author: WATSON, Justice.

text:
    Patsy Jean DEHAVEN v. Ronald Lee DEHAVEN.
    No. 81-C-2381.
    Supreme Court of Louisiana.
    March 1, 1982.
    Rehearing Denied April 30, 1982.

      Kenneth R. Williams, of Thompson & Beasley, Baker, for plaintiff-applicant.
    George L. Clauer, III, Baton Rouge, for defendant-respondent.
   WATSON, Justice.

Plaintiff, Patsy Jean DeHaven, filed suit to have a Missouri judgment recognized in Louisiana. Plaintiff obtained a default judgment against her former husband, Ronald Lee DeHaven, which ordered the Missouri judgment recorded and made executo-ry in Louisiana. Defendant was cast in judgment for the past due balance of $21,-600 and payments of $600 per month on the remainder, plus legal interest and all costs.

The Court of Appeal concluded that the district court did not have subject matter jurisdiction, vacated the trial court judgment and remanded the matter to the family court of East Baton Rouge. DeHaven v. DeHaven, 401 So.2d 418 (La.App. 1 Cir. 1981). A writ was granted to consider whether the Court of Appeal correctly characterized the Missouri judgment as a child support matter in which the family court has exclusive jurisdiction. 406 So.2d 624 (La., 1981).

The Court of Appeal upheld a declinatory exception of lack of subject matter jurisdiction and noted that such an objection can be raised at any time. Piper v. Olinde Hardware & Supply Co., Inc., 288 So.2d 626 (La., 1974). Generally, declinatory exceptions must be pleaded prior to answer or judgment by default. LSA-C.C.P. art. 928. However, an appellate court has discretion to consider an exception of lack of jurisdiction over the subject matter filed in that court, because the exception “goes to the core of the validity of a judgment and is not subject to the waiver provisions generally affecting declinatory exceptions.” Piper, supra, 288 So.2d at 628. This is in accord with LSA-C.C.P. art. 3 which provides that jurisdiction over the subject matter of an action cannot be conferred by consent of the parties, and judgment by a court lacking such jurisdiction is void.

Article 5, § 16 of the Louisiana Constitution of 1974 provides that district courts “have original jurisdiction of all civil and criminal matters”, and Article 5, § 18 gives juvenile and family courts jurisdiction as provided by law, notwithstanding any contrary provision of Section 16. LSA-R.S. 13:1401(7) states that the family court of East Baton Rouge has exclusive jurisdiction over all actions concerning child support.

The Missouri judgment dissolved the marriage of the parties, gave the wife custody of three minor children, and provided that the husband pay $600 per month for the maintenance of the children until a loan balance of $41,674.99 on certain property was liquidated. The $600 payments were to continue until the debt was satisfied, regardless of the children’s status. After payment of this “Deed of Trust”, child support payments were to be reduced to $1.00 per month per child. Attached to and made a part of the judgment is a separation agreement and property settlement between the parties, which reflects the above provisions and additional property transfers. The agreement is “a settlement in lieu of any and all temporary, and permanent alimony”. (Tr. 14)

The Nineteenth Judicial District Court for the Parish of East Baton Rouge retains jurisdiction of all proceedings involving liquidation and partition of the community after a judgment of divorce or separation from bed and board. LSA-R.S. 13:1401(7), supra. Nelson v. Nelson, 318 So.2d 68 (La.App. 1 Cir. 1975) stated that the district court has sole jurisdiction over liquidation of a community debt in connection with partition of community property.

This Missouri judgment gave the wife a community property settlement in lieu of child support and alimony. Mrs. DeHaven testified to this effect at the default confirmation. Since the $600 monthly payments continue after one or more of the minor children reach the age of majority, it is clear that their purpose is not child support. They “shall in all events continue” until the note is paid off or satisfied. (Tr. 9) The Court of Appeal erred in holding that the trial court lacked subject matter jurisdiction over the controversy. See Missouri R.S. 452.325(5).

In Missouri, as in Louisiana, a child support judgment is always subject to modification. The husband’s obligations could be increased. Williams v. Williams, 542 S.W.2d 563 (Mo.Ct.App.1976). However, the property settlement which partitioned the community could not be changed. In addition to the husband assuming the mortgage payments on this particular property, other real property was divided in mutual consideration of the transfers. Such a contractual agreement is not subject to modification, except by mutual agreement of the parties. See LaFountain v. LaFountain, 523 S.W.2d 847 (Mo.Ct.App.1975). Under Missouri law, a contract for a deed is a species of property. Claunch v. Claunch, 525 S.W.2d 788 (Mo.Ct.App.1975). Mrs. DeHaven has a vested contractual right to the $600 a month awarded her in the agreement and judgment.

The Court of Appeal erred in holding that this litigation is a child support matter.

For the foregoing reasons the judgment of the Court of Appeal is reversed and the judgment of the trial court is reinstated.

REVERSED.

      . Ronald Lee DeHaven now resides in Baker, Louisiana.

      . LSA-R.S. 13:1401(7) provides:
      “There is hereby established the family court for the parish of East Baton Rouge, which shall be a court of record with exclusive jurisdiction in the following proceedings:
      * * * * * *
      “(7) All actions for divorce, separation from bed and board, annulment of marriages, establishment or disavowal of the paternity of children, alimony and child support, custody and visitation of children, as well as of all matters incidental to any of the foregoing proceedings, including but not restricted to the issuance of conservatory writs for the protection of community property, the awarding of attorney fees to the wife in judgments of divorce and separation, the cumulation of and rendering executory of alimony, the issuance of writs of fieri facias and garnishment under judgments of the court for alimony and attorney fees, jurisdiction of which was vested in the Nineteenth Judicial District Court for the parish of East Baton Rouge prior to the establishment of the family court for the parish of East Baton Rouge. The Nineteenth Judicial District Court for the parish of East Baton Rouge however, shall retain jurisdiction of all proceedings involving liquidation and partition of the community after a judgment of divorce or separation from bed and board. * * * ”

      .Missouri R.S. 452.325(5) provides:
      “Terms of the agreement set forth in the decree are enforceable by all remedies available for the enforcement of a judgment, and the court may punish any party who willfully violates its decree to the same extent as is provided by law for contempt of the court in any other suit or proceeding cognizable by the court.”

      . In addition to payment of the $600 mortgage note, the husband also agreed to assist financially in the education of the children according to his financial ability. Were this clause of the agreement in contest it would be a child support matter.

      . Here, as in LaFountain, the obligations are cast in contractual language and the agreement undertakes to dispose of all the parties’ community property.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Louisiana v. Eugene JACOBS.
    No. 81-KA-2052.
    Supreme Court of Louisiana.
    March 12, 1982.
    Rehearing Denied April 30, 1982.

    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leon A. Picou, Jr., Dist. Atty., A. Zach Butterworth, Asst. Dist. Atty., for plaintiff-appellee.
    Clayton M. Perkins, Jr., St. Francisville, for defendant-appellant.

       Dixon, C. J., and Calogero, J., would grant a rehearing.

   PER CURIAM.

Affirmed.

DIXON, C. J., and CALOGERO, J., dissent, believing the 1st Jacobs case should be overruled.


author: LEMMON, J.,

text:
    William J. MOSS, et al. v. Anthony J. GUARISCO, Sr., et al. William J. MOSS, et al. v. Anthony J. GUARISCO, Sr., et al.
    No. 82-C-0668.
    Supreme Court of Louisiana.
    April 5, 1982.
   Re: William J. Moss, applying for writ of Cetiorari or Review, to the First Circuit Court of Appeal, Parish of St. Mary, Numbers 14395 & 14396.

Writ, 409 So.2d 323, denied. The result is correct.

DENNIS and WATSON, JJ., would grant the writ.

LEMMON, J.,

dissents. However, this denial does not necessarily mean that a majority of this Court still subscribes to the theory that there is no cause of action in Louisiana for tortious interference with a contract.


author: MARCUS, Justice.

text:
    STATE of Louisiana v. Travis Raymond CARTER.
    No. 81-KA-0042.
    Supreme Court of Louisiana.
    April 5, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul Car-mouche, Dist. Atty., Dale Cox, Robert W. Gillespie, Asst. Dist. Attys., for plaintiff-ap-pellee.
    Tommy J. Johnson, Shreveport, for defendant-appellant.
   MARCUS, Justice.

Travis Raymond Carter was charged by the grand jury in the same indictment with two counts of aggravated crime against nature (La.R.S. 14:89.1), two counts of aggravated rape (La.R.S. 14:42), one count of armed robbery (La.R.S. 14:64) and one count of attempted first degree murder (La. R.S. 14:27 and 14:30). After trial by jury, defendant was found guilty as charged on one count of aggravated rape and on the count of attempted first degree murder. He was found not guilty on the other counts. Defendant was sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence for his conviction of aggravated rape and to imprisonment at hard labor for fifty years for his conviction of attempted first degree murder. The court expressly directed that the sentences be served consecutively. On appeal, defendant relies on five assignments of error for reversal of his convictions and sentences.

