and the prosecution is dismissed by the district attorney with the defendant’s consent, or before the first witness is sworn at the trial on the merits, or the indictment is dismissed by a court for any error, defect, irregularity, or deficiency, a new prosecution for the same offense or for a lesser offense based on the same facts may be instituted within the time established by this Chapter or within six months from the date of dismissal, whichever is longer.
A new prosecution shall not be instituted under this article following a dismissal of the prosecution by the district attorney unless the state shows that the dismissal was not for the purpose of avoiding the time limitation for commencement of trial established by Article 578.”

As the first bill of information was dismissed with the consent of defendants, and prosecution was reinstituted within six months of that dismissal, the state contends that the filing of the second bill of information was timely under Article 576. We agree.

In the motion to quash, defendants argued that the first bill of information was dismissed solely for the purpose of avoiding the time limitations for commencement of trial on the misdemeanor charge. Therefore, a new prosecution was expressly prohibited by the second paragraph of Article 576. In support of this contention, defendants attempted to show that the state had been less than diligent in its efforts to locate the complaining witness. In essence, defendants claimed that the state had, or could have had, knowledge of Randis’ whereabouts when the initial prosecution was dismissed on October 23, 1980 and that the dismissal was the result of the state’s need for additional time in order to prepare its case for trial.

Opposing the defense argument, the state notes that prosecution was dismissed a full five months before the March 19, 1981 deadline for commencement of trial on the misdemeanor charge, therefore, the state had no need to resort to a dismissal in order to gain additional time for trial preparation. Moreover, when defendants requested confirmation of the October 23 dismissal in writing, the state sent the following letter to all defense counsel:

Gentlemen:
Be advised that the above charges will be dismissed by the District Attorney’s Office at this time due to this office’s inability to locate the alleged victim of the incident.

The second paragraph of Article 576 does not create a presumption that a prosecution has been dismissed in order to circumvent the time limitations for commencement of trial. The state made a convincing showing that the initial prosecution was dismissed because of its inability to locate the complaining witness. That showing does not become less convincing merely because a new prosecution was instituted after the time limitations for commencement of trial had elapsed.

The first bill of information was dismissed with the consent of all defendants. A new prosecution was instituted five months later, within the time limitations provided by Article 576. The trial judge erroneously ordered the quashing of the second bill of information filed on March 19, 1981 as untimely.

For the foregoing reasons, the order to quash the bill of information filed on March 19, 1981 is vacated, and the case remanded to the trial court for further proceedings consistent with this opinion.

WATSON, Justice, dissents and assigns reasons.

WATSON, Justice,

dissenting.

It is crystal clear that the reason for the dismissal by the State, facing an October 30, 1980 trial date for which there was no complaining witness, was that the State feared that the trial judge would not grant a continuance over the objection of defendants. It is also clear that the defendants, through counsel, agreed to the dismissal because they thought it represented a termination of the prosecution. Therefore, the State failed to show that the dismissal was not for the purpose of avoiding the time limitation.

Accordingly, I respectfully dissent.

      . Louisiana C.Cr.P. art. 578 requires that trial in a misdemeanor case be commenced within one year of the date of institution of prosecution. Trial of the simple battery charge stated in the first bill of information filed on March 19, 1980 would thus have to commence on or before March 19, 1981 under Article 578.


author: BLANCHE, Justice. CALOGERO, Justice.

text:
    Henry and Clara COLLINS v. CAPITAL VALVE AND FITTING COMPANY, et al.
    No. 81-C-1976.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
    Rehearing Denied Feb. 19, 1982.
    Joseph A. Gladney, of Joseph A. Gladney & Associates, Baton Rouge, for plaintiff-applicant.
    James B. Doyle, of Doyle & Simmons, Baton Rouge, for defendant-respondent.
   BLANCHE, Justice.

This is a tort suit to recover damages resulting from an automobile accident and the sole issue presented concerns the interruption of prescription.

Clara Collins was injured in an automobile accident on October 3,1979. In December 1979, the defendant’s insurer issued a draft in the names of both Henry and Clara Collins in payment of the property damage to the automobile. On October 23, 1980 the plaintiffs filed suit for medical expenses, lost wages and personal injuries, and this suit was met with a plea of prescription. The trial court sustained the plea but then overruled it on rehearing, citing Flowers v. U. S. F. & G., 381 So.2d 378 (La.1980) and Richardson v. Louisiana Farm Bureau Mutual Ins. Co., et al., 393 So.2d 200 (1st Cir.1981). The court of appeal found that the trial court erred in interpreting Flowers and Richardson too broadly, and held that payment to Mr. and Mrs. Collins only acknowledged the community’s claim for property damage and did not affect prescription on other elements of damage. We affirm the holding of the court of appeal.

