author:
WILLIAM NORRIS, Justice Ad Hoc.
     DENNIS, Justice,

text:
    STATE of Louisiana v. Doyle Max QUIMBY.
    No. 81-KA-3106.
    Supreme Court of Louisiana.
    Sept. 7, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Don C. Burns, Dist. Atty., Russell Woodward, Asst. Dist. Atty., for plaintiff-appellee.
    Thomas K. Brocato, Gravel, Robertson & Brady, Alexandria, for defendant-appellant.
   WILLIAM NORRIS, Justice Ad Hoc.

Defendant was charged by separate bills of information with possession of methamphetamine with intent to distribute and the manufacture of methamphetamine [a Schedule II drug] in violation of La.R.S. 40:967(A)(1). Defendant was tried solely on the manufacturing charge after which the jury unanimously found him guilty as charged. The Court subsequently sentenced him to serve nine years at hard labor and to pay a fine of $5000. It is from this conviction and the resulting sentence that defendant appeals asserting seven assignments of error, six of which are incorporated into three arguments.

FACTS

On April 4, 1980, defendant and Ovis Staggs were arrested for selling metham-phetamines to Richard Rubac at the residence of Robert Worley, an admitted drug dealer, in Georgetown, Texas. Thereafter, Staggs confessed to the manufacturing of methamphetamine with defendant and provided law enforcement personnel with the location of the laboratory used therefor in Caldwell Parish, Louisiana. This information was relayed to the officials of the Louisiana State Police and the Caldwell Parish Sheriff’s Office who obtained a warrant to search the property owned by defendant based not only on this information but also on information gathered through a nine month active investigation of the defendant and Staggs. The warrant was executed by the Louisiana State Police on April 8, 1980.

The search of the silver metal portable building and a mobile home located on the property described in the warrant produced various chemicals, equipment and paraphernalia known to be used in the manufacturing of methamphetamine. Additionally two jars containing a mixture of amphetamine and methamphetamine were found. Thereafter, a warrant was issued for defendant’s arrest; he was extradited from Texas; and the instant trial on the manufacturing charge resulted.

ASSIGNMENTS OF ERROR NOS. 2 AND 3

In these assignments of error, defendant argues that the trial court erred in permitting introduction of an inculpatory statement not disclosed in the state’s response to a motion for discovery filed by the defendant. More particularly, the testimony objected to was that of Robert Worley relating to a statement that defendant had made to him in Texas.

Defendant was initially charged on April 17, 1980. On January 26, 1981 [seven days prior to trial], defendant, through his second attorney of record, filed a “Motion for Discovery and Independent Examination of Evidence.” Of particular pertinence to this discussion is paragraph (3) of that motion which requested:

3.
The court order the district attorney to inform the defendant of the existence of any oral confession or statement of any nature made by the defendant, which the district attorney intends to offer in evidence at trial with the information as to when, where and to whom such oral confession or statement was made.

The state filed its answer to the discovery motion on January 27, 1981, in accord with the court’s order that it respond not later than January 29, 1981. The response to paragraph (3) read as follows:

The state does not have any knowledge of any oral confession or statement of any nature made by the defendant which the district attorney intends to offer in evidence at the trial of this matter. However, in an abundance of caution the state does wish to inform the defendant that it is possible that Ovis Staggs will be a state’s witness in this matter with the purpose of his testimony being when and how he and the defendant made methamphetamine and what the defendant’s intention in doing so was.

On January 30, 1981, the state filed a second supplemental answer to defendant’s motion for discovery in which it stated:

In an abundance of caution the state wishes to advise the defendant of its intent to offer into evidence the sale by the defendant of a substance which he represented to be methamphetamine to Robert Worley and Richard Rubac in or around Georgetown, Texas, on April 4, 1980. The purpose of this evidence is to show that the defendant possessed the methamphetamine which was found in Caldwell Parish with the intent to distribute. The sale spoken of in this answer is within the knowledge of the defendant and his counsel as it was outlined in the search warrant which is a part , of the record in this case.

On the morning of trial [February 2, 1981], the state filed a “Prieur Notice” stating that it intended to offer evidence that the defendant and Staggs had traveled to the residence of Robert Worley on April 4, 1980, for the express purpose of selling a substance which defendant represented to be methamphetamine. Simultaneously and prior to the opening statement, the state filed a La.C.Cr.P. Art. 768 notice that stated:

Although the state feels that the incul-patory statements which it intends to introduce are not those requiring notice under Article 768, in an abundance of caution they wish nevertheless to inform the defendant of their existence. On April 4, 1980, the defendant before his arrest made statements to Robert Worley at Worley’s residence that he had some more methamphetamine back at his lab which he would bring to Texas within a few days.

In his opening statement, the prosecutor stated:

H« * # * * *
Now, we are going to call a witness who knows Mr. Quimby — a man who can link Mr. Quimby with the manufacture of methamphetamine, with manufacturing speed. Now, our witness is not exactly a Sunday School teacher. People involved in criminal activities rarely associate with Sunday School teachers. We submit that drug dealers in particular don’t associate —well, the people they associate with are probably somewhat less than your topnotch citizens. We don’t claim that our witness is. But our witness, Mr. Robert Worley, will show that he knew that Mr. Quimby had a drug lab.

The defense objected, the jury was removed, and defendant argued that this was an improper advertence to a confession in an opening statement. However, from the foregoing, it is obvious that the state did not advert in the opening statement to a confession or inculpatory statement but only informed the jury that its witness would testify that he knew defendant and that he knew that he had a drug lab. This statement does not violate La.C.Cr.P. Art. 767, and the prosecutor’s remarks were proper.

Thereafter, on direct examination and over the objection of defense counsel, Robert Worley testified as follows:

Q. How long have you known Mr. Quim-by?
A. Approximately two years.
Q. On the night of April 4, 1980, I ask you to go back to that night, did you have an occasion on that night to speak with Mr. Quimby?
A. Yes, I did.
Q. And did he talk to you that night about manufacturing methamphetamine?
A. Yes, he did.
Q. And where did he say this had been manufactured?
A. In his lab.
^ sft Hi sf!

Defendant argues that the trial court erred in allowing Worley to testify about a “confession” made by the defendant when no notice was given to the defendant of the state’s intent to use such confession and the “confession” was not supplied to defendant in compliance with his discovery motion.

La.C.Cr.P. Art. 716 provides in pertinent part:

Hi Hi H! Hi *fi H*
B. Upon motion of the defendant, the court shall order the district attorney to inform the defendant of the existence, but not the contents, of any oral confession or statement of any nature, made by the defendant, which the district attorney intends to offer in evidence at the trial, with the information as to when, where and to whom such oral confession or statement was made.

La.C.Cr.P. Art. 768 states as follows:

If the state intends to introduce a confession or inculpatory statement in evidence, it shall so advise the defendant in writing prior to beginning the state’s opening statement. If it fails to do so a confession or inculpatory statement shall not be admissible in evidence.

A confession admits the commission of a crime, whereas the inculpatory statement admits a fact, circumstances, or involvement which tends to establish guilt or from which guilt may be inferred. As used in Article 768, the term inculpatory statement refers to the out-of-court admission of incriminating facts made by a defendant after the crime has been committed. It relates to past events. State v. Brumfield, 329 So.2d 181 (La.1976).

According to Worley’s testimony, the defendant did not admit the commission of the instant crime, i.e., the manufacture of methamphetamine, but only asserted that methamphetamine had been manufactured in his [defendant’s] lab. Therefore, defendant’s oral assertion was an inculpato-ry statement, not a confession.

Equally apparent is that the statement was clearly within the purview of La.C.Cr.P. Art. 716(B). Therefore, the state was obligated to inform the defendant of the existence of the oral statement with corresponding information relative to when, where and to whom such statement was made. State v. Bonanno, 373 So.2d 1284 (La.1979). By virtue of its second supplementary answer of January 30, 1981, the state did put the defense on notice that it intended to introduce evidence of the sale to Worley of a substance represented to be methamphetamine in or around Georgetown, Texas, on April 4,1980. Additionally, on the day of trial, the Article 768 notice was filed. Considering the fact that the defense motion for discovery was not filed until January 26, 1981, or received by the state until January 27, 1981, it would be ludicrous to accuse the state of tardiness or delaying tactics. Furthermore, defendant has failed to show that he has prejudiced by the state’s failure to provide the information by January 29, 1981, rather than February 2, 1981, a mere four days later. Under the statute, defendant was not entitled to the content of the statement but only to notice of its existence as well as when, where and to whom it was made. State v. Quincy, 363 So.2d 647 (La.1978). This information was adequately contained in the second supplemental answer and the timely filed “768 Notice.”

If the defendant had suffered any prejudice by the filing at this time, he should have filed a motion for a continuance. This he did not do. Because defendant has failed to show any real prejudice resulting from the late response, there is no reversible error. State v. Vaccaro, 411 So.2d 415 (La.1982); State v. Norwood, 396 So.2d 1307 (La.1981).