FACTS

The victim of the charged crimes testified to the following facts at trial. On the morning of June 7, 1979, the victim left work between the hours of 2:00 and 3:00 a. m. After going home to check on her four children and taking her eldest son out for a sandwich, the victim drove to a friend’s house. On the way, she noticed someone following her. When she arrived at her friend’s house, a truck pulled up at the house next door. As she got out of her car, defendant yelled to her that she had a gas leak. The victim leaned over to cheek her car, whereupon defendant produced a gun and forced her into his truck. Defendant drove the victim to a secluded area where he ordered her to disrobe. At gunpoint, defendant forced the victim to submit to two acts of aggravated crime against nature and raped her twice, anally and vaginally. Defendant then allowed the victim to dress and drove her to another area. At gunpoint, defendant took the victim’s keys and cigarette case which contained $60 in cash. He then told her to get out of the truck and walk toward a “woodsy” area. Fearing that she was going to be killed, the victim, while getting out of the truck, first refused to start walking. Defendant then pointed the gun at her head and pulled the trigger but the gun did not fire. At this point, the victim started running and defendant fired several shots at her, one of which hit her in the left side. She was able to make her way to a nearby residence where the police and an ambulance were called. The victim made a positive identification of defendant as the perpetrator of these crimes.

ASSIGNMENT OF ERROR NO. 1

Defendant contends the trial judge erred in denying his motion for severance of offenses. He argues that he was prejudiced by the joinder thereof.

At the outset, we note that two or more offenses may be charged in the same indictment under La.Code Crim.P. art. 493 if the offenses charged

are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan; provided that the offenses joined must be triable by the same, mode of trial.

In the instant case, the offenses met the test set forth in the above article and since the punishment for each offense is necessarily confinement at hard labor, the mode of trial (jury composed of twelve jurors, ten of whom must concur to render a verdict) is the same. La.Code Crim.P. art. 782. Hence, the offenses were properly joined in the same indictment. La.Code Crim.P. art. 493.

When an accused has been charged in the same indictment with two or more offenses pursuant to art. 493, he may apply for severance of offenses under La.Code Crim.P. art. 495.1, which provides:

If it appears that a defendant or the state is prejudiced by a joinder of offenses in an indictment or bill of information or by such joinder for trial together, the court may order separate trials, grant a severance of offenses, or provide whatever other relief justice requires.

We first note that the problem of possible prejudice resulting from joinder of offenses considered in State v. Washington, 386 So.2d 1368 (La.1980), is not present here since evidence of the crimes committed by defendant, as part of a continuous criminal transaction, would each be admissible at trial because it is part of the res gestae. La.R.S. 15:447, 448; State v. Kaufman, 331 So.2d 16 (La.1976). Consequently, when evidence of the offenses would otherwise be admissible as part of the res gestae, the possibility of prejudice would in no way be enlarged by the fact of joinder of offenses. State v. Carter, 352 So.2d 607 (La.1977).

Hence, where the offenses joined are part of the same transaction, as here, the critical question which must be determined by the trial judge presented with a motion for severance of offenses is whether, in view of the number of offenses charged and complexity of the evidence to be offered, the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense. La.Code Crim.P. art. 495.1; State v. Carter, 362 So.2d 510 (La.1978).

In the instant case, defendant was charged in one six-count indictment with four types of offenses, aggravated crime against nature, aggravated rape, armed robbery and attempted first degree murder. All of the offenses were connected in a continuous series of events occurring within one and one-half hours during which defendant drove the victim around in a truck. All of the crimes took place in defendant’s truck except for the attempted first degree murder which occurred as the victim attempted to escape therefrom. Only one victim was involved, whose testimony constituted the essence of the state’s case. The victim related in simple terms the consecutive events constituting each of the crimes charged and the elements thereof. Only four types of offenses were at issue, and the trial judge carefully and clearly explained the elements of each to the jury. We, therefore, conclude that in this case, the trier of fact could compartmentalize the events and apply the law intelligently to each offense and that defendant was not unfairly convicted on the basis of prejudice or confusion instead of on the evidence of the crimes. Accordingly, the trial judge did not err in denying defendant’s pretrial motion for a severance of offenses.

Assignment of Error No. 1 is without merit.

ASSIGNMENTS OF ERROR NOS. 2 AND 3

Defendant contends the trial judge erred in denying his motions for a mistrial on the ground that the testimony of two police officers referred to inadmissible evidence of other crimes.

On direct examination, Cecil Carter, one of the detectives involved in the investigation of the case, was asked by the state:

On June the 11th, 1979, Detective Carter, did you again get involved in this investigation?

He responded:

Yes, sir. At that time I attempted to put Travis Carter in a physical line-up.

Defendant objected. Outside the presence of the jury, defendant moved for a mistrial asserting that the reference to the attempt to place defendant in a physical lineup on June 11, 1979 (four days after his arrest) was an impermissible reference to another crime because the victim of the instant crimes was in the hospital at the time. The state argued that defendant, on being informed that he was going to be in a lineup, cut his hair short, removed his beard and mustache, and broke his glasses, thus “drastically” changing his appearance from the time of his arrest. Hence, the state argued that evidence of the attempted lineup was relevant to explain why defendant was not placed in a physical lineup in this case. The trial judge denied the motion for a mistrial but sustained defendant’s objection of relevancy to any further questioning concerning the lineup. Defendant rejected the trial judge’s offer to admonish the jury.

During direct examination of Lt. Scotty Henderson, while questioning him in reference to certain letters allegedly written by defendant to Chief Almon of the Bossier City Police Department, the state asked:

Now, without going into the contents of the letters or the statement what did you do with them after that?

The witness responded:

Okay. I read them and the Chief asked me to check into it and see if they pertained to any active cases that we were working. I ascertained that they didn’t and I called Detective Breedlove with the Bossier Parish Sheriff’s Office and asked him if these letters would have anything to do with anything they were working and he said yes, they would and—

Defendant objected. The objection was sustained. Outside the presence of the jury, defendant moved for a mistrial asserting that the reference to a connection between the letters written by defendant and cases being worked by the sheriff’s office constituted an impermissible reference to other crimes. The state argued that there was no reference to other crimes. The trial judge denied the motion for a mistrial. His offer to admonish the jury was rejected by defendant.

A direct or indirect reference to another crime committed or alleged to have been committed by defendant, as to which evidence would not be admissible, made within the hearing of the jury by the judge, district attorney or a court official, during trial or in argument, would require a mistrial on motion of defendant. La.Code Crim.P. art. 770(2). First, a police officer is not a “court official”; therefore, art. 770 does not apply. Rather, art. 771 of the Code of Criminal Procedure would be the applicable article. State v. Manuel, 408 So.2d 1235 (La.1982); State v. Hardy, 344 So.2d 1018 (La.1977).

La.Code Crim.P. art. 71 provides in pertinent part:

In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
(2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770.
In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.

We do not find nor does defendant claim that the allegedly impermissible remarks were deliberately obtained by design of the prosecutor to prejudice the rights of defendant. At least with regard to the statement concerning cases being. worked by the sheriff’s office, the police officer’s answer was unsolicited and unresponsive to the prosecutor’s question and neither reference was deliberately uttered by the witnesses to prejudice defendant. Unsolicited and unresponsive testimony is not chargeable against the state to provide a ground for the reversal of a conviction. State v. Hardy, supra. No connection was made between the attempt to place defendant in a lineup four days after his arrest and any other crime. The victim could have been brought to the jail to view the lineup or the lineup could have been conducted at the hospital. Nor was any connection made between the letters allegedly written by defendant and any other crimes allegedly committed by him. Under the circumstances, we are not convinced that these isolated references were of any consequence. It is most unlikely that they would suggest to the jury that defendant was being investigated for other crimes. Rather, there is more reason to believe that the jury considered that the lineup was attempted for this particular investigation and that the sheriff’s office was working on the instant case. Therefore, we do not find that the remarks created any prejudice in the mind of the jury. The trial judge did not err in denying defendant’s motions for a mistrial.

Assignments of Error Nos. 2 and 3 are without merit.

ASSIGNMENT OF ERROR NO. 4

Defendant contends the trial judge erred in denying his motion to suppress certain oral statements made by him to law enforcement officers on the night of his arrest. He argues that his request for counsel was denied prior to making the statements; therefore, they were not freely and voluntarily made.

At the suppression hearing, Deputy John E. McKinley of the Caddo Parish Sheriff’s Office and Chief Cliff Heap of the Shreveport Police Department testified that they arrested defendant at his place of employment. Deputy McKinley orally advised him of his constitutional rights. The two officers took defendant to the Caddo Parish jail where he was again advised of his rights. At this time, he signed a Miranda rights form stating that he understood his rights. The two officers then took defendant to the Shreveport Police Department where he was again advised of his rights and signed another Miranda rights form. Chief Heap further testified that he then took defendant to city jail where he read defendant his rights for each charge from separate forms, each of which was signed by defendant. Both officers testified that defendant never requested an attorney during this time. Chief Heap returned to the city jail approximately three hours later to conduct an interview with defendant. Detective Daniel B. Olds of the Shreveport Police Department accompanied Chief Heap. Both officers testified that before the interview began, defendant was readvised of his rights and again signed a waiver form. They also stated that he never requested an attorney during the interview. Defendant testified that he requested an attorney when Chief Heap read him his rights on a different card for each charge. He further stated that Chief Heap told him he would have to wait. At the conclusion of the hearing, the trial judge accepting the version presented by the police officers, ruled that defendant’s statements were voluntarily made after having been advised of and having waived his Miranda rights.

Before the prosecution may use statements stemming from custodial interrogation of defendant, it must be established that the accused was advised of his Miranda rights and that he knowingly and intelligently waived these rights. Moreover, if he indicates in any manner and at any stage in the process that he wishes to co.nsult with an attorney, the interrogation must cease. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The admissibility of any statement is in the first instance a question for the trial judge. His conclusions on the credibility and weight of testimony relating to the volun-tariness of a statement will not be overturned on appeal unless they are not supported by the evidence. State v. Dewey, 408 So.2d 1255 (La.1982).

