text:
    SOUTH FLORIDA WATER MANAGEMENT DISTRICT, a public corporation, Appellant, v. John LAYTON, Appellee.
    No. 80-2173.
    District Court of Appeal of Florida, Second District.
    Aug. 26, 1981.
    Irene Kennedy Quincey, West Palm Beach, for appellant.
    Harold N. Hume, Jr., of Allen, Knudsen, Swartz, DeBoest, Rhoads & Edwards, Fort Myers, for appellee.
   BOARDMAN, Acting Chief Judge.

South Florida Water Management District, a defendant below, appeals a final judgment awarding plaintiff/appellee John Layton a statutory way of necessity across its land. We affirm.

Appellee filed a complaint against appellant and Barney Joe Barron alleging that there was no public road into his Hendry County property and demanding a statutory way of necessity across the property of one of the defendants. Appellant moved to dismiss the complaint on the grounds that (1) appellee’s proposed easement crossed easements belonging to the U.S. Army Corps of Engineers, so the Corps was an indispensable party, which had not been joined; (2) section 704.01(2), Florida Statutes does not grant relief against a state agency; and (3) the facts alleged did not demonstrate that appellee’s proposed route over its property was the most practical means of ingress and egress. The trial court denied the motion to dismiss.

Appellee then filed an amendment to his complaint adding three more counts, each alleging a different “nearest practicable public or private access road” to his property across appellant’s property. Appellant filed an answer and counterclaim concerning a matter immaterial to our decision here.

A bench trial ensued, after which the trial court entered final judgment awarding appellee a statutory way of necessity across appellant’s land and finding in favor of appellee and against appellant on appellant’s counterclaim. This appeal followed timely.

We find no error on any of the points raised by appellant. However, because the question of whether a cause of action exists against the state or an agency thereof for a statutory way of necessity is an issue of first impression in Florida, we feel this question merits discussion.

Section 704.01 provides for a statutory way of necessity. Subsection (2) of that statute provides:

Based on public policy, convenience, and necessity, a statutory way of necessity exclusive of any common law right exists when any land or portion thereof outside any municipality which is being used or desired to be used as a dwelling or for agricultural or for timber raising or cutting or stockraising purposes shall be shut off or hemmed in by lands, fencing, or other improvements of other persons so that no practicable route of egress or ingress shall be available therefrom to the nearest practicable public or private road. The owner or tenant thereof, or anyone in their behalf, lawfully may use and maintain an easement for persons, vehicles, stock, and electricity and telephone service over and upon the lands which lie between the said shut-off or hemmed-in lands and such public or private road by means of the nearest practical route, considering the use to which said lands are being put; and the use thereof, as aforesaid, shall not constitute a trespass; nor shall the party thus using the same be liable in damages for the use thereof; provided that such easement shall be used only in an orderly and proper manner.

Appellant contends that section 704.01 • does not apply to it because it is not a “person” within the intendment of the statute and sovereign immunity has consequently not been waived. Chapter 704 does not define the word “person.” Consequently, appellant urges, chapter 1, which contains definitions for construction of all statutes where context permits, is therefore applicable. “Person” is defined in section 1.01(3) to include “individuals, children, firms, associations, joint adventures, partnerships, estates, trusts, business trusts, syndicates, fiduciaries, corporations, and all other groups or combinations.” A separate definition exists for “public body,” “body politic,” or “political subdivision,” which are defined as including: “counties, cities, towns, villages, special tax school districts, special roads and bridge districts, bridge districts and all other districts in this state.” Thus, for purposes of chapter 704, appellant concludes, a special district is not a “person.” We disagree. Under the express provisions of section 1.01, the definitions contained therein apply only where the context permits. Had section 704.01 made a distinction between “persons” and “public bodies,” “bodies politic,” or “political subdivisions,” we would agree with appellant. However, section 704.01 makes no such distinction, and we see no basis for necessarily assuming the legislature intended one here. For the reasons set forth below, we conclude that the legislature intended to include the state and its agencies within the meaning of “persons” as used in section 704.01.

The legislature has declared as a matter of public policy that access should be provided to hemmed-in lands. As stated in Deseret Ranches of Florida, Inc. v. Bowman, 349 So.2d 155 (Fla.1977):

We take notice that Florida grows in population at one of the fastest rates of any state in the nation. Useful land becomes more scarce in proportion to population increase, and the problem in this state becomes greater as tourism, commerce and the need for housing and agricultural goods grow. By its application to shut-off lands to be used for housing, agriculture, timber production and stock-raising, the statute is designed to fill these needs. There is then a clear public purpose in providing means of access to such lands so that they might be utilized in the enumerated ways.

Id. at 156-157.

If no cause of action against the state lies under section 704.01(2), then the public policy purposes of providing such access to land would be totally frustrated and defeated if any private property were surrounded by state land.

