text:
    Angela KING, Appellant, v. LORD COLONY ENTERPRISES and Liberty Mutual Insurance Company, Appellees.
    No. XX-130.
    District Court of Appeal of Florida, First District.
    July 10, 1981.
    L. Barry Keyfetz of Keyfetz & Poses, Miami, for appellant.
    Frank E. Maloney, Jr., Fort Lauderdale, for appellees.
   PER CURIAM.

This is an appeal from a deputy commissioner’s order denying a claim for permanent partial disability benefits in excess of 20% of the hand as well as penalties and interest, and determining that August 31, 1979, was the date of maximum medical improvement. Angela King, the claimant in this case, was injured on March 30,1979, when her right hand was caught in an automatic ironing device. Eventually, amputation of the tips of several fingers of the right hand was necessary. The claimant has raised several meritorious points on appeal. Initially, we agree with appellant that the findings of the deputy commissioner were inadequate and that the finding that all benefits due claimant were timely paid was in error.

The employer/carrier commenced payment of benefits for permanent partial disability on February 6, 1980. As noted above, the deputy found that claimant reached maximum medical improvement on August 31, 1979, and that finding was not challenged on appeal. Appellant argues that the deputy erred in failing to order that the payment of permanent disability benefits be made effective August 81,1979. We agree and reverse on this point. The payments for permanent partial disability should have been made effective the date of maximum medical improvement, and claimant is entitled to interest from the date the payments were due. Parker v. Brinson Construction Co., 78 So.2d 873 (Fla. 1955).

Benefits for temporary total disability were commenced on time, but at an incorrectly low compensation rate. Two upward adjustments were made in claimant’s compensation rate in July, 1979, while she was still receiving temporary total disability benefits, but several months after the incorrect payments were made. Appellant argues that, pursuant to Section 440.-20(5), Florida Statutes (Supp. 1978), penalties should have been awarded on the amounts which were paid to correct the error in the compensation rate. Appellee, while conceding that temporary total disability payments were initially made at an erroneously low rate, argues that no penalties are due because the original installments, although incorrect in amount, were paid on time. Appellee points out that as soon as the employer furnished the carrier with a wage statement, the error was corrected and the difference paid. No excuse was offered for the delay in determining the correct compensation rate, however, and we agree with appellant; full temporary benefits were not timely paid. One purpose for the penalty provision “is to induce prompt payment of legitimate claims and to protect claimants against unnecessary and unjustifiable delays.” Brantley v. A D H Building Contractors, Inc., 215 So.2d 297 (Fla. 1968). This purpose is served by awarding penalties respecting benefits the payment of which is delayed due to an incorrect compensation rate, for which no excuse is offered. Cf. Salmon v. Electro-Phos Corp., 379 So.2d 1044 (Fla. 1st DCA 1980) (error to fail to adjudicate claim for penalties allegedly due as a result of late payment of benefits resulting from increase in compensation rate).

Appellant also argues, and appellee concedes, that claimant is entitled to interest on the late payment of these temporary total disability benefits. We agree and reverse on this point.

Finally, appellant argues that she was entitled to an award of permanent partial benefits in excess of the 20% disability of the hand rating accepted by the employer/carrier. The employer/carrier paid claimant for a 20% permanent partial disability of her hand, entitling her to 35 weeks of compensation. The deputy denied benefits in excess of this rating. The record reflects, however, that claimant lost the first phalange and a small part of the second phalange of her long or second finger, entitling her to compensation benefits for loss of the entire digit under the schedule, or 30 weeks. Section 440.15(3)(n), Florida Statutes (Supp. 1978); Fernandez v. Anheuser-Busch, Inc., 197 So.2d 489 (Fla. 1967). She also sustained injuries to her index and ring fingers, which were assigned ratings of 10% of the finger and 60% of the finger, respectively, by Dr. Turke, and 2% of the hand and 5% of the hand, respectively, by Dr. Smith. These ratings would yield an additional 15.5 (10% of 35 weeks plus 60% of 20 weeks) or 12.25 (7% of 175 weeks) weeks of compensation. Together with the 30 weeks of compensation due respecting the middle finger, claimant was entitled to either 45.5 weeks of compensation, based on Dr. Turke’s rating of the index and ring fingers, or 42.25 weeks, based on Dr. Smith’s rating. Either combination of ratings would have yielded more than the 35 weeks paid by the employer/carrier. However, claimant was entitled to the most favorable of these scheduled remedies. LaBrecque v. Florida Vocational Rehabilitation and Division of Risk Management, 380 So.2d 482 (Fla. 1st DCA 1980). In addition, it would seem incongruous to combine a rating based on total disability of the second finger with Dr. Smith’s ratings of 2% and 5% of the hand. Since the deputy did not expressly reject the opinion of Dr. Turke, claimant should have received the rating which would yield 45.5 weeks of compensation.

REVERSED AND REMANDED for entry of an order consistent with this opinion.

MILLS and SHAW, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge, concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Morris SCOTT a/k/a Felix Morris a/k/a Morris Phillip Scott, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1032.
    District Court of Appeal of Florida, Third District.
    July 14, 1981.
    Bennett H. Brummer, Public Defender and Michael Zelman, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Joel D. Rosen-blatt, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and HENDRY and DANIEL S. PEARSON, JJ.
   PER CURIAM.

This is an appeal from a judgment of the trial court revoking probation.

Appellant seeks reversal on the grounds that he did not understand the conditions of his probation. The trial court, after a full and fair hearing, found that the appellant understood the terms and conditions of his probation and that he was violating the terms thereof by attempting to commit a sexual assault and in failing to abide by the other conditions of his probation.

No reversible error having been demonstrated, we must affirm.

Affirmed.


text:
    Bobby Lee BUTLER, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1352.
    District Court of Appeal of Florida, Third District.
    July 14, 1981.
    Bennett H. Brummer, Public Defender and Kent Harrison Robbins, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, NESBITT and BASKIN, JJ.
   PER CURIAM.

Affirmed. Stewart v. State, 385 So.2d 1159 (Fla.2d DCA 1980).


author: HERSEY, Judge.

text:
    Annantae McCOY, Appellant, v. Gary D. McCOY, Appellee.
    No. 80-1226.
    District Court of Appeal of Florida, Fourth District.
    July 15, 1981.
    Allen R. Bosworth, Atty. for Legal Aid Service of Broward Co., Inc., Fort Lauder-dale, for appellant.
    No appearance for appellee.
   HERSEY, Judge.

Appellant, mother, originally having custody of her minor son and daughter, appeals a final judgment which awarded custody of the minor daughter to the father. The father made no attempt to obtain custody until appellant sought child support. At the time of the final hearing on the petition for custody each child was at least temporarily residing with the respective custodians, the daughter with her father in Florida and the son with his mother in Pennsylvania. The record discloses that both children now live in Pennsylvania with the mother.

We have not been favored with an appearance on behalf of the father appellee.

We determine that there is not sufficient evidence on this record to sustain a change of custody nor to support the split custody award, based upon the policy stated in Scalzo v. Scalzo, 395 So.2d 1272 (Fla. 4th DCA 1981) and enunciated by our supreme court in Arons v. Arons, 94 So.2d 849 (Fla.1957). The custody of both children should have been awarded to the mother.

Accordingly we reverse the final judgment and remand with instructions to enter a judgment awarding permanent custody of the minor children to appellant. The judgment shall be without prejudice to appel-lee’s right to petition the court for reasonable visitation privileges if he is so inclined.

REVERSED AND REMANDED WITH INSTRUCTIONS.

BERANEK, J., and SCHWARTZ, ALAN R., Associate Judge, concur.


text:
    WELLS FARGO ARMORED SERVICE CORPORATION, Appellant/Cross-Appellee, v. FOOD KWIK, INC., Appellee/Cross-Appellant.
    No. 80-1058.
    District Court of Appeal of Florida, Fourth District.
    July 15, 1981.
    Curtis Carlson of Fowler, White, Burnett, Hurley, Banick & Strickroot, P. A., Miami, for appellant/cross-appellee.
    F. Gregg Bamhardt and Charles C. Powers of Montgomery, Lytal, Reiter, Denney & Searcy, P. A., West Palm Beach, for appellee/cross-appellant.
   PER CURIAM.

This is an appeal from a final judgment entered in favor of a bailor against a bailee. We reverse.