Our conclusion that these assignments of error are meritless is further supported by the fact that the defense failed to properly assert the basis for its objection to the admissibility of the statement under the auspices of La.C.Cr.P. Art. 716 and its further failure to seek the remedies afforded by La.C.Cr.P. Art. 729.5 which are applicable in cases of failure to comply with discovery statutes. Therefore, the trial court was not given the opportunity to properly rule on the objection which was solely objected to on the basis that the statement was inadmissible hearsay, that it almost amounted to a confession, and that no advance notice was given.

As we stated in State v. Bonanno, supra, at pages 1288-1289;

. . . However, in the instant case, Dor-man’s arguments that the court erred in not excluding the evidence concerning his telephone statements or declaring a mistrial based on the state’s failure to provide mandated pretrial discovery are unavailing. Notwithstanding his status as the moving party in connection with the discovery motion, the defendant did not provoke a hearing at which the trial court could have been called upon to judge the sufficiency of the state’s response. Therefore, even though a defense request was couched in language which literally tracked the statute (clearly indicating entitlement to a response to the request for the information sought), Dorman did nothing to call to the court’s attention the need for, and his entitlement to, an order mandating the discovery of the information sought. Dorman’s inaction effectively deprived the trial judge of an opportunity to make a ruling which would have prevented the commission of error. Even though the discovery motion is a written motion, in connection with which an objection is ordinarily not required to permit the urging of error on appeal (C.Cr.P. art. 841), the accepted procedure utilized in connection with discovery motions, as in the case of applications for particulars, virtually precludes the court’s scrutiny unless the defense provokes a hearing to dispute the sufficiency of the state’s response and thus causes the matter to be brought to the court’s attention.
Furthermore, during the course of trial when the focus of the state’s examination clearly disclosed it would present evidence which the defense had a right to discover prior to trial the defense not only declined to argue the clear provisions of Article 716 which would have evidenced the merit of its objection, but failed to seek the remedies afforded by Code of Criminal Procedure Article 729.5 in the case of a failure to comply with the discovery statutes. At that juncture, had defense more fully articulated the right he asserted and the basis for that right, the trial judge could have elected to permit discovery at that point and grant a recess, if one was deemed necessary, to allow defense the opportunity to prepare to meet the evidence. We conclude that by failing to object, in any way to the state’s response, by failing to state for the court during trial his basis for complaining of the lack of discovery, and by failing to request the trial court to grant one of the remedies provided by article 729.5 for failing to comply with the discovery rules, Dorman effectively waived his right to be afforded any relief on appeal.

(Citations and footnotes omitted.)

We therefore conclude in the instant case as we did in Bonanno, that the defendant by his failure to object to the state’s response to his motion for discovery, to state clearly for the trial court his basis for complaint, and to request the granting of any of the remedies afforded by La.C. Cr.P. Art. 729.5 for failure to comply has effectively waived his right to complain on appeal in connection therewith.

Additionally, we have held that even if the state had failed to notify the defendant of an inculpatory statement, the error may be harmless if the remaining evidence of guilt is overwhelming. State v. Perry, 408 So.2d 1358 (La.1982). In the instant case, the drugs and paraphernalia found on defendant’s premises as a result of the search combined with the testimony of the state’s expert witness and the defendant’s admission that he manufactured the drugs even though he contended that he did not know what he had made constitutes overwhelming evidence of the defendant’s guilt.

These assignments of error lack merit.

ASSIGNMENTS OF ERROR NOS. 4 AND 5

In these assignments of error, defendant contends that the trial judge erred in denying his motion for new trial on the grounds that newly discovered evidence revealed that the probable cause basis for the search warrant was based on an illegally obtained confession of Ovis Staggs, Jr. He additionally contends that the trial judge erred in refusing to allow him to file a motion to suppress prior to sentencing but after conviction in connection with a hearing on his motion for a new trial.

Defendant argues that he did not discover that the affidavit in support of the issuance of the search was based on the illegally induced confession of Staggs until after trial. As we read the record, defense counsel in reality does not contend that he has actual knowledge that the confession of Staggs was illegally obtained but argues “on information and belief, to me, I have alleged that it contains on the fact of it, certain inducements, coercions, impelling questions, etc. .. ”

The search warrant with its supporting affidavit was filed of record on April 25, 1980, and all counsel for defendant acknowledged that the information contained therein was readily available to them shortly thereafter. The affidavit clearly states in pertinent part:

That within the past 24 hours, two suspects, Doyle Max Quimby and Ovis L. Staggs, Jr., were arrested in the state of Texas while in possession of a large quantity of methamphetamine. Upon subsequent questioning, after being properly advised of his constitutional rights, suspect Ovis L. Staggs, Jr., related the following information to Louisiana State Police Trooper Robert Ellis, who was present during the arrest. .. (Emphasis added.)

As stated above, defendant does not contend that he had no knowledge of Staggs’ “confession” or that he was unaware that it constituted the main thrust of the probable cause for the issuance of the warrant which resulted in the search of his facilities with the accompanying seizure. Rather his contention is that until after trial he lacked sufficient “information and belief” on which to file a motion to suppress the evidence seized. This newly discovered evidence of Staggs’ illegally obtained confession based on “information and belief” also forms the basis for defendant’s motion for new trial which was denied by the trial judge.

La.C.Cr.P. Art. 703(C) provides in part as follows:

C. A motion filed under the provisions of this Article must be filed in accordance with Article 521, unless opportunity therefor did not exist or neither the defendant nor his counsel was aware of the existence of the evidence or the ground of the motion, or unless the failure to file the motion was otherwise excusable. The court in its discretion may permit the filing of a motion to suppress at any time before or during the trial. (Emphasis added.)
La.C.Cr.P. Art. 521 provides:
Pre-trial motions shall be made or filed within fifteen days after arraignment, unless a different time is provided by law or fixed by the court at arraignment upon a showing of good cause why fifteen days is inadequate.
Upon written motion at any time and a showing of good cause, the court shall allow additional time to file pre-trial motions.

It is abundantly clear from the above quoted statutes that the motion to suppress is a pre-trial motion which, at the latest, may be filed during trial if opportunity therefor did not exist prior to trial or if neither the defendant nor his counsel was aware of the existence of the evidence or the grounds for the motion or if the failure to file the motion was otherwise excusable. Article 703 does not permit such a motion to be filed after trial.

In the instant case, the defendant did not file a motion to suppress prior to trial or during trial. Instead, he objected to some of the evidence offered at trial on the grounds of relevance.

When tangible objects are sought to be excluded from evidence on the basis of an unconstitutional search or seizure, a defendant must timely file a motion to suppress such evidence. Otherwise, he is deemed to have waived any objection to its admission based on an infirmity in the search and seizure. Since no motion to suppress was timely filed in the instant case defendant cannot now complain on appeal that the objects were seized pursuant to an unconstitutional search. State v. Williams, 362 So.2d 530 (La.1978); State v. Johnson, 333 So.2d 286 (La.App.1976).

Therefore, the trial court’s ruling refusing to allow defendant to file the untimely motion to suppress at the hearing on the motion for new trial was not error. Ample opportunity existed for a timely filing of the motion. The fact that the confession existed and was used as the probable cause basis for the search warrant was known or should have been known to the defendant and his respective counsel shortly after his arrest. Under the particular facts presented by this case, there are no excusable grounds for defendant’s failure to timely file such a motion.

La.C.Cr.P. Art. 851 provides 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 ease 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:
******
(3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty;

In essence, what defendant attempted to do via the vehicle of a motion for new trial was to conduct a motion to suppress hearing and if that failed, to file an untimely motion to suppress. Both procedures are clearly prohibited under our procedural structure.' We have recently held and again hold that raised for the first time in a motion for new trial or other post trial motion, constitutional objections under the Fourth Amendment and La. Constitution Article I § 5 are clearly untimely. See State v. Bolton, 408 So.2d 250 (La.1982).

We further, therefore, conclude that the alleged “new and relevant evidence” which defendant asserts does not withstand the “due diligence test” of La.C. Cr.P. Art. 851 for the reasons discussed prior. Simply stated, the “newly discovered evidence”, if any, could have been discovered prior to trial with the exercise of due diligence on the part of defense counsel.

The law is well settled that the proposed newly discovered evidence must not only be newly discovered but also not discoverable by reasonable diligence before the verdict for it to justify the granting of a new trial. State v. Motton, 395 So.2d 1337 (La.1981). The decision on a motion for new trial rests within the sound discretion of the trial judge and his ruling will not be disturbed on appeal in the absence of a clear showing of abuse of discretion. State v. Molinario, 400 So.2d 596 (La.1981). The trial court was correct in its ruling.

Additionally, we note that defense counsel argues that had he proved Staggs’ confession was illegally induced or obtained, that this undoubtedly would have resulted in the evidence resulting from the search being suppressed citing State v. Bouffanie, 364 So.2d 971 (La.1978); and State v. Williams, 385 So.2d 214 (La.1980). These cases do not stand for the proposition that a defendant has standing to attack a search warrant based in necessary part on an illegally obtained confession of another. However, this issue has been squarely addressed in State v. Singleton, 376 So.2d 143 (La.1979).

