author: JAMES C. GULOTTA, Justice ad hoc . PER CURIAM.

text:
    STATE of Louisiana v. Lawrence DAY.
    No. 81-KA-1022.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
    Rehearing Denied March 19, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Ralph L. Roy, Kay Kirkpatrick, Asst. Dist. Attys., for plaintiff-appellee.
    Jack M. Dampf of D’Amico & Curet, Baton Rouge, for defendant-appellant.
   JAMES C. GULOTTA, Justice ad hoc .

Defendant was convicted of violating LSA-R.S. 14:95.1, which makes it unlawful for certain convicted felons to possess a firearm or carry a concealed weapon. Appealing, defendant cites three errors by the trial court: (1) the erroneous admission of defendant’s alleged “discharge certificate from parole” document into evidence; (2) the erroneous admission of his alleged “rap sheet” into evidence; and, (3) the trial court’s failure to grant his motion for directed verdict on the ground of a lack of evidence of his possession of a firearm as charged in the indictment. Although we find no error in the denial of the motion for a directed verdict, we conclude the trial judge erroneously admitted the defendant’s parole discharge certificate. We therefore reverse the conviction.

PROOF OF POSSESSION

Turning first to the trial judge’s denial of defendant’s motion for directed verdict, we find no merit to defendant’s contention that there was a lack of evidence as to his possession of a firearm.

On December 14, 1979, a detective of the Baton Rouge City Police Department executed a search warrant of defendant’s residence in Baton Rouge. Defendant was not home at the time the warrant was executed, but his wife directed the detective to a paper bag above a cabinet in their living room that contained a Colt caliber 357 Python revolver. Defendant, who had been convicted on three counts of simple burglary in 1963-64, was then charged with being a convicted felon in possession of a firearm.

Although not disputing that he had purchased the weapon four years before it was found by the police in his residence, defendant contends that the evidence was insufficient to establish that he was in actual possession of the weapon at the time it was seized.

LSA-R.S. 14:95.1 makes it unlawful for certain convicted felons “... to possess a firearm.... ” The statute does not make “actual” possession a necessary element of the offense or specifically require that the defendant have the firearm on his person to be in violation. In the absence of a statutory requirement of actual possession, we conclude that “constructive” possession of a firearm by a convicted felon satisfies the possessory element of LSA-R.S. 14:95.1.

On the question of sufficiency of evidence, in our case, the applicable standard is whether a rational trier of fact, after viewing the evidence in the light most favorable to the prosecution, could have found beyond a reasonable doubt, that the defendant was in possession of the firearm. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Because the undisputed evidence shows that the defendant had purchased the revolver four years prior to its recovery and the weapon was found in defendant’s residence, we conclude the requirement of a finding of possession, as contemplated by LSA-R.S. 14:95.1, was met in this case.

This assignment of error has no merit.

AUTHENTICATION OF “DISCHARGE CERTIFICATE FROM PAROLE”

The State introduced over defendant’s objection, a copy of his certificate of discharge from parole. This document was introduced to show that the defendant had not been discharged from custody on the 1963-64 burglary convictions until January 8, 1971, within ten years of the commission of the possession offense. See LSA-R.S. 14:95.1(C)(1).

In this assignment of error, defendant contends the trial court erred in allowing the introduction of the discharge certificate because the State failed to authenticate it properly. We agree.

In State v. Nicholas, 359 So.2d 965 (La.1979), this court stated:

“[11] According to this court’s reasoning in Tillman and Martin, in order to be properly authenticated, a copy of a document presented in court must either be certified to by the officer who is the legal custodian of the document, or it must appear by clear evidence that the person certifying the document has been entrusted with legal custody of the original by the original custodian. Likewise, the witness introducing the document in evidence must testify from personal knowledge as to the fact of its official custody, such as testimony as to from whom or from which office he received the document. Wigmore, Section 2158(b)(b)(l).” [footnote omitted].”

In State v. Tillman, 356 So.2d 1376 (La.1978), a document was held inadmissible where it bore no certificate that it was a true copy of an original and where it was not established that the official who testified at trial in connection with the introduction of the document was the legal custodian of the original or had been delegated the duties of maintaining lawful custody and certifying copies as required by LSA-R.S. 15:457.

In our case, Steve Cole, a probation and parole agent employed by the Department of Correction in the Division of Probation and Parole, testified that he had custody, control and supervision over parole records of the State of Louisiana in his district. Cole produced what he asserted was defendant’s original certificate of parole and testified that he had retrieved it from his office. He could only assume how the certificate came into his office, however, and stated that he believed at some time the document had been maintained in the state archives. He admitted that he was not the head of his department and he did not work in the state archives. A copy of the certificate of discharge admitted into evidence bears no certificate of authenticity. Furthermore, Cole did not testify that he had been delegated as the legal custodian of the document.

Applying the Nicholas and Tillman cases to the instant case, we hold defendant’s parole discharge was not properly certified and should not have been admitted into evidence. Having so concluded, we reverse and set aside the conviction. Because the erroneous admission of the parole discharge certificate constituted a “trial error”, defendant is granted a new trial. State v. Tillman, supra.

Accordingly, this matter is remanded to the trial court for further proceedings consistent herewith.

REVERSED AND SET ASIDE.

NEW TRIAL GRANTED.

ON APPLICATION FOR REHEARING

PER CURIAM.

Rehearing denied.

The opinion is incorrect in stating that the certificate of discharge from parole was a copy instead of an original. Nevertheless, the result is correct because before an original document may be received to prove the truth of its content it must be authenticated. State v. Nicholas, 359 So.2d 965 (La.1978); State v. Tillman, 356 So.2d 1376 (La.1978); State v. Martin, 356 So.2d 1370 (La.1978); see J. Wigmore, Evidence, §§ 1637, 2129 (1974). An original document may be authenticated as genuine by the certification of the custodian because of the presumption that he will carry out his duty to receive, record, and certify only genuine official papers and reports. Wig-more, supra, at §§ 2158-59; C. McCormick, Evidence, § 224 (Cleary ed. 1972); State v. Nicholas, supra at 969. The authority to testify to the authenticity of an original may be delegated when practical necessity dictates, but it should clearly appear in evidence that the person authenticating an original by custody has been entrusted with legal custody of the original document by the official custodian. State v. Nicholas, supra, at 969; State v. Tillman, supra, at 1378. He must also clearly know and show that its place of origin was the proper one. Wigmore, supra, at § 2158.

In the case at hand, the state sought to authenticate the certificate of discharge from parole through the testimony of a probation and parole agent who testified that he was not in charge of such records and was unsure of where the document had been kept. He could only assume that the document had been maintained at some time in the state archives and admitted that he did not work in the state archives. Therefore, the original certificate of discharge from parole was not sufficiently authenticated and should not have been admitted into evidence.

MARCUS, WATSON and LEMMON, JJ., would grant.

       Judges James C. Gulotta and Jim Garrison of the Fourth Circuit Court of Appeal, and Judge Bernard J. Bagert of the Criminal District Court for the Parish of Orleans, participated in this decision as associate justices ad hoc, joined by Chief Justice John A. Dixon, Jr. and Associate Justices Pascal F. Calogero, Jr., Walter F. Marcus, Jr., and Fred A. Blanche.

      . LSA-R.S. 14:95.1 reads as follows:
      “§ 95.1 Possession of firearm or carrying concealed weapon by a person convicted of certain felonies
      A. It is unlawful for any person who has been convicted of first or second degree murder, manslaughter, aggravated battery, aggravated or simple rape, aggravated kidnapping, aggravated arson, aggravated or simple burglary, armed or simple robbery, burglary of a pharmacy, burglary of an inhabited dwelling, or any violation of the Uniform Controlled Dangerous Substances Law which is a felony or any crime defined as an attempt to commit one of the above enumerated offenses under the laws of this state, or who has been convicted under the laws of any other state or of the United States or of any foreign government or country of a crime which if committed in this state, would be one of the above enumerated crimes, to possess a firearm or carry a concealed weapon. B. Whoever is found guilty of violating the provisions of this Section shall be imprisoned at hard labor for not less than three nor more than ten years without the benefit of probation, parole, or suspension of sentence and be fined not less than one thousand dollars nor more than five thousand dollars.”

      . LSA-R.S. 14:95.1(C)(1) reads as follows:
      “C. Except as otherwise specifically provided, this Section shall not apply to the following cases:
      (1) The provisions of this Section prohibiting the possession of firearms and carrying concealed weapons by persons who have been convicted of certain felonies shall not apply to any person who has not been convicted of any felony for a period of ten years from the date of completion of sentence, probation, parole, or suspension of sentence.”

      . LSA-R.S. 15:457 provides:
      “§ 457. Force of certified documents as evidence; unauthorized certificates
      A copy of a document, certified to by the officer who is the legal custodian 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.”

      . Since we have concluded the “discharge certificate from parole” document was not properly admitted into evidence, no necessity exists to consider defendant’s assignment of error that the “rap sheet” was not properly authenticated or certified by the proper custodian.


source: Caselaw Access Project

license: Public Domain

text:
    John C. PERRONCEL, et al. v. JUDGE ROY BEAN’S SALOON, INC., et al.
    No. 81-C-3247.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
   Re: John C. Perroncel, Michael M. Sper-andeo and E. J. Bolzoni, applying for Cer-tiorari, or writ of Review, to the Court of Appeal, Third Circuit, Parish of Calcasieu, Number 8393.

'Writ Granted. The Court of Appeal properly disagreed with the trial court and correctly recited the law with respect to burden of proof and the burden of going forward in this lawsuit by a lessor to recover for alleged losses of certain movable items and damages to leased premises.