In Flowers, Mrs. Flowers was injured when defendant’s insured struck the family vehicle. We held that tacit acknowledgment of the community claim for medical expenses by partial payment to Mr. Flowers did not interrupt prescription on Mrs. Flowers’ separate action for her personal injuries. Therefore, when Mrs. Flowers filed suit to recover damages for her personal injuries more than' one year after the accident, defendant’s plea of prescription was sustained.

It is not necessary to address the arguments made by plaintiffs concerning the effect of Flowers because we find that is not controlling in this case. Flowers dealt with the effect of acknowledgment of the prescriptive period and, here, it is apparent that there was not an acknowledgment but, rather, a settlement which acted as a transaction and compromise of the property damages.

A transaction or compromise is an agreement between two or more persons who, for preventing or putting an end to a lawsuit, adjust their differences by mutual consent, in the manner upon which they agree and which every one of them prefers to the hope of gaining, balanced by the danger of losing. See C.C. art. 3071. Mr. and Mrs. Collins originally sought $1,600 and retention of the salvage of their automobile; however, they ultimately accepted $1,356.34 and retention of the salvage. Therefore, the Collins’ gave up the right to claim a higher sum for property damage and the insurance company gave up the right to dispute liability.

The scope of a transaction is delineated in C.C. art. 3073 which states:

“Transactions regulate only the differences which appear clearly to be comprehended in them by the intention of the parties, whether it be explained in a general or particular manner, unless it be the necessary consequence of what is expressed; and they do not extend to differences which the parties never intended to include in them.”

In this case the intent of both parties concerning the scope of the transaction is readily apparent because both the check issued by the insurer and the release executed by the Collins clearly indicated that the payment was intended to be in settlement of the property damage. Further, it is obvious that counsel for the plaintiffs realized that prescription was running on other elements of damage as shown in a letter to the insurance adjuster dated August 8, 1980. In that letter, plaintiffs’ counsel advised that he was enclosing a copy of a petition which he intended to file in this case. He also made reference to the fact that the claim prescribed in October and stated that for that reason, he had filed suit in the plaintiffs’ behalf. No suit was filed but the important fact revealed by the letter was knowledge by plaintiffs’ counsel that the claim for other elements of damage would prescribe if suit was not filed by the October prescriptive date.

We find that the court of appeal reached the correct result, but was in error in basing its opinion on Flowers. Accordingly, we affirm the holding that payment of the property damage did not affect the prescriptive period on the other elements of damage for the reasons set forth above.

LEMMON, J., dissents.

On Application for Rehearing

CALOGERO, Justice.

I would grant a rehearing because I now have serious concern as to whether there was indeed a compromise of the property damage portion of Mrs. Collins’ claim. Plaintiff’s automobile repair estimate was $1337.00. Defendant insurer’s automobile repair estimate was $1356.34. When the insurer offered a check in that sum plaintiffs asked for $1600.00, apparently what they construed to be the value of the automobile, apparently simultaneously requesting that they be permitted to keep the badly damaged car. The insurers’ retort was that they were due only $1356.34 and that in any event if they took the $1356.34, considering that they were to be entitled to keep the car, salvage value of which had been appraised at $250.00, that insureds were effectively getting assets worth $1606.00. The claimants thereupon kept their car and took the $1356.34. These facts betray a compromise, certainly a compromise under circumstances which do not tacitly acknowledge the insurers liability arising out of the accident. The facts support the conclusion that the insurance company was paying full dollar on the property damage claim. , The claimants were, of course, required to sign a release acknowledging that they were due no additional money on the property damage portion of their claim.

I would therefore grant the rehearing to examine the legal question on prescription which the majority on original hearing pre-termitted.

The rationale in Flowers v. U. S. Fidelity & Guaranty Co., 381 So.2d 378 (La.1979) supports the trial court’s holding that tacit acknowledgement of the debt served to interrupt prescription. The claims adjuster issued a check to Mrs. Collins (and her husband) for “property damage to 1973 Cadillac.” In my view, that represents a partial payment of the wife’s damages and tacit acknowledgement of the full debt to the wife including the unliquidated personal injury portion of her claim.

The result in Flowers was different because there only the husband received payment and then only relative to property damage and medical expenses to which he alone, as head and master of the community was entitled. Because “legal prescription is personal, and generally benefits only the person with whom it originates or whose right has been acknowledged ...” Flowers, supra at 383, payment to the husband tacitly acknowledged the insurer’s debt only to the husband and not to the wife as related to her separate and distinct claim. That was not the case here.