In Singleton, a juvenile was not adequately informed of his rights prior to his being questioned by the police. His questioning implicated defendant in several burglaries and described items stolen in the burglaries as well as where defendant had hidden them. Armed with this information, the officers obtained a search warrant for the defendant’s mother’s home and retrieved the stolen goods. On appeal with regard to the suppression of the evidence, we stated as follows:

Undoubtedly, Grogan [the juvenile] could have complained that his statement and the evidence secured as a result thereof should be suppressed as having been obtained in violation of his constitutional rights; however, the question is whether the defendant has standing to challenge the violation of Grogan’s rights.
We believe that he does not have such standing.
The basis for warnings required by the Fifth Amendment is the privilege against self-incrimination and that privilege is not violated when the information elicited from an unwarned suspect is not used against him. People v. Varnum, 66 Cal.2d 808, [59 Cal.Rptr. 108] 427 P.2d 772 (1967). For that reason, the noneoercive questioning of Grogan was not in itself unlawful, and could have legally been used as probable cause for the issuance of a search warrant. Accordingly, if the search warrant was lawfully obtained, the evidence secured thereby was not in violation of defendant’s Fourth Amendment constitutional rights. (376 So.2d at 145.)

For all of the above reasons, these assignments of error are without merit.

ASSIGNMENTS OF ERROR NOS. 5, 6, AND 7

In these assignments of error, defendant objects to his sentence as being excessive and claims that the trial judge erred in his consideration of the guidelines of La.C.Cr.P. Art. 894.1 in that he failed to consider that the forty-four year old defendant is handicapped and has no prior convictions.

Upon conviction, defendant was exposed to a maximum imprisonment at hard labor for not more than ten years and a fine of not more than $15,000. The actual sentence imposed was nine years at hard labor and a fine of $5,000.

In the instant case, the trial court allowed defense counsel access to the pre-sen-tence report and stated at the sentencing hearing that he had considered the sentencing guidelines set forth in Article 894.1. It noted that although possessing only a ninth grade education and being handicapped, defendant had, through self-education, taught himself to manufacture high quality methamphetamine, an extremely complex drug, from a well equipped field laboratory that he had set up on his property in rural Caldwell Parish. The court further noted that the pre-sentence investigation revealed that defendant was part of a well-organized drug ring and was one of the major suppliers of methamphetamine to East Texas. The quantity of the drug seized was noted in support of the court’s conclusion that the drug was not manufactured for self use. Additionally, the court noted the lack of evidence of any motive, provocation or excuse for the manufacturing other than profit and the harmful effects of the drug which had been made available to a wide range of individuals. Although defendant had no prior criminal record, he never admitted his wrong and expressed no remorse for his actions. Because the trial court had the benefit of hearing the evidence adduced at trial, there is a sufficient basis to accept his conclusions as being valid.

Defendant does not dispute the trial court’s conclusions but argues erroneously that the trial judge did not consider the defendant’s handicap and ability to respond to probationary treatment. As evidenced by his considerations and conclusions, the trial judge not only considered these factors but adequately explained why they did not warrant a less severe sentence. Furthermore, no effort was made at the sentencing hearing to rebut the factual considerations on which the sentence was based.

Article I § 20 of the Louisiana Constitution of 1974 prohibits the imposition of excessive punishment. Accordingly, in State v. Sepulvado, 367 So.2d 762 (La.1979), this court held that although within the statutory limit, a sentence might violate a defendant’s constitutional right against excessive punishment. While a trial court is given wide discretion in the imposition of sentences within statutory limits and a sentence imposed will not be set aside as excessive in the absence of an abuse of that discretion, the court does not have unbridled discretion in the imposition of a sentence. State v. Sepulvado, supra.

The purpose of La.C.Cr.P. Art. 894.1 is to provide the trial court with guidelines so that it may individualize the sentence to fit the particular defendant, considering his background and the offense committed. It is obvious in the instant case that these guidelines were considered by the court in arriving at the conclusion that there was an undue risk that during the period of a suspended sentence or probation the defendant would commit another crime and that he was in need of correctional treatment which could be most effectively provided by com-mittment to an institution. The court further felt that a lesser sentence than that imposed would deprecate the seriousness of the defendant’s crime.

Defense counsel finally argues that defendant’s sentence is excessive compared to the sentence imposed by the same judge on defendant Staggs. There is nothing in the law that requires that a sentencing judge treat co-defendants equally. State v. Rogers, 405 So.2d 829 (La.1981). To the contrary, in State v. Sepulvado, supra, we noted:

In providing a wide range of criminal sanctions for violations of a statute, the legislature obviously intends that the judge shall exercise his sentencing discretion to impose sentences gradated according to the individualized circumstances of the offense and of the offender. (367 So.2d at 766.)

This does not mean that disparity in sentences of co-defendants with similar backgrounds, charged with similar participation in identical crimes may not be considered as a factor in determining whether a sentence is excessive and out of proportion to the severity of a crime. It is only a factor to be considered along with all other appropriate considerations when there is no reasonable basis in the record for the disparity. State v. Sims, 410 So.2d 1082 (La.1982). Although we do not have the entire record before us in State v. Ovis L. Staggs, Jr., the information made available to us for our review fully justifies the disparity in the sentences of these two co-defendants.

We conclude that the reasons set forth by the trial judge show not only that the sentencing guidelines were followed but that this was a studied rather than an arbitrary decision. We conclude that the trial court did not abuse its discretion in the imposition of defendant’s sentence.

These assignments of error are without merit.

DECREE

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

DENNIS, J., concurs with reasons.

SEXTON, J., concurs disagreeing with the treatment of Assignments # 2 and # 3.'

DENNIS, Justice,

concurring.

I concur but disagree with the treatment of assignments four and five, and with the unnecessary remarks regarding standing and State v. Singleton, 376 So.2d 143 (La.1979).

       Judges William Norris, III, and Fred C. Sexton, Jr., of the Court of Appeal, Second Circuit, and Judge Robert L. Lobrano of the Court of Appeal, Fourth Circuit, participated in this decision as Associate Justices pro tempore, joined by Associate Justices Pascal F. Calogero, Jr., James L. Dennis, Jack C. Watson, and Harry T. Lemmon.

      . After the defense objected on the first day of trial to the joinder of the two offenses, the defendant was tried only on the manufacturing charge.

      . Defendant’s first attorney withdrew January 21, 1981 by written motion.

      . La.C.Cr.P. Art. 767 provides:
      The state shall not, in the opening statement, advert in any way to a confession or inculpa-tory statement made by the defendant.

      . La.C.Cr.P. Art. 729.5 provides:
      if at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this Chapter or with an order issued pursuant to this Chapter, the court may order such party to permit the discovery or inspection, grant a continuance, order a mistrial on motion of the defendant, prohibit the party from introducing into evidence the subject matter not disclosed, or enter such other order, other than dismissal, as may be appropriate.

      . Quimby and Staggs were arrested at the same time but charged separately.

      . Defendant’s appellate counsel is his third retained counsel. His first counsel withdrew pri- or to trial and the second counsel withdrew after the trial but before sentencing.

      . La.C.Cr.P. Art. 894.1 provides:
      A. When a defendant has been convicted of a felony or misdemeanor, the court should impose a sentence of imprisonment if:
      (1) There is an undue risk that during the period of a suspended sentence or probation the defendant will commit another crime;
      (2) The defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution; or
      (3) A lesser sentence will deprecate the seriousness of the defendant’s crime.
      B. The following grounds, while not controlling the discretion of the court, shall be accorded weight in its determination of suspension of sentence or probation:
      (1) The defendant’s criminal conduct neither caused nor threatened serious harm;
      (2) The defendant did not contemplate that his criminal conduct would cause or threaten serious harm;
      (3) The defendant acted under strong provocation;
      (4) There was substantial grounds tending to excuse or justify the defendant’s criminal conduct, though failing to establish a defense;
      (5) The victim of the defendant’s criminal conduct induced or facilitated its commission;
      (6) The defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sustained;
      (7) The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the instant crime;
      (8) The defendant’s criminal conduct was the result of circumstances unlikely to recur;
      (9) The character and attitudes of the defendant indicate that he is unlikely to commit another crime;
      (10) The defendant is particularly likely to respond affirmatively to probationary treatment; and
      (11) The imprisonment of the defendant would entail excessive hardship to himself or his dependents.
      C.The court shall state for the record the considerations taken into account and the factual basis therefor in imposing sentence.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Leonard MOORE.
    No. 81-KA-3333.
    Supreme Court of Louisiana.
    Sept. 7, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., Allen Harvey, Asst. Dist. Atty., for plaintiff-appellee.
    Martha E. Minnieweather, Bastrop, for defendant-appellant.
   WILLIAM H. BYRNES, III, Justice Pro Tern.

Defendant, Leonard Moore, was charged by bill of information on June 23,1980 with extortion, a violation of La.R.S. 14:66. He pled not guilty and was tried by a jury on Sept. 29-30, 1981. He was found guilty and, on October 30, 1981, was sentenced to eleven years hard labor. Defendant appeals his conviction and sentence designating 6 assignments of error. The facts brought forth at trial are as follows.