However its affirming the trial court judgment by relying upon the answers by defendant to interrogatories posed by a third party defendant, filed in the record but not introduced at trial, was erroneous. Those answers were not introduced in evidence and thus not exposed to defense objection. And had they been introduced or had defendant testified at trial substantially in accord with those answers (upon defense presentation of evidence) plaintiff would have had the opportunity to counter such evidence in rebuttal.

The trial court’s granting dismissal of plaintiff’s suit at the close of plaintiff’s case on motion of defendant, and the Court of Appeal’s affirmance of that judgment are reversed, 405 So.2d 626. The case is remanded to the district court for continuation of trial.


author: PIKE HALL, Jr., Justice Ad Hoc . LEMMON, Justice,

text:
    STATE of Louisiana v. Jessica BEALS.
    No. 81-KA-1497.
    Supreme Court of Louisiana.
    Jan. 29, 1982.
    Concurring Opinion March 19, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Kay Kirkpatrick, Richard Chaf-fin, Asst. Dist. Attys., for plaintiff-appellee.
    Frank J. Gremillion, Baton Rouge, for defendant-appellant.
   PIKE HALL, Jr., Justice Ad Hoc .

Defendant, Jessica Beals, was charged by bill of information with possession of a controlled dangerous substance (Hydromor-phone a/k/a Dilaudid) in violation of LSA-R.S. 40:967(C). The defendant pled not guilty and waived her right to a jury trial. By agreement defendant’s oral motion to suppress evidence was to be submitted to the court for decision on the evidence presented by the state in its case in chief. At the conclusion of the state’s case the trial court denied the motion to suppress and after hearing the defendant’s evidence found the defendant guilty as charged. A sentence of three years at hard labor with credit for time served was imposed.

On appeal defendant urges one assignment of error: that the trial court erred in denying the defendant’s motion to suppress items of physical evidence, namely, the Dilaudid pills forming the basis of the charge, as the result of an illegal and unreasonable search. The defendant contends that a warrant issued to search premises for narcotics did not authorize the search of defendant’s person merely because she was on the premises. Defendant contends that the search exceeds the constitutionally permissible scope of a warrant for the search of premises as established in Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979).

The state contends that a warrant for the search of a person’s residence for narcotics authorizes the detention and search of the resident of the premises during the search of the residence for contraband. Alternatively, the state contends that the defendant was under arrest at the time of the search and the search was incident to a lawful arrest.

The evidence presented by the state at the trial discloses the following facts. On February 26, 1979, officers of the East Baton Rouge Parish Sheriff’s Department obtained a search warrant authorizing a search of the residence located at 1861 Missouri Street, Baton Rouge, Louisiana, for controlled dangerous substances. The application for the search warrant (after establishing the credibility and reliability of the confidential informant of which no issue is made on appeal) states that on February 23, 1979 the informant observed another person who was with him purchase two pink tablets at the premises and that during the transaction the occupant of the premises described the tablets as “ludes.” The informant also observed a quantity of pre-ludin tablets on a table in the residence. The affidavit further states that in December 1978 agents of the East Baton Rouge Parish Sheriff’s Office, Narcotics Division, executed a search warrant at the residence and found preludin, valium, and marijuana there.

A deputy sheriff testified that he was one of ten deputies who executed the search warrant in this case. When the officers entered the house there were present the defendant, Lilly Mae Cummings, and Joshua Miles. The deputy searched Miles and found a plastic baggie suspected to contain marijuana in his sock. Another deputy conducted a search of the defendant. The deputy retrieved a napkin-like package containing 11 Dilaudid tablets from the front pocket of the jeans defendant was wearing.

After the state had rested and defendant’s motion to suppress had been denied, it was established during the course of defendant’s case by her own testimony that she was the sole resident of the premises.

Defendant contends that since the state failed to present evidence that defendant resided in the house during the hearing on the motion to suppress (the state’s case in chief) that fact should not be considered by this court in reviewing the correctness of the denial of the motion to suppress.

It is well established that in determining whether the ruling on a defendant’s motion to suppress is correct, this court is not limited to the evidence adduced at the hearing on the motion but may consider all pertinent evidence given at the trial of the case. State v. Fisher, 380 So.2d 1340 (La.1980); State v. Chopin, 372 So.2d 1222 (La.1979); State v. Schmidt, 359 So.2d 133 (La.1978); State v. Stewart, 357 So.2d 1111 (La.1978); State v. Shivers, 346 So.2d 657 (La.1977); State v. Smith, 257 La. 1109, 245 So.2d 327 (1971); State v. Andrus, 250 La. 765, 199 So.2d 867 (1967). Accordingly, we have taken into consideration the fact that defendant was the resident of the premises named in the search warrant.

The critical issue in this case is whether the action of the law enforcement officers in searching the outer clothing of the defendant was reasonably within the scope of the warrant authorizing the search for contraband of the residence premises in which the defendant resided. We answer in the affirmative. Contrary to defendant’s argument, Ybarra v. Illinois, supra, does not mandate a different conclusion.

In Ybarra, a warrant was issued authorizing the search of a small bar for contraband and the search of the person of the bartender. During the search of the bar the officers also searched the person of Ybarra, a patron of the bar, and found contraband on his person. Treating the search of the patron as a warrantless search the court found an absence of probable cause and concluded that the search of Ybarra and the seizure of what was in his pocket contravened the Fourth and Fourteenth Amendments. In the course of its opinion the court emphasized that the complaint for the search warrant did not allege that the bar was frequented by persons illegally purchasing drugs and did not state that the informant had ever seen a patron of the tavern purchase drugs, nor did the complaint even mention the patrons of the tavern. Although the warrant gave officers authority to search the premises and to search the bartender, it gave them no authority whatever to invade the constitutional protections possessed individually by the tavern’s customers.

In a more recent case the United States Supreme Court determined that a warrant to search premises for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises. Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981). Since detention or seizure of the person was the dispositive issue in Michigan v. Summers, the court found “no need to reach the question whether a search warrant for premises includes the right to search persons found there.... ” Commenting on Ybarra, the court noted that “the search of Ybarra was invalid because the police had no reason to believe he had any special connection with the premises and the police had no other basis for suspecting that he was armed or in possession of contraband.”

In State v. MacDonald, 390 So.2d 1276 (La.1980), decided after Ybarra, this court upheld as reasonable the search of a person who entered a trailer being searched pursuant to a valid search warrant where that person had been named by the confidential informant on whose information the search warrant was issued as a possessor of some of the trailer owner’s drugs. The court noted that the police had sufficient articula-ble knowledge of particular facts to justify their detention and search of the defendant.

In the instant case the affidavit of probable cause on which the search warrant was based discloses information from the confidential informant that the occupant of the residence premises had been seen engaged in a drug transaction on the premises, drugs were observed on a table in the premises, and the affidavit further stated that drugs had previously been found during a prior search of the premises. There were articu-lable particular facts justifying the officers’ detention and search of the resident of the premises. The officers had reason to believe the defendant resident had a special connection with the premises and that she was in possession of contraband.

In Michigan v. Summers, supra, it was noted that a “neutral and detached magistrate had found probable cause to believe that the law was being violated in that house and had authorized a substantial invasion of the privacy of the persons who resided there.” Such is true in the instant case. The intrusion into defendant’s home authorized by the warrant was a substantial intrusion of her privacy, which had been duly authorized based on probable cause. The search of defendant’s outer clothing which she was wearing is not a great deal more intrusive than the search of personal belongings and areas throughout the house.

Our specific but narrow holding under the facts and circumstances of this case is that where a warrant to search a residence for contraband is issued on probable cause based on information that the occupant of the residence participated in the sale of drugs at the residence three days prior to the issuance of the warrant, the reasonable scope of the warrant extends to a search of the pockets of the outer clothing of the resident of the premises who is on the premises at the time it is searched.

Ybarra notes that the Fourth and Fourteenth Amendments protect the “legitimate expectations of privacy of persons, not places.” It is equally true that crimes are committed by persons, not places. A warrant to search a place based on probable cause information that the resident of that place has committed or is committing a crime in that place authorizes the search of the resident as reasonably and necessarily within the scope of the warrant.

The conviction and sentence of the defendant are affirmed.

LEMMON, J., concurs and assigns reasons.

LEMMON, Justice,

concurring.

Because the officers executing the warrant knew defendant was a resident of 1861 Missouri Street, and because they had probable cause to believe drugs were being sold on the premises, they had probable cause to seize her and to search her person when they discovered her on the premises at the time of executing the warrant. See Cupp v. Murphy, 412 U.S. 219, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1972).

The testimony at the motion to suppress does not establish that the officers knew at the time of executing the warrant that defendant resided at 1861 Missouri Street. However, Officer Fourrier had testified at the preliminary examination that he knew this fact prior to the execution of the search warrant because of his previous contact with defendant at that address, and the search warrant affidavit asserts that the officers had seized preludin there two months earlier.

In reviewing the trial court’s judgment on the motion to suppress, this court should consider those facts established before the trial court at the earlier preliminary examination. Since the prosecution established in this record, prior to the beginning of trial, the fact that Officer Fourrier knew when he conducted the search that defendant was a resident of 1861 Missouri Street, it is not necessary to refer to defendant’s own testimony at trial to establish the fact of her residence there.