For these reasons I would grant the rehearing.


text:
    STATE of Louisiana v. Leroy FREEMAN and Geraldine Miles.
    No. 81-KA-1343.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
    Rehearing Denied Feb. 19, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Edwin O. Ware, Dist. Atty., T. Gerald Henderson, Asst. Dist. Atty., for plaintiff-appellee.
    Kenneth P. Rodenbeck, Thomas K. Broca-to, of Gravel, Robertson & Brady, Alexandria, for defendants-appellants.
   WATSON, Justice.

Defendants, Leroy Freeman and Geraldine Miles, were charged with cruelty to seventeen-month-old Keith Miles, in violation of LSA-R.S. 14:9s. A unanimous six member jury found Miles guilty as charged and Freeman guilty of attempted cruelty to a juvenile. Both defendants were sentenced to five years imprisonment at hard labor. They have appealed, alleging eighteen errors by the trial court.

FACTS

Geraldine’s sister, Evelyn Miles, reported that Keith was being abused. She complained that Geraldine and Leroy began mistreating Keith on June 3, 1980, when Leroy moved into Geraldine’s home. Geraldine’s two sisters moved out of the house on that date. A social worker observed cigarette burns on the child’s chest on June 12. Keith Miles was treated at the Huey P. Long hospital in Pineville, Louisiana, on July 11 for a hematoma of the forehead. X-rays revealed that the skull was not fractured. An expert pediatrician, Dr. Alphonso Pacheco, thought it unlikely that the injury had resulted from a fall out of bed as reported by the mother, Geraldine.

Keith was brought to the hospital again on July 23, 1980, in the company of a child protection agency worker and his mother. Dr. Pacheco testified that the child’s condition reflected severe abuse inflicted with violent force. The evidence of physical trauma included bruises, lacerations, choking marks on the neck, lesions consistent with human bites, cigarette burns and a fracture of one forearm. The wrist and arm were swollen, tender and obviously in need of treatment. The fracture was approximately a week old. Some injuries were no more than two days old; other wounds had become infected and left scars.

Tira Sibley, a neighbor of Geraldine Miles, observed Keith immobilized in a sheet in July. Leroy Freeman said that it was because the child had been bad. Leroy Freeman then picked up the baby by one wrist and carried him into the kitchen. Geraldine had also been seen handling and throwing Keith by one arm.

Tyron Gable, also a young neighbor, testified that he brought Keith to his home on July 11 because his head was smashed. Geraldine told Tyron that she and Leroy had a fight and Leroy had hit the baby. Tyron’s mother and Geraldine took the baby to the hospital. Afterward, Keith stayed at Tyron’s home about a week. Geraldine picked him up on Sunday; the child had a swollen hand and arm the next day. Tyron had observed Geraldine beating Keith with a belt because he was crying. When the abuse occurred, Leroy Freeman was twenty-one years of age and Geraldine Miles was seventeen. Geraldine was born June 3, 1963.

ASSIGNMENT OF ERROR NUMBER ONE

Defendants contend that the bill of information should have been quashed for failure to set forth the essential facts of the offense. Prior to the hearing on the motion, the bill was amended to charge that defendants “Violate R.S. 14:93 by committing cruelty to Keith Miles, a child under the age of seventeen, by the intentional or criminally negligent mistreatment or neglect of said child in such a manner as to cause unjustifiable pain and suffering to said child, being themselves over the age of seventeen years.” (Tr. 9)

The trial court correctly held that defendants were informed of the statutory basis of the offense and further details could be obtained in response to a bill of particulars. State v. Gainey, 376 So.2d 1240 (La.,1979).

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO

This assignment was not argued and is considered abandoned.

ASSIGNMENTS OF ERROR NUMBER THREE AND EIGHT

Geraldine Miles contends that the trial court erred in denying two motions for appointment of a Sanity Commission.

At the hearing, there was lay testimony from Leroy Freeman and others that Geraldine Miles had some problems. Her counsel, Ken Rodenbeck, testified that he found her uncooperative and uncommunicative. He had sincere doubts about her capacity to assist in her defense. In rebuttal, the state called Dr. Daniel John Lonowski, a clinical psychologist, who testified as an expert in that field. Dr. Lonowski gave Geraldine Miles the Minnesota Multiphasic Personality Inventory test (M.M.P.I.). She responded realistically and truthfully to the testing, which revealed an antisocial personality but no mental disease or defect. Dr. Lonowski attributed her inability to communicate with her attorney to temporary depression resulting from the stress of being charged with a crime. This inability to respond during a period of depression is not a general feature of her personality and might be an attempt at manipulation. Despite her personality disorder, Dr. Lonowski stated that Geraldine Miles should be able to participate in her defense.