After a review of the record, we are convinced, as was the trial judge, that the state satisfied its burden of affirmatively proving that the statements were freely and voluntarily made after defendant had been advised of and had waived his Miranda rights. Defendant’s contention that he requested an attorney and was told he would have to wait is in direct conflict with the testimony of Chief Heap, Deputy McKinley and Detective Olds. Accordingly, we are unable to say that the trial judge erred in denying defendant’s motion to suppress.

Assignment of Error No. 4 is without merit.

ASSIGNMENT OF ERROR NO. 5

Defendant contends that the sentence for attempted first degree murder should have been made concurrent with the sentence for aggravated rape. He also argues that the sentences imposed are excessive.

La.Const. art. 1, § 20, prohibits the imposition by law of excessive punishment. Accordingly, we have held that imposition of a sentence, although within the statutory limit, may violate a defendant’s constitutional right against excessive punishment that is enforceable by this court on appellate review. The trial judge’s reasons in imposing sentence, as required by La.Code Crim.P. art. 894.1, are an important aid to this court when called upon to exercise its constitutional function to review a sentence complained of as excessive. State v. Jacobs, 383 So.2d 342 (La.1980). Moreover, the trial judge is given a wide discretion in the imposition of sentences within statutory limits, and the sentences imposed by him should not be set aside as excessive in the absence of manifest abuse of his discretion. State v. Jacobs, supra.

For an offender without prior felony record, ordinarily concurrent rather than consecutive sentences should be imposed, especially where the convictions arise out of the same course of conduct within a relatively short period. State v. Jacobs, supra. However, consecutive sentences may be justified when, due to his past conduct or repeated criminality over an extended period, the offender poses an unusual risk to the safety of the public, similar to those posed by habitual or by dangerous offenders.

In the instant case, defendant first raped and then attempted to murder the victim. At the sentencing hearing, the trial judge stated that the crimes for which defendant was convicted were “extremely heinous.” Moreover, defendant had previously been convicted of felony offenses. Under the circumstances, we are unable to say that the trial judge abused his discretion in making the sentence for attempted first degree murder consecutive with the sentence for aggravated rape. The sentence imposed for aggravated rape (life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence) is mandatory. We do not consider the sentence excessive for such an offense. The sentence for attempted first degree murder is imprisonment at hard labor for not more than fifty years. Under the circumstances of this case, we are unable to say that the trial judge abused his wide discretion in imposing the maximum sentence.

Assignment of Error No. 5 is without merit.

DECREE

For the reasons assigned, defendant’s convictions and sentences are affirmed.


text:
    STATE of Louisiana v. Matthew MITCHELL.
    No. 81-KA-0371.
    Supreme Court of Louisiana.
    April 5, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., L. K. Knapp, Dist. Atty., Charles Richard, Evelyn Oubre, Eugene Bouquet, Asst. Dist. Attys., for plaintiff-appellee.
    Nick Pizzolatto, Jr., of Caskey & Pizzolat-to, Lake Charles, for defendant-appellant.
   WATSON, Justice.

Defendant, Matthew Edward Mitchell, together with Casey John Wilson, Martin Christopher Carter and Richard Mark Coleman, was charged with the second degree murder of Curtis Ray Fisher. LSA-R.S. 14:3o.!. A jury acquitted Carter and Wilson, but convicted Mitchell and Coleman by a 10 to 2 vote. Mitchell was sentenced to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence and has appealed, assigning fourteen errors by the trial court.

FACTS

The four defendants and Fisher were fellow inmates in the east wing of the Calca-sieu Parish jail’s third floor. The four defendants are black and victim Fisher was white. On May 13,1980, there were several fights in this area of the jail. The altercations were preceded by the inmates’ consumption of “squeeze”, alcohol derived from Old Spice deodorant sticks. Coleman and Mitchell both drank “squeeze” that night. Although other parties were involved at various times, Mitchell and Coleman beat Fisher viciously in two separate encounters. Mitchell, also known as “Papoose”, was barefooted during the fighting. The various fights lasted about forty-five minutes. Those who were not participating stood around watching. Fisher, nineteen years old, had preexisting stress ulcers, but the cause of death was cardiac arrest secondary to brain damage. Other injuries to his body would probably not have been fatal.

The first fight occurred in cell number seven when Coleman hit Picou with a sock full of flashlight batteries. Coleman then hit Fisher. Fisher was trying to hide under his bunk and did not try to defend himself. After Coleman slugged and kicked Fisher a few times, Fisher fell in the doorway between the cell and the hallway. When Fisher fell down, Mitchell started helping Coleman hit and kick Fisher. Fisher did not fight back. Mitchell and Coleman then put Fisher on a bunk and went to cell number five to beat up Ricky O’Quinn. Fisher managed to get back to his own cell, but was later pulled out and beaten again. Mitchell and Coleman stomped him with their feet, and Mitchell held the door bars and jumped up and down on Fisher. Carter and Wilson also participated. There was blood left in the hall after Fisher crawled back to his bunk.

O’Quinn, a white man, was described as a “snitch” or informant and was also rumored to be prejudiced against blacks. Coleman also accused Fisher of “snitching”. (Tr. 477)

ASSIGNMENT OF ERROR NUMBER ONE

Defendant contends that the trial court erred in refusing to grant a motion for a change of venue. At the hearing on the motion, there was evidence that there had been some publicity but no strong community interest in Fisher’s death. Two witnesses whose work puts them in contact with a large number of people testified that they had not heard the matter discussed at all. Only two of the first eighteen jurors indicated that they had preconceived ideas about the case. The publicity was disseminated in May and trial was held in September, only four months later. Despite this relatively short lapse of time, defendants did not prove prejudice in the public mind, undue influence, or any other ground for removal to another parish. LSA-C.Cr.P. art. 622. Since there was no evidence that a fair and impartial trial could not be obtained in Calcasieu Parish, the trial court did not abuse its discretion in denying the change of venue. Compare State v. Felde, 382 So.2d 1384 (La., 1980).

This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO

Defendants contend that LSA-R.S. 14:30.1 is unconstitutionally vague because the phrase “inflict great bodily harm” is too indefinite to provide a clear standard. The trial court denied the motion as untimely and also because the phrase in question has an understandable meaning.

If an indictment has a substantive defect, a mistrial shall be ordered even after trial has begun. LSA-C.Cr.P. art. 487. Thus, the question of timeliness is irrelevant.

“The constitutional guarantee that an accused shall be informed of the nature and cause of the accusation against him requires that penal statutes describe unlawful conduct with sufficient particularity and clarity that ordinary men of reasonable intelligence are capable of discerning its meaning and conforming their conduct thereto.” State v. Payton, 361 So.2d 866 at 871 (La.,1978). The phrase in question is sufficiently clear to meet the constitutional standard.

This assignment lacks merit.

ASSIGNMENTS OF ERROR NUMBER THREE AND FOUR

Defendant contends that a mistrial should have been granted or, alternatively, that his trial should have been severed from that of Ricky Coleman. Since Coleman’s attorney had accepted a civil position with the state in Baton Rouge, Louisiana, it is argued that his representation had elements of impropriety and inconvenience.

There were no grounds for a mistrial. LSA-C.Cr.P. arts. 770, 775. Severance is required when justice demands it. LSA-C. Cr.P. art. 704. Even if Coleman were prejudiced, there was certainly no prejudice to Mitchell. The defenses were not antagonistic. It is clear that Mitchell would have been convicted in any case. LSA-C.Cr.P. art. 921; State v. McGraw, 366 So.2d 1278 (La., 1979).

These assignments lack merit.

ASSIGNMENT OF ERROR NUMBER FIVE

After juror Mrs. Charles Turner was seated and sworn, she was excused from jury duty on the basis of a note from her physician. It is contended that this was error.

When the trial court was furnished evidence that Mrs. Turner was incompetent by reason of bad health to perform her duties as a juror, she was properly excused. LSA-C.Cr.P. art. 796.

This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER SIX

Defendant contends that additional peremptory challenges should have been granted after Mrs. Turner was excused. The trial court ordered “the panel completed in the ordinary course”. LSA-C.Cr.P. art. 796.

LSA-C.Cr.P. art. 799 provides that each defendant facing death or mandatory hard labor shall have twelve peremptory challenges. In State v. Delore, 381 So.2d 455 (La., 1980) additional peremptory challenges were granted for selection of a substitute juror and two alternates. However, the trial court is not required to grant additional peremptory challenges in each instance where a sworn juror is excused. There was no abuse of discretion.

This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER SEVEN

It is contended that the trial court erred in excusing prospective juror Helen Towner. The colloquy between the court and Mrs. Towner make it clear that her ability to read and write is extremely limited. Although able to sign her name, she declared herself unable to read any instrument furnished to her by the court. There was no error in the trial court’s determination that Helen Towner was disqualified. LSA-C.Cr.P. arts. 401(3); 787.

This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER EIGHT

Defendant contends that the comments of five prospective jurors were prejudicial and warranted a mistrial.

Prospective juror Beatty Gentry, excused for cause, admitted that he had a fixed opinion in the matter and was racially prejudiced. His opinion was allegedly based on discussions with two police officers, but he was not allowed to comment on the substance of those discussions.

Prospective juror Raymond Jones, Jr. testified that he felt the defendants “could” be guilty because they were already in jail at the time of the offense. This comment was not so prejudicial that it required a mistrial. The inescapable fact of defendant’s incarceration at the time of the crime came to the jury’s attention during the trial. Jones was excused for cause because the economic burden of the trial might have influenced his verdict.