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

      . We have not, however, considered the testimony given at the preliminary examination in this case at which hearing the facts surrounding the execution of the search warrant were much more extensively developed. Testimony given at a preliminary examination may under certain circumstances be introduced into evidence in subsequent proceedings. LSA-C.Cr.P. Art. 295. In this case, however, there was no effort to introduce the testimony given at the preliminary examination into evidence at the motion to suppress hearing or trial and the circumstances under which such testimony could be introduced were not established to exist.


author:
HALL, Justice Ad Hoc.
     LEMMON, Justice,

text:
    STATE of Louisiana v. Melvin BINDOM and Roland Gaines.
    No. 81-KA-1356.
    Supreme Court of Louisiana.
    Feb. 5, 1982.
    Rehearing Denied March 19, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Eddie Knoll, Dist. Atty., Jeanette T. Knoll, Cliffe E. Laborde, III, Asst. Dist. Attys., for plaintiff-appellee.
    Michael J. Johnson, Cottonport, Alex W. Wall, Sr., of Wall, Thomas, Riche & Wall, Baton Rouge, for defendant-appellant.
   HALL, Justice Ad Hoc.

Defendants, Melvin Bindom and Roland Gaines, along with Douglas W. Grimes, were jointly charged by bill of information with theft of money in excess of $500 belonging to the Central Louisiana Bank & Trust Company in violation of LSA-R.S. 14:67. Defendants Gaines and Bindom were tried before a six-person jury and were found guilty. Grimes failed to appear for trial, his bond was forfeited and a warrant was issued for his arrest. Bindom and Gaines were each sentenced to serve five years at hard labor. Each defendant appealed.

Bindom makes three assignments of error:

(1) It was error for the jury to convict him because there was insufficient evidence;
(2) It was error for the trial judge to refuse his motion for new trial after he was convicted with insufficient evidence; and
(3) It was error for the trial judge to consider the presentencing report without allowing him the opportunity to controvert its contents.

Gaines makes seven assignments of error:

(1) It was error to deny his motion to sever;
(2) The verdict is not supported by the evidence;
(3) The charge to the jury was defective for failing to fully explain the nature of theft;
(4) The charge was defective for failing to include the proper responsive verdicts;
(5) The trial judge did not comply with Code of Criminal Procedure Article 894.1 in sentencing him;
(6) The sentence is unconstitutionally excessive; and
(7) He was denied due process and equal protection by reason of having ineffective counsel.

Sufficiency of the evidence — Bindom Assignments of Error Nos. 1 and 2 Gaines Assignment of Error No. 2

Both defendants contend the evidence is insufficient to support their convictions for theft under the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

The evidence presented by the state may be summarized as follows. State witness Lola N. Couvillon, a teller at the Union Bank in Marksville, testified that on September 5,1980 between 4:00 and 5:00 p. m., a tall black man with a heavy beard came up to her window to make a deposit of $70. He wanted to deposit the money in the account of one Sandra or Henry Williams but when the teller could find no account in these names the man left the bank and proceeded south toward Central Louisiana Bank (Cenia Bank). The teller stated that neither of the two defendants was the man who approached her window.

City patrolman Floyd Carmouche testified he noticed a silver and black Continental with a damaged left quarter panel parked near the Union Bank. He identified defendant Bindom as the person he saw standing on the running board on the passenger’s side of the car, looking over the top of the car. There were no other occupants in the vehicle at that time.

Glenn Kimble, a teller at the Cenia Bank, stated that he was approached by a tall, bearded black man late in the afternoon on September 5. The man wanted to deposit $50 into the account of one Betty Grisom. Kimble walked to the rear of the bank to check his master file for that name. Finding no account for Grisom, Kimble returned to his window and so informed the bearded man. The man then departed and walked back in the direction of Union Bank. Five or ten minutes later Kimble opened his cash drawer and found between $3,500 and $3,800 was missing, including some “bait money”. He immediately reported this to his supervisor who called the police. At no time did Kimble see either of the two defendants.

John Augustine, a correctional officer at Louisiana State Penitentiary who was shopping in the vicinity of Cenia Bank, noticed a gray Mark IV moving “at a good speed” turn off of Main Street. The passenger door opened and a tall bearded black man who had been walking along the sidewalk from the direction of the Cenia Bank jumped in. The car sped off. The witness stated he saw no one else in the car besides the driver and the man who got into the car.

Mary Barbin McGlory, a bookkeeper at Cenia Bank, testified that before the incident occurred she noticed a silver gray Lincoln Continental driving through the bank parking lot. She could not see who was in the car at the time and could not see the driver or any other occupants.

State Trooper Kenneth Arnaudville was advised of the bank robbery around 5:30 or 6:00 p. m. while he was at the Pointe Cou-pee Parish sheriff’s office. Upon receiving a description of the suspect vehicle he proceeded to Highway 1. At the intersection of Highways 1 and 190, he spotted a vehicle matching that description, a silver or gray Lincoln. He stopped the car and asked the three occupants to exit the vehicle. Defendant Bindom was seated in the front seat on the passenger’s side; defendant Roland Gaines was in the back seat.' Douglas Grimes was driving. When the trooper asked for the car’s registration, Grimes went to the side of the car, reached into the glove compartment and produced the registration showing him to be the owner. When the trooper accompanied Grimes to the side of the car he noticed a bandana partially covering a bundle of money in the middle of the front seat between the driver’s seat and the passenger’s seat. At that point he moved Grimes to the rear of the car and radioed the sheriff’s department asking them to send deputies out.

Jennings David, investigator with the Pointe Coupee Parish Sheriff’s Department, testified that he, assisted by Johnny Sparks, Lavonia Police Chief, and Deputy Horton removed the bandana and money from the front seat and counted it. The bandana contained $2,700, including fifteen $20 bills later identified as the “bait money” taken from the Cenia Bank. Bindom had $518.17 in his pocket and Grimes had $84.10. Gaines had $9.32.

The “bait money” was identified by bank employees.

Early Greenhouse, Chief of Police for the town of Marksville, testified that from his investigation he determined that the vehicle in which the three men were apprehended was a gray or silver Lincoln Mark IV, that it had damage to the rear quarter panel, that Grimes was the owner of the vehicle and that Grimes was a black man about 6' 2" with a beard.

The defendants presented no evidence.

This court definitively enunciated the Jackson standard of review in a circumstantial evidence case in State v. Austin, 399 So.2d 158 (La.1981):

“Regarding circumstantial evidence, R.S. 15:438 sets forth the rule that, in order to convict, the evidence must exclude every reasonable hypothesis of innocence. Under Jackson, the evidence is viewed in the light most favorable to the prosecution and from the viewpoint of a rational trier of fact. Therefore, when we review a conviction based upon circumstantial evidence we must determine that, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have concluded beyond a reasonable doubt that every reasonable hypothesis of innocence had been excluded.”

Elaborating, this court further held:

“... Frequently, the state must rely on circumstantial evidence to prove the existence of the fact to be proved. Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. . . . (footnote omitted) “Further, to convict defendant, that inference made by the jury must exclude every reasonable hypothesis of innocence. It need not, however, exclude every other possible theory.... ”

Applying these standards we find the evidence sufficient to support the conviction of Bindom and insufficient to support the conviction of Gaines.

Bindom was identified as being in the Continental outside of the bank in Marksville, in a lookout posture. Several witnesses saw a man other than Grimes driving the automobile in the vicinity of the bank and saw the automobile stop and pick up Grimes, the actual perpetrator of the theft. When the automobile was stopped a short while after the incident Bindom was riding as a passenger on the front seat of the Continental with Grimes as the driver and with the stolen money in plain view on the front seat beside him. The most reasonable inference from these established facts is that Bindom was a principal in the commission of the crime in that he was concerned in and aided and abetted in the theft of the money from the bank. There is no other reasonable hypothesis.

The evidence linking the defendant Gaines with the theft is much more tenuous. There was no evidence placing him in Marksville in the vicinity of the Continental or either of the banks. None of the several persons who witnessed the events in Marks-ville saw more than two men. There was no evidence linking Gaines as an acquaintance of the other two men or placing him with them at any time prior to the theft. The only evidence against Gaines was his presence in the back seat of the car with the two men who were proven to have committed the crime at the time of the arrest an hour or so after, and 50 miles or so away from the scene of the crime, with the stolen money on the front seat of the car. These facts might be sufficient to give rise to a reasonable inference that Gaines participated in the theft, but are not sufficient to exclude other reasonable hypotheses of innocence. Grimes and Bindom could have picked Gaines up after the theft took place. Gaines could have been elsewhere in Marksville or anywhere between Marksville and Lavonia at the time the money was taken.

The state relies on assertions that all three men were from Baton Rouge, left Baton Rouge together, and were returning to Baton Rouge when they were apprehended, as further evidence supporting the fact of Gaines’ participation in the theft. These assertions are based on remarks made by Gaines’ attorney in his opening statement. Defense counsel told the jury in his opening statement that the evidence would show that Gaines was picked up in Baton Rouge by two acquaintances he knew and asked if he wanted to take a ride, that he thought they were going to Avoyelles Parish to see friends of one of the men, that Gaines realized something was wrong and that money had been taken only after leaving the bank, that there was not a whole lot he could have done, and that he was afraid and frightened.

The comments made by the attorney in his opening statement are not evidence, nor do they amount to a judicial admission or stipulation. The comments by defense counsel as to what facts he thought the evidence would establish did not amount to a stipulation of facts or a judicial declaration or admission of facts binding on the defendant or subject to consideration by the jury or by the reviewing appellate court. The asserted facts on which the state relies to infer Gaines’ participation in the theft were not established by the evidence presented to the jury and cannot be considered in determining whether Gaines’ guilt was established in accordance with the Jackson and Austin standards.