The trial court concluded that Geraldine Miles’ personality disorder does not constitute a mental disease or defect which would prevent her from aiding and assisting her counsel. Since the evidence did not create a reasonable doubt about defendant’s sanity, the request for the appointment of a Sanity Commission was denied. Geraldine Miles was allowed to amend her plea to add not guilty by reason of insanity.

These assignments of error lack merit.

ASSIGNMENT OF ERROR NUMBER FOUR

Defendants contend that the trial court erred in requiring defendants to elect either a judge or jury trial at the time of their arraignment.

The minutes reflect that both defendants appeared in court with counsel, waived formal arraignment and pleaded not guilty. Each was separately advised of the right to elect trial by jury or trial by judge. Both preferred trial by jury. Counsel objected to his clients being required to make that election at the time of arraignment. It is argued that a judge might have given this type of crime more impartial and objective treatment, but defendants did not make any effort to waive trial by jury after their arraignment.

When the right to trial by jury has been waived, reinstatement is within the discretion of the trial court. It is an abuse of discretion to deny reinstatement unless there would be adverse consequences to the court, the witnesses, or the prosecution. State v. Catanese, 385 So.2d 235 (La.,1980). Even granting that the right to be tried by a judge is of the same fundamental nature as the right to trial by jury, there is no showing that defendants could not have obtained trial by a judge after their initial election. Defendants did not move for trial by a judge at any time and proceeded without objection to their jury trial.

This assignment of error lacks merit.

ASSIGNMENTS OF ERROR NUMBER FIVE AND SEVEN

Defendants assign as error the trial court’s denial of two motions for discovery. These motions were correctly denied because they were untimely. LSA-C.Cr.P. art. 521; LSA-C.Cr.P. art. 729. No reason was given for the failure to file timely, and there is no showing that denial of the motions prejudiced defendants.

These assignments of error lack merit.

ASSIGNMENT OF ERROR NUMBER SIX

It is contended that a continuance should have been granted because the bill of information was amended shortly before trial.

Defense counsel argued on the first day of trial, December 8, that he was entitled to a continuance because the bill of information was amended on December 5 to allege that the offense occurred between June 3 and July 25,1980, rather than between January 1 and July 25, 1980. The amendment narrowed the time frame of the offense. Since the two month period was included within the original six month period, the amendment did not prejudice defendants. The motion for continuance was denied.

The argument is now made that the continuance was needed because the bill of information had been amended on December 2 to allege intentional as well as criminally negligent cruelty. This argument was not made at the trial level before the continuance was denied, and will not be considered now. State v. Taylor, 347 So.2d 172 (La.,1977); State v. Sosa, 328 So.2d 889 (La.,1976).

After the continuance had been denied, defense counsel argued in connection with a motion for discovery that new acts of cruelty had been alleged and he was unable to properly defend the case. The motion for discovery was granted and intentional acts of cruelty were particularized by the state.

Defendants have failed to show any prejudice to the defense resulting from denial of the continuance.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER NINE

Defendants contend that the trial court erred in allowing both to be represented by one hired attorney without ascertaining that they had made a knowledgeable waiver of their right to conflict-free counsel. Since only Geraldine Miles could have committed the crime of criminal neglect, she pleaded not guilty by reason of insanity, both made inculpatory statements, and each testified on the other’s behalf, it is argued that separate representation was mandated.

It is always advisable to obtain a knowledgeable waiver of the right to separate counsel in anticipation of an appeal. State v. Franklin, 400 So.2d 616 (La.,1981). However, absent a timely objection or special circumstances, a trial court is not required to initiate an inquiry into the propriety of multiple representation. The court can assume either that there is no conflict or that the risk of conflict has been accepted. Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). It is only when the possibility of a conflict of interest from joint representation appears that a court has the duty to inquire whether the conflict is disqualifying. Wood v. Georgia, 450 U.S. 261, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981). After conviction, a defendant must establish that an actual conflict of interest adversely affected the performance of his lawyer in order to obtain a reversal. Cuyler v. Sullivan, supra; State v. Franklin, supra; Wood v. Georgia, supra.

Here, there was nothing to alert the trial court to the necessity of a pretrial inquiry into the propriety of joint representation. Defendants relied on a common defense against a common attack. Cuyler v. Sullivan, supra. The pretrial hearing established that Geraldine’s insanity defense was without basis. The focus of the prosecution was on intentional abuse rather than neglect. At no time during trial did the attorney allege that there was a conflict of interest. Compare State v. Franklin, supra. Neither defendant has shown that joint representation adversely affected their lawyer’s performance.

This assignment of error lacks merit.