Elray Robertson said it was possible his verdict would be influenced by what he had read in the papers about the case, but he did not give any details about what he had read. His testimony on voir dire was not at all prejudicial to the jury panel. Robertson was excused because of his fixed opinion.

Howard Cary was excused for cause because of his expectation that defendants stand up for themselves by testifying. He did not make any comments about guilt which might have prejudiced the jury.

Janie Trammel indicated that the defendants should prove to her that they were not guilty. She was properly challenged for cause, but her comments were not so prejudicial that they prevented defendant from receiving a fair trial.

This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER NINE

Defendant contends the state’s references to other fights in opening statement constituted a prejudicial allusion to other crimes which required a mistrial. LSA-C.Cr.P. art. 770(2). The other rights were part of the res gestae and admissible in evidence. LSA-R.S. 15:447; 15:448.

This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER TEN

During opening argument, one of the defense attorneys stated that victim Fisher was the product of a violent family and that this would be proven by court records. At another point, this defense attorney alluded to the state’s burden of proof. The state’s objections to these two remarks allegedly misled the jury into believing that the defendant had to put on evidence of innocence. The argument is a tenuous one. The objections were as follows:

“Your Honor, we’re going to object. This is his opening statement as to what he intends to introduce. ... ” (Tr. 354)
“Your Honor, I’m going to object. We know the State ... what they’ve got to prove. He’s supposed to be telling the jury what he ... his defense is going to be.... ” (Tr. 360)

There was no request for an admonition or a mistrial. LSA-C.Cr.P. art. 771. The error, if any, was harmless.

This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER ELEVEN

Defendant contends that the trial court erred in allowing various witnesses to testify as to other fights that occurred that night in the jail. All of this evidence was properly admitted as part of the res gestae. LSA-R.S. 15:447; 15:448.

This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER ELEVEN (A)

By supplemental assignment, defendant contends that the trial court erred in allowing the state to make references to race which prejudiced the jury. It is urged that a mistrial should have been granted when there were questions about the color of various inmates.

There is no indication that the state attempted to pursue a racial issue in order to prejudice defendant in the collective mind of the jury. Many of the questions about race and color were asked merely as a means of identification. The various witnesses did not know all of their fellow inmates by name and could identify them only by description or nickname. There was also evidence that the fight had some racial overtones and the evidence of race and color was therefore material and relevant. LSA-C.Cr.P. art. 770. There was no error.

This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER TWELVE

Defendant complains of two jury instructions.

It is contended that the trial court erred in instructing the jury as to the law concerning principals in a crime. LSA-R.S. 14:24. The instruction was relevant and correct.

It is also contended that the trial court erred in instructing the jury about general as well as specific criminal intent. Although the first section of LSA-R.S. 14:30.1 requires specific intent, the second section, the felony-murder section, does not require specific intent. There was no evidence that the defendant was engaged in any of the felonies enumerated in LSA-R.S. 14:30.1(2). Because there was no evidence that defendant was engaged in any of the enumerated felonies, the superfluous instruction on general criminal intent could not have confused the jury. There was a correct charge about specific criminal intent, and the jury apparently found a specific intent to inflict great bodily harm. The evidence leaves little doubt that this specific intent was present. Compare State v. Anderson, 343 So.2d 135 (La., 1977).

This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER THIRTEEN

Defendant contends that the trial court should have allowed transcription of the testimony of Dr. Lehrue Stevens, the pathologist who autopsied Fisher in his capacity as deputy assistant coroner. This testimony is said to show a lack of evidence that Mitchell gave Fisher the death blows. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The contention turns on the fact that Mitchell was barefooted during the fighting. It is argued that Stevens said Fisher’s fatal head injuries could not have been inflicted with fists or bare feet.

Dr. Stevens’ testimony has now been transcribed. Dr. Stevens said it would “be difficult” to inflict Fisher’s head injuries with bare feet, but he did not say it was impossible. Stevens also indicated that a fall or a jump on the head could have caused the injuries. Regardless of whether Mitchell’s blows were the fatal ones, he was a principal in the crime and is guilty. LSA-R.S. 14:24; State v. Batiste, 410 So.2d 1055 (La., 1982).

This assignment lacks merit.

For the foregoing reasons the conviction and sentence of defendant, Matthew Edward Mitchell, are affirmed.

AFFIRMED.

      . LSA-R.S. 14:30.1 provides:
      “Second degree murder is the killing of a human being:
      “(1) When the offender has a specific intent to kill or inflict great bodily harm; or
      “(2) When the offender is engaged in the perpetration or attempted perpetration of aggravated rápe, aggravated arson, aggravated burglary, aggravated kidnapping, aggravated escape, armed robbery, or simple robbery, even though he has no intent to kill or to inflict great bodily harm.
      “Whoever commits the crime of second degree murder shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.”


author: DIXON, Chief Justice. BLANCHE, Justice

text:
    STATE of Louisiana v. James C. STEPHENSON.
    No. 81-KA-0500.
    Supreme Court of Louisiana.
    April 5, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Tommy J. Adkins, Dist. Atty., Joseph A. Cusimano, Jr., Asst. Dist. Atty., for plaintiff-appellee.
    Joe Bleich and Robert Shadoin, of Sha-doin & Bleich, Ruston, for defendant-appellant.
   DIXON, Chief Justice.

On May 23, 1979 defendant, James C. Stephenson, was charged by bill of information with driving while intoxicated, third offense, in violation of R.S. 14:98 D. He was tried by jury and found guilty as charged. The court sentenced him to two years imprisonment at hard labor, to pay a fine of $400 or to serve an additional sixty days in jail. The sentence was suspended and defendant placed on probation.

Defendant appeals his conviction asserting six assignments of error.

On the evening of March 31, 1979 Sergeant Steven Martin observed a van, traveling in a northerly direction on Tech Drive in Ruston, swerve repeatedly and cross the center lane several times. The police officer eventually succeeded in stopping the van, driven by defendant. Defendant was unsteady on his feet and had alcohol on his breath. As part of a field sobriety test, Sergeant Martin asked defendant to walk a straight line and to touch his nose with his finger. His speech was slurred and he exhibited difficulty understanding the instructions given by the officer.

Officer Martin arrested defendant and took him to the sheriff’s office where Trooper Gregory Gossler administered a PEI test. Prior to administering the test, Trooper Gossler advised defendant of his constitutional rights and defendant signed the “rights” form. Trooper Gossler testified that the accused was unsteady on his feet, swaying, smelled of alcohol, had slurred speech and bloodshot eyes. This testimony was corroborated by Officer Bobby Richardson who was present at the scene and at the sheriff’s office.

Assignment of Error No. 5

Defendant contends that the trial court erred in allowing minute entries of two prior convictions into evidence. A minute entry dated February 5, 1975 is objected to on the ground that it does not show a voluntary waiver by defendant of his constitutional rights prior to entry of the guilty plea. The minute entry states:

“98,565 State of Louisiana vs. James C. Stephenson
DRIVING WHILE INTOXICATED
The accused, being present with his counsel, Lewis Weinstein, the District Attorney amended the Bill of Information by deleting Count # 2. The accused, withdrew his former plea of not guilty and pled guilty to Driving While Intoxicated Count # 1 and was sentenced to pay a fine of $300.00 and costs or, in default thereof, to serve 30 days in jail.”

In order for a guilty plea to be used as a basis for actual imprisonment, enhancement of actual imprisonment or conversion of a subsequent misdemeanor into a felony, the trial judge must inform the defendant that by pleading guilty he waives (a) his privilege against compulsory self-incrimination, (b) his right to trial and jury trial where it is applicable and (c) his right to confront his accusers, and to make sure that the accused understands what the plea connotes and its consequences. State v. Jones, 404 So.2d 1192 (La.1981); State v. Hill, 404 So.2d 966 (La.1981).

In the present case, the minute entry evidencing defendant’s guilty plea to his first DWI offense does not show that he waived any of the constitutional rights enumerated above; this plea was used to convert his subsequent misdemeanor into a felony. Accordingly, defendant’s conviction of driving while intoxicated, third offense, defendant’s underlying guilty plea, and defendant’s sentence herein must be set aside.

When it is clear from the verdict that the trial judge or jury necessarily found the elements of a lesser and included offense had been proved beyond a reasonable doubt, and the state, constrained by the double jeopardy clause, cannot seek anew a conviction on the greater offense, a remand for a new trial would serve no useful purpose. State v. Harveston, 389 So.2d 63 (La.1980); State v. Byrd, 385 So.2d 248 (La.1980). In this case, the verdict reflects that the jury necessarily found the elements of the lesser and included offense, DWI-2, had been proved beyond a reasonable doubt. The facts adduced at trial support the jury’s finding that the accused was driving while under the influence of alcoholic beverages at the time of his arrest for DWI-3. Further, the state established a valid prior conviction for driving while intoxicated.

Defendant raises five assignments of error regarding the trial on the charge of driving while intoxicated, third offense, none of which merit reversal.

Assignments of Error Nos. 1, 2 and 3

Defendant argues that the trial court erred in denying his motions for a mistrial because two police officers referred to oral inculpatory statements of defendant without a proper foundation having been laid by the prosecution.

It is within the trial court’s discretion to grant a mistrial if it believes that an admonition is insufficient to assure the accused a fair trial when prejudicial remarks (not listed in C.Cr.P. 770) have been voiced. C.Cr.P. 771; State v. Jones, 395 So.2d 751 (La.1981); State v. Turner, 392 So.2d 436 (La.1980); State v. Schwartz, 354 So.2d 1332 (La.1978); State v. Hegwood, 345 So.2d 1179 (La.1977). The proper remedy for a witness’ unsolicited references is admonition. State v. Jones, supra at 755. In light of the trial court’s admonition to the jury to disregard the remarks and the subsequent ruling that the statement was admissible, no prejudice resulted to defendant.