In Warwick v. Pearl River Valley Water Supply District, 246 So.2d 525 (Miss.1971), Mississippi, which also recognizes the doctrine of sovereign immunity, had a similar statute authorizing a way of necessity over lands “of another.” The court held that Mississippi’s statute and cases

amply proclaim that the property owner is entitled as a matter of right and public policy to its full enjoyment and that the state will lend its arm to establish by implication of law a right of ingress and egress where none exists in order to accomplish this purpose.. ..
We are of the opinion that the legislature did not intend in creating the Pearl River Valley Water Supply District to establish a state agency with authority to deprive a citizen of the enjoyment of his property unless the same was necessary to accomplish some lawful purpose of the Act. The record before us discloses no logical reason for depriving Warwick of a means of access to his property.

Id. at 529. Similarly, we do not believe that our legislature, in creating appellant, intended to permit the deprivation of a citizen’s enjoyment of his property absent some necessity therefor within the scope of the purposes of Chapter 373, Florida Statutes; appellant points to no case law in support of such an interpretation, and our own research has revealed none.

Accordingly, the final judgment appealed was AFFIRMED.

GRIMES and RYDER, JJ., concur.


source: Caselaw Access Project

author: CAMPBELL, Judge.

license: Public Domain

text:
    William Henry YARBRO, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 80-2186.
    District Court of Appeal of Florida, Second District.
    Aug. 26, 1981.

      Jerry Hill, Public Defender and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   CAMPBELL, Judge.

Appellant, defendant below, appeals from the order adjudicating him guilty of perjury in an official proceeding and argues that the trial court erred in denying his motion to dismiss the information on double jeopardy grounds.

On May 13,1980, an order was entered in a dissolution of marriage proceeding finding appellant to be in contempt of court “for willful and deliberate perjury” in the presence of the court. The order recited that Mr. Yarbro filed a false petition for dissolution of marriage and also falsely testified before the court, by asserting there were no children born of the marriage and that none were expected. In fact, the court found there were two children born as a result of the marriage between Mr. Yarbro and his wife. Pursuant to the contempt order, appellant served 179 days in jail.

Thereafter, on July 1,1980, the state filed an information charging appellant with perjury in an official proceeding for the same false statements he made during the dissolution of marriage proceedings. Appellant pled not guilty and timely filed a motion to dismiss the information, alleging a violation of the prohibition against double jeopardy. After hearing argument from counsel, the trial court denied the motion on the ground that contempt and perjury are two separate offenses.

Appellant changed his plea to nolo con-tendere, reserving the right to appeal the denial of his motion to dismiss. The trial court adjudicated him guilty of perjury and sentenced him to five years’ imprisonment. We reverse.

Constitutional safeguards under the Double Jeopardy Clause of the fifth amendment were made applicable to the states in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). See Art. I, § 9, Fla. Const. Protection from subsequent prosecution after a previous acquittal or conviction for the same offense is available only in criminal cases and in some juvenile proceedings. In re Tierney, 328 So.2d 40, 45-46 (Fla. 4th DCA 1976). See also Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975). Contempt is criminal when the purpose of the punishment is punitive and in vindication of the court’s authority. Deter v. Deter, 353 So.2d 614, 616-17 (Fla. 4th DCA 1977). See Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968). The Florida Supreme Court has held that criminal contempt is a crime. Aaron v. State, 284 So.2d 673 (Fla.1973).

The Supreme Court has recently addressed the issue of double jeopardy in Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980). Vitale was charged with violating an Illinois statute by failing to reduce speed “to avoid colliding with any person or vehicle” when the car he was driving struck and killed two small children. Id. at 411-412, 100 S.Ct. at 2262-63, 65 L.Ed.2d at 233. After he was convicted and sentenced for the traffic offense, Vitale was charged with two counts of involuntary manslaughter for the same incident. The Supreme Court reaffirmed the application of the Blockburger test which determines that there are two offenses instead of one if each statutory provision requires proof of a fact which the other does not. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). See Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). The majority in Vitale deferred to the Illinois Supreme Court in the latter court’s determination that manslaughter by automobile need not necessarily involve any element of failing to reduce speed. However, the Vitale court concluded with the caveat:

[I]f in the pending manslaughter prosecution Illinois relies on and proves a failure to slow to avoid an accident as the reckless act necessary to prove manslaughter, Vitale would have a substantial claim of double jeopardy under the Fifth and Fourteenth Amendments of the United States Constitution.

447 U.S. at 421, 100 S.Ct. at 2267, 65 L.Ed.2d at 238.

It was argued to the trial court here that the Florida Supreme Court has stated that punishment of conduct as contempt of court does not necessarily bar prosecution for the substantive offense which also constituted the contempt. In Wilson v. State, 122 Fla. 54, 58-59, 164 So. 846, 847 (1935), the court stated:

It is too well settled to require any citation of authorities here that the punishment of conduct as a contempt of court will not bar the criminal prosecution of the accused for the substantive offense committed by such conduct. In fact, the plaintiff in error does not contend to the contrary.