Viewing the evidence in the light most favorable to the prosecution we determine nevertheless that the state failed to present evidence upon which a rational trier of fact could have concluded that the state proved the essential elements of the crime beyond a reasonable doubt and that every reasonable hypothesis of innocence had been excluded. Accordingly, Gaines’ conviction must be reversed and set aside and he must be ordered discharged.

This issue being dispositive of the appeal by Gaines, it is unnecessary to consider the other assignments of error made by him.

Presentence Report — Bindom Assignment of Error No. 3

Defendant Bindom argues that the trial court erred in referring to a presen-tence investigation report when sentencing defendant without allowing the defendant to refute or explain its contents.

A review of the record discloses that defense counsel never made a request to review the report or questioned it in any manner during the sentencing procedure. There is no indication in the record that the report contained false information prejudicial to the defendant.

In State v. Boone, 364 So.2d 978 (La.1978), cert. denied 444 U.S. 825, 100 S.Ct. 46, 62 L.Ed.2d 31 (1979), this court found that in the absence of any designation of that portion of the record which would establish that defense counsel made a timely request to review the presentence investigation report and that the request was denied, and in the absence of any showing that the presentence report contained any false information prejudicial to the defendant, no reversible error arose from any failure of the trial court to afford defense counsel access to the presentence report. See also State v. Berain, 360 So.2d 822 (La.1978).

This assignment of error lacks merit. Decree

The conviction and sentence of defendant, Melvin Bindom, is affirmed.

The conviction and sentence of defendant, Roland Gaines, is reversed and set aside and the defendant is ordered discharged.

LEMMON, J., dissents and assigns reasons.

MARCUS, J., dissents for reasons assigned by LEMMON, J.

LEMMON, Justice,

dissenting.

From the circumstances presented in this record, a rational juror could have concluded beyond a reasonable doubt that Gaines was a principal in the theft. The theory that two bank robbers picked up Gaines (whether or not they knew him before) and left $2,700 in bills exposed in plain view on the front seat of the car, while attempting to escape from a virtually certain dragnet operation by police, simply does not constitute a reasonable hypothesis of innocence. See State v. Austin, 399 So.2d 158 (La.1981).

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

      . LSA-R.S. 14:24:
      “All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.”


author:
DENNIS, Justice.
     WATSON, Justice, JOHN C. BOUTALL, Justice Ad Hoc MARCUS, Justice O. E. PRICE, Justice Ad Hoc FRED W. JONES, Justice Ad Hoc

text:
    STATE of Louisiana v. Joey McDANIEL. (Two cases)
    Nos. 81-KA-1282, 81-KA-1324.
    Supreme Court of Louisiana.
    Feb. 19, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Gregory N. Wampler, Asst. Dist. Atty., for plaintiff-ap-pellee in both cases.
    Edwin 0. Ware, Dist. Atty., R. Greg Fowler, Asst. Dist. Atty., for plaintiff-ap-pellee in No. 81-KA-1282.
    Joseph P. Beck, II, Dist. Atty., for plaintiff-appellee in No. 81-KA-1324.
    Helen G. Roberts of Gravel, Robertson & Brady, Alexandria, for defendant-appellant.
   DENNIS, Justice.

Defendant, Joey McDaniel, appeals from his convictions and sentences for attempted armed robbery and forcible rape. The two offenses were part of one criminal episode involving a woman victim which began in Rapides Parish and extended into Grant Parish. In the Grant Parish case defendant was convicted by a jury of forcible rape and sentenced to twenty-one years at hard labor, the first two years without benefit of probation, parole or suspension of sentence. Pursuant to a plea bargain in the Rapides Parish case, after being originally charged with aggravated kidnapping, he pleaded guilty to attempted armed robbery and was sentenced to twelve years at hard labor without benefit of probation, parole or suspension of sentence, concurrently with any other sentence.

In his two appeals, which are here consolidated for purposes of argument and opinion, the defendant filed four assignments of error. Finding merit in one of his assignments in the forcible rape case, we preter-mit consideration of the other allegations of error therein, and reverse his conviction and sentence. After considering the assignment, record and argument in the attempted armed robbery case, we conclude that the sentence is not excessive and affirm.

The offenses occurred on January 19, 1980. Defendant hid in the back of a woman’s unoccupied van in the Tioga Shopping Center parking lot in the early evening. When she returned to the van, defendant produced a knife and instructed her to drive to a remote spot in Grant Parish. On the way the victim engaged the defendant in conversation and persuaded him to put his knife away. There is evidence she may have had several opportunities to escape. When they arrived at the scene, the defendant ordered her to have sexual intercourse with him and she complied. Thus, the crucial issue for the jury was whether the defendant committed forcible rape, La.R.S. 14:42.1, which requires a reasonable belief by the victim that resistance would be futile, or the lesser offense of sexual battery, La.R.S. 14:43.1.

The trial court instructed the jury that “ * * * The burden is therefore upon the State to establish to your satisfaction and beyond a reasonable doubt the guilt of the defendant as to the crime charged in the Bill of Indictment or any lesser responsive verdict included in it. If you entertain any reasonable doubt as to any fact or element necessary to constitute the defendant’s guilt, then it is your sworn duty to give him the benefit of that doubt and return a verdict of acquittal. This doubt must be a reasonable one, that is, one found upon a real, tangible substantial basis and not upon mere caprice, fancy or conjecture. It must be such a doubt that would give rise to a great uncertainty raised in your minds by reason of the unsatisfactory character of the evidence. It must be one that would make you feel morally uncertain as to the defendant’s guilt. If after giving a fair and impartial consideration to all the facts in the case you find the evidence unsatisfactory upon any single point in-dispensibly necessary to constitute the defendant’s guilt, this would give rise to such a reasonable doubt as would justify you in rendering a verdict of NOT GUILTY. However, you are prohibited by law and your oath from going beyond the evidence to seek for doubts upon which to acquit the defendant. You must confine yourselves strictly to a dispassionate consideration of the evidence presented upon the trial. You must not resort to extraneous facts or circumstances in reaching your verdict.” [emphasis added]

Louisiana Code of Criminal Procedure Article 804, in pertinent part, provides:

A. In all cases the court shall charge the jury that:
(1) A person accused of crime is presumed by law to be innocent until each element of the crime, necessary to constitute his guilt, is proven beyond a reasonable doubt;
(2) It is the duty of the jury, in considering the evidence and in applying to that evidence the law as given by the court, to give the defendant the benefit of every reasonable doubt arising out of the evidence or out of the lack of evidence in the case; and
(3) It is the duty of the jury if not convinced of the guilt of a defendant beyond a reasonable doubt, to find him not guilty.
The court may, but is not required to define “the presumption of innocence” or “reasonable doubt” or give any other or further charge upon the same than that contained in this article.

The trial court’s reasonable doubt instruction does not comply with Article 804 in two respects.

First, although portions of the charge are correct, by redefining “reasonable doubt” as “a doubt that would give rise to a great uncertainty” and “one that would make you feel morally uncertain as to the defendant’s guilt,” the trial court’s instruction created a reasonable possibility the jury was misled into applying an insufficient standard. Even when the phrase “great uncertainty” is viewed in the context of the whole charge it overstates the degree of uncertainty required for a reasonable doubt. Cf. United States v. Alvero, 470 F.2d 981 (5th Cir. 1972). “Morally uncertain” could be interpreted to mean that the uncertainty must be based on feeling, i.e., lack of moral indignation rather than a reasonable doubt about an essential fact. Cf. United States v. Indorato, 628 F.2d 711, 720-721 (1st Cir. 1980).

An instruction which misleads or confuses the jury as to the meaning of reasonable doubt may create an error of constitutional dimensions. As stated by the United States Supreme Court in recognizing the inevitability of error even in criminal cases, “[wjhere one party has at stake an interest of transcending value—as a criminal defendant his liberty—this margin of error is reduced as to him by the process of placing on the other party the burden ... of persuading the factfinder at the conclusion of the trial of his guilt beyond a reasonable doubt.” Speiser v. Randall, 357 U.S. 513, 525-526, 78 S.Ct. 1332, 1341-42, 2 L.Ed.2d 1460 (1958). In 1970, the high court explicitly held that the due process clause “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In Re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970).

The trial court is not required to define reasonable doubt or give any other or further charge than that contained in the article. La.C.Cr.P. art. 804. Because of the crucial importance of the instruction, and because the explanations themselves often need more explanation than the term explained, McCormick, § 341, p. 800, it is usually preferable to read only the exact language of Article 804 to the jury.

Second, that portion of the charge was clearly wrong by which the trial court prohibited the jury from “going beyond the evidence to seek for doubts upon which to acquit the defendant” and admonished it to confine itself to “consideration of the evidence presented upon the trial.” La.C.Cr.P. art. 804(A)(2) states that reasonable doubt may arise from the lack of evidence in the case.

As this court recently held in State v. Mack, 403 So.2d 8, 11 (La.1981):

“A correct understanding of reasonable doubt is essential in every criminal jury trial. A vital part of that definition is the statutory formulation of C.Cr.P. 804 —reasonable doubt may arise out of the lack of evidence in the case. This concept is best explained by the exact wording of the statute. Its essential ingredients are not supplied by jury instructions which merely hint at the idea embodied in the statute. In Henderson we stated that a reading of the exact language of C.Cr.P. 804 would have been preferable; today we hold such a reading to be mandatory.”

For the reasons assigned, the conviction and sentence in No. 81-KA-1324 are reversed and the case is remanded; and the conviction and sentence in 81-KA-1282 are affirmed.

No. 81-KA-1324 REVERSED AND REMANDED.