ASSIGNMENTS OF ERROR NUMBER TEN, ELEVEN, AND TWELVE

Defendants contend that separate trials should have been ordered. There was rio motion ' to sever. LSA-C.Cr.P." art. 704(2). The trial court could have ordered separate trials if it had appeared that either of the defendants were prejudiced by the joinder. LSA-C.Cr.P. art. 495.1. However, the defenses were not antagonistic and neither defendant attempted to implicate the other. State v. Scott, 400 So.2d 627 (La.,1981). Geraldine Miles pleaded not guilty by reason of insanity, but the evidence did not support this plea. Dr. Lo-nowski testified at trial that her personality disorder did not, in his opinion, render her unable to distinguish between right and wrong.

These assignments of error lack merit.

ASSIGNMENT OF ERROR NUMBER THIRTEEN

It is contended that the trial court erred in charging the jury about the possible verdict of guilty of attempted cruelty to a juvenile. It is argued that this was not a responsive verdict for Leroy Freeman. He could not be guilty of attempted neglect because he had no legal responsibility for the child. LSA-R.S. 14:403(B)(4). He could not be guilty of attempted criminal neglect because there is no such crime. State v. Adams, 210 La. 782, 28 So.2d 269 (1946).

There was no evidence that Leroy Freeman had legal responsibility for the child and had neglected him and no evidence that he had been criminally negligent. There was evidence that Leroy Freeman intentionally mistreated Keith. The jury was properly charged with the lesser verdict of attempted cruelty to a juvenile under LSA-R.S. 14:27(C) which provides:

“An attempt is a separate but lesser grade of the intended crime; and any person may be convicted of an attempt to commit a crime, although it appears on the trial that the crime intended or attempted was actually perpetrated by such person in pursuance of such attempt.”

This assignment lacks merit.

ASSIGNMENTS OF ERROR NUMBER FOURTEEN AND FIFTEEN

It is alleged that the trial court erred in imposing excessive sentences and failing to properly articulate the reasons for the sentences.

Leroy Freeman was given a maximum sentence of five years for attempted cruelty to a juvenile because the trial court concluded that he was guilty of the larger offense of cruelty and had been given lenity by the jury. Geraldine Miles received the same sentence, half the maximum, because the trial court felt they were equally guilty of mistreating the child and should have the same sentence. Because of the hideous nature of the crimes and the helpless condition of the victim, the trial court correctly concluded that lesser sentences were inappropriate.

These assignments lack merit.

ASSIGNMENT OF ERROR NUMBER SIXTEEN

It is argued that LSA-R.S. 14:93 is unconstitutionally vague and illegal. State v. Comeaux, 319 So.2d 897 (La.,1975) held that the statute “... gives a person of ordinary intelligence fair notice of what conduct is criminal.” 319 So.2d 899.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER SEVENTEEN

Defendants contend that there was insufficient evidence to find them guilty beyond a reasonable doubt of the crime charged or any lesser offense.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER EIGHTEEN

Defendants contend that the state failed to prove venue in the Parish of Rap-ides and therefore the Ninth Judicial District Court was without jurisdiction. Art. 1, § 16, LSA-Const. of 1974; LSA-C.Cr.P. art. 611.

Defendant, Leroy Freeman, stated that he lived in Alexandria and worked for the City of Alexandria gas department. Keith was treated at a hospital in Pineville. The social worker who investigated the complaints of child abuse is employed by the child protection center in Alexandria, Louisiana, as is the homemaker who was assigned to assist Geraldine Miles with the baby. Thomas Cicardo, a detective with the Alexandria Police Department, testified that he had investigated a complaint involving Geraldine Miles and Leroy Freeman. Both Pineville and Alexandria, Louisiana, are located in the Parish of Rapides. Geraldine Miles gave her address. The crime actually occurred at the Miles’ home. The trial court could take judicial notice of the fact that the Miles’ address was located in the Parish of Rapides. State v. Williams, 402 So.2d 678 (La.,1981). Venue was proper in Rapides Parish.

This assignment of error lacks merit.

For the foregoing reasons, the convictions and sentences of defendants, Leroy Freeman and Geraldine Miles, are affirmed.

AFFIRMED.

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

      . LSA-R.S. 14:93 provides:
      “Cruelty to juveniles is the intentional or criminally negligent mistreatment or neglect, by anyone over the age of seventeen, of any child under the age of seventeen whereby unjustifiable pain or suffering is caused to said child. Lack of knowledge of the child’s age shall not be a defense.
      “Whoever commits the crime of cruelty to juveniles shall be fined not more than one thousand dollars, or imprisoned for not more than ten years, with or without hard labor, or both.”