The trial court’s undisputed findings of fact state:

1. A service contract was made between WELLS FARGO ARMORED SERVICE CORPORATION (“WELLS FARGO”) and GULF OIL CORPORATION on January 22, 1979. The service contract provided that WELLS FARGO would call for and receive from GULF OIL CORPORATION or its designated agent, funds and other valuable articles. The service contract specified the locations where calls would be made.
2. The plaintiff, FOOD KWIK, INC., was a designated agent of GULF OIL CORPORATION, and operated a gas station owned by GULF OIL CORPORATION in Riviera Beach, Florida, which was one of the locations designated on the service contract between WELLS FARGO and GULF OIL CORPORATION.
3. Pursuant to the service contract, FOOD KWIK had been given a Receipt Book and a Signature List, as well as instructions as to the use of both. FOOD KWIK passed these instructions on to its employees, including Ms. Bell.
4. The instructions given to FOOD KWIK and its employees regarding the use of the Receipt Book and Signature List were that money and other articles of value were not to be delivered to a WELLS FARGO messenger unless the Receipt Book had been signed by that messenger and his signature, as written in the Receipt Book, had been compared with his actual signature as it is written on the Signature List. In addition, FOOD KWIK and its employees were instructed that if the messenger failed to sign or his signature was different than it appeared on the Signature List, that they were to immediately notify WELLS FARGO.
5. On March 3,1979, Dale Darville, an authorized messenger of WELLS FARGO whose signature appears on the Signature List, arrived at the gas station operated by FOOD KWIK in the course of his employment. He arrived in a WELLS FARGO truck, was wearing a WELLS FARGO uniform, and was carrying a clip board with “Shipment to Vault” manifest sheets attached.
6. Messenger Darville entered the FOOD KWIK location and approached Ms. Bell who was seated at a desk with her back to him. While remaining seated, Ms. Bell turned around and handed messenger Darville the Receipt Book. She then turned back to the desk to continue her work. Before she had completely turned back to work, Ms. Bell saw messenger Darville take the Receipt Book, put it on his clip board with the “Shipment to Vault” manifest sheets attached, and appear to begin signing the Receipt Book.
7. After a few moments, Ms. Bell turned around again and messenger Dar-ville closed the Receipt Book and handed it back to her. Thereupon messenger Darville picked up the envelope of money and credit card receipts that Ms. Bell had prepared, and he immediately left the FOOD KWIK location.
8. While messenger Darville was with Ms. Bell, he filled in the “Shipment to Vault” manifest, and indicated that he had made no pick up at that location. He purposely did not sign the Receipt Book and the book remains unsigned for the date March 3, 1979.
9. When Ms. Bell was given the Receipt Book back, she did not look at it to see if the messenger had signed it and she did not look at the Signature List in order to compare the signatures. Much later that day, however, Ms. Bell did discover that the Receipt Book had not been signed. Because she knew she had failed to follow her instructions, she never told her employer of the mistake, but hoped the messenger would properly deliver the money and no problem would arise.
10. The money was stolen by messenger Darville, and it was not until approximately March 10, 1979, that FOOD KWIK realized the money was missing.
11. The envelope that messenger Dar-ville stole contained $4,068.35 in cash and $1,017.05 in credit card receipts.

Based on the foregoing facts the trial court made the following conclusions:

1. Both jurisdiction over the subject matter and over the parties is proper.
2. The service contract between WELLS FARGO and GULF OIL CORPORATION, providing that the responsibility and liability of WELLS FARGO for the loss of any items of value will not begin until the Receipt Book is signed by an authorized representative of WELLS FARGO and the items are delivered into the possession of that representative is valid. The parties to a bailment may by express contract enlarge, abridge, qualify or supercede the obligations which would otherwise arise from a bailment by implication of law, and the service contract therefore supercedes the obligations which would otherwise exist under a traditional bailment by implication of law.
3. Theft, per se, is outside the scope of employment and messenger Darville was not hired to steal. The whole concept of WELLS FARGO and the procedure surrounding the service contract and the use of the Receipt Book and the Signature List is to prevent thievery.
4. Ms. Bell was negligent in not following her instructions and in failing to inspect the Receipt Book to see that it was signed by messenger Darville.
5. While recognizing that the parties, through the service contract, did provide that a bailment and liability would not come into existence until the Receipt Book was signed, the Court concludes that in this instance where messenger Darville came into the FOOD KWIK location clothed with a uniform, hat and gun of WELLS FARGO, and arrived in a WELLS FARGO truck, and where messenger Darville did deliberately deceive Ms. Bell into thinking that he was signing the Receipt Book and did purposefully set out to conceal the fact from Ms. Bell that he had not signed the Receipt Book so that he could steal the money, then the service contract should not bar a recovery in this instance by FOOD KWIK against WELLS FARGO.
6. The provisions of the service contract setting forth when the responsibility and liability of the parties commences and ends does not violate any public policy of this state and is not an exclusionary clause.
7.The service contract provides that the liability per shipment shall not exceed the sum of $4,000.00. Therefore, the liability of WELLS FARGO for the loss shall not exceed the sum of $4,000.00.

We disagree with the trial court’s conclusion in paragraph 5, supra, that the parties’ contract should not bar recovery against appellant. In 5 Fla.Jur.2d, Bailments, § 7 the text recites:

While in the absence of a special agreement the degree of responsibility imposed on the parties to a bailment is fixed by law, the parties may make their own contracts in reference to their mutual right and liabilities under bailments of property. Thus, they may by express contract enlarge, abridge, qualify, or supersede the obligations which would otherwise arise from the bailment by implication of law, so long as the contract does not violate the law or contravene public policy, and so long as it is actually a part of the contract of bailment and is expressed in clear and unmistakable language. The right of the parties to freely define their rights and obligations under the bailment by special contract is subject to the limitation that they are not permitted to contract in contravention of positive law or of public policy.

Section 5 of the parties’ contract provided in part:

(a) Subject to the limitations on the liability of Wells Fargo set out herein, Wells Fargo shall be liable for the loss of funds, securities, instruments and/or valuable articles delivered into its possession and receipted for by it hereunder only if Wells Fargo shall fail to deliver the securely and distinctively sealed package(s) or containeres) in which the same are contained or said to be contained to the designated consignee thereof, or its duly authorized agent, in the same or like condition as when delivered to and receipted for by Wells Fargo.... (Emphasis added).
(b) The responsibility of Wells Fargo as described in Section 5(a) hereof, for the safekeeping of such funds, securities, ip-struments and/or valuable articles shall commence when the same have been received by Wells Fargo and a receipt issued therefor, and shall terminate when delivery, as defined in section 5(a) hereof, has been completed.

The contract plainly did not violate the law or contravene public policy. Its language was clear and unambiguous. Appellee’s liability would arise only when received by appellant and a receipt issued therefor. Because no receipt was issued here there could be no liability.

Accordingly, we reverse and remand for entry of judgment for appellant. Appel-lee’s cross-appeal is now moot.

REVERSED AND REMANDED.

DOWNEY, BERANEK and GLICK-STEIN, JJ., concur.


text:
    James Vincent DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 80-1138.
    District Court of Appeal of Florida, Fourth District.
    July 15, 1981.
    Richard Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

We have considered appellant’s points on appeal and find no reversible error demonstrated. However, it is conceded that the Judgment of Conviction should be modified to provide that appellant was convicted of aggravated assault with a deadly weapon.

Accordingly, the judgment appealed from is affirmed as so modified.

DOWNEY and BERANEK, JJ., and OWEN, WILLIAM C., Jr., Associate Judge, concur.


text:
    In re ESTATE OF Mary A. WALSH a/k/a Augusta Walsh, Deceased.
    No. 80-1786.
    District Court of Appeal of Florida, Fourth District.
    July 15, 1981.
    Thomas E. Hunt and Robert O’Toole, Fort Lauderdale, for appellant.
    Alan Jay Lewis of Jacobson, Schechter & Lewis, Hollywood, for appellee.
   PER CURIAM.

This cause is affirmed.

Any petition for rehearing shall be filed within two (2) days.

LETTS, C. J., GLICKSTEIN, J„ and SCHWARTZ, ALAN R., Associate Judge, concur.


author: MOORE, Judge.

text:
    FLORIDA PAROLE AND PROBATION COMMISSION, Appellant, v. August ALBY, Appellee.
    No. 80-1527.
    District Court of Appeal of Florida, Fourth District.
    July 15, 1981.
    Catherine L. Dickson, Asst. Gen. Counsel, Florida Parole and Probation Commission, Tallahassee, for appellant.
    Richard L. Jorandby, Public Defender, and Charles D. Peters, Asst. Public Defender, West Palm Beach, for appellee.
   MOORE, Judge.

The Florida Parole and Probation Commission appeals an order granting appellee’s petition for writ of habeas corpus and the denial of its (the Commission’s) motion for writ of prohibition. We reverse the former and affirm the latter.

In granting the petition for writ of habe-as corpus the trial court relied upon Carson v. Bishop, 378 So.2d 882 (Fla. 1st DCA 1979), cert. denied, 386 So.2d 634 (Fla.1980), which we recently specifically rejected in State v. Sylvester, 401 So.2d 1123 (Fla. 4th DCA 1981). The trial court did not have the benefit of our opinion in Sylvester at the time of its ruling. Accordingly, on the authority of Sylvester, the order granting the writ of habeas corpus is reversed and the writ quashed.

In its motion for writ of prohibition the appellant sought to prevent the public defender from representing the appellee in the habeas corpus proceedings. The denial of the motion is affirmed on the authority of Graham v. Vann, 394 So.2d 176 (Fla. 1st DCA 1981). We also question the standing of appellant to raise this issue; however, in view of our holding it is not necessary to determine standing.

AFFIRMED IN PART; REVERSED IN PART.