No. 81-KA-1282 AFFIRMED.

WATSON, J., and BOUTALL, J. ad hoc, concur and assign reasons.

MARCUS, J., and PRICE and JONES, JJ. ad hoc, concur in part and dissent in part and assign reasons.

WATSON, Justice,

concurring.

While I am not entirely in accord with the conclusions reached by the majority concerning the instruction on reasonable doubt, I concur in the result for the following reasons.

In the Grant Parish case there is a very serious question about the confession. The burden was on the State to establish that there were no promises, inducements, or threats which would negate the free and voluntary nature of the statement. Here the defendant said in his statement, which was recorded and transcribed, the following:

“Q. And Joey, before we took this statement, did we make you any promises? Did we promise you anything?
“A. You said you would try to help me.
“Q. Did we threaten you in any way or anything like that, Joey?
“A. You said to put me on a lie detector.” (Tr. 71)

These assertions by the defendant were not specifically negated and were to some extent corroborated by the state’s witnesses. They strongly suggest that the confession may have resulted from threats and promises.

The two crimes are part of one event. As a practical matter, defendant faces a longer period of incarceration from his concurrent Rapides Parish sentence than he does under the conviction and sentence in Grant Parish. No purpose would be served by further consideration of the Grant Parish case.

As to the Rapides case I respectfully concur, and as to the Grant Parish case I respectfully concur in the result.

JOHN C. BOUTALL, Justice Ad Hoc

concurring.

I concur. I agree that the portion of the charge requiring great uncertainty and moral uncertainty is erroneous. However, I do not agree with the interpretation placed on that portion cautioning the jury not to be beyond the evidence and believe that to be a correct statement of law.

MARCUS, Justice

(concurring in part and dissenting in part).

I concur in the affirmance of defendant’s conviction and sentence for attempted armed robbery but dissent from the reversal of his conviction and sentence for forcible rape.

O. E. PRICE, Justice Ad Hoc

(concurring in part and dissenting in part).

For the reasons assigned by Justice Ad Hoc Fred W. Jones, Jr., I dissent from the reversal of defendant's conviction and sentence for forcible rape, but concur in the affirmance of his conviction and sentence for attempted armed robbery.

FRED W. JONES, Justice Ad Hoc

(concurring in part and dissenting in part).

The majority reverses the defendant’s conviction and sentence for forcible rape because of alleged errors in the trial judge’s jury instructions relating to “reasonable doubt.” First, it is asserted that by modifying “uncertainty” with “great” the trial judge could have misled the jury. Then, the majority excerpts “morally uncertain” from the pertinent section of the instructions and holds that the jury might have interpreted this to mean an uncertainty based on feeling rather than fact.

It should be noted that the questioned instructions were preceded by the statement that this “doubt must be a reasonable one.” Although the use of “great” as applied to “doubt” might have confused the jury, when seen in the context of the entire charge I do not believe that this single dereliction would have misled the jury into “applying an insufficient standard.”

Although “morally uncertain” may be a part of the standard instructions in criminal jury cases, the better part of wisdom dictates its omission, since the term itself defies definition. Rather than misleading the jury, it probably meant nothing at all.

Second, the majority characterizes as “clearly wrong” the trial judge’s admonition that the jury “consider only the evidence presented at the trial and not go beyond the evidence to seek doubts upon which to acquit the defendant,” since reasonable doubt may arise from lack of evidence. The generally accepted purpose of this instruction is to emphasize to the jury the necessity of trying the case on the basis of legally admissible evidence presented in court. Rather than preventing the consideration by the jury of the lack of evidence, this in itself is the only way the jury can determine whether evidence is lacking. To put it another way, only by studying the evidence actually presented can the jury logically conclude that the prosecution has not proven its case.

For these reasons, I respectfully dissent from the reversal of defendant’s conviction and sentence for forcible rape, but concur in the affirmance of his conviction and sentence for attempted armed robbery.

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

      . I respectfully suggest that as to reasonable doubt it would be best for the trial courts to read the pertinent portion of LSA-C.Cr.P. art. 804 to the juries and avoid lengthy explanations which open the door to possible error.

      . Judge McCain himself noted an “umbra” of doubt.

      .The Grant Parish sentence was 21 years at hard labor, but only two years were without benefit of probation, parole or suspension of sentence. LSA-R.S. 14:42.1. Defendant would be eligible for parole after seven years. LSA-R.S. 15:574.4. The concurrent Rapides Parish sentence was 12 years at hard labor without benefit of probation, parole or suspension of sentence.


author: DENNIS, Justice,

text:
    De LAUREAL ENGINEERS, INC. v. ST. CHARLES PARISH POLICE JURY.
    No. 82-C-0156.
    Supreme Court of Louisiana.
    Feb. 19, 1982.
   In Re: De Laureal Engineers, Inc., applying for Certiorari, or writ of Review to the Court of Appeal, Fourth Circuit, No. 12,049, 406 So.2d 710, St. Charles Parish.

Denied.

DENNIS, J., concurs and assigns reasons.

LEMMON, J., would grant the writ.

DENNIS, Justice,

concurring in denial of writ.

I respectfully concur in the denial of this writ.

The anomalous result of allowing suit and liability but providing no coercive means to enforce judgments will remain until the legislature invokes its powers to “provide for the effect of a judgment” against government units and devises a mechanism to force agencies and subdivisions of the state to comply with judgments against them. See La.Const. art. 12, § 10(C). However, relief may be available to unsatisfied judgment creditors for violations of due process or equal protection. Hargrave, Work of Appellate Courts-1978-78—Louisiana Constitutional Law, 39 La.L.Rev. 807, 819 (1979). See 42 U.S.C. § 1983 (1974). See also Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) which permits actions against municipal governments under § 1983.


text:
    Harold J. BOURQUE, et al. v. David W. TYLER.
    No. 81-C-2451.
    Supreme Court of Louisiana.
    Nov. 16, 1981.
   In re Harold J. Bourque, et al., applying for writ of certiorari, or review, to the Court of Appeal, Third Circuit. Parish of Lafayette. 401 So.2d 652.

Granted. The judgment of the Court of Appeal is reversed and the judgment of the trial court, denying the motion to dissolve the attachment, is re-instated.


text:
    Gerard B. WATTIGNY v. William H. LANBERT.
    No. 81-C-3057.
    Supreme Court of Louisiana.
    Dec. 14, 1981.
   In re William H. Lanbert, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Iberia. 408 So.2d 1126.

Denied.

MARCUS, J., would grant the writ.


text:
    Robert F. DOYLE v. STATE FARM INSURANCE COMPANY, Toleda L. Weldon and American Motors.
    No. 81-C-3141.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re Robert F. Doyle, applying for cer-tiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Calcasieu. 406 So.2d 261.

Granted.


text:
    Leota Mae Davis PESCHIER v. Marjorie Morris PESCHIER, as Testamentary Executrix of the Succession of Lionel Joseph Peschier.
    No. 81-C-3143.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re Marjorie Morris Peschier, as Testamentary Executrix of the Succession of Lionel Joseph Peschier, applying for certio-rari or writ of review, to the Court of Appeal, Third Circuit. Evangeline Parish. 407 So.2d 1240.

Granted.


text:
    Charles L. KELLY v. The CITY OF NEW ORLEANS.
    No. 81-C-3167.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re Charles L. Kelly, applying for cer-tiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Orleans Parish. 406 So.2d 759.

Granted.

LEMMON, J., recused.


text:
    Melvina BRYANT v. NEW ORLEANS PUBLIC SERVICE INCORPORATED and ABC Insurance Company.
    No. 81-C-3166.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re Melvina Bryant, applying for certio-rari, or writ of review, to the Court of Appeal Fourth Circuit. Parish of Orleans. 406 So.2d 767.

Granted.


text:
    Daniel E. CAMBRE v. The TRAVELERS INDEMNITY COMPANY, John W. Dussouy and Company, Inc., and XYZ Insurance Company.
    No. 81-C-2954.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re John W. Dussouy and Company, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 404 So.2d 511.

Denied.

MARCUS, DENNIS and BLANCHE, JJ., would grant.


text:
    Claude O. DUNLAP v. RED RIVER WATERWAY COMMISSION.
    No. 81-C-3090.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re Webster Paul Guilliot, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Avoyelles. 405 So.2d 655.

Denied. The result is correct.


text:
    Gerald P. AURILLO v. Tom GRESSAFFA, George Barrilleaux, American Defender Insurance Company, XYZ, ABC DEF Insurance Companies.
    No. 81-C-3096.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re Tom Gressaffa, applying for certio-rari or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 405 So.2d 664.

Writ denied.

MARCUS, WATSON, and BLANCHE, JJ., to grant.


text:
    Malcolm WEAVER d/b/a Certified Real Estate v. LOUISIANA REAL ESTATE AND DEVELOPMENT COMPANY, B & S Supply, Inc.; Paul Woodall.
    No. 81-C-3108.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re Malcolm Weaver d/b/a Certified Real Estate, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Caddo. 404 So.2d 1280.

Denied.

DENNIS, BLANCHE, and LEMMON, JJ., would grant.


text:
    Sylvia PERALTA v. SCHWEGMANN BROS. GIANT SUPERMARKETS, INC.
    No. 81-C-3138.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re Schwegmann Bros. Giant Supermarkets, Inc., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Orleans Parish. 406 So.2d 720.

Denied.

BLANCHE, J., to grant.


author: BLANCHE, J.,

text:
    Cathy Ann Hebert CUSIMANO v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY.
    No. 81-C-3135.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re Cathy Ann Hebert Cusimano, applying for certiorari or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 405 So.2d 1382.