      . At trial, the evidence was that Leroy resided with his mother and only visited Geraldine.


author:
BOUTALL, Justice Ad Hoc.
     DENNIS, J., JONES, FRED W., Jr., Justice Ad Hoc, PER CURIAM.

text:
    STATE of Louisiana v. Frankie S. MIDDLEBROOK a/k/a Frankie Joe Middlebrooks.
    No. 81-KA-1442.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
    Rehearing Denied Feb. 19, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul Car-mouche, Dist. Atty., Sonia D. Peters, Dale G. Cox, Asst. Dist. Attys., for plaintiff-ap-pellee.
    Howard M. Fish, and Jeanette G. Garrett,Shreveport, for defendant-appellant.
   BOUTALL, Justice Ad Hoc.

Frankie S. Middlebrook was charged and convicted of the crimes of aggravated burglary, a violation of L.R.S. 14:60, and attempted forcible rape, a violation of L.R.S. 14:27 and 14:42.1. He was sentenced to concurrent terms of seventeen and one-half years at hard labor on each count, the first year for the attempted forcible rape to be served without benefit of probation, parole or pardon. He appeals asserting error in both his conviction and sentence.

The crime of which Middlebrook was convicted occurred shortly after 4:00 A.M. on December 7, 1980, at the dwelling of Mrs. H. S. James in Shreveport, Louisiana. A man broke into her house and demanded money of her and demanded sexual intercourse. She resisted and there was some violence. A neighbor heard the noise and called the police. The police found Middle-brook under the victim’s bed, nude except for a pullover tank top shirt with a cut above his eye. The charge and conviction followed.

The first assignment of error is that the trial judge erred in denying defendant’s motion for mistrial made after the state exercised peremptory challenges to prevent blacks from serving on the jury. It is contended that out of the six peremptory challenges used by the state, five were used to exclude blacks. The defendant, a black man, contends that this action operated to deprive him of his constitutionally protected rights to a fair and impartial trial and to be free from racial discrimination under Article 1, Sections 3 and 16, of the Louisiana Constitution of 1974.

The record shows that one black person actually served on the jury of twelve. Although the state peremptorily excused five black prospective jurors, the defense also peremptorily challenged two prospective black jurors which the state had accepted. Another prospective black juror was excused by the court for cause. The defendant stated that he was unable to establish that the prosecutrix in this case or the district attorney’s office had a history of systematically excusing blacks from jury service, and there is no proof of any systematic exclusion of blacks in the record. Defendant asserts that he should not be required to show systematic exclusion of blacks over a period of time and that the mere fact that five of the six peremptory challenges used by the state were used to exclude blacks is sufficient, relying upon the dissent in State v. Eames, 365 So.2d 1361 (La.1978), and the concurring opinion in State v. Robinson, 386 So.2d 1374 (La.1980).

The jurisprudence of this state and of the United States Supreme Court still requires a showing by the defendant that the state systematically excluded blacks by use of their peremptory challenges in order for the defendant to have relief. State v. Robinson, supra, State v. Rhodes, 351 So.2d 103 (La.1977); Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). Because there is no showing of a systematic exclusion of blacks in this case, this assignment of error lacks merit.

By the next three assignments of error, Nos. 4, 5 and 6, the defendant contends that the trial court erred in admitting the testimony of three police officers relating various statements made to them by the victim constituting objectionable hearsay.

The statements objected to were made to the police officers when they arrived at the scene of crime and sought to ascertain what had happened. The officers had received a call to investigate a possible burglary in progress at the victim’s residence and when they arrived some two minutes later and secured the outside of the house, Mrs. James was standing at her front door. She was nervous and excited and when they asked her what happened she told them that someone was in the house and that something had happened to her. The officers immediately went into her house and searched it quickly but could find no one inside. They came back out again and asked Mrs. James what had happened and at this point she related that she had been awakened by a noise on her front porch. She went and opened the front door and a black male hit her on the face and pushed her into the bedroom demanding money and forcing her on the bed. While he was pulling off his clothes and attempting to get on top of her, she grabbed a stick and hit him on the head. Her assailant was still inside her home hiding underneath her bed. The officers went back into the house and during this search found the defendant under her bed. As the officers were placing the defendant under arrest, they again questioned Mrs. James who told them of how she received injuries to her eye and her leg.

The defendant contends that the judge erred in overruling his hearsay objections, and that the testimony was clearly hearsay because it was offered to show the truth of the matters asserted therein and its value rested upon the credibility of the out-of-court asserter. State v. Martin, 356 So.2d 1370 (La.1978). He further contends that the testimony does not come within the res gestae exception to the hearsay rule under the provisions of R.S. 15:447 and 448.