On May 15, 1980 defendant, an on duty commissioned police officer with the Bas-trop City Police, approached a parked vehicle on a secluded road in Bastrop. In the vehicle were two young adults who apparently had been engaging in sexual intercourse. The defendant informed them that they were parking on a public highway and committing public obscenity. He told them that since two charges were involved he would have to arrest them. He refused their request to be allowed to dress. Having taken the male to the patrol car the defendant suggested to the female that if she would expose herself to him he would forget the charges against them. She acquiesced and the defendant inspected her with his flashlight. He then had the victims follow him to another near-by location. When they arrived the defendant began to fill out “field contact cards” on the victims and again stated that since two charges were involved he would have to arrest them. However, after filling out the cards, the defendant told the female, out of the presence of the male, that if she would have intercourse with him he would forget the whole incident. She submitted. After having intercourse with her the defendant tore up the field contact card and told the couple they were free to go. The couple agreed not to discuss the incident with anyone but the male eventually did. This led to the defendant’s arrest on June 9, 1980.

ASSIGNMENT OF ERROR I.

By this assignment the defendant contends that the trial court erred in allowing the state to introduce the pieces of the field contact cards found near the scene of the crime.

The standard for the admission of demonstrative evidence is set forth in State v. Drew, 360 So.2d 500 (La.1978), and reads as follows:

To admit demonstrative evidence at trial the law requires that the object be identified. The identification can be visual, that is, by testimony at the trial that the object exhibited is the one related to the case. It can also be identified by chain of custody, that is, by establishing the custody of the object from the time it was seized to the time it was offered in evidence. State v. Robertson, 358 So.2d 931 (La.1978); State v. King, 355 So.2d 1305 (La.1978); State v. Dotson [260 La. 471], 256 So.2d 594 (1971). For the admission of demonstrative evidence, it suffices if the foundation laid establishes that it is more probable than not that the object is the one connected with the case. State v. Robinson, supra; State v. King, supra; State v. Williams, 341 So.2d 370 (La.1976) State v. Collins, 328 So.2d 674 (La.1976). Lack of positive identification goes to the weight of the evidence rather than to its admissibility. Ultimately connexity is a factual matter for determination by the jury. State v. Robinson, supra. State v. King, supra. State v. Hayes, 306 So.2[d] 705 (La.1975); State v. Freeman, 306 So.2d 703 (La.1975); State v. Dotson, supra; State v. Wright [254 La. 521], 225 So.2d 201 (1969)

This standard has been consistently followed by this court. See State v. Davis, 411 So.2d 434 (La.1982); State v. Tauzier, 397 So.2d 494 (La.1981); State v. Godeaux, 378 So.2d 941 (La.1980).

Defendant contends that the state failed to lay a proper foundation for the introduction of the evidence by not establishing either visual identification or chain of custody, C.Cr.P. Article 773. This contention is without merit.

The male victim testified that the defendant filled out field contact cards on both his companion and himself. He was in the patrol car while the defendant had intercourse with the female in the other vehicle. He saw the defendant tear up the cards when he returned to the patrol car. On May 19th the male accompanied Officer Downs of the Bastrop police to the scene of the crime. There they found pieces of the contact cards. Downs testified that he photographed them where they lay, collected the scraps, placed them in an initialed and dated plastic bag, and turned them over to Captain Neatherly of the Bastrop police.

Neatherly testified that he received the bag containing the scraps from Downs on May 22, 1980, and submitted the pieces to the crime lab in Monroe on May 29,1980 for handwriting analysis. He visually identified the bag with the scraps in court by his initials and the date marked on the package. Captain Neatherly had possession of the exhibit while it was not at the crime lab. Other field contact cards filled out by the defendant were also submitted to the crime lab for comparison with the torn pieces found at the scene of the crime. Captain Neatherly testified to the chain of custody for those cards and additionally identified them visually in open court.

Robert Foley, the forensic document examiner who conducted the analysis of the handwriting on the cards, visually identified the exhibits as those submitted to him by Captain Neatherly. Chain of custody was also established. Foley stated that there was “strong reason to believe or highly probable that the person who wrote the writing on these contact cards and tickets also wrote the writing on the pieces of contact cards.”

This record leaves no doubt that the state established that it was more probable than not that the exhibits were connected with the case. State v. King, supra; State v. Davis, supra. The question of connexity and the weight to be given to these exhibits was a question for the jury to answer. This assignment of error lacks merit.

ASSIGNMENT OF ERROR II.

By this assignment the defendant contends that it was error to allow into evidence three photographs of the location where the contact cards were found. He urges that the photos were irrelevant or, in the alternative that their prejudicial impact outweighed their probative value. La.R.S. 15:441 defines relevant evidence as:

“. . . that tending to show the commission of the offense and the intent, or tending to negative the commission of the offense and the intent. Facts necessary to be known to explain a relevant fact, or which support an inference raised by such fact, are admissible.”

The use of photographs as graphic portrayals of oral testimony has long been recognized. A photograph becomes admissible when a witness has testified that it is a correct and accurate representation of what was personally observed by that witness. McCormick Evidence (1972 edition) Section 214. Photographs have been held admissible to show the site from which evidence has been obtained and to establish the connexity between the evidence and the facts of the case at issue. State v. Sneed, 328 So.2d 126 (La.1976). The test of admissibility is whether the probative value of the photograph outweighs the possible prejudice which might result from its display to the jury. State v. Gallow, 338 So.2d 920 (La.1976).

The photographs of the area where the contact cards were found are relevant because they corroborated the testimony of the victims and aided the jury in its understanding of that testimony. Officer Downs testified that he took the pictures. He brought them with him to court and visually identified them. The photographs cannot be said to be prejudicial in and of themselves. A proper foundation for their introduction was laid. The trial court has considerable discretion in admitting photographs. Its ruling will not be disturbed in the absence of an abuse of that discretion. State v. Gallow, supra; State v. Gibson, 271 So.2d 868 (La.1973). We find no error in the admission of these photographs. This assignment lacks merit.

ASSIGNMENT OF ERROR III.

In this assignment defendant contends that the trial court erred in allowing a page of the police radio log to be submitted into evidence. The keeper of the log, Officer Hindom, testified that he prepared the log on the night of the crime. He further testified as to the accuracy of all pertinent entries. There were some markings which Officer Hindom could not account for. These markings do not effect the substance of the document, however, and therefore are not prejudicial, La.R.S. 15:45s.

Defendant further contends that the state failed to establish the chain of custody necessary to lay the foundation for the admission of the log. The record clearly establishes that Captain Neatherly had the document in his possession from the time of its removal from the log book until its admission into evidence. In addition Officer Hindom visually identified the exhibit. The document was clearly connected to the case. We find that a proper foundation was laid by the state for the admission of this exhibit.

The original log entry was introduced by the state, therefore the defendant’s contention that the certification required by La.R.S. 15:457 was not obtained is without merit.

Defendant’s final argument on this assignment of error asserts that the log page should have been excluded since the original tape recording of the radio transmissions is the best evidence of the substance of those transmissions. La.R.S. 15:436 requires that “the best evidence which, from the nature of the case must be supposed to exist, and which is in a party’s control, must be produced”. However this court has held that, absent a showing of some prejudice to the defendant, the best evidence rule will not be applied unreasonably. State v. Bennett, 341 So.2d 847 (La.1977); State v. Fallon, 290 So.2d 273 (La.1974). Defendant failed to show how he was prejudiced by the introduction of the log page. He asserts that the tape recordings of the radio transmission would have accounted for the unexplained markings on the log page. However, since the defendant has admitted in his brief to this court that the markings do not alter the substance of the log entry, the trial court’s ruling, even if erroneous, does not present reversible error, State v. Bennett, supra. La.R.S. 15:458. This assignment lacks merit.

ASSIGNMENT OF ERROR IV.

By this assignment defendant contends that the evidence used to convict him was insufficient to support the verdict. He argues that the state failed to prove an essential element of extortion, namely the intent to obtain anything of value by communication of threats.

The standard of review of sufficiency of evidence requires consideration of the evidence in the light most favorable to the prosecution to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. West, 408 So.2d 1302 (La.1982); State v. Edwards, 400 So.2d 1370 (La.1981); Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). A rational trier of fact would have no trouble finding all the essential elements of extortion to be present in this case. The defendant told the victim he would not arrest and prosecute her if she had sexual relations with him. Given his status as a uniformed police officer these threats carried great weight. Sexual favors are “anything of value” in the sense intended by La.R.S. 14:66. State v. Dupre, 369 So.2d 1303 (La.1979); State v. Felton, 339 So.2d 797 (La.1976).

Defendant contends that the testimony of the two victims contain discrepancies which tend to prove his claim of insufficient evidence. Our review of the record indicates that the victims’ testimony is substantially consistent in its essentials. Moreover, the threats were made to the female victim out of the presence of the male. Her testimony alone would support the defendant’s conviction. This assignment lacks merit.

ASSIGNMENT OF ERRORS NO.’S V. & VI.