Writ denied.

BLANCHE, J.,

would grant. The only thing Louisiana had to explain to Champs was that he had [$] 250,000-500,000 coverage. This undertaking was accomplished and the agent really had nothing to explain.


text:
    Allen H. BORNE v. The CITY OF NEW ORLEANS, et al.
    No. 81-C-3132.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re Allen H. Borne, applying for certio-rari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 406 So.2d 748.

Denied.


text:
    Lorraine Lasseigne ALVAREZ et al. v. HUB CITY IRON WORKS, INC., Employee Profit Sharing Trust.
    No. 81-C-3155.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re Ignace Castille, as administrator and trustee of the Hub City Iron Works, Inc., Employee Profit Sharing Trust, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of St. Martin. 405 So.2d 590.

Writ denied.

CALOGERO, J., would grant.


text:
    Billy Lee BERTRAND v. HOWARD TRUCKING COMPANY, INC.
    No. 81-C-3150.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re Billy Lee Bertrand, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Acadia. 406 So.2d 271.

Writ denied.


text:
    Gerald P. AURILLO v. Tom GRESSAFFA, George Barrilleaux, American Defender Insurance Company, XYZ, ABC DEF Insurance Companies.
    No. 81-C-3230.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re Gerald P. Aurillo, applying for cer-tiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 405 So.2d 664.

Writ denied.


text:
    Wilton LOMBARD v. MANCHESTER LIFE INSURANCE COMPANY.
    No. 81-C-3180.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re Manchester Life Insurance Company, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 406 So.2d 742.

Writ denied.

MARCUS and BLANCHE, JJ., would grant the writ.

LEMMON, J., would grant as to penalties and attorney’s fees.


text:
    Patricia Ann CREAMER, Natural Tutrix of the Minor, James Timothy Hinds v. EMPIRE FIRE & MARINE INSURANCE COMPANY, et al.
    No. 81-C-3178.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re Empire Fire & Marine Insurance Company, and Claude Cochran, applying for writ of certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Natchitoches. 405 So.2d 651.

Denied.


text:
    Dudley Johnnie MEAUX, Jr. v. Jessie ALEXANDER, Ben Groil, Tom Hicks Transfer Company, Inc., and the Ranger Insurance Company.
    No. 81-C-3176.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re Continental Casualty Company, applying for certiorari or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 405 So.2d 680.

Denied.


text:
    Lynn J. TOMLINSON, et al. v. Lee FRAZIER, et al.
    No. 82-C-0032.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re Lynn J. Tomlinson, Evelyn Booker and John Geiser, III, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Orleans Parish. 407 So.2d 1385.

Writ denied.

DIXON, C. J., would grant.


text:
    Suzanne A. LANGFORD v. John A. LANGFORD.
    No. 81-C-3329.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re John Langford, applying for writ of habeas corpus and stay order. Parish of Jefferson. No. 236-755.

Denied.


text:
    STATE of Louisiana, ex rel. Norris NASH v. STATE of La.
    No. 81-KH-3300.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re Norris Nash, applying for remedial writs. Parish of Calcasieu. No. 12305-79.

Denied.


text:
    STATE of Louisiana, ex rel. Nelson JOHNSON v. Don HATHAWAY, Sheriff, Parish of Caddo, Caddo Correctional Institution.
    No. 81-KH-3299.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re Nelson Johnson, applying for writ of habeas corpus. Parish of Caddo.

Denied. Relator must first file for relief in the district court.


text:
    STATE of Louisiana v. Willie MACKYEON.
    No. 81-K-3163.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re Willie Mackyeon, applying for writs of certiorari, review, prohibition, mandamus and stay order. Parish of Ascension, Parish Court. Nos. 43949; 43495 and 43496.

Denied.


text:
    HERITAGE SQUARE INVESTMENTS v. Jerry TROUARD.
    No. 81-C-3142.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re Heritage Square Investments, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Calcasieu. No. 8478.

Denied.


text:
    STATE of Louisiana, ex rel. Norton HAMILTON v. Charles FOTI and Harry Connick.
    No. 81-K-3140.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re Norton Hamilton, applying for writ of habeas corpus and mandamus. Orleans t> • i -vr orro cn, j orro Parish. Nos. 273-594 and 273-947.

Although the trial judge of Section H was in error, in the interest of justice the writ is denied in order that the matter may proceed to trial.


text:
    STATE of Louisiana, ex rel. Bobby Ray HALL v. STATE of Louisiana.
    No. 81-KH-3055.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re Bobby Ray Hall, applying for writ of mandamus. Caddo Parish. No. 110-856.

Denied.


text:
    STATE of Louisiana, ex rel. Matthew HENDERSON v. STATE of Louisiana.
    No. 81-KH-2980.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re Matthew Henderson, applying for writ of review. Parish of Orleans. No. 255-000.

Writ denied. A hearing has been ordered by the district Judge on relator’s claim of illegal sentence.


text:
    STATE of Louisiana, ex rel. Clinton C. HOWARD, Jr., Gerald Sceau, Eduardo Robinson, and Gerald Diaz, Jr., et al. v. Charles C. FOTI, Jr., (Sheriff) (Entire Prison System) et al.
    No. 81-KH-3130.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re Clinton C. Howard, Jr., Gerald Sceau, Eduardo Robinson and Gerald Diaz, Jr., et al., applying for writ of mandamus. Parish of Orleans. Number Unknown.

Denied. Relator must first apply to the district court for relief.


text:
    The MAYOR AND COUNCIL OF MORGAN CITY and the St. Mary Parish Police Jury v. The ASCENSION PARISH POLICE JURY, Assumption Parish Police Jury, Iberville Parish Police Jury, Lower Delta Soil and Water Conservation District, and State of Louisiana, Department of Transportation and Development Office of Public Works.
    No. 81-C-3098.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re The Mayor and Council of Morgan City and St. Mary Parish Police Jury, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of St. Mary. No. 15006.

Writ denied.


text:
    STATE of Louisiana, City of Baton Rouge v. Gloria N. BARROW.
    No. 81-K-3071.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re Gloria Barrow, applying for writs of certiorari. Parish of East Baton Rouge. No. 8-81-451.

Denied.

CALOGERO, J., would grant.


text:
    STATE of Louisiana v. Carl J. REED.
    No. 81-K[A]-3038.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re Carl J. Reed, applying for remedial writs. Parish of Iberville. No. 2550-81.

Denied.

DIXON, C. J., CALOGERO, and DENNIS, JJ., would grant.


author:
DOMENGEAUX, Judge.
      SWIFT, Judge, DOMENGEAUX, Judge. SWIFT, Judge,

text:
    Fannie James INGRAM, Plaintiff-Appellee, v. RELIABLE FINANCE COMPANY, INC., Defendant-Appellant.
    No. 8466.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 20, 1981.
    On Rehearing Feb. 3, 1982.
    Rehearing Denied March 23, 1982.

      Craven & Scott, Samuel H. Craven, Alexandria, for defendant-appellant.
    Irving Ward-Steinman, Alexandria, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY, FOR-ET, SWIFT and YELVERTON, JJ.

       Judge Henry L. Yelverton, Fourteenth Judicial District Court, Parish of Calcasieu, presided as Judge ad Hoc in this decision.

   DOMENGEAUX, Judge.

This suit arises out of a loan transaction between Reliable Finance Company, Inc., (Reliable), defendant-appellant, and Fannie James Ingram, plaintiff-appellee, and two other co-borrowers not made party to this suit.

On November 1, 1973, defendant loaned plaintiff along with her co-borrowers, the sum of $4,680.84. This debt was represented by a promissory note secured by a chattel mortgage on certain items owned by the plaintiff. When payments on the note became past due defendant filed suit against plaintiff on September 7, 1978, for foreclosure of the chattel mortgage under executo-ry process (Suit No. 106631 in the Ninth Judicial District), and obtained a seizure of all of the items reflected on the chattel mortgage. The seized items were sold at a sheriff’s sale on October 11, 1978 to Reliable, the plaintiff in the foreclosure suit and the defendant in the present suit. Plaintiff did not intervene in the original foreclosure sale, but did respond to a subsequent petition for deficiency judgment by asserting a claim of nullity arising out of defects in the executory proceedings. Plaintiff’s exception was overruled and defendant was granted a deficiency judgment.

The present suit was instituted by the plaintiff to nullify the judgments of the previous suits brought by the defendant, and to collect damages, penalties and attorney fees. The trial court found in favor of the plaintiff and awarded plaintiff judgment in the amount of $1,500.00 for damages resulting from the illegal seizure under the executory proceedings. Additionally, the trial court refused to grant attorney fees or to nullify the judgments obtained under the executory and deficiency proceedings.

The defendant has appealed specifying that the trial court erred in (1) refusing to grant defendant’s Exception of No Cause of Action, and (2) awarding damages.

The plaintiff has answered the appeal seeking (1) penalties and attorney fees under the Truth in Lending Act and Regulation Z, and (2) nullification of the executory and deficiency proceedings.

Our jurisprudence is well settled that the exception of no cause of action is tried solely on the face of the petition and attached documents. In ruling on an exception of no cause of action, all well-pleaded facts in the petition and attached documents must be accepted as true and any doubt must be resolved in favor of the sufficiency of the pleadings to state a cause of action. Guillory v. Nicklos Oil & Gas Company, 315 So.2d 878 (La.App. 3rd Cir. 1975). After closely reviewing the plaintiff’s petition and according it the proper weight we find that the defendant’s exception was properly overruled.