It is regrettable that the supreme court did not choose to cite its authority because our research has failed to find any to support the purported rule. However, since the court itself states double jeopardy was not an issue raised by the plaintiff in error there, the statement is dictum, and we are not bound by it. Based on all of the foregoing, prosecution of both contempt and the substantive offense underlying the contempt need not violate the prohibition against double jeopardy if conviction for one of the offenses requires proof of a fact which the other does not. 432 U.S. at 166, 97 S.Ct. at 2226, 53 L.Ed.2d at 194.

In order to have proven perjury in the instant case, the state would have had to show that appellant made a false statement under oath in an official proceeding which he did not believe to be true and which was material to the proceeding. § 837.02, Fla.Stat. (1979). The facts which constituted the criminal contempt were identical to those that would have been necessary to prove the perjury. See Pugliese v. Pugliese, 347 So.2d 422 (Fla.1977); Fla.R.Crim.P. 3.830. Therefore, appellant was twice placed in jeopardy in violation of both the United States and Florida Constitutions.

Other Florida decisions have implied that the potential for double jeopardy exists in cases of criminal contempt. In re Tierney, 328 So.2d 40 (Fla. 4th DCA 1976), was an appeal from multiple charges of civil contempt for failure to answer questions propounded by a grand jury. Distinguishing civil from criminal contempt, the court in Tierney noted: “[Ujnless the adjudications of contempt can be denominated as ‘criminal’ as distinguished from ‘civil’ we need not consider the applicability of the constitutional prohibition against double jeopardy.” Id. at 45-46. Cf. In re Before the Third Statewide Grand Jury, 360 So.2d 4, 6 (Fla. 2d DCA 1978) (“[Cjivil and criminal penalties for the same acts of contempt are permissible given the distinct purposes involved.”)

Additionally, this court has implied that criminal contempt should remain an alternative to the substantive offense in certain situations. E.g., Henderson v. Wainwright, 300 So.2d 274 (Fla. 2d DCA 1974). After his conviction for rape, Henderson submitted a forged letter, purportedly from his trial attorney, and argued that he was eligible for a delayed appeal. Recognizing the forgery, this court chose to forego contempt proceedings against Henderson, and in lieu of punishment for contempt, advised the state attorney of the perjury that had taken place. In Parham v. Kohler, 134 So.2d 274 (Fla. 3d DCA 1961), the court also speaks of “alternatives” saying:

However, the law has provided the courts with definite alternatives when, as in the case at bar, they clearly establish that perjured testimony has been given. Among other things, the court may cite the person for contempt, direct that the record be sent to the State Attorney’s office for investigation or, in proper cases, strike the pleading or testimony which has clearly been shown to be sham.

Id. at 276.

We therefore hold that appellant has been improperly charged and convicted for perjury since he has already been convicted and served a sentence for a criminal contempt which was based on the same facts, recognizing that the double jeopardy guarantee protects against multiple punishment for the same criminal offense. Illinois v. Vitale.

Therefore, we reverse appellant’s judgment and sentence.

BOARDMAN, Acting C. J., and RYDER, J., concur.


author: DANIEL S. PEARSON, Judge.

text:
    The CITY OF HIALEAH, a municipality, Appellant, v. Raul MARTINEZ, Councilman for the City of Hialeah, Appellee.
    No. 81-944.
    District Court of Appeal of Florida, Third District.
    Aug. 27, 1981.
    Ralph Miles, City Atty., for appellant. McDermott, Will & Emery and Byron B. Mathews, Jr., Miami, for appellee.
    Before NESBITT, DANIEL S. PEARSON and FERGUSON, JJ.
   DANIEL S. PEARSON, Judge.

Raul Martinez is a City of Hialeah councilman whose term of office is due to expire on November 13,1981. He wants to run in the general election to be held on November 10, 1981, for the position of Mayor of the City of Hialeah for the term beginning November 13, 1981. Section 44.01 of the Charter of the City of Hialeah provides:

“Any elected official ... of the City of Hialeah shall resign from his city office before he may seek, accept appointment to, or hold any other position under the city government for the City of Hialeah.”