This court has long recognized an exception to the hearsay rule allowing admission of the early complaints of rape victims. At times, the court has characterized these as the “first complaints of rape victims” constituting res gestae exceptions to the hearsay rule. See State v. Adams, 394 So.2d 1204 (La.1981); State v. Brown, 302 So.2d 290 (La.1974). In other cases, the court has referred to such statements simply as “early complaints of rape victims” and ruled that they were admissable as such. See State v. Hatcher, 372 So.2d 1024 (La.1979); State v. Elzie, 351 So.2d 1174 (La.1977). When there is no unexplained lapse of time between the rape and the victim’s complaint, and when the utterance is spontaneous, the person to whom the complaint was made is allowed to repeat the complaint in court. We point out in this case that the crime was still in progress in that the defendant was still in Mrs. James’ house, and the circumstances were much more immediate than the circumstances in either State v. Elzie or State v. Hatcher. These assignments of error are without merit.

The next assignment of error, No. 7, is based upon the denial of defendant’s motion for mistrial made during the testimony of Officer Lupton, who stated that Officer Parker verbally read the defendant his rights at the scene of the crime. Defendant objected and moved for a mistrial based upon the fact that the state had announced prior to trial that it was not going to introduce any statements made by the defendant during its case in chief, and that this irrelevant testimony only served to bring to the jury’s attention the defendant’s silence after his arrest. The defendant argues that the effect of the testimony was to make the jurors think that the defendant was guilty because he apparently offered no explanation to the police since no statements were introduced into evidence. Accordingly, defendant argues that this is improper use of a defendant’s post arrest silence to draw inferences of guilt.

We do not agree with the defendant’s appreciation of the effect of the testimony, and place little importance upon it. Primarily, the prosecutor did not directly elicit the testimony from the witness. The prosecutor was eliciting from the witness the series of events when the accused was discovered and was taken from the scene of the crime. In that sequence, the following exchange took place.

“Q. Now, how long were you around in the presence of this man?
A. The suspect?
Q. Yes.
A. From the time we found him to the time we placed him in the paddy wagon, Officer Parker verbally read him his rights.”

As we interpret this testimony, the witness simply mentioned the reference to the reading in an effort to place a precise time when he was in the presence of the accused. We cannot see any error in such an oblique and obscure reference to the advisement of Miranda Rights. We had occasion in State v. Mosley, 390 So.2d 1302 (La.1980), to disagree with the conduct of the prosecuting attorney in asking whether defendant was informed of his rights when no statement by defendant was going to be offered. In that case we found no reversible error because the prosecutor did riot stress the right to remain silent or attempt to elicit testimony regarding defendant’s failure to respond to police questioning. In the present case there was neither any solicitation by the prosecuting officer nor mention of the defendant’s right to remain silent. We find no merit to this assignment of error.

The next assignment of error, No. 8, is urged because of the denial of the defendant’s motion for a judgment of acquittal, it being contended that under the standard of review set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), no rational trier of fact could find beyond a reasonable doubt that the defendant was guilty of the offenses charged.

First, we note that a motion for acquittal is not the proper vehicle available to a defendant in a jury trial. Code of Criminal Procedure Article 778 applies only to trials by the judge alone.

Next, even considering the standard of review set forth in Jackson v. Virginia, supra, the evidence in this case is more than sufficient to support conviction. Briefly, the testimony of the victim on direct examination is amply supported by the testimony of other witnesses and the physical facts. The testimony of the investigating officers and of the neighbor who called the police because she heard the victim screaming for help and heard loud banging noises on the wall, the cut screen and broken window on the victim’s house, the swollen bruised face of the eighty-two year victim all point to the necessary elements of the crimes charged. Even the appearance of the defendant himself who was discovered by the police officers under the victim’s bed without any clothes on except a sort of T-shirt pulled up over his head and who bore the mark of a blow on his face leads to no other reasonable conclusion but that the direct examination testimony of Mrs. James was accurate. This assignment lacks merit.

The next assignment of error is No. 10. The defendant urges error in denial of his motion for a mistrial based on improper rebuttal argument by the state. During the state’s rebuttal, the prosecuting attorney was attempting to argue to the jury the validity of the testimony of the victim and the comparison of her testimony with the statements made to the police officers at the time of the crime, and stated the following:

“You heard Mr. Fish object to the introduction of those statements, that she made there. The Judge overruled that objection and he said it was res gestae, part of the happening of the event. We say that the events speak for themselves. She made those statements under that immediate pressure of this having occurred right then. It was taking place at that exact moment. I submit to you that makes that statement very reliable.”