DOWNEY and HURLEY, JJ., concur.


author: LEMMON, Justice. BLANCHE, Justice

text:
    GOOD HOPE REFINERIES, INC. v. OIL, CHEMICAL AND ATOMIC WORKERS, LOCAL 4-447.
    No. 80-C-2023.
    Supreme Court of Louisiana.
    June 22, 1981.
    Dennis M. Angelico of Hess & Washof-sky, New Orleans, for defendant-applicant.
    Michael G. Crow, Adms & Reese, New Orleans, Jean M. Farquharson, New Orleans, for plaintiff-respondent.
   LEMMON, Justice.

This case presents the question of whether a party may obtain a trial by jury, in accordance with R.S. 23:848, when accused of indirect contempt of court for violation of an injunction issued in a labor dispute.

I.

During a strike at plaintiff’s oil refinery the trial court on March 4, 1980 rendered a judgment enjoining both plaintiff-employer and defendant-union from engaging in certain specified conduct. Three days later plaintiff-employer filed a motion for citation for contempt, alleging that the union had violated the preliminary injunction. Defendant-union immediately moved to have the contempt proceedings transferred to the criminal docket and designated for trial by jury. The trial court granted the motion and ordered the matter allotted in accordance with the court rules governing criminal proceedings.

Pursuant to C.C.P. Art. 2201 the employer filed an application for supervisory writs, which was granted by the court of appeal. After additional briefing the intermediate court reversed the ruling of the trial court, holding that R.S. 23:848 does not apply when injunctive relief is sought to prevent acts or threats of violence, intimidation or coercion which endanger public health, safety and welfare. 386 So.2d 378 (4th Cir. 1980). We granted certiorari to review that judgment. 393 So.2d 743 (La.1980).

II.

La.Const. Art. V, § 2 provides:

“A judge may issue writs of habeas corpus and all other needful writs, orders, and process in aid of the jurisdiction of his court. Exercise of this authority by a judge of the supreme court or of a court of appeal is subject to review by the whole court. The power to punish for contempt of court shall be limited by law.”

In proceedings arising out of labor disputes the Legislature has expressly outlined the procedure for exercising the judicial power to punish for contempt of court. In clear and express terms R.S. 23:848(3) accords a person who has been charged with indirect contempt for violation of an injunction the right to a speedy and public trial by a five-man jury. It is therefore evident that the Legislature intended that the general law governing punishment for indirect contempt of court for violation of an injunction be superseded by the special law when a labor dispute is involved and when the special laws conflict with the general law.

Relying on this court’s decision in Douglas Public Service Corp. v. Gaspard, 225 La. 972, 74 So,2d 182 (1954) and Godchaux Sugars, Inc. v. Chaisson, 227 La. 146, 78 So.2d 673 (1955), the court of appeal held that the unambiguous provisions of R.S. 23:848 are not applicable when serious acts or threats of violence, intimidation or coercion threaten public safety. The court accordingly remanded the matter for further proceedings on the civil docket.

In the Douglas Public Service case different sections of R.S. 23:841 et seq. (The Little Norris-LaGuardia Act) were at issue. The trial court, after initially granting a temporary restraining order in favor of the employer, had dissolved the order and dismissed the employer’s suit for injunctive relief on an exception of no cause of action, finding that the allegations of the petition (taken as true) did not establish such violence or threats as would require injunctive relief for the preservation of peace and order. This court granted certiorari and held that the petition did state a cause of action, but did not simply reverse the judgment maintaining the exception and remand the matter for hearing required by R.S. 23:844. Instead, this court went on to consider the legality of any limitation on the power of trial courts to grant immediate injunctive relief and concluded that such limitations violated due process.

In Baton Rouge Coca-Cola Bottling Co. v. General Truck Drivers Local 5, 403 So.2d rationale of the Douglas Public Service case and rejected it. The court has now recognized that R.S. 23:844 does not violate due process any more than does its federal .counterpart and that the statute, rather than unconstitutionally limiting the court’s jurisdiction simply establishes valid and reasonable procedures and requirements for exercising jurisdiction in the issuance of an injunction in labor disputes.

The present case involves a consideration of R.S. 23:848. That statute generally accords the accused (either an employer or an employee), in proceedings involving indirect contempt for violation of a restraining order or injunction issued by a court in labor disputes, the right to bail, the right to notice of the charge and to a reasonable opportunity to prepare a defense, and the right to a speedy and public trial by jury. The employer contends that this scheme constitutes an unconstitutional or illegal limitation on the power of the district court to punish for contempt. We disagree and hold that R.S. 23:848 simply establishes valid and reasonable procedures and requirements for such contempt proceedings.

The statute basically provides for minimum due process requirements when a party on either side of a labor dispute is accused of violating an injunctive order. The additional requirement of a trial by jury represents a legislative judgment that such a procedure should be employed in labor disputes and accords with the public policy in such matters expressed by the Legislature in R.S. 23:843. Since the statute expressly requires a speedy trial by jury, that procedure does not constitute an unreasonable limitation on the district court’s power to punish for contempt.

The employer argues, however, that the contempt proceedings in this case would have been delayed for months by the transfer to the criminal docket for trial in the next criminal jury term. We agree that the trial judge erred insofar as he ordered the matter allotted in accordance with the court rules generally governing criminal proceedings. R.S. 23:848 contemplates a special proceeding which may require special procedures if necessary, in order to empanel a jury immediately. If the trial court’s failure to provide for a speedy trial by jury (required by the statute) was the employer’s sole complaint, the court of appeal or this court could have afforded that relief immediately on application for supervisory writs. Indeed, if R.S. 23:848’s express requirement of a speedy trial is met, there appears to be no prejudice to either side by the statute’s provision for trial by jury, since that provision merely changes the trier of fact from judge to jury.

Accordingly, the judgment of the court of appeal is reversed, and the judgment of the trial court is reinstated. All costs of the supervisory review in both appellate courts are assessed to respondent.

BLANCHE, J., dissents for reasons assigned.

BLANCHE, Justice

(dissenting).

I respectfully dissent. The opinion of the court of appeal is correct.

      . R.S. 23:848 provides:
      “In all cases where a person shall be charged with indirect contempt for violation of a restraining order or injunction issued by a court under this Part, the accused shall enjoy:
      (1) The rights as to admission to bail that are accorded to persons accused of crime;
      (2) The right to be notified of the accusation and a reasonable time to make a defense, provided the alleged contempt is not committed in the immediate view or presence of the court;

        (3)The right to remove the said proceeding to the criminal docket for a speedy and public trial by an impartial jury of five from the judicial district wherein the contempt shall have been committed, provided that this requirement shall not be construed to apply to contempts committed in the presence of the court or so near thereto as to interfere directly with the administration of justice or to apply to the misbehavior, misconduct, or disobedience of any officer of the court in respect to the writs, orders, or process of the court; and

        (4) The right to file with the court a demand for the retirement of the judge sitting in the proceeding, if the contempt arises from an attack upon the character or conduct of such judge and if the attack occurred otherwise than in open court. Upon the filing of any such demand the judge shall thereupon proceed no further, but another judge shall be designated by the presiding judge of the court. The demand shall be filed prior to the hearing in the contempt proceeding.” (Emphasis supplied.)

      . By this time the strike was over, but apparently the contempt proceedings were (and are) still pending.

      . R.S. 23:844 prohibits courts from issuing injunctions in labor disputes until six specific factual findings are made by the trial court on the basis of evidence introduced at a hearing. However, the statute provides an exception and allows issuance of a temporary restraining order (only on 48-hour notice) when unavoidable substantial and irreparable injury is alleged.

      . This court subscribes, in effect, to the reasoning expressed in C. Reynard, The Work of the Louisiana Supreme Court for the 1952-1953 Term-Labor Law, 15 La.L.Rev. 255, 324 (1955), as follows:
      “It [The Legislature] had declared as the policy of the state that ‘Legal procedure that permits a complaining party to obtain sweeping injunctive relief that is not preceded by or conditioned upon notice to and hearing of the responding party ... is peculiarly subject to abuse in labor litigation [for enumerated reasons],’ and expressly conditioned the granting of injunctive relief upon a series of findings made at a hearing. Thus, in the balancing of interests of employers and their property on the one hand, and employees and their right to engage in concerted activity on the other, the legislature prescribed a policy of minimal delay of forty-eight hours. Indeed, in a sense, the legislature was heeding rather than ignoring the constitutional exhortation of due process by providing reasonable notice and opportunity to be heard to workers prior to enjoining them in the exercise of their right to engage in concerted activity. No reasonable person wishes to see the owners of property denied their right to have legal protection of their interests. At the same time, however, equally reasonably minded persons, familiar with the dark history of labor injunctions, do not wish to see a return to the practices of those days. The statute in question represents the legislative judgment of a fair compromise between the competing interests in this area.”

      . Of course, the indefinite state of the jurisprudence and the questionable continuing validity of the special procedures established in R.S. 23:841 et seq. served to confuse the issues in this case.