Here the defendant asserts that the trial court erred in failing to comply with C.Cr.P. Art. 894.1 and that his sentence is excessive. He further complains that the trial court erred in denying him bail pending appeal. A review of the sentencing record indicates that the trial court considered numerous factors, both aggravating and mitigating, in imposing sentence. These factors included the psychological impact of the defendant’s conduct on his victim, the absence of provocation or justification for his actions, the lack of evidence tending to show that the victim induced or facilitated the crime, the defendant’s obvious understanding of the harm his actions would cause, and the unavailability of monetary compensation for his victim. The defendant’s lack of a prior criminal record, the possible hardship defendant’s imprisonment could have on his family, and the chance that the defendant could be successfully rehabilitated by probationary treatment were also considered. The trial court expressed deep concern over the defendant’s serious abuse of the public trust placed in him as a police officer and clearly felt that a lesser sentence would deprecate the seriousness of the crime.

From the foregoing it is clear that the trial judge adequately complied with the sentencing guidelines of Art. 894.1 and set forth a record sufficiently detailed to allow for a reasoned review for excessiveness. State v. Williams, 397 So.2d 1287 (La.1981).

As a general rule a sentence is excessive “if it is grossly out of proportion to the severity of the crime, or if it is nothing more than the purposeless and needless imposition of pain and suffering”. State v. Bonanno, 384 So.2d 355 (La.1980).

The pre-sentence investigation reveals that the defendant is a 27 year old male, married with three children. He had been a police officer since 1977. Supervisors in the police department were more or less equally divided as to the defendant’s performance. About one half thought he was a good and conscientious officer, the other half found him negligent in performing his duties and did not think he carried his share of the work. Defendant has been working on construction jobs since his termination from the police department in the wake of the instant charges. Defendant continues to deny his guilt, alleging a “frame up” by the Chief of Police.

In the circumstances presented by this case we do not feel that an eleven year sentence is excessive. The maximum sentence for extortion is fifteen years at hard labor. The trial court did not impose this sentence because of the defendant’s first offender status. The sentencing judge felt it was unlikely that the defendant could use the coercive power of his status as a policeman to repeat his crime. However, he also felt that the defendant’s conduct indicated that he might use some other type of force or intimitation in the future to achieve the same end. Most importantly the defendant’s conduct realizes the worst fears in the public’s mind concerning the abuse of police power. His crime is repulsive and without justification. Law enforcement officials should be held to the strictest standards of good conduct. The effect of abuse of the public trust in the police has ramifications which go far beyond the harm to the individual victim. Society as a whole is damaged. Respect for the law and trust in the fairness of our system of law enforcement are damaged by conduct such as defendant’s. His conduct in this case is closely akin to rape. We find no abuse of the great discretion given the trial judge in tailoring a sentence to the individual criminal and crime involved by his imposition of an eleven year sentence. State v. Washington, 414 So.2d 313 (La.1982); State v. Abercrumbia, 412 So.2d 1027 (La.1982). This assignment lacks merit.

Finally defendant contends that the trial judge erred in denying him bail pending appeal. La.C.Cr.P. Art. 314 makes it clear that the granting or denial of bail pending appeal, where the sentence actually imposed is greater than five years, is within the sound discretion of the trial judge. Here the trial judge denied bail based on the circumstances of the offense. We cannot say that this was an abuse of discretion. State v. Tucker, 354 So.2d 521 (La.1978); State v. Prestridge, 399 So.2d 564 (La.1981).

The conviction and sentence are affirmed.

AFFIRMED.

DIXON, C. J., concurs in affirming the conviction but dissents from affirming the sentence.

       Judges Charles R. Ward, William H. Byrnes, III and David R. M. Williams of the Court of Appeal, Fourth Circuit, participated in this decision as Associate Justices pro tempore, joined by Chief Justice Dixon and Associate Justices Marcus, Blanche and Lemmon.

      . La.R.S. 15:458. The party relying upon a written instrument must, before such instrument is receivable in evidence, satisfactorily account for any erasure or interlineation which operates a substantial change of such instrument.

      . La.R.S. 15:457. A copy of a document, certified to by the officer who is legal custodial of the same is equivalent to the original in authenticity; but the certificate of an officer to any matter not under the general powers vested in him is no evidence at all.


author: LaBORDE, Judge.

text:
    Emile K. VENTRE, Plaintiff-Appellant, v. PACIFIC INDEMNITY COMPANY, Defendant-Appellee.
    No. 7966.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1982.
    Rehearing Denied July 26, 1982.
    Writ Denied Nov. 5, 1982.
    Guglielmo & Lopez, James C. Lopez, Opelousas, for plaintiff-appellant.
    Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, Robert L. Cabes, Lafayette, for defendant-appellee.
    Bell, Faller & West, David Bell, Baton Rouge, for defendant-appellee.
    Before GUIDRY, STOKER and LA-BORDE, JJ.
   LaBORDE, Judge.

Emile K. Ventre, plaintiff-appellant, seeks to recover damages for the total loss of a Fairchild airplane insured by Pacific Indemnity Company, defendant-appellee, which crashed- on June 7, 1967, while being flown by Robert Moody. The trial court granted a judgment in favor of Pacific. We affirm.

On April 19, 1967, Ventre purchased the airplane in his name. He subsequently entered into an agreement of sale with Robert Moody which provided that Moody would purchase a one half interest in the airplane on an installment basis. Moody had permission to fly the airplane whenever he desired. Operational costs such as hanger rent, gas and oil, etc., were to be paid by Ventre and Moody.

Ventre obtained a binder for insurance on the airplane. The insurance binder named Ventre and Moody as authorized pilots.

On or about May 24, 1967, Moody gave Ventre a check for $165 representing the first installment payment on their agreement. The check was returned “NSF”. Ventre became dissatisfied with Moody, called the insurance agent and had Moody’s name removed from the binder of insurance. On June 3,1967, he called the people at the local airport, Opelousas Flying Service, and told them Moody was not authorized to fly the plane. He followed his phone call by a personal visit to the airport and again told them Moody was not authorized to fly the plane. He told Moody the “deal was off” because Moody had failed to make proper payment on the airplane and had failed to qualify for insurance coverage.

On June 7, 1967, Moody flew the airplane; it crashed, resulting in a total loss. Ventre filed this suit to recover his loss under the policy of insurance issued by Pacific.

Ventre contends that Moody is not a part-owner of the plane and that his unauthorized use of the plane constitutes theft. Under his theory, Ventre is entitled to recover under the terms of his policy with Pacific.

Pacific contends the plane was owned by Ventre and Moody; Ventre was the only insured pilot, but as part-owner Moody was authorized to fly the plane and there is no coverage under the terms of their policy since he was not a named pilot.

In granting judgment in favor of Pacific, the trial judge held, in part, as follows:

“Ventre contends that he is the sole owner of the plane and that Moody’s use was unauthorized and constituted theft. This contention is necessary as the policy affords coverage for all damage to the plane resulting from its theft but not from its use by another pilot.
The testimony shows that Ventre and Moody entered into an agreement to jointly purchase the aircraft. This agreement was in the form of a conditional sale — Ventre purchased the plane in his own name and Moody was to pay for his one-half interest in the aircraft on an installment basis. (Transcript p. 40). In the common law, this agreement has the effect of maintaining title in the conditional vendor until the conditions of sale are fulfilled. However, in Louisiana, the effects following from that particular contract are those of a completed sale and title passes to the vendee at that time and cannot be rescinded unilaterally. Givens v. Southern Farm Bureau Casualty Insurance Co., 197 So.2d 380 (La.App.1967).
Pursuant to their agreement, Moody delivered a check for $165.00 representing the first installment payment on their agreement. Though the check was dishonored, its tender and acceptance indicates that the price of the thing and the terms of the sale had been agreed upon and that the sale was complete. Moody then owned one-half of the airplane and had an absolute right to its use regardless of insurance coverage.
* * * * * *
Judgment will be rendered in favor of the defendant.”

We agree with the trial judge that the sale of the one half interest in the plane from Ventre to Moody was complete. Even though Louisiana courts have consistently refused to recognize the common law “conditional sale” they have repeatedly held that where all essential elements and conditions for absolute sale are present in a contract between parties, the effect flowing legally from that particular contract follow whether the parties foresaw and intended them or not, and though they may refer to their contract as a conditional sale. LSA-C.C. art. 2439; Givens v. Southern Farm Bureau Casualty Insurance Co., 197 So.2d 380 (La.App. 2nd Cir. 1967), writ refused, 250 La. 902, 199 So.2d 916 (La.1967).

We conclude that under the above cited jurisprudence, the testimony elicited at trial and specifically the testimony of Ventre, a sale of a one half interest in the plane from Ventre to Moody was complete.

Ventre argues, alternatively, that assuming a sale did occur, ownership of the plane did not pass to Moody because the sale was subject to a suspensive condition, i.e., that Moody had to qualify for insurance coverage. We view this condition as resolutory rather than suspensive, such that the failure to comply with the engagements of one of the parties, does not dissolve the contract of right, but rather provides a means, which consists of a suit for dissolution or a demand for specific performance. LSA-C.C. arts. 2046 and 2047.