Faced with the City’s assertion that its charter required Martinez to resign effective no later than September 11, 1981, the last day upon which one could qualify to run for the office of Mayor, Martinez sued in the Dade County Circuit Court for a judgment declaring that pursuant to Section 99.012(2), Florida Statutes (1981), he could run for the office of Mayor without first resigning his councilman’s position or, alternatively, if resignation were required, it could be made effective “not later than the date upon which he would assume office, if elected to the office to which he seeks to qualify, the expiration date of the term of the office which he presently holds, or the general election day at which his successor is elected, whichever occurs earliest,” as provided in Section 99.012(2), Florida Statutes (1981). The trial court granted Martinez’s motion for summary judgment, holding, in pertinent part, that:

“2. This Court construes Section 44.01 of the City Charter of Hialeah to require the resignation of the Petitioner to be made effective no later than the date upon which Petitioner would assume the office of Mayor, if he were to be elected to said office, the expiration date of the office which he presently holds, or the general election date at which his successor is elected, whichever of said dates occurs earliest.
“3. This Court further construes Section 44.01 of the City Charter of Hialeah to require the Petitioner to resign as stated in Paragraph 2 of this Order the moment he qualifies to run for the office of Mayor in the City of Hialeah, in the manner in which the City of Hialeah determines said candidate to be qualified. The term qualify is interpreted as doing the last act required by the City for any candidate to qualify for election to said office.”

Both the City and Martinez appeal.

We agree with the trial court insofar as it rejected the City’s position that Martinez was required to resign effective when he sought the office of Mayor. However, we disagree with the trial court’s holding that Martinez was required to resign at all. We therefore reverse the trial court’s order and remand the cause for the entry of an order, in accordance with this opinion, which provides that Martinez need not resign his office to run for the office of Mayor.

Section 99.012(2) provides, in pertinent part:

“No individual may qualify as a candidate for public office who holds another elective or appointive office, whether state, county or municipal, the term of which or any part thereof runs concurrently with the term of office for which he seeks to qualify without resigning from such office not less than 10 days prior to the first day of qualifying for the office he intends to seek. Said resignation shall be effective not later than the date upon which he would assume office, if elected to the office to which he seeks to qualify, the expiration date of the term of the office which he presently holds, or the general election day at which his successor is elected, whichever occurs earliest. . .. ”

The trial court was of the view that the resign to run provision of the City’s Charter and the resign to run statute can peacefully coexist. The Charter provides that any City office holder seeking another office must resign before he may run. Attempting to harmonize the Charter with the statute, the trial court seized upon the fact that since the Charter provides only for resignation and is silent on the effective date of the resignation, the effective date provisions of Section 99.012(2), Florida Statutes (1981), can be read into the Charter. While this solution is undoubtedly favorable to Martinez — under the trial court’s ruling, he can retain his councilman’s position until the date of the general election, November 10, 1981 — it is not the judgment to which Martinez is entitled. In our view, the provision of the City Charter which requires resignation whether or not the term of the office holder runs concurrently with the term of office for which he seeks to qualify conflicts with the provision of the statute which requires resignation only when there is an overlap of terms. Where there is such a conflict, the general law of the state prevails over the charter of a Dade County municipality such as Hialeah.

Article VIII, Section 6(e), Florida Constitution (1968), to which the City’s Charter owes its existence, specifically re-enacts the Dade County Home Rule Charter, Article VIII, Section 11, Florida Constitution (1885), and provides that the Legislature shall have no power to amend or repeal the charter of any municipal corporation in Dade County, but provides further:

“Nothing in this section shall be construed to limit or restrict the power of the Legislature to enact general laws which shall relate to Dade County and any other one or more counties of the State of Florida or to any municipality in Dade County and any other one or more municipalities of the State of Florida relating to county or municipal affairs and all such general laws shall apply to Dade County and to all municipalities therein to the same extent as if this section had not been adopted and such general laws shall supersede any part or portion of the home rule charter provided for herein in conflict therewith and shall supersede any provision of any ordinance enacted pursuant to said charter and in conflict therewith, and shall supersede any provision of any charter of any municipality in Dade County in conflict therewith.”

Since the general law of the state, Section 99.012, Florida Statutes (1981), permits Martinez, whose term as a councilman is not concurrent with the term of the May- or’s office he seeks, to run without resigning, the City’s Charter provision which places a greater restriction on Martinez’s right to run for office is in conflict with the general law and must give way. The Legislature, by making it unlawful for a public office holder whose term runs concurrently with the term of office for which he seeks to qualify to run for the other office without resigning, has in effect made it lawful for the public office holder whose present term is not concurrent with the other office to run without resigning. The City’s Charter cannot make unlawful what the Legislature has made lawful. See Scavella v. Fernandez, 371 So.2d 535 (Fla.3d DCA 1979) (provision of Dade County Code requiring that a claim against county be filed within sixty days is in conflict with, and superseded by, state statute allowing three years for such filing, notwithstanding that both code and statute could be complied with by filing claim in sixty days), and cases cited therein.