      . Since the strike is now over, there appears to be no great need for a speedy trial. If such a need exists, either party may apply to the trial court for appropriate modification of the original order.
      We point out, however, that a trial by a jury of less than six members deprives an accused of the right to trial by jury. See Ballew v. Georgia, 435 U.S. 223, 98 S.Ct. 1029, 55 L.Ed.2d 234 (1978).


author: WATSON, Justice. LEMMON, Justice, BLANCHE, Justice MARCUS, Justice

text:
    STATE of Louisiana v. Dobie Gillis WILLIAMS.
    No. 80-K-2345.
    Supreme Court of Louisiana.
    June 22, 1981.
    Ted Brett Brunson, Public Defender Program, Many, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James L. Davis, Dist. Atty., Herman Lawson, Asst. Dist. Atty., for plaintiff-respondent.
   WATSON, Justice.

In this post conviction proceeding, a writ was granted to review the trial court’s refusal to set aside defendant’s guilty plea. Defendant alleges that the trial court did not advise him of his rights: (1) the privilege against compulsory self-incrimination; (2) trial by jury; and (3) confrontation of one’s accusers. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The issue is whether the prosecution carried its burden of proving that defendant voluntarily and understandingly entered his plea of guilty.

Defendant, with the advice of counsel, pleaded guilty on March 12, 1979, to armed robbery and was sentenced to fifteen years at hard labor.

On July 2, 1980, defendant filed an application challenging the validity of his plea. At the hearing, the prosecution introduced only the record of the proceeding at which the guilty plea was entered.

The trial judge attempted to ascertain that the plea was being made knowingly and voluntarily. Defendant was asked if he were aware of the rights being relinquished, the nature of the offense and the possible penalties. However, the judge did not explain the rights being waived and apparently relied upon the assumption that defense counsel had explained those rights.

Since the colloquy between defendant and the trial judge does not affirmatively reflect that defendant was aware he was waiving his three constitutional Boykin rights, his plea must be set aside. State v. Williams, 384 So.2d 779 (La., 1980).

REVERSED AND REMANDED.

MARCUS and BLANCHE, JJ., dissent and assign reasons.

LEMMON, J., concurs and assigns reasons.

LEMMON, Justice,

concurring.

When defendant’s 1979 guilty plea was challenged in these proceedings, the prosecution had the burden of establishing its validity. The decision in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), whatever else it may stand for, certainly imposed this burden. The Boykin decision also rejected any presumption of a knowledgable, intelligent waiver, when the record of the guilty plea is silent as to the nature and extent of the information available to defendant (from whatever source), either defense counsel or the trial court) at the time he entered his plea. Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976); McChesney v. Henderson, 482 F.2d 1101 (5th Cir. 1973), cert. denied, 414 U.S. 1146, 94 S.Ct. 901, 39 L.Ed.2d 102 (1974).

The record of the colloquy (the only evidence introduced by the prosecution in this proceeding attacking the guilty plea) does not establish that either the judge or the defense counsel explained to defendant the consequences of the guilty plea. And the prosecution did not introduce any other evidence at the hearing on the post conviction motion to establish that defendant was aware of the rights relinquished, the nature of the offense, and the possible sentence. Thus, the evidence in this proceeding is insufficient to fulfill the prosecution’s burden of showing that defendant entered his plea with an awareness of its nature and consequences.

I emphasize, however, that the prosecution, at the hearing on defendant’s post conviction motion, could have attempted to establish the validity of the plea by producing evidence that defendant was aware of the rights relinquished and the consequences of his guilty plea. McChesney v. Henderson, above; see also Brown v. Jernigan, 622 F.2d 914 (5th Cir. 1980). Because the prosecution failed to offer any evidence beyond the record of the colloquy, the guilty plea must be set aside.

BLANCHE, Justice

(dissenting).

For the following reasons, I respectfully dissent from the majority opinion.

Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) does not require a “three right articulation” as a prerequisite to a valid guilty plea and the application of a “three right articulation rule”, once again endorsed by the majority herein, creates injustice and does not in fact result in a true determination of whether a guilty plea was knowing and voluntary. I disagree with the majority holding that “Since the colloquy between defendant and the trial judge does not affirmatively reflect that defendant was aware he was waiving his three constitutional Boykin rights, his plea must be set aside ... ”.

In 1969 in Boykin v. Alabama, supra, the United States Supreme Court examined a guilty plea to common law robbery, an offense which was punishable by death in Alabama. In that case, defendant pleaded guilty at his arraignment to five indictments for common law robbery three days after counsel was appointed to represent him. According to the Boykin majority, “so far as the record shows, the judge asked no questions of petitioner concerning his plea and petitioner did not address the court.” A jury sentenced defendant to death on each of the indictments. The United States Supreme Court reversed that defendant’s conviction based upon his guilty plea, endorsing the dissenting justices of the Alabama Supreme Court’s view that there was reversible error “ ‘because the record does not disclose that the defendant voluntarily and understanding^ entered his plea of guilty.’ ”

In the course of its opinion in Boykin, the Court noted that several federal constitutional rights are waived when a defendant pleads guilty in a state trial: First, the privilege against the compulsory self incrimination; second, the right to a trial by jury; and third, the right to confront one’s accusers. The court continued, “we cannot presume a waiver of these three important federal rights from a silent record.”

This Court has, since Boykin, attempted to delineate what showing the state is required to make in order to prove that a guilty plea in a Louisiana state proceeding has been knowingly and voluntarily entered in compliance with Boykin. In State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971), we held that pleas of guilty would be set aside absent a showing that defendant was informed of and expressly and knowingly waived his privilege against compulsory self incrimination, his right to a trial by jury and his right to confront his accusers. The Jackson Court reserved the issues of whether the judge himself must examine the defendant and whether a contemporaneous record of the examination must be made. The Court ultimately required that the state produce a contemporaneous record of defendant’s guilty plea colloquy with the trial judge affirmatively showing the waiver of the above three rights in instances where a prior conviction based on a guilty plea was used to enhance the penalty under our multiple offender laws, State v. Martin, 379 So.2d 1092 (La. 1980), as interpreted by State v. Williams, 384 So.2d 779 (La.1980), or where a guilty plea serves as the basis for a prior conviction where that conviction is an essential element of the crime charged. State v. Martin, 382 So.2d 933 (La.1980); State v. Bolton, 379 So.2d 722 (La.1980), as interpreted by State v. Williams, supra. The Court held that the same showing would be required in order to withstand a direct attack on a conviction on the basis that the guilty plea was not knowingly and voluntarily made. State v. Williams, supra.

Since the Boykin decision our courts have gradually developed the above outlined hard and fast rule to test the validity of guilty pleas and to serve as a guide to the trial judges in the taking of a guilty plea. The rule was most recently affirmed by the majority herein with regard to “relatively recent” pleas. The mandates of this rule, i. e. that the trial judge himself conduct a colloquy with the defendant, explaining to him that by pleading guilty defendant waives his privilege against compulsory self incrimination, his right to a trial by jury and his right to confront his accusers and that the defendant expressly and knowingly waives these rights and that a contemporaneous record of the guilty plea colloquy be made, provide not only a settled guide for trial judges, but a certain standard for reviewing the validity of a guilty plea when that plea is attacked either collaterally or directly. However, the rule we have developed is far from ideal and does not conclusively serve the intended purpose of ascertaining whether a guilty plea is knowing and voluntary.

Although this Court has repeatedly referred to the “three right articulation rule” as an application of the Boykin decision, the Boykin holding does not compel the guilty plea procedure we have developed. As noted above, the defendant in Boykin pleaded guilty to offenses for which he was sentenced to die and “so far as the record shows the judge asked no questions of petitioner concerning his plea, and petitioner did not address the court.” The United States Supreme Court ruled that “the three dissenting justices in the Alabama Supreme Court stated the law accurately when they concluded that there was reversible error ‘because the record does not disclose that the defendant voluntarily and understandingly entered his plea of guilty.’ ”

The Boykin court did not expressly require a “three right articulation rule” when it held that the record in the case failed to show that defendant’s guilty plea was a knowing and voluntary one. The court did, in the course of its opinion, mention the three federal constitutional rights referred to above and then stated, “We cannot presume a waiver of these three important federal rights from a silent record.”

In Jackson, supra, this Court held that this Boykin language required that a defendant be informed of, and expressly and knowingly waive, each right. We have interpreted the following language in Boykin to require a contemporaneous record of the colloquy between the trial judge and the defendant to withstand either a direct or collateral attack of a guilty plea: “When the judge discharges that function [making certain that a defendant has a full understanding of what his plea connotes and of its consequence] he leaves a record adequate for any review that may be later sought [citations omitted] and forestalls the spinoff of collateral proceedings that seek to probe murky memories.” State v. Williams, 384 So.2d 779 (La.1980).