These assignments lack merit.

Assignment of Error No. 4

Defendant contends that the trial court erred in ruling that statements given by defendant to Trooper Gossler were voluntary and therefore admissible.

The admissibility of an inculpato-ry statement depends upon proof that it was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, inducement or promises. State v. Jones, supra. Voluntary and spontaneous statements are admissible even though Miranda warnings have not been given. See State v. Kersey, 406 So.2d 555 (La.1981); State v. Robinson, 384 So.2d 332 (La.1980). The trial judge’s conclusions on voluntariness will not be overturned on appeal unless unsupported by the evidence. State v. Jones, supra; State v. Manning, 380 So.2d 46 (La.1980); State v. Gaines, 354 So.2d 548 (La.1978). The trial court’s conclusion that defendant made a spontaneous and unsolicited statement to Trooper Gossler is amply supported by the record.

This assignment lacks merit.

Assignment of Error No. 6

Defendant asserts that a remark made by the assistant district attorney during closing argument which allegedly referred to defendant’s failure to testify was so prejudicial that a mistrial was warranted.

A reference to the accused’s failure to take the stand mandates a mistrial. C.Cr.P. 770(3); State v. Valentine, 375 So.2d 1378 (La.1979); State v. Marcello, 375 So.2d 94 (La.1979). To warrant a mistrial, the inference must be plain that the remark was intended to bring to the jury’s attention the failure of the defendant to testify. State v. Schouest, 351 So.2d 462 (La.1977); State v. Frank, 344 So.2d 1039 (La.1977); State v. Reed, 284 So.2d 574 (La.1973). In this case, the prosecutor’s statements were a permissible reference to a weakness in the defense theory of the case, namely, the failure of the defense to introduce any PEI test results which were impliedly favorable to defendant.

This assignment lacks merit.

For these reasons, the conviction of driving while intoxicated, third offense, is set aside and the sentence is vacated; the case is remanded to the district court with instructions to enter a judgment of guilty of driving while intoxicated, second offense, and to sentence defendant accordingly.

BLANCHE, J., concurs and assigns reasons.

WATSON,. J., dissents.

BLANCHE, Justice

(concurring).

With regard to the majority’s application of Byrd, I have dissented in the past and think the practice is wrong; nonetheless, I feel constrained to accept it at this time.

      . In State v. Jones, supra at 1196, future application of that case was explained:
      “Our decision will be fully applicable to this case and any other case filed and presently pending in this court involving the issue presented herein. In all other cases, however, we will apply our holding to guilty pleas entered after this decision becomes final.”
      The present case was filed and pending in this court when State v. Jones was decided; therefore, State v. Jones is applicable. It does not matter that the challenged guilty plea was entered in 1975, long before the opinion in State v. Jones was rendered.

      . The defense objects to the minute entry showing defendant’s conviction for driving while intoxicated, second offense, on the ground that it does not show on its face that the conviction was final. The entry states:
      “102,581 State of Louisiana vs. James C. Stephenson
      DRIVING WHILE INTOXICATED SECOND OFFENSE
      This case having been regularly set for trial, the defendant being present with his counsel Lewis Weinstein, case was taken up for trial. The District Attorney orally amended Count No. 2 of the Bill of Information to read ‘February, 1975’, instead of ‘February, 1976’. On request of the State, the witnesses were sequestered and evidence of the State was adduced and closed. Counsel for the defendant made an Oral Motion for Directed Verdict and said oral motion was argued, submitted, and overruled. Evidence of the defendant was adduced and closed and all evidence concluded. Case was submitted without argument and defendant found guilty as charged. Whereupon, the Court sentenced the defendant to pay a fine of $300.00 and costs or in default thereof, to serve 30 days in jail, and in addition, to serve one-hundred twenty five (125) days in jail. Counsel for the defendant made an Oral Motion to apply to the Supreme Court of Louisiana for Writs of prohibition, mandamus, and certiorari, and said oral motion was granted, and the Court allowed the defendant until September 24, 1976 in which to apply for said writs. Counsel for the defendant made an Oral Motion to Stay Proceedings and said oral motion was submitted without argument and granted. The Court ordered the defendant released on his same bond pending further proceedings.”
      The entry demonstrates a prior conviction as required by R.S. 14:98 D; this argument lacks merit.

      . During the direct examination of Sergeant Martin, the following exchange took place:
      “Q. Did uh, you question the defendant as to what he had been doing prior to the time you had stopped him?
      A. Yes sir.
      Q. And what did the defendant say?
      A. He was uh, well, I administered a alcohol influence report form. Gave him one of those and there were several different things that he said he had been doing.
      Q. Do you specifically recall anything he said he had been doing the last two or three hours before you stopped him?
      A. Drinking ...”
      Later in the trial, the state called Trooper Gos-sler, the officer who administered the PEI test. During his testimony on direct, another reference to defendant’s statement was brought out: “Did you make any observations about the defendant, James C. Stephenson, his speech, his eyes or any other of these physical characteristics?
      Yes sir. I did. While the defendant was extremely cooperative while dealing with me at all times, he had a very strong order (sic) of alcoholic beverage on or about his person. He indicated to me that he had consumed a number of ...”

      . Defendant also argues that the notice given by the prosecution of its intent to introduce oral inculpatory statements is insufficient. The notice provides in part:
      “At 7:36 pm March 31, 1979 at the Lincoln Parish Sheriff’s Office in Ruston, La., James C. Stephens (sic) stated to Patrolman Bobby Richardson, Sgt. S. T. Martin and Tfc. Greg Gossler that between 5:00 pm and 7:00 pm March 31, 1979 he had been drinking beer and that he had drank (sic) 6 to 8 bottles of beer.”
      The notice given sufficiently apprised defendant of the time, place and person to whom the statements were made. C.Cr.P. 768; State v. Qualls, 353 So.2d 978 (La.1977).


text:
    STATE of Louisiana v. Ricky A. MERIWETHER.
    No. 81-KA-1152.
    Supreme Court of Louisiana.
    April 5, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., L. K. Knapp, Dist. Atty., Terry Johnson, Eugene Bouquet, Asst. Dist. Attys., for plaintiff-appel-lee.
    D. Michael Moore, Monroe, for defendant-appellant.
   MARCUS, Justice.

Ricky A. Meriwether was charged by the grand jury in the same indictment with aggravated rape in violation of La.R.S. 14:42 and armed robbery in violation of La.R.S. 14:64. After trial by jury, defendant was found guilty as charged on both counts. Thereafter, he was sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence for his conviction of aggravated rape and to imprisonment at hard labor for ninety-nine years without benefit of parole, probation, or suspension of sentence for his conviction of armed robbery. The court expressly directed that the sentences be served consecutively. On appeal, defendant relies on five assignments of error for reversal of his convictions and sentences.

ASSIGNMENT OF ERROR NO. 1

Defendant contends the trial judge erred in excusing prospective jurors prior to the time he was noticed to appear for trial. He argues that this violated his right to be present at the calling and examination of the jury. La.Code Crim.P. art. 831(8).

According to the per curiam comment by the trial judge, his division and another division of court were scheduled to try jury cases for the week beginning February 9, 1981. By agreement between the other judge and himself, the venire reported at 9:00 a. m. to the other judge who handled the excusing of prospective jurors who were not qualified to serve or who were exempt from jury service. Thereafter, one-half of the venire was sent to his courtroom. Defendant was not given notice that jury excuses would be heard at 9 o’clock. Prior to trial, defendant objected to his failure to receive notice.

La.Code Crim.P. art. 783 provides that the court may excuse a member of the petit jury venire at any time prior to the time he is sworn as a juror to try a particular case. A defendant need not be present when the trial judge excuses prospective jurors before his case is called for trial. State v. Cass, 356 So.2d 936 (La.1977); State v. Sheppard, 350 So.2d 615 (La.1977); State v. Williams, 258 La. 801, 248 So.2d 295 (1971). A juror is not “called” or “examined” within the meaning of La.Code Crim.P. art. 831(3) until he is called for examination in the trial of that particular defendant. State v. Williams, supra. Hence, the trial judge did not err in excusing prospective jurors outside the presence of defendant prior to the calling of his case for trial.

Assignment of Error No. 1 is without merit.

ASSIGNMENTS OF ERROR NOS. 3 AND 5

Defendant contends the trial judge erred in not ordering the state to provide defendant with a copy of the victim’s statement that contained evidence favorable to defendant and in not inspecting the entire statement for exculpatory evidence.

When the state called the victim to the stand, defendant objected on the ground that the state had in its possession a statement by the victim containing exculpatory evidence. Outside the presence of the jury, defense counsel moved that the victim not be permitted to testify until such time as the defense had an opportunity to examine her statement. He argued that during a previous visit to the district attorney’s office, Mr. Johnson (assistant district attorney who was trying this case) had informed him that the statement contained “references to whether or not the victim was raped more than one time and whether or not there was penetration that had occurred on one or more of the attempts.” Defendant had been indicted with another person (Spencer) for the rape of the victim. Thereupon, the trial judge asked defense counsel: “Is there any other point in that statement that you’re concerned with?” Defense counsel replied in the negative. The judge repeated: “Just whether or not she was raped more than once and whether there was penetration, is that what we’re talking about?” Defense counsel answered in the affirmative. The judge then made an in camera inspection of the statement. Mr. Johnson pointed out the portions of the statement containing the information. After reading the statement, the judge stated: “According to the statement, she said that she was raped twice; that both of them raped her.” Defense counsel responded: “In other words, the information which Mr. Johnson gave me previously was incorrect, is that ... .” Mr. Johnson interrupted and denied ever telling defense counsel otherwise. The trial judge denied defendant’s motion.