Plaintiff and her co-borrowers obtained a loan from defendant Reliable for their personal use. Thus, they were extended “consumer credit” within the meaning of the Truth in Lending Act. Reliable is a creditor who regularly extends credit which is payable by agreement in more than four installments and requires payment of a finance charge in connection with its loans. Likewise, Reliable is a creditor within the meaning of the Truth in Lending Act. Both the Act and Regulation Z require a clear and complete descriptive list of all security given in exchange of credit. The failure of the lending creditor to include in debtor’s copy of the Federal Disclosure Statement a description of the chattel mortgage acquired in connection with the extension of credit, constitutes a violation of the Truth in Lending Act. Wilson v. Shreveport Loan Corporation, 404 F.Supp. 375 (W.D.La.1975).

In the loan agreement before us there is an obvious discrepancy between the original Federal Disclosure Statement filed into evidence as D-l and attached to this opinion as Appendix-1, and the ribbon copy of that statement filed into evidence as P-1 and attached to this opinion as Appendix-2. The defendant’s original (see Appendix-1) contains some forty-five items listed as security in the form of a chattel mortgage. The plaintiff’s ribbon copy (see Appendix-2) lists only fourteen of these items. Plaintiff testified that the thirty additional items located on defendant’s Federal Disclosure Statement were added without her knowledge or consent after she received her copy. Considering the above, we find that the record supports the trial court’s finding that the thirty items in question were added to defendant’s Federal Disclosure Statement after plaintiff received her copy.

“(5) A description or identification of the type of any security interest held or to be retained or acquired by the creditor in connection with the extension of credit, and a clear identification of the property to which the security interest relates or, if such property is not identifiable, an explanation of the manner in which the creditor retains or may acquire a security interest in such property which the creditor is unable to identify. * * * If after-acquired property will be subject to the security interest . .. this fact shall be clearly set forth in conjunction with the description or identification of the type of security interest held, retained or acquired.” 12 C.F.R. § 226.8(b)(5).

The failure to completely list the security in the plaintiff’s copy of the Disclosure Statement clearly violated 15 U.S.C. § 1639(a)(8) and 12 C.F.R. § 226.8(b)(5). Wilson v. Shreveport Loan Corporation, supra. Once a violation of the Truth in Lending Act is determined there is no discretion as to the imposition of the penalty and attorney fees. Grant v. Imperial Motors, 539 F.2d 506 (5th Cir. 1976); Owens v. Magee Finance Service of Bogulusa, Inc., 476 F.Supp. 758 (E.D.La.1979).

Accordingly, we amend the trial court’s judgment and award plaintiff the statutorily imposed penalty of $1,000.00. Additionally, we grant plaintiff an award of attorney fees in the amount of $3,500.00.

The trial court made factual determinations which, we believe are supported by the record.

Rather than paraphrase, we quote herewith:

“Although the facts in this case were difficult to ascertain, the court is satisfied that plaintiff’s copy of the federal disclosure statement (P-1) is a ribbon copy of defendant, Reliable Insurance Co., Inc.’s federal disclosure statement (D-1), except that plaintiff’s copy did not reflect some 30 items that are reflected by defendant’s original. The court is convinced that these 30 additional items, which will be referred to as ‘add-ons’, were added to defendant’s federal disclosure statement after she signed same, and had obtained her copy (P-1).
The court is not so sure as to whether the chattel mortgage in question had all of the items, including the ‘add-ons’, at the time Fanny Ingram signed it, although the xerox copy in evidence does indicate a different style or species of typewriting. Taking everything into account and weighing the evidence as carefully as possible, the court concludes that the so-called 30 ‘add-on items’ were probably added to the original chattel mortgage after Fanny Ingram signed same, just as was done with respect to the federal disclosure statement.
* * * * * *
The plaintiff testified that she was considerably upset over the advertisement in the newspaper and also upset over visits by representatives of the defendant, Reliable Finance Company, Inc., coming to her home with talk of taking her furniture, etc. She apparently suffered some substantial mental distress and anxiety over the entire situation.”

We have reviewed the record and find no error in the trial court’s conclusion that the chattel mortgage was improperly altered. Therefore, the seizure and sale of the thirty “add-on” items under the execu-tory proceedings in suit number 106613, made part of this suit on appeal, was prohibited. As such the seizure and sale are to be declared null insofar as they relate to the thirty “add-on” items of the chattel mortgage.

As a result of the illegal seizure of the thirty “add-on” items on the chattel mortgage, the trial court granted plaintiff an award of $1,500.00 for general damages. Absent an initial determination that the trial court’s very great discretion in awarding general damages has been abused under the facts of a particular case, the reviewing court should not disturb the trier’s award. Reck v. Stevens, 373 So.2d 498 (La.1979). Although the plaintiff did not specifically testify that she was considerably upset over the actions of the defendant, our overview of the general tenor of her responses to questions, taken within the context of all facts and circumstances surrounding this situation, could support such a finding. Accordingly, we fail to discern any error on the part of the trial judge when he concluded that the plaintiff “apparently suffered some substantial mental distress and anxiety over the entire situation.” Finding no abuse of discretion we affirm the trial court’s award for general damages.

A deficiency judgment following a foreclosure under executory process is prohibited where there is any fundamental defect in the proceedings. League Central Credit Union v. Montgomery, 251 La. 971, 207 So.2d 762 (1968); Reed v. Meaux, 292 So.2d 557 (La.1973); Blaize, Civil Procedure—Deficiency Judgment After Invalid Executory Process, 29 La. Law Review 405.

The thirty “add-on” items, as determined by the trial court, were not properly part of the chattel mortgage. We find that the seizure and sale of goods not subject to the chattel mortgage constituted an improper use of the executory proceedings, i.e., created a fundamental defect in the proceedings. Therefore, we hold the deficiency judgment in favor of Reliable and against Fannie Ingram in suit number 106613 was prohibited and, as such, should be set aside.

For the foregoing reasons, the judgment of the district court is affirmed as amended and its decree recast as follows:

It is Ordered, Adjudged and Decreed that judgment be rendered herein in favor of plaintiff, Fannie James Ingram, and against defendant, Reliable Finance Company, Inc., in the sum of $1,500.00 representing an award for general damages, $1,000.00 representing the statutorily imposed penalty, and $3,500.00 representing the statutorily imposed attorney fees, to-talling the sum of $6,000.00, with legal interest thereon from date of judicial demand until paid.

It is further Ordered, Adjudged and Decreed that the seizure and sale under execu-tory process in suit number 106613, incorporated herein, be declared null and void insofar as it relates to the thirty “add-on” items, said items being shown on Appendix-1 beginning with “One Walnut WhatNot Shelf” and ending with “One Wall Clock.”

It is further Ordered, Adjudged and Decreed that the deficiency judgment in suit number 106613, incorporated herein, be declared null and void, and that the inscription of said judgment in the mortgage records of Rapides Parish be cancelled.

All costs of appeal are assessed against the defendant, Reliable Finance Company, Inc.

AMENDED AND AFFIRMED.

SWIFT, J., dissents in part and assigns reasons.

SWIFT, Judge,

dissenting in part.

From my review of the plaintiff’s testimony and the record I am unable to find one word therein to the effect that she was upset or affected in any way through this foreclosure. Although the damages need not be established in terms of pecuniary value, humiliation, embarrassment, mental distress and anguish must be shown by competent evidence to sustain an award therefor. McKowen v. McCraine, 244 So.2d 45 (La.App. 1 Cir. 1971); Ray v. South Central Bell Telephone Company, 303 So.2d 877 (La.App. 1 Cir. 1974); Trahan v. Ritterman, 368 So.2d 181 (La.App. 1 Cir. 1979); Lambert v. Donald G. Lambert Const. Co., 371 So.2d 1167 (La.App. 4 Cir. 1978); Captain Kevin Corp. v. Bay Drilling Corp., 380 So.2d 639 (La.App. 1 Cir. 1979); Gele v. Markey, 387 So.2d 1162 (La.1980).

Therefore, I must dissent as to the $1,500.00 award to plaintiff for mental distress and anxiety. Otherwise, I agree with the majority’s decision to affirm the judgment.

ON REHEARING

DOMENGEAUX, Judge.

As shown in our original opinion, the trial court awarded plaintiff, Fannie James Ingram, a judgment in the amount of $1,500.00 for damages received from the illegal seizure under the referred to and described executory proceedings. The trial court did not grant attorney fees nor nullify the judgments obtained under the executo-ry and deficiency proceedings.

As also shown in said opinion we affirmed the $1,500.00 award for general damages but awarded plaintiff an additional sum of $4,500.00, representing $1,000.00 as a penalty statutorily imposed under the federal statute referred to therein, and the sum of $3,500.00 as attorney fees. We additionally declared null a portion of the seizure and sale under Suit No. 106613 and also completely nullified the deficiency judgment in that suit.

Defendant-appellant Reliance Finance Company, Inc., now applicant for rehearing, calls our attention to the fact that the plaintiff, Fannie James Ingram, had failed to answer Reliable’s appeal, or to appeal herself, and that consequently she is not entitled to the additional relief which this Court granted her.

We find applicant to be correct.

Although the appellate brief filed on behalf of Fannie James Ingram makes strong claim for relief under the Federal Truth in Lending Act and Regulation Z thereof, she has not answered the appeal, nor appealed herself, seeking that relief.

La.C.C.P. Art. 2133 provides, among other things, that an appellee is not obliged to answer an appeal unless he desires to have the judgment modified, revised, or reversed in part or- unless he demands damages against the appellant.