Although all of the above quoted language is found within the parameters of the Boykin decision, the listing of the three federal constitutional rights waived by a guilty plea and the benefits of a contemporaneous record of a colloquy between the judge and defendant reflecting a waiver of these rights are phrased more as observations and recommendations rather than serving to set out mandatory “formula” prerequisites for valid guilty pleas. This Court noted in State ex rel. LeBlanc v. Henderson, 261 La. 315, 259 So.2d 557 (1972) that “a majority of the state decisions thus far require only that the trial judge canvass the matter with the defendant to verify that the plea is freely and understandingly made.” Louisiana’s formulistic interpretation of the requirements of Boykin apparently remains a minority view among other states. The majority of other jurisdictions do not vacate guilty pleas for failure of the record of that plea to affirmatively reflect a waiver of the three constitutional rights mentioned in Boykin. J. E. Bond, Plea Bargaining and Guilty Pleas, Clark Boardman Co., Ltd., New York, N.Y., 1978, § 3.08[2] p. 96.2. Significantly, the United States Supreme Court itself has not, since Boykin, clarified its language in Boykin as mandating the “three right articulation rule” which is at this time the law in Louisiana.

In fact, as emphasized in McChesney v. Henderson, 482 F.2d 1101 (5th Cir. 1973), in Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), the Supreme Court upheld a guilty plea on the basis that it was “voluntary” and “intelligent”, citing Boykin. The Brady decision at no point indicated that a three right articulation is required when a guilty plea is entered. In Footnote 4, 90 S.Ct. at p. 1468 of Brady, the Court noted that “[t]he new element added in Boykin was the requirement that the record must affirmatively disclose that a defendant who pleaded guilty entered his plea understandingly and voluntarily.”

In the McChesney case, the 5th Circuit examined a Louisiana state court guilty plea and held that “there is no requirement that there be express articulation and waiver of the 3 constitutional rights referred to in Boykin by the defendant at the time of acceptance of his guilty plea, if it appears from the record that the accused’s plea was intelligent and voluntarily made, with knowledge of its consequences.” 482 F.2d at 1110. The Court further held that “. . . in deciding the voluntariness of McChes-ney’s guilty plea consideration must be given to the record of proceedings not only which transpired when the plea was accepted, but also in the post conviction state evidentiary hearing.” 482 F.2d at 1111.

I urge that the key inquiry where the validity of a guilty plea is at issue is whether that plea is knowing and voluntary, and that this is the determination that is constitutionally required. This Court has recently affirmed the fact that the validity of a guilty plea turns upon whether it was a knowing and voluntary plea. State v. Galliano, 396 So.2d 1288 (La.1981). Although the defendant in that case had been informed of and waived the three constitutional rights mentioned in Boykin, we held that the court had the power “notwithstanding a record waiver of constitutional rights, to determine whether other factors present at the time of a guilty plea, whether inside or outside the plea colloquy record, were sufficient to render the plea involuntary or unintelligent.” Galliano, supra, at p. 1290. In Galliano, we affirmed the trial court ruling vacating a guilty plea based upon the finding that it was not voluntary and intelligent and in doing so, looked to a statement by the trial judge (who had accepted defendant’s plea) at the hearing on a motion to withdraw the plea, that he had misled defendant when taking the plea. Thus, this case also stands for the proposition that a court may look beyond the transcript of a plea colloquy to determine the voluntariness of a guilty plea.

Requiring an express on-the-record colloquy between the trial judge and the defendant reflecting a waiver of the three constitutional rights mentioned in Boykin does not resolve the issue of voluntariness of a guilty plea as our decision in Galliano illustrates, although it does serve as a workable starting point in that determination. If the three right articulation rule is strictly applied, it effectively blocks a true inquiry into whether a knowing and voluntary guilty plea was tendered where there has been a failure to comply with an element of the rule in instances where, in fact, a defendant’s rights have been carefully guarded and protected by the court and his attorney, and he was indeed fully aware of the consequences of his plea and voluntarily entered that plea. It is patently unjust to allow successful attacks on guilty pleas solely because records of the plea were, perhaps, destroyed or the record omits an element of the three right articulation rule.

Despite the defects of the three right articulation rule, it would be counterproductive to discard a rule in which the courts of this jurisdiction have invested so much time and effort. As noted above, the three right articulation rule serves as a settled guideline for a judge in the taking of a guilty plea and provides a formula method for ascertaining that the defendant is aware of certain consequences of his guilty plea prior to entering that plea.

I would utilize the three right articulation rule in the future as a starting point in the determination of whether a guilty plea is knowing and voluntary. In cases where the three right articulation rule as developed by this Court has been complied with, the burden of proof would be on the defendant to show that the guilty plea is invalid. The defendant may show, as in Galliano, with evidence found within the transcript of his guilty plea proceeding or with other pertinent evidence, that his plea was for some reason invalid. In cases where there is a failure of strict compliance with this rule when the guilty plea is attacked, the burden would be on the state to show that the plea was nevertheless valid (i. e. knowing and voluntary). The state could do so with evidence either from the guilty plea proceedings or otherwise to indicate that the plea was, in fact, a knowing and voluntary one.

The record of the guilty plea proceeding introduced below by the prosecutor reflects that defendant was represented by counsel and the trial judge sought to determine if defendant’s plea was free and voluntary. He ascertained from defendant that defendant wished to change his plea from not guilty to guilty. He asked defendant if he had discussed the plea with his attorney and if he understood that by pleading guilty he was giving up certain rights that he would have had he gone to trial. Defendant responded affirmatively. Defendant indicated to the judge that he had not been coerced or promised anything for his plea of guilty and, specifically that he had not been promised a particular sentence. According to defendant, his attorney had discussed with him the penalties provided by law for the offense of armed robbery.

The court inquired of defendant whether he was familiar with the charge of armed robbery. Defendant stated he was, and that he was pleading guilty because he was in fact guilty. After the district attorney related the facts surrounding this particular robbery, defendant indicated to the court that the district attorney’s account of the robbery was substantially true and correct. The court concluded that the defendant knowingly and voluntarily entered his plea of guilty, and that there was a factual basis for the charge of armed robbery. I agree that under the circumstances defendant’s plea was a knowing and voluntary plea and would, therefore, affirm the trial court ruling to this effect.

MARCUS, Justice

(dissenting).

In my view, it is the totality of the facts and circumstances at the time the guilty plea is entered that determines whether the guilty plea was intelligently and voluntarily made. Accordingly, I would remand the case to the trial court for an evidentiary hearing to determine whether the guilty plea was voluntarily and intelligently entered by defendant. I respectfully dissent.

      . The entire record of that proceeding is as follows:
      “MR. LAWSON: Your Honor, this is 25,734, State v. Dobie Gillis Williams, and my understand (sic) is that the defendant desires to withdraw his former plea of Not Guilty to the charge of Armed Robbery and entered a plea of Guilty to the charge of Armed Robbery.
      “MR. BURKETT: That’s correct, Your Hon- or.
      “THE COURT: Is that correct, Mr. Williams? “THE DEFENDANT: Yes, sir.
      “THE COURT: You have discussed this with your attorney?
      “THE DEFENDANT: Yes, sir.
      “THE COURT: You understand that by entering this plea of guilty, you are giving up certain rights that you would have if you went to trial?
      “THE DEFENDANT: Yes, sir.
      “THE COURT: This is freely and voluntarily done on your part?
      “THE DEFENDANT: Yes, sir.
      “THE COURT: No one is forcing you to do this?
      “THE DEFENDANT: No, sir.
      “THE COURT: No one has promised you anything for doing this?
      “THE DEFENDANT: No, sir.
      “THE COURT: No one has promised you any particular sentence?
      “THE DEFENDANT: No, sir.
      “THE COURT: Has your attorney discussed with you the penalties that the law provides?
      “THE DEFENDANT: Yes, sir.
      “THE COURT: You are familiar with the
      nature of the charge of armed robbery? “THE DEFENDANT: Yes, sir.
      “THE COURT: And you are pleading guilty solely because you are, in fact, guilty, is that correct?
      “THE DEFENDANT: Yes, sir.
      “THE COURT: The Court finds the defendant present in Court with his attorney is knowingly and intelligently entering this plea of guilty; that he understands the nature of the charge; that he is freely and voluntarily entering this plea. Would you state, Mr. District Attorney, the factual basis for the charge?
      “DISTRICT ATTORNEY: Yes, sir, on or about the 4th day of September, 1978, the Defendant along with one Michael Williams, broke into the home of Leola Hill, here in Sabine Parish, armed themselves with a Coke bottle, held Mrs. Hill, hit her with the Coke bottle, armed themselves with a butcher knife and robber her of $10 in cash and then left the premises.
      “THE COURT: Is that substantially true and correct, Mr. Williams?
      “THE DEFENDANT: Yes, sir.
      “THE COURT: The Court finds there is a factual basis for the charge and for all reasons stated, accepts the defendant’s plea of guilty. Do you waive the delays for sentencing?
      “MR. BURKETT: No, sir, Your Honor, I would request a pre-sentence in this matter.
      “THE COURT: The Court is ordering a pre-sentence investigation and is specifically requesting that the past conviction record of the defendant be included in the report. I believe that takes care of this.”