We therefore hold that the general law supersedes Section 44.01 of the Hialeah City Charter in conflict therewith, and because no part of Martinez’s term as councilman, his present office, runs concurrently with the term which he seeks, that is, the office of Mayor, Martinez need not resign his present office in order to run for the office of Mayor. The decision of the trial court is reversed and the cause remanded for the immediate entry of a judgment in accordance with this opinion. Because Martinez must qualify for the office of Mayor on or before September 11,1981, no petition for rehearing will be entertained, and our mandate will issue simultaneously with this opinion.

Reversed and remanded with directions.

      . Identical to Section 99.012(2), Florida Statutes (1979), the statute applicable when the suit was originally brought.

      . In the present case, the earliest of the foregoing events would be November 10, 1981, the date of the general election.

      . While ordinarily we would relinquish jurisdiction to the trial court to enter a final judgment, see, e. g., Barnes v. Ross, 386 So.2d 812 (Fla.3d DCA 1980), we bypass that procedure in the present case because both parties require an immediate ruling and because were we to hold the appeal in abeyance pending the trial court’s entry of a final judgment, both parties would necessarily be in doubt as to whether the City’s appeal from the non-final order granting summary judgment effectively stayed the trial court’s ruling. See Fla.R.App.P. 9.310(b)(2).

      . The trial court’s ruling rejected, sub silentio, Martinez’s contention that Section 99.012(2), Florida Statutes (1981), required no resignation whatsoever. Both parties briefed and argued this point on appeal, and the brief of appellee specifically requested us to accord him this greater relief. Since our jurisdiction to determine the validity of the order in question is clear, and a notice of cross-appeal is not jurisdictional, County Sanitation v. Ross, 389 So.2d 1247 (Fla. 1st DCA 1980); Safeco Insurance Company v. Rochow, 384 So.2d 163 (Fla. 5th DCA 1980); Agrico Chemical Company v. Department of Environmental Regulation, 380 So.2d 503 (Fla.2d DCA 1980); Brickell Bay Condominium Association, Inc. v. Forte, 379 So.2d 1334 (Fla.3d DCA 1980), and since the City makes no claim of lack of notice or prejudice, we treat Martinez’s brief as sufficient notice to the City that he cross-appeals from the trial court’s ruling. It is clear that we could, and would, under the circumstances of this case, allow Martinez to belatedly file a more formal notice, but see no reason to place form over substance, particularly since an immediate decision in this case must be made. ■

      .The City’s position is that Martinez’s resignation must be effective the moment when Martinez engages in pre-qualification campaign activities. The trial court quite correctly rejected the City’s position and construed “seeks” as “qualifies to run.” That construction, however, is irrelevant in light of our holding.

      . The trial court did not address, nor do we, Martinez’s "equal protection” argument that the Charter unfairly and irrationally favors an incumbent seeking re-election.

      . If the City’s Charter, as the state statute, provided for resignation only where there is concurrency and was silent on the subject of effective dates, then we would agree that the Charter and statute would not be in conflict, and the effective date provisions of the statute could be read into the Charter.

      .Where the terms are not concurrent, the problem sought to be remedied by the resignation provisions of the statute do not exist. If, for example, Martinez were to be elected May- or, there would be no time remaining in the term of his councilman’s position and no necessity for a costly special election to fill that remaining time. See Holley v. Adams, 238 So.2d 401 (Fla.1970). However, where the terms overlap, the prospective resignation provisions of the statute serve to remove the concurrency problem.


author: PER CURIAM.

text:
    NORTH BROWARD HOSPITAL DISTRICT, doing business as Broward General Medical Center, Appellant, v. Clinton HINCHMAN, et ux., Appellees.
    No. 80-1882.
    District Court of Appeal of Florida, Fourth District.
    Aug. 28, 1981.
    William Zei and Ellen Mills Gibbs, Fort Lauderdale, for appellant.
    No brief required for appellees.
   PER CURIAM.

Pursuant to the order of the Supreme Court set forth at 389 So.2d 204 (Fla.1980), we hereby remand this cause to the judicial referee with directions that he terminate medical mediation jurisdiction in accordance with Aldana v. Holub, 381 So.2d 231 (Fla.1980).

No petition for rehearing will be entertained.

DOWNEY, GLICKSTEIN and HURLEY, JJ., concur.


text:
    Antonio MARTINEZ, and Ana Martinez, individually, as husband and wife; and as natural guardians of Antonio Daniel Martinez, a minor, Appellants, v. Evelyn SCHIFFMAN and National Indemnity Insurance Company, Appellees.
    No. 80-1682.
    District Court of Appeal of Florida, Third District.
    Sept. 1, 1981.

      A. Koss, Miami and Mauricio J. Ejenb-aum, Miami Beach, and Alex Sierra, Coral Gables, for appellants.
    Virgin, Whittle & Garbis and Gary E. Garbis, Miami, for appellees.
    Before BARKDULL, SCHWARTZ and FERGUSON, JJ.
   PER CURIAM.