Defendant points out that the comments concerning his objection were improper under Code of Criminal Procedure Article 774 and refers us to the case of State v. Williams, 373 So.2d 1278 (La.1979). Although the conviction in Williams was not reversed because it was not shown that.the remarks influenced the jury and contributed to the verdict, the defendant argues that the present case must be reversed because of the improper argument.

We find no reason to change the principles we relied on in State v. Williams. Before a verdict is set aside on the ground of improper argument, we must be convinced that the remarks influenced the jury and contributed to the verdict. In this case the thrust of the prosecutor’s remarks in closing the rebuttal was to the reliability of the res gestae statements made by the victim and the compatibility of her direct examination testimony with the res gestae statements and the physical evidence. We cannot conclude that the one sentence oblique reference referred to in this context affected the jury’s verdict. Assignment of error No. 10 is without merit.

The final assignment of error is No. 11, based on a contention that the judge erred in imposing an excessive sentence. The defendant was sentenced to serve seventeen and one-half years at hard labor on each of the two counts with the sentences to be served concurrently. With respect to the sentence imposed for the attempted forcible rape, the first year would be without benefit of probation, parole or suspension of sentence. Defendant attacks that sentence on two bases: 1) That it is excessive in contravention of Article 1, Section 20, of the Louisiana Constitution of 1974, and 2) that it was erroneous to order that the first year of the attempted forcible rape sentence had to be served without benefit of probation, etc.

The crime of aggravated burglary, R.S. 14:60, is punishable by imprisonment at hard labor for not less than one nor more than thirty years. The crime of forcible rape, R.S. 14:42.1, is punishable by imprisonment at hard labor for not less than two nor more than forty years. At least two years of the sentence imposed shall be without benefit of probation, parole, or suspension of sentence. An attempt to commit that crime is punishable under the provisions of R.S. 14:27(D)(3) as follows:

“In all other cases he shall be fined or imprisoned or both, in the same manner as for the offense attempted; such fine or imprisonment shall not exceed one-half of the largest fine, or one-half of the longest term of imprisonment prescribed for the offense so attempted, or both.”

. In connection with the length of the sentences imposed, we note that they are below the maximum set by statute. The trial judge set forth his reasons for sentence at the sentencing hearing, complying with the provisions of Code of Criminal Procedure Article 894.1 in finding that any lesser sentence would deprecate the seriousness of defendant’s crime. The judge considered the relative youth of this defendant (18 years), the fact that he had no prior convictions and that he was a slow learner. However, the other considerations for mitigation of sentence weighed heavily against a lesser sentence. The evidence is clear that the defendant committed an unauthorized and forcible entry at four A.M. into the residence of an eighty-two year old woman who lived alone. He battered the woman, forced her to disrobe and attempted to have sexual relations which she avoided by her screams and her stout defense. We conclude the judge was justified in imposing the sentence that he did and it is not excessive.

As to the argument relating to the sentence for attempted forcible rape we have ruled in State v. Patterson, 250 So.2d 721 (La.1971) and in State v. Glantz, 223 So.2d 813 (La.1969) that the phrase “in the same manner” in the attempted crimes statute means exactly what it says, i.e., that the other aspects of the imprisonment shall be “in the same manner” as provided for in the crime statute itself. Thus, in this case, the judge could properly impose a sentence ordering the first year of the sentence to be served without benefit of probation, parole, or suspension of sentence. This assignment of error is without merit.

Accordingly, the conviction and sentence of Frankie S. Middlebrook are affirmed.

AFFIRMED.

DENNIS, J.,

concurs. Although I disagree with the statement of what is required by our constitution for proof of racial discrimination in jury selection, it appears that the showing here is insufficient.

JONES, FRED W., Jr., J. ad hoc, concurs and assigns reasons.

JONES, FRED W., Jr., Justice Ad Hoc,

concurring:

I agree with the affirmance of the conviction. However, as relates to defendant’s sentence, I would remand for re-sentencing. If State v. Jaye, 383 So.2d 1261, holds that there is no mandatory minimum sentence for attempted armed robbery, it would seem to follow that there is none for attempted forcible rape — and this should be remanded for resentencing or “the one year without parole” deleted.

On Application for Rehearing

PER CURIAM.

Rehearing denied. We note, however, that our original opinion incorrectly related that the defendant was sentenced without benefit of probation, parole or pardon. In fact, defendant was sentenced to seventeen and one-half years at hard labor with the first year to be served without benefit of parole or probation, rather than without benefit of parole, probation or pardon.

      . Judges John C. Boutall of the Court of Appeal, Fourth Circuit, and O. E. Price and Fred W. Jones, Jr., of the Court of Appeal, Second Circuit, participating in this decision as Associate Judges Ad Hoc, joined by Justices Caloge-ro, Marcus, Dennis and Watson.