      . In State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971) this court interpreted the Boykin decision and (1) required, when a guilty plea is attacked in post conviction proceedings, that a showing of “an express and knowing waiver of at least these three federal constitutional rights [the right against compulsory self-incrimination, the right to trial by jury, and the right to confront one’s accusers] must be made, which waiver cannot be presumed” and (2) strongly recommended, as the preferable procedure, that the trial judge himself conduct an examination of the defendant and make a contemporaneous record of the colloquy, in order to avoid later questions as to validity of the waiver.
      While there has been language in some opinions expressing the view that a written contemporaneous record of the trial judge’s examination as to each of these three rights is constitutionally required, several judges on the present court believe that the prosecution may fulfill its burden by proving, with the record of the guilty plea colloquy or with other evidence introduced at the hearing on the post conviction motion attacking the plea, that the plea was knowingly and voluntarily made. That determination must be made on a case-by-case basis.
      Guilty pleas, being convictions, should be afforded a great measure of finality. Blackledge v. Allison, 431 U.S. 63, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977). On the other hand, due process requires that a guilty plea not be closed to a subsequent attack on its constitutionality. Courts have attempted to balance the undeniable need for finality of convictions against the defendant’s right to challenge a constitutionally invalid guilty plea. By the simple expedient of following rather clearly outlined prophylactic procedures (such as those suggested in the various available forms for guilty plea colloquies), trial judges can accommodate both interests.

      . In the McChesney case the Court of Appeals said “[N]o rule of criminal procedure was mandated by Boykin, and there is no express requirement that specific articulation of the three constitutional rights ... be given to the accused at the time of the acceptance of the guilty plea, but it is necessary that the record show that the guilty plea was intelligently and voluntarily made”. Id. at 1107. Later in this opinion the court said “[Ejvidence in post conviction habeas proceedings may be considered which show that a guilty plea was intelligently and voluntarily made at the time with awareness of its consequences.” Id. at 1107.

      . The Court did create somewhat of a caveat to this rule in State v. Dunn, 390 So.2d 525 (La. 1980). In that case, we upheld a trial judge’s refusal to set aside a guilty plea although the colloquy between the trial judge and the defendant did not include an explanation to defendant of his right against self incrimination. However, we found that the plea was constitutionally sufficient in that there was an affirmative showing in the record of an express and knowing waiver of defendant’s privilege against self incrimination since the record included a guilty plea form signed by defendant containing a waiver of this right. The trial court had questioned defendant as to whether his attorney had explained the provisions of the guilty plea form, asked if he had any questions about it and asked if the initials and signature on the form were defendant’s. Defendant verified his signature, indicated that his attorney had explained the provisions of the form to him and stated he had no questions about the form.

      . Some factors the court should look to in determining whether a plea was free and voluntary are: the extent of compliance with the three right articulation rule; generally any attempt made by the trial judge to ascertain whether defendant’s plea was free and voluntary; whether defendant was advised as to the nature of the charges against him, the acts sufficient to constitute the offense of which he is accused and the permissible range of sentences. Boykin v. Alabama, supra, footnote 7; the quality of defendant’s representation by his counsel where the defendant was represented by counsel, State v. Beatty, 391 So.2d 828 (La. 1980); and whether defendant’s rights were explained to him by an attorney or whether defendant knowingly signed a waiver of rights form. State v. Dunn, 390 So.2d 525 (La. 1980).


author: LOTTINGER, Justice Ad Hoc.

text:
    STATE of Louisiana v. John W. GARRISON.
    No. 80-KA-2405.
    Supreme Court of Louisiana.
    June 22, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Stephen M. Little, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.
    Robert Garrity, New Orleans, Indigent Defender Board, for defendant-appellant.
   LOTTINGER, Justice Ad Hoc.

Defendant, John W. Garrison, was charged by bill of information with possession of a weapon by a felon, a violation of La.R.S. 14:95.1. Defendant was tried before a jury which found him guilty as charged. After denying defendant’s motion for a new trial, the trial court sentenced the accused to a term of four years at hard labor. Defendant now appeals his conviction on the basis of ten assignments of error.

FACTS

Pursuant to an undercover “sting” operation involving the use of paid informants, the defendant was videotaped “selling” a .25 caliber pistol to Agent Charles Sprotts of the Department of the Treasury on July 7, 1978. Agent Sprotts testified at trial, relating the events of the “sale” and how he purchased the pistol from the accused for $15.00. The witness positively identified the defendant as the individual involved in the “sale.” The video tape of the transaction, though without an audio portion, was also introduced at trial. Before its introduction, Jefferson Parish Sheriff’s officer William Tucker explained the mechanical set-up of the video equipment and how he had recorded the deal with the accused on July 7. Also introduced at trial was the gun said to have been “purchased” from the defendant.

The defense relied on a theory of entrapment. The accused took the stand on his own behalf, admitted being involved in the “sale” but denied that the gun was his. He insisted that it belonged to the informant who had participated in the deal and that he was enticed into the transaction.

ASSIGNMENTS OF ERROR NOS. 1, 6 AND 7

By these assignments the defendant contends that the trial court erred in refusing to allow him to fully cross-examine state witnesses.

The first instance of alleged erroneous curtailment of cross-examination occurred during the questioning of state witness Jefferson Parish Sheriff’s Officer William Tucker. This witness testified on direct that on the day of the alleged sale of the firearm, he was in an apartment that adjoined the one where the transaction took place and that he watched what transpired on a video monitor. Officer Tucker positively identified the defendant as the individual he observed via the monitor selling a pistol to another undercover agent. Upon cross-examination, the witness was asked to explain the establishment of the sting operation, and he related how the defendant’s name had initially been provided by an informant. He also stated that he had had no prior contact with the defendant. Defense counsel then asked whether the witness had any other video recordings involving the accused; the witness responded that he had not.

When defense counsel attempted to ask Officer Tucker what kind of transactions the undercover agents were negotiating, the state objected and indicated that it felt the defense was getting into other crimes evidence. The trial judge agreed and sustained the objection, but allowed the defendant to continue. The witness then explained that the operation was a fencing scheme for stolen property and that it had a cover as operating for the recovery of lost items. Defense counsel than asked if the agents involved “formed a habit of telling people. . .what kind of items you wanted.” The officer responded that personally he had not, nor had he heard any other agents “order” an item. Next, the defendant asked:

“Q. Okay, did your brother members additionally or instead of that tell things such as, ‘well, you can get, say, $1,000.00 for a Mercedes Benz if you bring me one,’ something like that?
“A. No, sir.”

The state’s objection to this question was sustained. The judge instructed defense counsel to limit his inquiry to this particular “sale” but did allow him to ask whether the witness knew that another matter against the defendant had been dismissed because of a lack of definite identification. Officer Tucker responded that he was unaware of that fact. Defendant then briefly continued questioning the witness about the workings of the sting operation and the use of informants.

Defendant now asserts that his cross-examination of this witness was unduly curtailed and that he was thereby prejudiced since he was unable to fully examine the witness for facts supporting his defense of entrapment. Particularly, defendant assigns as error the court’s refusal to allow him to question the witness about whether certain sums of money were promised for different stolen property. Defendant urges that since one of the essential elements of his entrapment defense was to prove that criminal conduct was caused by the inducements of the officers rather than his own predisposition to such conduct, his questioning in this regard was essential.

The scope of cross-examination is not limited to matters referred to on direct examination. When a witness has been sworn and has testified to any single fact in his examination in chief, he may be cross-examined upon the whole case. La.R.S. 15:280; State v. Morgan, 367 So.2d 779 (La.1979). However, the scope and extent of cross-examination rests largely within the discretion of the trial judge and his rulings will not be disturbed in the absence of an abuse of discretion. State v. George, 346 So.2d 694 (La.1977); State v. Nero, 319 So.2d 303 (La.1975). Given the thorough questioning of this witness regarding the defendant’s transaction with the weapon, his testimony describing the sting operation in general and how informants were used and the fact that he responded negatively to the question asked about agents “ordering” items, the trial judge’s curtailment of questioning in regard to promises for goods was not an abuse of. discretion. This conclusion is bolstered by the fact that the trial judge allowed the witness to be questioned about all previous transactions involving this defendant. Additionally the accused made no attempt to show that he personally was offered promises or was otherwise encouraged to participate in criminal conduct. Though proof of entrapment was of crucial importance to the defense, the defendant was allowed to question the witness in this regard. The ruling of the trial judge limiting cross-examination was not error.

In any event, any error was almost immediately cured by the testimony of Charles T. Sprotts, an agent of the United States Treasury Department. Sprotts testified on direct that he personally “purchased” the weapon from the defendant. On cross-examination, the defendant questioned him about the details of the sting operation and specifically about the sale of the .25 caliber pistol. Agent Sprotts related the details of using an informant, including who the informant was and the amount he was paid. He also stated that in operating the sting he would not suggest items he wanted to purchase or promise a dollar amount for such items. Rather, he would indicate his interest or lack of interest in an item mentioned by a “seller.” Thereafter, the following exchange occurred:

“Q Then, it’s your testimony that at no time did you or your people suggest or tell the defendant or the suspects, prior to their making a statement, where you would ask what they could get or you would give them an idea about certain items and then your people would tell them, ‘Look, find me a ’78 Mercedes Benz or a Lincoln Continental and you could get a thousand dollars?’
“A From my recollection of the way the operation was run, no, as far as pointing out any type of items. This was not mentioned or brought up until the subjects were in the apartment and started mentioning what was available and once they brought it up, that a car was available, if it was run into through the course of the conversation. Once again, not being able to remember specifically what was said that long ago, I might have mentioned which car was worth more to them, but this was not mentioned before they made any statements concerning what they had or what they could get.
“Q Can I understand you to say that you did not tell them to go out, would it be fair to say that on at least some of these occasions it is quite conceivable that some of the people that you interviewed could have believed that you would buy anything they would bring to you, of value?
“A If it was of value, yes.
“Q Was a thousand dollars the going rate for a Mercedes Benz, for your operations, in that ball park figure?
“A It would generally run in that area, depending on what condition of the car was and what equipment it had with it.
“Q As far as you discussing a 1976 Mercedes, that was the type of discussion that went on, is that right?”