Moody was named as an authorized pilot in the original binder of insurance. When Ventre had Moody’s name removed from the binder and decided the “deal was off” because of Moody’s NSF check and his failure to qualify for insurance coverage, he could not unilaterally rescind that sale without suit for dissolution. The sale was complete within the intendment of LSA-C.C. art. 2456 and Ventre could not impose further conditions, i.e., full payment and/or full insurance coverage.

For the reasons assigned the judgment of the trial court is affirmed at appellant’s costs.

AFFIRMED.

      . The stipulated value of the airplane on the date of the crash was $3,750.00.

      . When the policy of insurance was issued Emile Ventre, M.D. was the only named insured.


author: DOMENGEAUX, Judge. PER CURIAM.

text:
    Geraldine James HINES, Plaintiff-Appellant, v. Wilbur Ray HINES, Curator of John David Hines, Defendant-Appellee.
    No. 8814.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1982.
    Rehearing Denied July 21, 1982.
    Writ Denied Oct. 8, 1982.

      Steven Broussard, Lake Charles, for plaintiff-appellant.
    Camp, Carmouche, Palmer, Barsh & Hunter, Wade N. Kelly, Lake Charles, for defendant-appellee.
    Before DOMENGEAUX, CUTRER and SWIFT, JJ.
   DOMENGEAUX, Judge.

This is an appeal by plaintiff, Geraldine Hines, from a judgment on a rule of the district court denying her alimony pendente lite, and further limiting child support for her two minor children, both of whom are in her physical custody. The defendant-ap-pellee in this action is Wilbur Hines, Curator of John David Hines.

A brief resumé of the facts shows that petitioner married John D. Hines in 1965. Two children were born to them who are now 16 and 13 years of age. Mr. Hines was interdicted (Interdiction of John David Hines, Docket No. 77-954, Fourteenth Judicial District Court, Calcasieu Parish, Louisiana) in the year 1977 because of severe organic brain damage. The condition of Mr. Hines is such that he is now required to stay in an institution, and he is presently in the Veterans Hospital in Gulfport, Mississippi.

In contemplation of divorce and/or separation proceedings, the parties, on December 22, 1979, entered into a matrimonial agreement dividing, the property acquired by the community of acquets and gains. They opted for a separate maintenance regime, pursuant to Act 709 of the 1979 Louisiana Legislative Session, with court approval for the curator’s action on behalf of the interdict. The bulk of the assets partitioned consisted of a large block of stock inherited by Mr. Hines, and the community consisted largely of assets acquired with dividends received from that stock.

Thereafter, this suit was instituted by Mrs. Hines for legal separation (based on living separate and apart in excess of one year), custody, alimony, and child support. Defendant reconvened for a separation on the grounds of abandonment. Subsequently, Mrs. Hines amended her petition to delete her request for a legal separation, instead seeking support from her husband’s estate pursuant to La.C.C.P. Article 4556. A hearing was set for a rule to show cause why defendant should not be required to pay support, after which judgment was rendered denying Mrs. Hines support for herself, but awarding her support for the use and benefit of the two minor children in the amount of $1,000.00 per month. From this adverse judgment, she appeals. We affirm the denial of alimony pendente lite to petitioner, but increase the award of child support from $1,000.00 per month to $2,000.00 per month.

The issues presented on appeal are:

(1) Whether or not the trial court erred in treating Mrs. Hines’ claim for support from her interdict’s husband’s estate as a claim for alimony pendente lite.

(2) Whether or not the trial court’s award of $1,000.00 per month for support of the two minor children was excessively low.

ALIMONY PENDENTE LITE

On appeal Mrs. Hines contends that the trial court erred in treating her claim for support as a claim for alimony pendente lite. We disagree.

The right of a wife to be granted alimony pendente lite is governed by La.C.C. Article 148, as amended, which reads as follows:

“If the spouse has not a sufficient income for maintenance pending suit for separation from bed and board or for divorce, the judge may allow the claimant spouse, whether plaintiff or defendant, a sum for that spouse’s support, proportioned to the needs of the claimant spouse and the means of the other spouse.”

Although Mrs. Hines amended her petition to delete her request for a separation, defendant’s reconventional demand for separation remains pending. As such, the trial judge properly relied on La.C.C. Article 148, supra, in determining whether or not Mrs. Hines is entitled to alimony during the pendency of the reconventional demand for separation.

Applying La.C.C. Article 148, supra, our next inquiry is whether or not the trial judge abused his discretion in denying Mrs. Hines alimony pendente lite. As a consequence of the matrimonial agreement dividing the community property of Mr. and Mrs. Hines, Mrs. Hines received assets totaling approximately $650,000.00. Included in these assets are municipal bonds with a maturity yield of about $490,000.00 and a fair market value of $250,000.00, yielding approximately $2,500.00 per month; a promissory note with a face value of between $50,000.00- $70,000.00, paying $468.00 per month; a promissory note with a face value of $100,000.00, bearing interest at 13% and payable in five annual installments of $20,000.00 each plus interest; $30,000.00 in a certificate of deposit; a Mercedes-Benz automobile, four bedroom sets, three sets of living room furniture, two dining room sets, and various other properties. Excluding income she receives from a trust fund established for the two children by Mr. Hines, and the children’s social security, Mrs. Hines’ 1981 income was approximately $81,-000.00. In view of the above we agree with the trial judge who determined that Mrs. Hines has sufficient income for her maintenance, and therefore finding that she is not entitled to alimony pendente lite.

CHILD SUPPORT

It is evident from the record that Mr. Hines over the years prior to his commitment had enjoyed a high financial standard from the income of his businesses and other assets. The mode of living created by Mr. Hines allowed his family almost unlimited financial freedom including country club memberships, summer, camps, trips and vacations, and many other expensive privileges made possible by their father’s financial status.

Under the provisions of La.C.C. Articles 227, 230, and 231 the obligation to support, maintain, and educate minor children is contracted by the parents by the very act of marrying, and nourishment, lodging, support, and education are provided in purportion to the wants of those requiring and according to circumstances of those who are able to pay. Ducote v. Ducote, 339 So.2d 835 (La.1976); Fellows v. Fellows, 267 So.2d 572 (La.App. 3rd Cir. 1972). This obligation includes post high school education. Pettitt v. Pettitt, 261 So.2d 687 (La.App. 2nd Cir. 1972).

We are mindful of the considerable discretion a trial court has in fixing child support. Ducote v. Ducote, supra; Fellows v. Fellows, supra. However, in the present case we find an abuse of that discretion. A careful review of the record convinces us that in light of the circumstances, $1,000.00 per month for child support is grossly inadequate.

The record indicates that Mrs. Hines incurs expenses of around $8,900.00 per month. Approximately $5,900.00 per month or two-thirds of the expenses are incurred in support of the two minor children. The record also reflects that Mr. Hines’ estate’s income from its assets is around $108,000.00 per year, out of which relatively little, if anything, is spent for his care at the VA hospital in Mississippi. The eminent ability of the father’s estate to support his children in a manner and mode to which they are accustomed and which he established is unquestioned, and in view of this, we feel that the award for child support should be raised from $1,000.00 per month to $2,000.00 per month. We so hold, being fully cognizant of the fact that the children also receive approximately $1,300.00 per month from a trust fund and social security benefits.

DECREE

For the reasons assigned, the judgment of the district court is amended to award child support to appellant, Geraldine Hines, for the use and benefit of the two minor children, in the amount of $2,000.00 per month. In all other respects the judgment is affirmed. Costs of this appeal are assessed against defendant-appellee, Wilbur Ray Hines, Curator of John David Hines.

AFFIRMED AS AMENDED.

ON APPLICATION FOR REHEARING

PER CURIAM.

In an application for rehearing counsel for Mrs. Hines calls our attention to the fact that our opinion which amended the district court judgment to increase the amount of child support is silent as to the date that the increase is to commence.

We clarify herein this inadvertent omission, and we now Order, Adjudge, and Decree that the increase in child support referred to is to be effective April 27, 1981, the date upon which Mrs. Hines first filed her petition which included a prayer for custody and child support. Byrd v. Byrd, 335 So.2d 515 (La.App. 1st Cir. 1976).

Defendant-curator is to be given credit for any voluntary or court ordered child support payments made by him since April 27, 1981.

With this Per Curiam Mrs. Hines’ application for rehearing is denied.

      . See La.C.C. Articles 2328, 2329, 2370, and 2374.

      . La.C.C.P. Art. 4556 reads as follows:
      “The curator shall expend that portion of the revenue from the interdict's property as is necessary to care properly for his person and, with the approval of the court, to support his legal dependents. If the revenue is insufficient for these purposes, with the approval of the court in the manner provided in Article 4271, the curator may expend the interdict’s capital.”

      . The issue of the propriety of defendant’s re-conventional demand is not now before us, accordingly we express no opinion thereon.


author: LABORDE, Judge. GUIDRY, Judge,

text:
    Virginia Katherine Pace CROMWELL, Plaintiff-Defendant-in-Rule-Appellant, v. Harvey CROMWELL, Jr., Defendant-Plaintiff-in-Rule-Appellee.
    No. 8864.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1982.