Statements made by witnesses, other than defendant, to the district attorney or agent of the state are not subject to discovery or inspection except as provided in arts. 717, 718, 721 and 722. La.Code Crim.P. art. 723. None of the exceptions are applicable here except possibly art. 718(1) which provides for production of statements favorable to the defendant and which a.re relevant to the issue of guilt or punishment. State v. Carthan, 377 So.2d 308 (La.1979). Where the defense gives the prosecution notice of exactly what favorable information it desires and if the subject matter of such request is material and relevant, the prosecutor must either furnish the information or submit the problem to the trial judge for an in camera examination. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); La. Code Crim.P. art. 718.

In the instant case, defense counsel made a specific request for information in the victim’s statement. The trial judge examined the statement and found that defense counsel’s contention was not correct. The requested evidence was not exculpatory. Rather, it was inculpatory. Since the requested information was not favorable to defendant, the trial judge did not err in refusing to order the state to provide defendant with a copy of the victim’s statement. Nor do we consider it necessary for an in camera inspection to go beyond the specific request posed by the defense. Hence, the trial judge did not err in denying defendant’s motion not to permit the victim to testify.

Assignments of Error Nos. 3 and 5 are without merit.

ASSIGNMENT OF ERROR NO. 4

Defendant contends the trial judge erred in failing to order a mistrial on the ground that a false statement of a juror on voir dire prevented a fair trial.

On the morning of the third day of trial and after the victim had testified on the previous day, the trial judge informed defense counsel and assistant district attorney that a Ms. Mona R. Verrette, one of the jurors, had come to his chambers that morning and told him that she was acquainted with the victim although on voir dire she stated that she did not know her. When the jurors were questioned on voir dire regarding knowledge of the victim, the victim’s married name, as it appeared in the indictment, was used. Since Ms. Verrette knew the victim only by her maiden name, she did not realize she knew her until she (the victim) was called to testify. The judge further informed both counsel that the juror told him that she had gone to school with the victim and saw her regularly at Randy’s supermarket where the victim was employed and at Hardy’s where the juror was employed. The judge additionally stated that he had questioned Ms. Ver-rette as to whether she had a fixed opinion as to the guilt or innocence of the accused and she replied that she did not. He also asked her “if she could decide the case, putting aside her acquaintanceship with the victim; decide the case strictly on the evidence that she hears in the courtroom and the law as I explain it to her at the end of the trial, and she replied that she could do that.” There was no further discussion of the matter.

At the outset, we note that neither the portion of the record designated for appeal nor the minutes reflect that defendant objected or moved for a mistrial. La.Code Crim.P. art. 841 provides that an irregularity or error cannot be availed of after verdict unless it was objected to at the time of the occurrence. Hence, defendant waived his right to complain of the alleged error on appeal. In any event, the contention is without substance.

La.Code Crim.P. art. 775(6) provides that a mistrial may be ordered when false statements of a juror on voir dire prevent a fair trial. Disclosure during trial that a juror is acquainted with a witness, including the victim, does not ipso facto prevent a fair trial. State v. Langendorfer, 389 So.2d 1271 (La.1980); State v. Daniel, 378 So.2d 1361 (La.1979). The connection must be such that one must reasonably conclude that it would influence the juror in arriving at a verdict. State v. Daniel, supra.

While Ms. Verrette inadvertently made a false statement during voir dire, there is no showing that the acquaintance between the victim and Ms. Verrette was such as would prevent defendant from receiving a fair trial. There is no reason to believe that merely because Ms. Verrette and the victim knew each other when they were in school and patronized the other’s place of employment it would influence the juror in arriving at a verdict. Moreover, when questioned by the trial judge, Ms. Verrette indicated that she could put aside her acquaintance with the victim and decide the case strictly on the evidence and the law as explained to her by the judge. Under the circumstances, we are unable to say that the trial judge abused his discretion in failing to order a mistrial.

Assignment of Error No. 4 is without merit.

DECREE

For the reasons assigned, defendant’s convictions and sentences are affirmed.

      . Assignment of Error No. 2 was neither briefed nor argued; therefore, we consider it to have been abandoned. State v. Blanton, 325 So.2d 586 (La.1976); State v. Carlisle, 315 So.2d 675 (La.1975).


author: DIXON, Chief Justice .

text:
    STATE of Louisiana v. George David TOKMAN.
    No. 81-KA-1461.
    Supreme Court of Louisiana.
    April 5, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., William C. Pe-gues, III, Dist. Atty., David W. Burton, Asst. Dist. Atty., for plaintiff-appellee.
    Paul H. Jantz, DeRidder, for defendant-appellant.
   DIXON, Chief Justice .

Defendant was charged by bill of information with armed robbery, a violation of R.S. 14:64, and he entered a plea of not guilty. The trial court denied his motion to suppress, and admitted his confession into evidence at trial. The jury returned a verdict of guilty, and the defendant was sentenced to twenty years at hard labor, without benefit of probation, parole or suspension of sentence.

On August 25, 1981 George Tokman and Mike Leatherwood robbed the Dollar General Store in Merryville while armed with a revolver. Defendant and Leatherwood, accompanied by Debra Perkins, a juvenile, were returning from Jackson, Mississippi when they decided to rob the store in Mer-ryville. They parked the ear on the side of the store, went inside and selected some clothing. When the only customer left the store, Tokman approached Mary McDaniels, a store clerk. Mrs. McDaniels bent down to pick up something on the floor, and when she stood up Tokman was pointing a gun at her. He asked her to move away from the cash register, and Leatherwood went behind the counter, took the money from the cash register and put it in a paper bag. Tokman then asked the clerk to go outside. She walked out of the store between Leath-erwood and defendant, and she was then allowed to return to the store. Debra Perkins had remained in the back seat of the car with the engine running. Leatherwood, defendant and Perkins drove away; they divided the money, $238.00 to each.

ASSIGNMENT OF ERROR NO. 1

By this assignment defense counsel argues that the trial court erred in denying defendant’s motion to suppress his confession. Counsel submits defendant’s confession was the direct result of an illegal arrest and should have been suppressed. The state maintains that even though defendant may have been arrested pursuant to an invalid arrest warrant, the police had probable cause to make a warrantless arrest.

The United States Supreme Court has held that a confession obtained as a direct result of an arrest made without probable cause should be suppressed. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). In Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), the Court placed the burden of proving admissibility of a confession, challenged on grounds that the arrest was made without probable cause, on the prosecution. Considerations for determining when probable cause is present were described in State v. Thomas, 349 So.2d 270, 272 (La.1977):

“... Probable cause exists when facts and circumstances within the arresting officer’s knowledge and of which he has reasonable and trustworthy information are sufficient to justify a man of average caution in the belief that the person to be arrested has committed or is committing an offense. ... ”

We conclude' there was probable cause to make a warrantless arrest of defendant in this case, and the trial court properly ruled that the confession was admissible.

The Vernon Parish sheriff’s office and Beauregard Parish sheriff’s office were investigating a number of recent armed robberies in their area. On August 28,1980 the Civil Liaison Office at Fort Polk contacted Detective Larry Smith of the Vernon Parish sheriff’s office relative to a person by the name of Kellison who had informed the Liaison Office about the involvement of military personnel in some recent armed robberies. Detective Smith interviewed Kellison at approximately 10:00 a. m. on August 29,1980. Kellison thereupon admitted involvement in a homicide in Mississippi and some armed robberies in both Beauregard and Vernon Parishes. Kellison claimed that George Tokman, Mike Leath-erwood, a Mr. Fuson and Kellison committed an armed robbery of a motel and a store in Merryville. He also stated they might have killed a cab driver in Jackson, Mississippi during the course of a robbery. Detective Smith contacted Mississippi and Beauregard Parish authorities and verified that these crimes were actually committed. Kellison also indicated to Detective Smith that defendant and Leatherwood were presently at Fort Polk, but planned to leave the area as soon as they were paid that day. At approximately 11:30 a. m. Detective Smith contacted the Civil Liaison Office at Fort Polk, and asked them to detain Tok-man and Leatherwood because of their possible involvement in some armed robberies. At approximately 12:00 noon the commanding officer at Fort Polk placed the defendant and Leatherwood in a cell at the military police station. They remained there until approximately 5:00 p. m. when civilian authorities transported them to the Vernon Parish sheriff’s office.

Meanwhile, Deputy Robert McCullough of the Beauregard Parish sheriff’s office was also investigating recent armed robberies in the area. At approximately 2:20 p. m. on August 29, 1980, Deputy McCullough interviewed Debra Perkins. She admitted to Deputy McCullough that she, Tokman and Leatherwood were involved in the armed robbery of the Dollar Store in Merry-ville. Prior to this interview, Mrs. McDan-iels of the Dollar Store had identified Leatherwood as one of the perpetrators, and indicated that he was accompanied by another man and a young woman. After receiving Perkins’ statement, Deputy McCullough instructed Deputy Diane Chil-dress to obtain an arrest warrant. However, none of the underlying facts to establish probable cause were related to either Deputy Childress or the judge who issued the arrest warrant.

At approximately 5:00 p. m. on August 29, 1980, the arrest warrants were executed at the Vernon Parish sheriff’s office. The defendant was advised of his Miranda rights. He acknowledged that he understood his rights and indicated that he wished to waive them. He then confessed to the armed robbery charged herein. He gave an oral statement, and then he gave a statement that was typed. He signed the statement and initialed corrections.