The trial judge correctly held that the second amended complaint failed to state a cause of action against the appellee landlord for injuries caused when a dog owned by his tenants bit the minor plaintiff while he was on the leased premises. Miller v. Sinclair Refining Co., 268 F.2d 114 (5th Cir. 1959); Simms v. Kennedy, 74 Fla. 411, 76 So. 739 (1917); Collins v. Otto, 149 Colo. 489, 369 P.2d 564 (1962); cases collected, Annot., Landlord’s Liability for Tenant’s Vicious Pet, 81 A.L.R.3d 638, 641-43 (1977). Compare, Uccello v. Laudenslayer, 44 Cal.App.3d 504, 118 Cal.Rptr. 741 (1975), where the landlord’s liability was based on the lessor's retention of control over the leased premises, a factor which was not alleged in this case.

Affirmed.


text:
    The STATE of Florida, Appellant, v. Robert HAWKINS, Appellee.
    No. 80-2361.
    District Court of Appeal of Florida, Third District.
    Sept. 1, 1981.
    Jim Smith, Atty. Gen. and Joel D. Rosen-blatt, Asst. Atty. Gen., for appellant.
    Bennett H. Brummer, Public Defender and Warren S. Schwartz, Asst. Public Defender, for appellee.
    Before NESBITT, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

The appellee having confessed error in the trial court’s granting of his sworn motion to dismiss, and such error clearly appearing, see, State v. Thompson, 399 So.2d 485 (Fla.3d DCA 1981); State v. Horne, 399 So.2d 49 (Fla.3d DCA 1981); State v. Johnson, 398 So.2d 500 (Fla.3d DCA 1981); the order of dismissal is reversed and the cause remanded for further proceedings.

Reversed and remanded.


text:
    The STATE of Florida, Appellant, v. Frantz MERELUS, Appellee.
    No. 81-717.
    District Court of Appeal of Florida, Third District.
    Sept. 1, 1981.
    Jim Smith, Atty. Gen., and Theda R. James, Asst. Atty. Gen., for appellant.
    Bennett H. Brummer, Public Defender and Robert R. Schrank, Asst. Public Defender, for appellee.
    Before NESBITT, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

The appellee having confessed error in the trial court’s granting of his sworn motion to dismiss, and such error clearly appearing, see State v. Thompson, 399 So.2d 485 (Fla.3d DCA 1981); State v. Horne, 399 So.2d 49 (Fla.3d DCA 1981); State v. Johnson, 398 So.2d 500 (Fla.3d DCA 1981), the order of dismissal is reversed and the cause remanded for further proceedings.

Reversed and remanded.


author:
DOUCET, Justice ad hoc.
     CALOGERO, Justice,

text:
    STATE of Louisiana v. Amos BOUDREAUX.
    No. 80-K-2011.
    Supreme Court of Louisiana.
    Feb. 4, 1981.
    Concurring Opinion Oct. 9, 1981.
    Stephen A. Jefferson, Farrar, Perry & Jefferson, Monroe, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., John R. Harrison, Asst. Dist. Atty., for plaintiff-respondent.
   DOUCET, Justice ad hoc.

At approximately midnight on the night of June 27, 1978, one Cecil Drake, a casual acquaintance of the defendant, agreed to give the defendant and his unknown companion a ride in his vehicle from West Monroe to Monroe. En route, the defendant and his companion requested that Drake stop the vehicle and let them out. As Drake was doing so, the defendant pulled a pistol on him, requesting that Drake turn over his money. Instead, Drake, frightened, jumped from the truck and ran. The defendant then commandeered the truck and took off. Drake called the police, described what had happened, and identified his assailant as the defendant. Subsequently, on July 14, 1978, the defendant was arrested and charged with armed robbery. (La.R.S. 14:64) Defendant was arraigned on July 20, 1978, at which time he pled “not guilty”. On September 7, 1978, a preliminary examination was conducted at the conclusion of which the trial court found probable cause to hold the defendant for trial. On November 7, 1978, defendant withdrew his formerly entered not guilty plea to armed robbery and in its stead entered a plea of guilty to simple robbery. (La.R.S. 14:65) The trial judge found the plea intelligently and voluntarily entered, accepted it, and remanded the defendant to the Parish jail to await sentencing. On December 12, 1978, the court imposed a sentence of five years at hard labor in the custody of the Department of Corrections.

While imprisoned at Angola, defendant filed in the trial court an application for a writ of habeas corpus alleging that his guilty plea should be set aside for the reason that he was not informed of his right to confront witnesses against him and his right to compulsory process. The trial court denied the writ. Subsequently, the defendant sought relief in this Court. Accordingly, on June 13, 1980, this Court granted defendant’s writ, setting aside defendant’s plea for the reason that he was not advised of his confrontation rights.