In the case of Ellis v. Edmundson, 301 So.2d 720 (La.App. 3rd Cir. 1974), we held that the issue of whether or not the trial court there should have dismissed the appel-lee’s reconventional demand as of nonsuit rather than reject it as though on the merits was not before us. Therein we stated:

“... However, under Article 2133 of the Code of Civil Procedure the defendants in this case should have answered the appeal in order to bring this issue before this court. Since an answer was not filed by the defendants-appellees, this court is without jurisdiction to deal with this issue.”

In the case of Daigle v. Robinson Brothers, Inc., 368 So. 186 (La.App. 1st Cir. 1979), it was stated:

“Although plaintiff has filed a brief in this court seeking additional recovery for inconvenience and other alleged damages, plaintiff has neither appealed nor answered Appellant’s appeal. Under the circumstances we may not consider the claims made by plaintiff in brief alone. La.C.C.P. Article 2133. Accordingly, the scope of this appeal is limited to Appellant’s third party demand against Manufacturer.”

See also Martin v. Lafayette Parish Police Jury, 308 So.2d 309 (La.App. 3rd Cir. 1975); Dupre v. Evangeline Parish Police Jury, 315 So.2d 148 (La.App. 3rd Cir. 1975).

Accordingly, we recall that portion of our opinion which granted to plaintiff the additional enumerated relief over and above that granted by the trial court, i.e., the additional $4,500.00, the nullification in part of the seizure and sale under Suit No. 106613 and the nullification of the deficiency judgment in that suit.

For the pertinent reasons set out in our original opinion insofar as it affirmed the judgment of the district court, we now reaffirm that judgment which was rendered in favor of Fannie James Ingram and against the defendant, Reliable Finance Company, Inc., in the sum of $1,500.00, with legal interest thereon from date of judicial demand and which assessed costs to the defendant.

With its application for rehearing, Reliance has, in the alternative, filed a peremptory exception of prescription in this Court, asserting that any suit under the Federal Truth in Lending statutes must be filed within one year from the date of an alleged violation thereof. In view of our decision on rehearing it is not necessary to pass upon the merits of the exception nor Reliable’s right to file it under La.C.C.P. Art. 2163.

All appellate costs are assessed against the defendant, Reliable Finance Company, Inc.

AFFIRMED.

SWIFT, Judge,

dissenting.

For the reasons stated in my partial dissent to the original decision of this court, I must dissent to the affirmation of the $1,500.00 award to the plaintiff for mental distress and anxiety.

      . “The adjective ‘consumer’, used with reference to a credit transaction, characterizes the transaction as one in which the party to whom credit is offered or extended is a natural person, and the money, property, or services which are the subject of the transaction are primarily for personal, family, household, or agricultural purposes.” 15 U.S.C. § 1602(h).
      “ ‘Consumer credit’ means credit offered or extended to a natural person, in which the money, property, or service which is the subject of the transaction is primarily for personal, family, household, or agriculural (sic) purposes. ‘Consumer loan’ is one type of ‘consumer credit’ ” 12 C.F.R. § 226.2(p).

      . “The term ‘creditor’ refers only to creditors who regularly extend or arrange for the extension of, credit which is payable by agreement in more than four installments or for which the payment of a finance charge is or may be required, whether in connection with loans, sales of property or services, or otherwise. * * * ” 15 U.S.C. § 1602(f).
      “ ‘Creditor’ means a person who in the ordinary course of business regularly extends or arranges for the extension of consumer credit, or offers to extend or arrange for the extension of such credit, which is payable by agreement in more than four installments, or for which the payment of a finance charge is or may be required, whether in connection with loans, sales of property or services, or otherwise. * * * ” 12 C.F.R. § 226.2(s).

      . “Any creditor making a consumer loan ... shall disclose each of the following items, to the extent applicable:”
      * * * * * *
      “(8) A description of any security interest held or to be retained or acquired by the creditor in connection with the extension of credit, and a clear identification of the property to which the security interest relates * * * ” 15 U.S.C. § 1639(a)(8).
      “Disclosure in Sale and Nonsale Credit. In any transaction subject to this section, the following items, as applicable, shall be disclosed: * * * # * *

      . “(a) Except as otherwise provided in this section, any creditor who fails to comply with any requirement imposed under this part or part D or E of this subchapter with respect to any person is liable to such person in an amount equal to the sum of—
      ******
      “(2)(A)(i) in the case of an individual action twice the amount of any finance charge in connection with the transaction, ..., except that the liability under this subparagraph shall not be less than $100 nor greater than $1,000;
      “[and] (3) in the case of any successful action to enforce the foregoing liability, the costs of the action, together with a reasonable attorney’s fee as determined by the court.” 15 U.S.C. § 1640.


author: GARRISON, Judge.

text:
    Elmore Ray JOHNSON, Individually and on Behalf of His Minor Child, Elmore Ray Johnson, Jr. v. ALLSTATE INSURANCE COMPANY, and Elvorn Tate, Individually and on Behalf of His Minor Son, Adrien Tate.
    No. 12153.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1982.
    Rehearing Denied March 19, 1982.

      R. Ray Orrill, Jr., New Orleans, for plaintiff-appellee.
    Murphy & Simon, E. Kelleher Simon, New Orleans, for defendants-appellants.
    Before GULOTTA, GARRISON and BARRY, JJ.
   GARRISON, Judge.

This is an appeal from the judgment of the district court rendered in conformity with a jury verdict, granting to plaintiff, Elmore Johnson, on behalf of his minor son, Elmore Johnson, Jr., damages in the amount of $18,775.00, plus interest and costs including expert fees in the amount of $150.00. The damages arise out of an incident which occurred on April 25, 1977, when Elmore Johnson, Jr. was hit by a bicycle ridden by Adrien Tate, the minor son of Elvorn Tate. From that judgment, which we affirm, defendants appealed.

On appeal, defendants contend that they should have been granted a mistrial when the trial judge erroneously made prejudicial comments on the testimony and that the amount of damages awarded is excessively high.

During the course of Adrien Tate’s testimony, the trial judge made the following comments in front of the jury:

“Now, young man, the Court feels that it’s its duty to remind you that you are under oath. This Court finds it difficult to believe that you and your friend, who was a good friend of yours, were involved in an accident and didn’t say anything to him about this accident since the time it happened?”
THE WITNESS:
“No, I do not see him that much.
THE COURT:
“You never said anything?
THE WITNESS:
“No.
THE COURT:
“You don’t want to retract that statement and—
MR. SIMON:
“I have a statement to make outside of the jury.
MR. ORRILL:
“I have no further question of this witness. I would like to mark the photograph that this witness has identified as P-5. I will file, offer and introduce it.
THE COURT:
“The jury is excused.”

When the jury returned, the trial judge stated:

“Ladies and Gentlemen of the jury, I specifically admonished this witness about the oath that he had taken solely because he is a minor and may not know that he could be punished for perjury. And I felt that it was the Court’s duty to admonish him about that. You are not to take into consideration, as I told you before the trial, again any opinion of the Court.
“Proceed.
MR. ORRILL:
“Your Honor, I believe I had finished with this witness. I had offered, filed and introduced the photograph and marked same as P-5 and ask the Court to rule.
MR. SIMON:
“You Honor, I would, in an effort to try and do this expeditiously, I would renew my motion that I just recently made in light of the Court’s explanation to the jury. As far as the photograph is concerned, defendant has no objection to its introduction.
THE COURT:
“What Counsel was saying is that he is renewing his declaration for a mistrial. As I had done before, I now deny the motion. With reference to the photograph, he has no objection, is that correct, then the photograph is admitted into evidence. You may pass it to the jury at this time or you may wait until some other time that you deem appropriate.” (Tr. 37-44)

While the trial judge may have committed a “borderline” error in commenting upon the testimony in the manner in which he did, upon our independent review of the record, we find that the comment had little, if any, effect on the jury. If the trial judge’s comment was indeed an error, then we find that the error was harmless because it did not affect the outcome of the case. In the instant appeal, there is more than enough testimony indicating that the younger Tate was racing his bicycle at a fast rate of speed when he crossed from the street onto the sidewalk where he hit El-more Johnson, Jr. Even if the trial judge had not made the comments in dispute, the jury would have still found Tate negligent. Accordingly, defendant’s argument is without merit.

Turning to the issue of quantum, we note the following:

Elmore Johnson, Jr. suffered a fractured tibia of the right leg, was hospitalized for 6 to 10 days, and wore a hard plaster cast for two months during which he used a wheel chair. He was treated as an outpatient at Charity Hospital for 7 months and was still experiencing pain a year after the accident. Dr. Stuart Phillips gave Johnson a rating of 5% permanent disability.

Plaintiff-appellee argues that the amount awarded is not clearly erroneous, citing Reck v. Stevens, 373 So.2d 498 (La.1979), and Menasco v. Peyton, 328 So.2d 741 (La.App. 4th Cir., 1976). We agree.

In Menasco, this court upheld an award of $20,000.00 where an eight-year old boy suffered a fractured leg as well as some slight hearing loss and dental problems.

We note that the restriction of movement necessitated by an injury of this type works a greater hardship, both physically and mentally, on an active, athletic youngster than on a more sedentary adult.

For the reasons discussed, the judgment of the district court is affirmed.

AFFIRMED.

      . We note that some authorities on legal writing and opinion writing hold that it is improper to quote testimony in an opinion. Because paraphrasing of testimony may be imprecise and misinterpreted and because the trial transcript is often not easily available to the reader, we feel that we must here provide direct quotes from the transcript for the convenience of the reader.

      . Testimony varies.