      John W. Porterfield, Jeanerette, for plai ntiff -appellant.
    Cole & Guidry, Robert L. Cole, Lafayette, for defendant-appellee.
    Before GUIDRY, STOKER and LA-BORDE, JJ.
   LABORDE, Judge.

Harvey Cromwell, Jr., filed a rule against his former wife, Virginia Katherine Pace Cromwell, to show cause why alimony previously awarded her in a divorce judgment and modified through the parties’ joint stipulation should not be terminated. The defendant-in-rule (Mrs. Cromwell) answered, praying for an increase in alimony and that her former husband be held in contempt for failure to pay past due alimony. After trial on the rule, the trial court rendered judgment terminating alimony and dismissing the contempt charges. Mrs. Cromwell appeals. We affirm.

The parties married in 1957 and divorced in 1978. At the time of the divorce, one of their two sons was a minor. The divorce judgment was fashioned according to a stipulation entered between the parties. It awarded Mrs. Cromwell custody of the minor, and alimony of $800 a month until June of 1980 on which date the alimony was reduced to $700 a month. The judgment also set forth additional obligations of Mr. Cromwell concerning his former wife and their two children. Subsequent to the divorce judgment, the parties executed a joint stipulation stating that certain agreements were erroneously omitted from their judgment. The court entered an amended judgment to include these omissions. Among these was Mr. Cromwell’s agreement to pay $235.67 representing one-half of the mortgage note on the family home occupied by Mrs. Cromwell for as long as she occupied it but in no event beyond the balance of the present mortgage.

On May 14, 1981, Mr. Cromwell filed the present motion to terminate alimony which was granted by the trial court and from which Mrs. Cromwell appeals.

On appeal, Mrs. Cromwell alleges that the trial court committed three errors, namely (1) in applying the test of necessitous circumstances rather than the change in circumstances test to terminate alimony, (2) in rescinding the order and stipulation requiring Mr. Cromwell to pay one-half of the house mortgage note, and (3) in finding as a fact that there had been a change in circumstances sufficient to warrant termination of alimony.

The first and third assigned errors concern the proper test to apply in terminating alimony and application of that test to the facts of the present suit, respectively. Because of their interrelationship, these two issues will be discussed together.

Louisiana Civil Code Article 160 governs alimony after divorce. Its last line, in pertinent part, provides, “This alimony shall be revoked if it becomes unnecessary ...” Jurisprudence interpreting this portion of Article 160 consistently holds that for a court to alter an alimony award, including one established by a consent judgment, the party seeking modification must show a change in circumstances of either party from the time of the award to the time of the trial of the alimony rule. Bernhardt v. Bernhardt, 283 So.2d 226 (1973); Fisher v. Fisher, 320 So.2d 326 (La.App. 3rd Cir. 1975); Swider v. Swider, 314 So.2d 372 (La.App. 4th Cir. 1975); cert. denied, 320 So.2d 551 (1975).

The trial judge in his written reasons, discusses the initial setting of alimony and the test applied therefor. However, such discussion was gratuitous and upon reaching the issue of whether Mr. Cromwell is entitled to terminate alimony toward his former wife, the trial judge cites and applies the change in circumstances test. Upon our review of the record, we are in accord with the lower court’s application of the change in circumstances test and hénce, we adopt the following portion of his well-written opinion:

“Since Harvey Cromwell is seeking to modify a past divorce alimony award he must show a change in his ex-wife’s circumstances, or his own, from the time of the award to time of the rule which justifies termination of alimony. Sonfield v. Deluca, 385 So.2d 232 (La.1980), and this change may be in the obligee’s needs or in the obligor’s ability to pay, Marshall v. Marshall, 390 So.2d 1365 (La.App. 4th Cir. 1980). Nonetheless, Mr. Cromwell has shown changed circumstances in that his former wife is no longer in need of a psychiatrist’s care, her children are majors and no longer live with her, she has had an increase in salary from $17,109 to $21,373 as well as supplemental income from other activities. Additionally, her assets including her home have increased in value in as much as this Court can determine in a minimum amount of $50,-000.00. And further considering vis a vis that Harvey Cromwell’s income has steadily decreased, and that even though he is no longer officially bound to support his major children, Mr. Cromwell supports them in an amount which probably exceeds the divorce judgment figure, the Court feels Mr. Cromwell has shown by a preponderance of evidence sufficient changed circumstances in his former wife’s need for alimony and his own ability to pay for the court to find that the change in both parties’ circumstances is of such a degree that Mrs. Cromwell is no longer entitled to permanent alimony.”

In her second assignment of error, Mrs. Cromwell argues that her former husband’s agreement to pay one-half of the mortgage note on the home was not alimony and thus the trial court erred in terminating that obligation upon finding sufficient changed circumstances. We disagree. The divorce judgment was amended, pursuant to the parties’ joint stipulation, to include Mr. Cromwell’s agreement to pay one-half of the mortgage note. Therefore it comprised part of Mrs. Cromwell’s “alimony” and as such, it was thereafter subject to court modification or termination under LSA-C.C. art. 160. In fact, this is precisely what happened. The lower court determined that circumstances had changed sufficiently to require termination of Mr. Cromwell’s obligations, including his obligation to pay one-half of the mortgage note. Mrs. Cromwell’s argument to the contrary lacks merit.

For the reasons assigned, the judgment appealed from is affirmed at appellant’s cost.

AFFIRMED.

GUIDRY, J., concurs and assigns written reasons.

GUIDRY, Judge,

concurring.

The record clearly shows a favorable change in the wife’s financial circumstances since rendition of the initial judgment awarding alimony and, likewise, establishes that the wife has sufficient means for her own support. The above being considered, I do not reach the issue as to whether the proper test applicable in all such cases is a showing of a change in circumstances since rendition of the initial judgment. I respectfully concur in the result.

      . In any event, by later arguing that the court incorrectly applied the change in circumstances test to the facts, we find that Mrs. Cromwell has conceded that the change in circumstances test was applied.


author: GUIDRY, Judge.

text:
    Joe L. McPHAIL, Plaintiff-Appellant, v. LOUISIANA FARM BUREAU RICE, INC. et al., Defendants-Appellees.
    No. 82-6.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1982.
    Writ Denied Oct. 29, 1982.
    John E. Jackson, Jr., New Orleans, for plaintiff-appellant.
    Reggie, Harrington & Boswell, Oscar W. Boswell, II, Crowley, Bean & Rush, Ernest L. Parker, Lafayette, Devillier & Ardoin, Veil D. Devillier, Eunice, Rozas, Manuel, Fontenot & McGee, J. Jake Fontenot, Mam-ou, for defendants-appellees.
    Before GUIDRY, STOKER and LA-BORDE, JJ.
   GUIDRY, Judge.

This is a suit for damages for breach of an employment contract. Louisiana Farm Bureau Rice, Inc. (hereafter, Farm Bureau), and the individual members of its board of directors, Roland R. Faulk, Edwin L. Leon-ards, H. P. Wemple, Ronnie J. Sonnier, Alvin Hebert, Chester Faulk, James R. Fries-en, Friesen Farms, Inc., Edmond Zaun-brecher, H. G. Hardee, Jr., Charles Hens-gens, Jr., Glenn Landreneau, Bobbie Soi-leau, Bradley Hanks and Robley J. Foret, are named as defendants. Farm Bureau filed answer to plaintiff’s petition generally denying the allegations thereof. The individual defendants responded to plaintiff’s petition by filing exceptions of no cause of action. The exceptions were ultimately sustained resulting in the dismissal of plaintiff’s suit as against the individual defendants. Plaintiff has appealed.

The exception of no cause of action raises the question of whether the law affords any remedy to the plaintiff under the allegations of his petition. The exception is tria-ble on the face of the petition, and for purposes of its determination, all well pleaded facts are accepted as true and all doubts are resolved in favor of the sufficiency of the petition. Wheelahan v. State Through Louisiana State Claims Review Board, 376 So.2d 576 (La.App. 4th Cir. 1979). We summarize the well pleaded facts set forth in plaintiff’s petition, as amended, with attachments.

Plaintiff, Joe L. McPhail, entered into an employment contract with Farm Bureau on July 1, 1976 to be its general manager until July 30,1981. By the terms of the contract plaintiff’s employment could be terminated prior to July 30, 1981 for, among other reasons, his “failure to perform his duties in a satisfactory manner as may reasonably by (sic) expected of a manager in his position”. In late October of 1977 plaintiff received a letter from Farm Bureau dated October 28, 1977, advising him that his employment had been terminated as a result of a unanimous vote of the board of directors of Farm Bureau. The aforementioned letter reads in pertinent part as follows:

“This letter will serve as formal written notice of the termination of your employment relationship with Louisiana Farm Bureau Rice, Inc. This termination is the result of a unanimous vote of the Board of Directors of Louisiana Farm Bureau Rice, Inc., which came about as a result of a determination by the entire Board that you have failed to perform the duties incumbent upon vou as general manager of Louisiana Farm Bureau Rice, Inc, in a satisfactory manner....” (Emphasis ours)

In his petition plaintiff alleges that the aforesaid statement, as to his failure to perform the duties as general manager in a satisfactory manner, is totally false and without foundation and proceeded from some motive of ill will, bad faith and/or unlawful conduct on the part of the individual defendants, who well knew that such declaration was without basis in truth or fact. Finally, plaintiff alleges, on information and belief, that the motive behind defendants wrongful conduct included the fact that Farm Bureau was a failing business and in order to avoid further economic losses to either Farm Bureau or the individual defendants, he was fired.