Defendant was thereafter returned from Angola to the trial court where, on July 15, 1980, he was rearraigned on the crime of armed robbery. At this time defendant entered a plea of “not guilty”. Subsequently, defendant filed a motion to quash on July 31, 1980. By this motion defendant claimed that rearraignment on armed robbery subjected him to double jeopardy. Defendant argued the motion on August 25, 1980; on August 26, 1980, the motion was denied. The matter is now before this Court on a writ seeking review of the trial court’s denial of the motion to quash.

Defendant argues that his guilty plea to simple robbery acted as an acquittal on the greater offense of armed robbery such that reinstatement of the armed robbery charge, after this Court vacated the simple robbery plea, twice placed him in jeopardy for the same offense. Defendant bases his argument on La.C.Cr.P. Art. 598.

“Art. 598. Effect of verdict of lesser offense
When a person is found guilty of a lesser degree of the offense charged, the verdict or judgment of the court is an acquittal of all greater offenses charged in the indictment and the defendant cannot thereafter be tried for those offenses on a new trial. Amended by Acts 1978, No. 133, § 1.”

Both the United States and the Louisiana Constitutions prohibit placing an accused twice in jeopardy for the same offense. United States Constitution, Amendment 5; Louisiana Constitution (1974), Article I, Section 15. More particularly, these provisions protect the accused against a second prosecution for the same offense after acquittal. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969); State v. Hurst, 367 So.2d 1180 (La.1979). Consequently, when a person is found guilty of a lesser degree of the offense charged, the verdict of the court is deemed an acquittal of all greater offenses charged in the indictment; the protections of double jeopardy bar reprosecution on the greater offenses. Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). The unique issue presented by this ease, however, has yet to be confronted by this Court or the United States Supreme Court: is a plea to a lesser offense an acquittal on the greater offense such that where the verdict entered on the plea is vacated at defendant’s request, subsequent reprosecution on the greater offense is barred?

Every federal circuit court that has confronted this or a like question has ruled that the vacated plea does not act as an acquittal on the greater offense, barring reprosecution. See, Hawk v. Berkemer, 610 F.2d 445 (6th Cir. 1979) (Plea bargain to murder with aggravated murder counts dismissed); United States v. Williams, 534 F.2d 119 (8th Cir. 1976) (charged with aggravated bank robbery and plea bargained to lesser included offense of bank robbery); United States v. Anderson, 514 F.2d 583 (7th Cir. 1975) (indicted for armed robbery and plea bargained to lesser included offense of robbery); United States ex rel. Williams v. McMann, 436 F.2d 103 (2d Cir. 1980) (charged with felonious sale of narcotic drug and plea bargained to lesser included offense of attempted felonious sale); Ward v. Page, 424 F.2d 491 (10th Cir. 1970) (charged with first degree murder and plea to lesser included offense of first degree manslaughter); United States v. Myles, 430 F.2d 161 (D.C.Gir.1978) (plea bargained to one gambling offense and other gambling charges dismissed); See also, United States v. Johnson, 537 F.2d 1170 (4th Cir. 1976) (court suggests, without holding, that plea to two of four counts is not acquittal on remaining two).

In Hardwick v. Doolittle, 558 F.2d 292 (5th Cir. 1977), the Fifth Circuit was confronted with a case in which charges not originally brought against the accused were added at retrial. While the primary issue concerned alleged prosecutorial vindictiveness, see, Blackledge v. Perry, 417 U.S. 21, 99 S.Ct. 2098, 40 L.Ed.2d 628 (1974), the Court nonetheless noted that “a prosecutor may, without explanation, refile charges against a defendant whose bargained for guilty plea to a lesser charge has been withdrawn or overturned on appeal, provided that an increase in the charges is within the limits set by the original indictment.” 558 F.2d at 301. It is submitted that the quoted language demonstrates that the Fifth Circuit is in accord with the other noted Circuits: a vacated verdict on a plea to a lesser included offense does not bar prosecution on the greater offense.

The Circuits have reached consistent results but have done so employing varying techniques. In United States v. Anderson, supra, the 7th Circuit reasoned that the Government’s acceptance of a plea is conditional on the accused’s being convicted and remaining convicted of the offense to which he pled. When the plea to conviction is vacated, the condition precedent to the Government’s agreement not to prosecute on the greater offense no longer existed. “The Government was then free to prosecute [the accused] without placing him twice in jeopardy. To hold otherwise is to find that the Double Jeopardy Clause gives the defendant more than the ‘benefit of his bargain’ and ensures that he will not even be placed in jeopardy once under certain circumstances.” Anderson, supra, 514 F.2d at 587. In United States v. Williams, supra on the other hand, the Eighth Circuit finds a solution in the concept of “continuing jeopardy.” See, United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896); Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970). Under this approach, a subsequent trial after the setting aside of the plea-verdict does not constitute double jeopardy; it is merely “continuing jeopardy that has application where criminal proceedings against an accused have not run their full course”. Price, supra, 398 U.S. at 326, 90 S.Ct. at 1759.