At this time, the state objected and the trial court sustained the objection finding that the examination was repetitious. Defendant urges that this ruling was error.

As noted above, the defendant argues that a full inquiry into the nature of the sting deals was essential to his entrapment defense and that the trial court’s restricting his examination of this witness hampered that defense. In fact, the record reveals that the accused was able to fully examine Agent Sprotts on the mechanics of the operation and that this witness specifically denied enticing anyone or encouraging the “sale” of certain items. Before the state’s objection, the witness had been fully questioned in regard to how “deals” were negotiated. The trial court’s ruling occurred when the defense counsel, though apparently attempting to again bring up facts surrounding an earlier transaction the accused had with the agents, pursued a seemingly repetitious line of questioning.

La.R.S. 15:275 provides:

“In the discipline of his court, the trial judge is vested with a sound discretion to stop the prolonged, unnecessary and irrelevant examination of a witness, whether such examination be direct or cross, and even though no objection be urged by counsel.”

The limitation of cross-examination here, in the face of the witness’ previous response, was not an abuse of discretion. State v. Kenner, 384 So.2d 413 (La.1980).

The instant case is distinguishable from State v. Senegal, 316 So.2d 124 (La.1975), wherein this Court found as reversible error a trial court’s restricting the cross-examination of a state witness. In that case, the defendant was also attempting to develop the defense of entrapment, and had asked the chief prosecution witness, a police officer, to explain what an informer was and what the one involved in that case had done. The trial judge restricted this attempt at cross-examination, agreeing with the state that it was immaterial and irrelevant. In the instant case, the defendant was not denied the right of confrontation and effective cross-examination since he was able to question the witness fully on what had transpired in regard to his sale of the pistol and the sting operation in general. The trial judge limited the cross-examination only when the questioning became repetitious and of little probative value but did not, as defendant urges, prevent exploration of the entrapment issue.

The accused asserts that there was also impermissible curtailment of his cross-examination of Agent Sprotts at a second instance. He assigns as error the ruling of the trial court that prevented him from asking whether he would have “purchased” the gun from Milton Jones (the informer). When the question was propounded to the witness, the state objected, insisting that it was irrelevant; the trial judge agreed and sustained the objection.

La.R.S. 15:441 provides:

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

A trial judge’s ruling as to relevancy should not be disturbed absent a showing of clear abuse of discretion. State v. Alford, 384 So.2d 761 (La.1980); State v. Echols, 376 So.2d 1244 (La.1979). Additionally, both before and after this question, the defendant had been allowed to question the witness fully about the conduct of the sting operation and whether individuals had been encouraged to participate. As noted above, in light of the opportunity to fully explore the possibility of entrapment, the trial judge’s decision to prevent an apparently irrelevant hypothetical question was not an abuse of his discretion.

ASSIGNMENTS OF ERROR NOS. 2 AND 5

By these assignments the defendant asserts that the trial court erred in refusing to strike the testimony of state witnesses from the record and in allowing a witness to give impermissible testimony.

Defendant moved at trial that the testimony of undercover agents William Tucker and Charles Sprotts be stricken from the record. In support of his motion the accused urged that the verbal testimony of these witnesses be stricken because of the availability of a video tape of the alleged transaction. The trial judge denied this motion.

“The motion to strike evidence is unknown to the criminal procedure of Louisiana.” State v. Kirsch, 363 So.2d 429 (La. 1978); State v. Vince, 305 So.2d 916 (La. 1974). Even if defendant had used the proper vehicle to challenge the testimony, the record reveals that the video tape lacked an audio portion and thus the testimony of the agents was necessary not only to establish a foundation to the admission of the tape but also to explain to the jury what they were viewing.

In assignment of error number five, the defendant specifically objected at trial to Agent Sprott’s testimony about how the accused handled the gun during the sale. He asserts that, since the video tape did not show him actually presenting the gun to Agent Sprotts, the witness should not have been allowed to testify about it. Agent Sprotts on direct explained that as the accused handed him the weapon he blocked the camera from recording the scene. Having been involved in the transaction the witness was clearly competent to testify to the defendant’s actions. La.R.S. 15:463. Further, the defendant does not assert, nor can it readily be seen in the light of the other testimony and evidence properly introduced, that such testimony, even if erroneous, would have so prejudiced him as to require a reversal. La.C.Cr.P. Article 921.

ASSIGNMENT OF ERROR NO. 3

By this assignment the defendant contends that the trial court erred in allowing the introduction into evidence of the video tape of the alleged sale of the weapon.

Defendant asserts in brief that the tape should not have been introduced because it lacked an audio portion, because its production was controlled by a police officer and because its probative value was outweighed by its prejudicial effect. It should first be noted that since the defendant made no contemporaneous objection to the admission of the tape in the trial court pursuant to La.C.Cr.P. Article 841, he has apparently waived any right to assert this error before this Court. Not only did the defendant fail to object in the trial court, but the record reveals he apparently desired and encouraged admission of the video tape.

Even if the defendant had made a timely objection in the trial court, the evidence showing the accused in possession of a weapon is relevant to show the commission of the charged offense. La.R.S. 15:441. Further, the counterbalancing factors that would counsel the exclusion of this otherwise relevant evidence — such as the likelihood of arousing jury prejudice or hostility, the creation of a collateral. issue or unfair surprise to the defendant — are not present. Additionally, the video tape was the best evidence of its contents. La.R.S. 15:436. The fact that it was introduced in addition to the testimony of Office Tucker and Agent Sprotts and was therefore somewhat cumulative is not a bar to its introduction. State v. Bonanno, 373 So.2d 1284 (La.1979). The lack of an audio portion does not render the tapes inadmissible. It is well-settled that photographic evidence is admissible when it is shown to be an accurate representation of the subject in question and sheds light on the matter before the court. State v. Otis, 339 So.2d 343 (La.1976). This was done through the testimony of Officer Tucker, who gave a thorough account of the taping of the “sale.” Accordingly, even if there had been an objection at trial, the introduction of this evidence was not error.

ASSIGNMENT OF ERROR NO. 4

By this assignment the defendant urges that the trial court erred in allowing the introduction state’s exhibit 3 into evidence. S-3 consisted of the .25 caliber pistol said to have been sold by the defendant to Agent Sprotts.

During the state’s direct examination of Agent Sprotts the state offered to introduce the exhibit into evidence. The defense objected, urging without argument that the defendant’s constitutional rights had been violated. In brief, however, the defendant urges only that evidence at trial did not sufficiently prove that the exhibit introduced was the same one “bought” from the defendant. In light of the defendant’s failure to urge this objection in the trial court, he has apparently waived the right to assert it before this Court. La.C.Cr.P. Article 841.

Assuming, arguendo, that the defendant had made a contemporaneous objection at trial that would have preserved his right to raise this error, the exhibit was properly admitted into evidence. Immediately before its admission, Agent Sprotts identified it as the gun he had obtained from the defendant on the day of the alleged “sale.” He testified that his identification was based on the weapon’s serial number, brand and caliber. Also before its admission, Jefferson Parish Deputy William Tucker identified the gun as the one which had been given to him by Agent Sprotts immediately after the “purchase” from the defendant. His identification was based on its serial number. He also testified that he had given it to Jefferson Parish Sheriff’s evidence officer Dell Dumaine. Officer Du-maine had been called to the stand earlier and had identified the gun as the one given to him by Officer Tucker. In State v. Paster, 373 So.2d 170 (La.1979), this Court in rejecting a defendant’s contention that exhibits were erroneously admitted because the chain of custody was not properly established said:

“To admit demonstrative evidence at trial, the law requires that the object be identified. The identification can be visual, that is, by testimony at the trial that the object exhibited is the one related to the case. It can also be identified by chain of custody, that is, by establishing the custody of the object from the time it was seized to the time it was offered in evidence. For the admission of demonstrative evidence, it suffices if the foundation laid establishes that it is more probable than not that the object is relevant to the case. Lack of positive identification goes to the weight of the evidence rather than to its admissibility. Ultimately, connexity is a factual matter for determination by the trier of fact.” (373 So.2d at 177).

In the instant case, unlike in Paster, supra, the exhibit was positively identified as the one taken from the defendant. The state established more probably than not that exhibit S-3, the .25 caliber pistol, was connected with the accused’s case.