The record establishes that the police had probable cause to arrest the defendant from the information Kellison related to Detective Smith at 10:00 a. m. on August 29, 1980. The police independently verified that a homicide and an armed robbery did indeed occur. Therefore, they needed only reasonably trustworthy information to justify a man of ordinary caution in believing the person to be arrested committed the crime. State v. Mosley, 390 So.2d 1302 (La.1980); State v. Collins, 378 So.2d 928 (La.1979), cert. den. 447 U.S. 928, 100 S.Ct. 3025, 65 L.Ed.2d 1122 (1980); State v. Scott, 355 So.2d 231 (La.1977); State v. Thomas, supra. Kellison’s admissions, implicating both himself and the defendant, constituted such reasonably trustworthy information. The defendant’s initial detention at Fort Polk was lawfully based on probable cause to believe that he committed the armed robberies and homicide in which Kellison implicated him.

The fact that the judge issued the arrest warrant without knowledge of the underlying facts upon which probable cause to arrest the defendant could be based, does not render the arrest illegal. It is apparent from the record that the police had probable cause to arrest the defendant, based on the statements by Debra Perkins that implicated the defendant in the armed robbery charged herein and the independent verification of the crime through Mrs. McDaniels. Therefore, the defendant’s formal arrest at 5:00 p. m. on August 29, 1980 was based on probable cause and lawful. Thus the defendant’s confession, obtained immediately thereafter, was not the direct product of an unlawful arrest. The confession was made knowingly, intelligently and voluntarily as required by State v. Cobbs, 350 So.2d 168 (La.1977). The defendant indicated he understood and wished to waive his Miranda rights. See State v. Alexander, 339 So.2d 818 (La.1976) and State v. Payne, 338 So.2d 682 (La.1976). The trial court properly admitted the confession into evidence.

This assignment is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant contends the trial court erred in imposing an excessive and inadequately reasoned sentence on him. The defense submits it was improper for the trial judge to consider crimes with which the defendant had been charged yet not convicted, and that he failed to consider the defendant’s youthful age and lack of a criminal record in imposing the twenty year sentence. The state argues that the trial judge was entitled to rely on sworn testimony implicating the defendant in other crimes, and that the sentence was not grossly disproportionate to the crime of armed robbery.

At the sentencing hearing the trial court noted various aspects of defendant’s background. The court also relied on a presen-tence investigation report, a letter supplied by defense counsel, testimony from the trial, testimony from the trial of a codefend-ant, Mike Leatherwood, and information supplied to the court regarding an attempt by defendant to escape from prison. Although the court did not recite the considerations of C.Cr.P. 894.1 verbatim, the record indicates the trial judge thoroughly evaluated all aggravating and mitigating circumstances applicable to the defendant. The judge stated that defendant was only seventeen years old at the time of the offense and had no prior convictions. It was noted that the armed robbery was not an isolated incident, but was part of a crime spree on the part of defendant and Leatherwood.

Contrary to defense counsel’s assertion, it appears the trial court gave careful consideration to the various aggravating and mitigating factors of defendant’s case. The twenty year sentence imposed on defendant is well within the statutory range. See R.S. 14:64. The twenty year sentence is not grossly disproportionate to the crime herein, and is not excessive under State v. Hogan, 403 So.2d 1210 (La.1981).

This assignment lacks merit.

For these reasons, the conviction and sentence are affirmed.

       Judges Fred S. Bowes and Nestor L. Currault, Jr. of the Twenty-Fourth Judicial District Court and Edward A. Dufresne, Jr. of the Twenty-Ninth Judicial District Court participated in this decision as Associate Justices pro tempore, joined by Chief Justice Dixon and Associate Justices Marcus, Blanche and Watson.

      . The presentence investigation report has not been included in the record for review.

      . The defendant admitted his attempt to escape with the use of a razor blade concealed in a toothbrush, when questioned by the trial court during the sentencing hearing.

      . Judge Coltharp apparently presided over both the defendant’s trial and codefendant Leather-wood’s trial, and was familiar with the circumstances surrounding the commission of this offense, as well as some unrelated charges.

      .The trial court did not rely on factors that he was not entitled to consider. The judge did note that Tokman was under indictment in Mississippi for murder. However, the court expressly stated it was not relying on the murder, charge in imposing sentence, but only making record of its awareness of the charge.


author:
CALOGERO, Justice.
     LEMMON, Justice,

text:
    STATE of Louisiana v. Bobby B. HERROD.
    No. 81-KA-1644.
    Supreme Court of Louisiana.
    April 5, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Houston C. Gas-con, Dist. Atty., Jack T. Marionneaux, Asst. Dist. Atty., for plaintiff-appellee.
    Alfred E. Mitchell, Plaquemine, for defendant-appellant.
   CALOGERO, Justice.

In this appeal from a conviction for negligent homicide we consider defendant’s contentions that the trial judge committed reversible error in allowing into evidence an allegedly gruesome photograph and in denying a motion for a new trial based upon the assertion that a member of the jury was a convicted felon who had not been pardoned.

The Grand Jury of Iberville Parish returned a true bill charging defendant Bobby Herrod with negligent homicide in the shooting death of Leonard Leroy Simms in violation of La.R.S. 14:32. Following the February, 1981, trial, the six member jury unanimously found defendant guilty as charged. The trial judge imposed a sentence of two and one-half years at hard labor. Defendant assigned eight errors to the proceedings as the basis for his appeal.

Evidence adduced at trial showed that defendant and the victim shared an apartment and had just returned from a vacation on the night of the fatal shooting. Defendant admitted that he was “playing” with the gun and had entered the bathroom with it while the victim was brushing his teeth. The victim had requested that defendant leave the bathroom. Defendant said that he told the victim that he didn’t have to worry because the gun was not loaded, whereupon defendant cocked the gun and pulled the trigger. The gun discharged, with the bullet hitting the victim in the back of the head. The victim died shortly thereafter.

The state introduced into evidence a photograph of the bar on which defendant said he had placed the gun after the shooting. Defense counsel objected to the introduction of the photograph stating “It leaves questions.” On appeal, in assignments of error numbers 2 and 7, defendant argues that the photograph was gruesome and should not have been allowed into evidence because its prejudicial effect outweighed its probative value.

Initially, we observe that counsel’s statement “It leaves questions” can hardly be interpreted as contending that the photograph is gruesome. Our law - requires that defendant make a contemporaneous objection and state the reason therefor to allow the trial judge the opportunity to rule on it and prevent or cure error. La.C.Cr.P. art. 841; State v. Hysell, 364 So.2d 1300 (La.1978). A new basis for an objection cannot be raised for the first time on appeal. State v. Johnson, 389 So.2d 372 (La.1980); State v. Baylis, 388 So.2d 713 (La.1980); State v. Holstead, 354 So.2d 493 (La.1977).

In any event, we have viewed the photograph and do not consider it gruesome, much less so gruesome as to create prejudice. The photo shows the bar upon which defendant placed the gun after the shooting. Visible in the photo are the telephone and the bullets which defendant said he had removed from the gun before playing with it. There is some blood smeared on the phone and on the top of the bar, but the amount is not excessive. The photograph does not even show the victim or the bathroom where the shooting took place. There is no merit to these assignments.

By assignments of error number 3, defendant complains that the trial judge erroneously denied his motion for a new trial. Defendant filed a motion for a new trial alleging, as a first ground, “One of the six jurors were not qualified to serve as juror due to the fact that he had served two distinct and separate prison terms at hard labor and has not been pardoned [sic].”

La.C.Cr.P. art. 851, concerning the grounds for a new trial, reads in pertinent part:

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:
(4) The defendant has discovered, since the verdict or judgment of guilty, a prejudicial error or defect in the proceedings that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before the verdict or judgment;

Consequently, to take advantage of the defect, defendant needs to show that he was not aware of the disqualification when the juror was accepted by him and that this information could not have been ascertained by due diligence. State v. Baxter, 357 So.2d 271 (La.1978). In the case under review, defendant has failed to make the requisite showing. At the hearing on the motion for the new trial, a witness testified that defense counsel had been alerted in 1971 that this juror had a criminal conviction in California and had been in the penitentiary in that state. Although defense counsel told the judge that he had not learned of the juror’s criminal record until after the trial, he refused to relate the specifics of how he had gained this information. Finally, defense counsel did not take the witness stand and make this statement under oath despite the urging of the prosecutor that he do so.

Furthermore, La.C.Cr.P. art. 855 provides that “A motion for a new trial based on ground (4) of Article 851 [a legal defect in the proceedings] shall contain allegations of fact sworn to by the defendant or his counsel, showing: (1) The specific nature of the error or defect complained of; and (2) That, notwithstanding the exercise of reasonable diligence by the defense, the error or defect was not discovered before or during trial.” (emphasis supplied.) In State v. Veal, 296 So.2d 262 (La.1974), we had before us an assignment of error based upon the trial judge’s refusal to order a new trial after the defendant moved for a new trial on the basis of a legal defect in the original proceeding. In affirming the conviction we said that the new trial motion with “no attestation of reasonable diligence does not meet the requirements of [La.C.Cr.P. art. 855].” 296.So.2d at 262.

A reading of the motion as set forth above reveals that it also does not meet the requirement of Article 855(2). There is no allegation that defendant exercised due diligence but failed to discover the alleged lack of qualification of the juror before or during trial.

Decree

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

AFFIRMED.

LEMMON, J., concurs and assigns reasons.