Although some question could be raised as to whether the latter allegations are conclusions as opposed to well pleaded facts, we assume the truthfulness of these allegations for purpose of our decision.

In sustaining defendants’ exceptions the trial judge concluded that plaintiff’s petition, as amended, sought to impose on the individual officers and directors personal liability for corporate acts contrary to settled law. On appeal appellant, although conceding correctness of the general legal principle that corporations are separate legal entities, therefore their shareholders and directors cannot be held personally liable for corporate acts, finds error in the failure of the trial court to conclude that the actions of the individual defendants in this case constitutes a fraud .practiced on plaintiff which renders them individually liable for the damages suffered as a result of the breach by Farm Bureau of the employment contract. As we understand appellant’s argument, he contends that defendants’ action, as members of the board of directors of Farm Bureau, in voting for his termination, when each knew that the premise relied upon for his termination was false, committed a fraud upon him within the intendment of C.C. Article 1847(5) which renders them individually liable pursuant to the provisions of LSA-R.S. 12:95. We disagree.

C.C. Article 1847 reads in pertinent part as follows:

“Fraud, as applied to contracts, is the cause of an error bearing on a material part of the contract, created or continued by artifice, with design to obtain some unjust advantages to the one party, or to cause an inconvenience or loss to the other. From which definition are drawn the following rules:
1. Error is an essential part of the definition; an article [artifice] that can not deceive can have no effect in influencing the consent, and can not injure the validity of the contract.
2. The error must be on a material part of the contract, that is to say, such part as may reasonably be presumed to have influenced the party in making it; but it needs not be the principal cause of the contract, as it must be in the case of simple error without artifice.
5. It must be caused or continued by artifice, by which is meant either an assertion of what is false, or a suppression of what is true, in relation to such part of the contract as is stated in the second rule.”

It is well settled that intent to defraud and loss or damage or strong probability of loss or damage are two essential elements to constitute legal fraud. Hall v. Arkansas Louisiana Gas Company, 368 So.2d 984 (La.1979), appeal after remand, 379 So.2d 1142 (La.App. 2nd Cir. 1980), writ denied, 383 So.2d 800, certiorari denied, 449 U.S. 1109, 101 S.Ct. 916, 66 L.Ed.2d 838, affirmed in part, vacated in part on other grounds and remanded, 453 U.S. 571, 101 S.Ct. 2925, 69 L.Ed.2d 856.

In Altex Ready-Mixed Concrete Corp. v. The Employers Commercial Union Insurance Company et al., 308 So.2d 889 (La.App. 1st Cir. 1975), writ refused 312 So.2d 872 (La.1975) the court stated:

“Under the Civil Code, corporations are separate legal entities, and their shareholders can not be individually compelled to pay the debts of the corporation. Articles 435 and 437, Civil Code. However, officers, directors and shareholders of a corporation can become personally liable to those who suffer loss because of fraudulent misrepresentations made by the officers, directors or shareholders on behalf of the corporation. R.S. 12:95; Texas Industries, Inc. v. Dupuy & Dupuy Develop., Inc., 227 So.2d 265 (La.App. 2 Cir. 1969).
Fraud exists if it can be shown that material misrepresentations have been made by one party designed to deceive another, and to obtain some unjust advantage or to cause loss or inconvenience to the other. Article 1847, Civil Code.
Article 1848 of the Civil Code provides:
‘Fraud, like every other allegation, must be proved by him who alleges it, but it may be proved by simple presumptions or by legal presumptions, as well as by other evidence. The maxim that fraud is not to be presumed, means no more than that it is not to be imputed without legal evidence.’ ”

In the instant case we determine that the allegations of plaintiff’s petition do not allege legal fraud on the part of the individual defendants in that such petition fails to allege facts tending to establish that defendants made any material misrepresentation designed to deceive plaintiff. McPhail could not have been deceived by the statement made to him that his performance under the contract was unsatisfactory or by defendants’ action in voting to terminate his employment. No fraud was practiced on plaintiff. He was not deceived or misled by the statement to his detriment. The contract of employment was between Mr. McPhail and Farm Bureau. If the termination of his employment was unjustified, he has his remedy against Farm Bureau for breach of contract.

For the reasons assigned the judgment of the trial court is affirmed at appellant’s cost.

AFFIRMED.

      . On two separate occasions, the trial court sustained exceptions of no cause of action filed on behalf of the individual defendants and ordered plaintiff to amend his petition or suffer dismissal of his action. Following each of the amendments, peremptory exceptions of no cause of action were filed and sustained.


author: BOUTALL, Judge.

text:
    Timothy C. MAISE, Sr. v. GOVERNMENT EMPLOYEES INSURANCE COMPANY.
    No. 5-25.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 8, 1982.

      John F. Tooley, Jr. of Tooley & Wald-mann, Gretna, for Timothy C. Maise, Sr., plaintiff-appellant.
    W. Paul Anderson of Hammett, Leake & Hammett, New Orleans, for Government Employees Ins. Co., defendant-appellee.
    Before BOUTALL, DUFRESNE and GRISBAUM, JJ.
   BOUTALL, Judge.

This appeal involves the granting of defendant’s motion for summary judgment dismissing plaintiff’s suit on the basis that the plaintiff was not covered by an insurance policy issued by the defendant insurance company. The plaintiff appeals claiming that an issue of material fact exists. We reverse and remand.

In the summer of 1977, Timothy C. Maise allegedly entrusted the Morrison Insurance Agency with his power of attorney in order to obtain an automobile insurance policy. The Morrison Agency contacted the Government Employees Insurance Company, which issued a policy on behalf of Maise with the effective date of that policy being October 5, 1977, until October 5, 1978. The Morrison Agency financed the premiums of this policy through GMAC and Maise was to pay the Morrison Agency monthly. Maise made the scheduled payments up until March of 1978 but did not make any further payments on the policy. Later, Maise was responsible for an automobile accident which occurred on June 27, 1978, and he brought suit against GEICO because they denied him coverage for the accident due to prior cancellation of the policy caused by non-payment of the policy premiums.

The issue on appeal is whether the trial court properly granted the defendant’s motion for summary judgment. C.C.P. Art. 966 permits the granting of a motion for summary judgment when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. This article has been further interpreted in Vermilion Corporation v. Vaughn, 397 So.2d 490 (La.1981) wherein the court stated:

“. . . Because the mover has the burden of establishing that no material factual issue exists, inferences to be drawn from the underlying facts contained in the materials before the court must be viewed in the light most favorable to the party opposing the motion. (. . . citations omitted . . .) To satisfy his burden the mover must meet a strict standard by a showing that is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact. (.. . citations omitted . . .) The papers supporting mover’s position are closely scrutinized, while the opposing papers are indulgently treated, in determining whether the mover has satisfied his burden. (... citations omitted ...)”

GEICO attempted to show the material facts that entitled it to judgment as a matter of law submitting several letters and documents purporting to show that it can-celled the policy at the request of the Morrison Agency and that cancellation notices were sent to Maise and the Morrison Agency. Maise responded with an affidavit of himself and his wife denying that cancellation notices were ever received by himself or the Morrison Agency and denying Maise’s signature on the power of attorney to the Morrison Agency.

In this instance, GEICO did not offer any affidavits which would serve to verify the authenticity of the cancellation notices, either on its motion or in response to Maise’s affidavit which conflicts in part. C.C.P. Art. 967 requires that:

“When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.”

Here, Maise did put forth specific facts which show that a genuine issue exists at trial while GEICO attempts to negate those facts by mere allegations. The relevancy of these facts are dependent upon which theory of cancellation of the insurance policy governs in this case: R.S. 22:636, cancellation by the insurer or R.S. 22:637, cancellation by the insured or his agent.

We note that C.C.P. Art. 966 also requires the mover show the relevant facts upon which he is entitled to judgment as a matter of law. If this situation were to fall under the requirements of R.S. 22:636, then GEICO must show that a written notice was sent to the insured or his representative. Once again, GEICO attempted to show that proper written notice was sent by offering unsupported and unverified documents whereas Maise properly brings this fact into issue by affidavit and depositions denying such a notice. If this situation were to fall under the requirements of R.S. 22:637, then GEICO must show that proper written notice of cancellation was sent to it and that the policy was surrendered for cancellation. There has been no showing on the behalf of GEICO that Maise or his agent surrendered the policy and there is a dispute that the written notice was properly executed or ever sent.

The record shows that the requirements of C.C.P. Art. 966 which burdens the mover to prove that there was no genuine issue as to material fact and that mover is entitled to judgment as a matter of law have not been met by GEICO.

Accordingly, we reverse the trial court’s granting of defendant’s motion for summary judgment and enter judgment denying the motion. Costs to be assessed on final disposition of the case.

REVERSED.