ASSIGNMENTS OF ERROR NOS. 8 AND 10

The defendant contends by these assignments that there was insufficient evidence to find him guilty of the charged offense. In particular, he argues that the state’s case-in-chief clearly established that the authorities had entrapped defendant into committing the offense.

Defendant was convicted of possession of a firearm by a felon, a violation of La.R.S. 14:95.1. The two essential elements of this offense are that the accused must have been convicted previously of one of a list of enumerated felonies and must have possessed a firearm or carried a concealed weapon. In the instant case, the essential element of defendant’s prior conviction of a felony, possession with intent to distribute marijuana, La.R.S. 40:966, was stipulated to at trial. Further, the state introduced at trial the video tape which shows the defendant “selling” a .25 caliber pistol to an undercover agent. That agent testified about the “sale” and positively identified the defendant as the individual from whom he “purchased” the weapon. The weapon was introduced by the state and was identified by the federal agent as the one presented to him by the accused.

The standard used in reviewing the sufficiency of evidence as enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that the defendant is guilty. State v. Morgan, 389 So.2d 364 (La.1980); State v. Harveston, 389 So.2d 63 (La.1980); State v. Hartman, 388 So.2d 688 (La.1980). The evidence presented in the instant case, seen in the light most favorable to the prosecution, is adequate under Jackson, supra, to justify the jury’s conclusion beyond a reasonable doubt that the defendant was a convicted felon in possession of a weapon and that he had not been enticed into the offense by the authorities. As set forth above in Assignments of Error Nos. 1, 6 and 7 the state’s case clearly established that the authorities had conducted a sting operation but failed to give any support to the defense suggestion that the police had instigated the offense by suggesting the kinds of items they desired.

ASSIGNMENT OF ERROR NO. 9

By this assignment the defendant urges that it was error to refuse his special requested jury charges. Three of the charges were concerned with the law relative to the testimony of an accused, an accomplice and/or informer. The other special requested charge concerned entrapment.

At trial, the judge instructed the jury on what an accomplice was. He stated that the testimony of such an individual should be received with caution and weighed with great care. Though there was no specific instruction on the testimony of an informer or of an accused, the judge gave a thorough instruction on the credibility of witnesses and the weight to be given to their testimony. The trial court in its charge also addressed the issue of entrapment stating:

“A defendant who is instigated or induced by a law enforcement officer or someone acting for him into the commission of a crime which he otherwise had no intention of committing is not guilty because he was entrapped.

“Entrapment is shown where it appears that an officer or someone acting for an officer instigated the defendant to commit an offense which the defendant otherwise would not have committed and had no intention of committing. It is not entrapment, however, if the defendant already had the requisite criminal intent and the officer or someone acting for him merely furnished the defendant with the opportunity for committing the offense.

“The fact that an opportunity is furnished or that the defendant is aided in the commission of a crime which originated in his own mind is no offense. There is a clear distinction between inducing a person to commit a crime and setting a trap to catch a person in carrying out criminal designs of his own conception. The primary emphasis is on whether or not the defendant had a predisposition to commit the crime. The reason for this defense is simple: officers of the law may not incite crime merely to punish the criminal.

“Thus, if you find:
1.) that the defendant did not have an intent to commit the offense charged before being instigated to commit it; and
2.) that the defendant was instigated to commit the offense charged by law enforcement officer or by one acting as the officer’s agent;

then you must find the defendant not guilty.”

Special requested charges are governed by La.C.Cr.P. Article 807 which provides:

“The state and the defendant shall have the right before argument to submit to the court special written charges for the jury. Such charges may be received by the court in its discretion after argument has begun. The party submitting the charges shall furnish a copy of the charges to the other party when the charges are submitted to the court.
“A requested special charge shall be given by the court if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent. It need not be given if it is included in the general charge or in another special charge to be given.”

The judge’s obligation under art. 807 is a corollary to his basic obligation to charge the jury as to the law applicable to the case pursuant to La.C.Cr.P. Art. 802. Under art. 802 the trial judge is required to cover every phase of the case supported by the evidence whether or not accepted as true. State v. Marse, 365 So.2d 1319 (La.1979). However, while it is the duty of the trial judge to give a special requested charge which does not require qualification, limitation, or explanation, requested charges which are already substantially given and covered by the general charge are properly refused. State v. Matthews, 380 So.2d 43, at 45 (La.1980). Since the charges requested by the defendant, particularly the one on entrapment, were in fact included in the trial court’s general charge, the refusal to give those special charges was not error.

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

AFFIRMED.

       Judges Lottinger, Edwards, and Ponder of the Court of Appeal, First Circuit, participated in this decision as associate justices ad hoc, joined by Chief Justice Dixon and Associate Justices Marcus, Blanche, and Watson.

      . As set forth in State v. Batiste, 363 So.2d 639 (La.1978):
      “Under the generally accepted view an entrapment is perpetrated when a law enforcement official or a person acting in cooperation with such an official, for the purpose of obtaining evidence of the commission of an offense, solicits, encourages, or otherwise induces another person to engage in conduct constituting such offense when he is not then otherwise disposed to do so. ALI Model Penal Code, Tentative Draft, § 2.10; W. LaFave and A. Scott, Criminal Law, § 48 (1972). This view, which has been labeled the “subjective” or “origin of intent” test for entrapment, reflects the views espoused in majority opinions of the United States Supreme Court, Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976); United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973); Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958); Sorrels v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932). The lower federal courts are in accord. See, e. g. United States v. Esquer-Gamez, 550 F.2d 1231 (9th Cir. 1977); United States v. Garcia, 546 F.2d 613 (5th Cir. 1977); United States v. Russo, 540 F.2d 1152 (1st Cir. 1976); United States v. Jackson, 539 F.2d 1087 (6th Cir. 1976). It is so called because it focuses attention on the defendant’s predisposition to commit the offense as well as the actions of law enforcement officials. The inquiry under this test goes beyond the fact that criminal conduct was committed at the instance of law enforcement officials. Once government instigation is shown, the inquiry focuses upon the predisposition of the defendant.”

      . In assignment eight, the defendant specifically urged that there was error in denial of his motion for a directed verdict. The directed verdict in jury trials became unavailable with the amendment of La.C.Cr.P. Article 778 by La.Acts 1975, No. 525 § 1. The trial judge had only such authority in bench trials. State v. Adams, 355 So.2d 917 (La.1978).
      However, in State v. Peoples, 383 So.2d 1006 (La.1980) this Court held that even in the absence of a motion for a new trial (or a proper motion for a directed verdict) it would review a claim that the state’s case was insufficient to support a conviction under a “no evidence” standard. The defense argument is thus considered here, albeit under the rational fact finder test of Jackson v. Virginia, now adopted by this Court.

      . Defendant requested that the judge give the following charges:
      “Special Charge # 1
      “If the accused chooses to testify, he is a competent witness and his testimony is to be judged in the same way as any other witness. “Special Charge # 2
      “An accomplice is one who unites with another person in the commission of a crime, voluntarily and with common intent. An accomplice does not become incompetent as a witness because of participation in the crime charged. However, the jury should keep in mind that such testimony is always to be received with cautions and weighed with great care.
      “Special Charge # 3
      ‘The testimony of an informer (if you believe Mr. Jones acted in such capacity), or any other state witness whose self-interest or attitude is shown to be such as might tend to prompt testimony unfavorable to the accused, should always be considered with caution and weighed with great care.
      “Special Charge # 4
      “If an officer of the law induces or tempts a person to commit a crime which such person did not intend to commit and which he would not have committed except for said inducement or persuasion by such officer, such conduct on the part of the officer is improper and he is guilty of what in law is called “entrapment.” If, however, a person alone conceives the idea of committing a crime, knowledge of which intention comes to such officer, the law does not prohibit or prevent the officer from resorting to any reasonable methods to catch the offender in order to prove his guilt. The law on this subject is concisely stated in a decision of our Supreme Court in the case of State v. Dudoussat, 47 La.Ann. 977, 17 So. 685, which decision was later reaffirmed in the case of State v. Rainey, 184 La. 547, 166 So. 670, wherein the Supreme Court said: ‘It is. legitimate and proper to adopt devices to trap crime provided the device is not a temptation and solicitation to commit it.’
      “If with this explanation of the word ‘entrapment’ you believe that the accused committed the offense with which he is charged but that he was entrapped by the officers to commit the same you should acquit him. If on the other hand you believe from the evidence beyond a reasonable doubt that there was no entrapment of the accused — as I have explained the meaning of that word to you — and that the officers neither conceived nor planned the act of the accused but that it was conceived and executed by the accused himself, and that he is guilty of the offense charged beyond a resonable doubt, it is your duty to convict him.
      “If you find that the state has offered no evidence to show:
      (A). An existing course of similar criminal conduct on the part of the accused,
      (B). The accused’s already formed design to commit the crime or similar crimes;
      (C). His willingness to do so as evidenced by ready compliance;
      (D). Predisposition on the part of the accused;
      (E). Or reasonable cause to believe that accused was engaged in criminal conduct,
      then you must conclude that the accused was tempted or solicited or induced to commit the crime and was entrapped, and, as a consequence, the accused must be acquitted.”