LEMMON, Justice,

concurring.

C.Cr.P. 401(5), which prohibits convicted and unpardoned felons from serving on juries, was obviously designed to prevent the appearance of impropriety possibly created by jury service by persons of questionable character. That particular ground for disqualification has nothing to do with protection of the accused.

As long as a juror is fully capable of understanding the evidence presented and the legal issues to be resolved, an accused should not be able to obtain a reversal because of the later discovery of some technical disqualification of a juror not related to the juror’s ability to render a fair and impartial verdict.

The fact that the juror in this case had been convicted of a felony (and was under the good faith but mistaken belief that he had been pardoned) has no relationship to the guilt or innocence of this defendant. Neither does this ground for excusing the juror bear on his ability to serve on the jury and to render a fair decision based on the instructions of the trial court and on the facts presented at trial.

Therefore, I concur in the result.

       Judge Walter I. Lanier, Jr. of the Court of Appeal, First Circuit and Judges Fred S. Bowes and Nester L. Currault, Jr. of the Twenty-Fourth Judicial District Court participated in this decision as Associate Justices pro tempore, joined by Associate Justices, Pascal F. Caloge-ro, Jr., James L. Dennis, Fred A. Blanche, Jr. and Harry T. Lemmon.

      . Defendant only briefed and argued three of his assignments of error. Those assignments neither briefed nor argued are considered abandoned and will not be discussed in this opinion. State v. Williams, 366 So.2d 1365 (La.1978); State v. Burge, 359 So.2d 616 (La.1978); State v. Gaines, 347 So.2d 1153 (La.1977).

      . The motion for new trial alleging prejudicial defect in the proceedings discovered after the verdict seems to require (as to juror disqualification in this instance) an assertion of non-discovery notwithstanding exercise of due diligence. While that assertion might in the usual case be a pro forma requirement (it is unlikely a defendant and/or his attorney would be required pre-trial to fully investigate the background of each person on the petit jury venire), it seems in this case under the peculiar facts to be more pertinent.


author: LEMMON, Justice.

text:
    SCHEYD, INC. d/b/a Hammond Construction Company v. JEFFERSON PARISH SCHOOL BOARD, et al.
    No. 81-C-1949.
    Supreme Court of Louisiana.
    April 5, 1982.

      Eslíe G. Halford, Metairie, for plaintiff-relator.
    Nathan Greenberg, of Greenberg & Dal-lam, Jack A. Grant, of Grant & Barrow, Gretna, for defendants-respondents.
   LEMMON, Justice.

This litigation began as a dispute between two bidders on a construction contract with the Jefferson Parish School Board. Inasmuch as one bidder withdrew its bid after this court granted a writ of certiorari, the threshold issue in this court is whether the entire matter is now moot.

Scheyd, Inc. and C. J. Waddell Contractors, Inc. submitted bids for renovation of a school building in accordance with the rules for bidding established by the School Board. Scheyd’s bid of $277,000, on the specified form and signed by Joseph Scheyd, was contained in a sealed envelope, along with a corporate resolution authorizing Joseph Scheyd to bind the corporation. Waddell submitted a bid of $261,000. Shortly before the scheduled opening of the bids on June 16, 1981, Scheyd’s clerical employee, pursuant to telephone instructions from another Scheyd employee named Voss, wrote on the outside of the sealed envelope “Deduct $20,-000 from base bid (Twenty thousand Dollars)” and signed Joseph Scheyd’s initials.

Scheyd’s reduced bid of $257,000, if valid, would have been the low bid. Otherwise, Waddell’s bid was low.

At its regular meeting the next day the School Board considered the bid. When the Board’s agent who received the bids informed the Board’s attorney that he did not remember any initials or signatures on the outside of Scheyd’s envelope or any description of the price in both words and numbers, the attorney expressed his opinion that the amendment was not binding on Scheyd. The Board then awarded the contract to Waddell as low bidder.

When the Board’s attorney received the envelope the next day, he recommended that the Board conduct a public hearing on the awarding of the contract. By a 4-4 vote the Board refused to change its award or to conduct a public hearing.

Scheyd then filed this suit to compel the Board to accept Scheyd’s bid as amended and to award Scheyd the contract as the low bidder. Scheyd further sought to enjoin the Board from executing the construction contract with Waddell during the pend-ency of the litigation. Scheyd’s petition also named Waddell as a defendant, inasmuch as the relief requested by Scheyd affected the rights of that party.

Waddell filed an exception of no cause of action and an answer which essentially denied Seheyd’s allegations. Waddell also asserted a reconventional demand for attorney’s fees under C.C.P. Art. 3608, alleging that Scheyd’s improper seeking of injunc-tive relief caused Waddell to employ an attorney to resist the demand and to dissolve the restraining order.

After a hearing, the trial court issued a preliminary injunction, restraining the Board from awarding the contract to Wad-dell. The court reasoned that Scheyd, by action of a duly authorized agent, had amended its bid timely in accordance with amending procedures sometimes used in the industry.

Waddell then filed an application for supervisory writs, but the court of appeal declined to exercise supervisory jurisdiction. This court then granted Waddell’s application for certiorari. 404 So.2d 271.

Two days later Scheyd withdrew its bid, expressing the view that it could not guarantee the bid price because of the delays inherent in the judicial resolution of the matter. The School Board then executed the construction contract with Waddell.

At oral argument in this court, Scheyd argued that the entire matter was now moot. On the other hand, Waddell contended that its demand for attorney’s fees had not been rendered moot by the events subsequent to the grant of certiorari.

C.C.P. Art. 3608 authorizes the award of damages for the wrongful issuance of a temporary restraining order or a preliminary injunction and further authorizes an award of attorney’s fees, as an element of damages, for services in dissolving the order or injunction. At one time there was a jurisprudential rule that attorney’s fees could only be recovered on a pretrial motion to dissolve, but Article 3608, adopted in 1961, permits recovery when dissolution is obtained after a trial on the merits. See Official Revision Comment (b).

C.C.P. Art. 3608’s authorization for the award of damages, including attorney’s fees, is similar to the authorization of such awards in C.C.P. Art. 3506 for the wrongful issuance of conservatory writs. The two articles recognize that restraining orders, preliminary injunctions, and conservatory writs are harsh remedies which are subject to the danger of misuse, and they impose on the party who improperly uses such writs and orders the responsibility to redress all damages. The two articles also recognize that many writs and orders are dissolved because the defendant prevails on the merits of the case. Nevertheless, the two articles authorize the award of attorney’s fees only for those “services rendered in connection with the dissolution” of the writs or orders.

Damages have generally been awarded when there is a determination, either by pretrial motion or by trial on the merits, that the writ or order was illegally issued. Although the injunction was voluntarily dismissed, attorney’s fees may still be awarded if the injunction was wrongfully issued. Duhon v. Buckley, 161 So.2d 301 (La.App. 3rd Cir. 1964).

It is therefore necessary to determine whether the injunction was wrongfully obtained in order to decide whether Scheyd is liable for damages. Waddell’s bid was properly accepted by the Board. Scheyd’s sealed bid, signed by a properly authorized officer, was $16,000 higher than Waddell’s bid, and Scheyd’s attempted amendment was ineffective. The amendment was not binding on Scheyd, because it was not signed by the corporate officer authorized to bind the corporation on the bid. This irregularity in the amendment goes to the very integrity of the bidding process set up by the Board, which required sealed and signed bids. The Board could not have forced compliance with Scheyd’s bid. Accordingly, Scheyd improperly obtained the issuance of a preliminary injunction and is liable for the damages caused by its issuance.

The only damages sought (and apparently the only damages sustained) by the enjoined litigant in this case are attorney’s fees. However, most of the services performed by the attorney pertained to the defense of the merits of Scheyd’s “Petition to Compel Compliance with the Public Bid Law”. When the trial court issued a preliminary injunction after a full hearing, Waddell’s counsel began the process of dissolving the injunction by applying for supervisory writs, first to the court of appeal and then to this court. The injunction was voluntarily relinquished two days after this court granted certiorari.

We conclude that Waddell is entitled to damages in the amount of the value of attorney’s fees for services performed in submitting applications to the two appellate courts for supervisory writs, since those services were rendered in connection with ultimate dissolution of the injunction. Although there is no evidence of the value of those services in this record, we prefer to fix the damages based on a review of the services apparent on the record, rather than to remand for additional evidence. We accordingly set the award of attorney’s fees as an element of damages at $1,000.

Accordingly, C. J. Waddell Contractors, Inc. is awarded the sum of $1,000 as attorney’s fees for services rendered in connection with the dissolution of the preliminary injunction. Otherwise, the matter is dismissed as moot.

WATSON, J., concurs in holding the matter moot, but would not award attorney fees.

      . The Board’s agent did not have the envelope with him at the meeting.

      . The attorney relied on Attorney General’s Opinion No. 74-A52, which stated that a public body need not reject the lowest responsible bid when there are “mere informalities as to bid form”, especially in a situation in which the lowest bid would save a great deal of money.

      . Insofar as this record shows, the trial court did not grant a temporary restraining order.

      . The fact that Scheyd withdrew the bid is not indicative that the injunction was wrongfully obtained. Whether Scheyd was right or wrong in obtaining the injunction, it had a legitimate reason for withdrawing the bid.

      . If the corporate officer had given the clerical employee a bid form, with the amount of the bid blank, in an unsealed envelope, then the employee arguably would have had the apparent authority to complete the form in accord-anee with telephone instructions. However, the employee did not exhibit any authority to the Board, indicating her capacity to bind the corporation on the attempted amendment.