Williams also confronts the argument that for double jeopardy purposes it is immaterial whether the former conviction on the lesser charge resulted from a trial on both the greater and lesser charges or from a plea to the lesser charge only. The Court rejects this argument, writing:

First, a jury’s verdict of guilty on a lesser charge is an “implicit acquittal” on the greater charge. Second, a defendant’s jeopardy on the greater charge ends when the first jury is given a “full opportunity” to return a verdict on that charge and instead returns a verdict on the lesser charge only. Neither premise is applicable when the original conviction on the lesser charge follows a guilty plea rather than a trial on both charges. Green, supra, 355 U.S. at 190, 78 S.Ct. at 225, 2 L.Ed.2d at 206, reveals quite clearly why the Supreme Court concluded that an “implicit acquittal” had occurred there:
Green was in direct peril of being convicted and punished for first degree murder at his first trial. He was forced to run the gauntlet once on that charge and the jury refused to convict him. When given the choice between finding him guilty of either first or second degree murder it chose the latter. In this situation the great majority of cases in this country have regarded the jury’s verdict as an implicit acquittal on the charge of first degree murder.
Williams, supra, 534 F.2d at 121.

In contrast to the defendant in Green, the defendant at bar was not, in the proceedings in which his guilty plea was accepted, in direct peril of being convicted and punished for violating La.R.S. 14:64. He was not forced to “run the gauntlet” on that charge. No trier of fact refused to convict him on that charge and none was given the choice between finding him guilty on either that charge or on La.R.S. 14:65. The prosecutor and the judge had the sole options of accepting or rejecting the plea on the lesser charge. By accepting it, no determination was made, explicit or implicit, on the merits of the charge not embraced in the plea. There was no implicit acquittal. A plea to a lesser charge necessarily deprives the court of an opportunity to consider the greater charge.

This Court must next analyze the resolution of the issue in terms of the effect it may have on a defendant’s decision to attack his conviction on appeal.

North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), established that a due process deprivation may result if a defendant receives harsh treatment when he is retried and reconvicted after a successful appeal. Specifically, Pearce held that after a new trial a defendant cannot be given a more severe sentence unless objective reasons concerning conduct occurring after the time of original sentencing affirmatively appear. The Court stated:

Due process of law, then, requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial. And since the fear of such vindictiveness may unconstitutionally deter a defendant’s exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.

In the case at bar, it appears that retrial on the greater charge will impose no Pearce due process limitation on the possible sentence imposed, provided of course that the sentence is otherwise in conformity with law. The court retains its sentencing discretion due to the fact that the state never elected on which charge it would try the defendant if the case went to trial. The greater charge was dropped in return for a plea to the lesser one. After the plea was vacated the situation reverted to the pre-plea stage. Here we have a situation where there has been a major change other than just an appeal — by his own hand, defendant has upset his bargain and now pleaded not guilty to both charges. There is no appearance of retaliation when a defendant is placed in the same position as he was before he accepted the plea bargain. See, United States v. Anderson, supra, at 514 F.2d at 587-588.

This case is remanded for further proceedings consistent with this opinion.

CALOGERO, Justice,

concurring.

I concur in the majority opinion based on the facts here presented. However, in my view, if defendant on remand again offers to plead guilty to simple robbery and the trial court or the district attorney refuses to allow him to do so the defendant’s contentions may then have merit.

       Judges CECIL C. CUTRER, JIMMY M. STOKER and NED E. DOUCET, Jr., of the Court of Appeal, Third Circuit, participated in this decision as Associate Justices ad hoc, joined by Chief Justice JOHN A. DIXON, Jr., and Associate Justices PASCAL F. CALOGERO, Jr., JAMES L. DENNIS and JACK C. WATSON.

      . In Hawk the Sixth Circuit overruled its holding in Rivers v. Lucas, 477 F.2d 199 (6th Cir. 1973). In Rivers, vacated on other grounds at 414 U.S. 896, 94 S.Ct. 232, 38 L.Ed.2d 139 (1976), the Sixth Circuit held that under double jeopardy principles, a defendant indicted for first degree murder who pled guilty to manslaughter, a lesser included offense, may not be reprosecuted for murder after the manslaughter conviction is set aside. This result was obtained in accordance with Mullreed v. Kropp, 425 F.2d 1095 (6th Cir. 1970) In which the Court held the minority view that, for purposes of testing a double jeopardy plea, there is no difference between the jury’s refusal to convict on the more serious charge and the court’s “implicit” refusal to do so when it accepts a guilty plea to a lesser included offense. Cf. Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). The Court in Hawk expressly noted that Rivers and Mulireed were out of step with the National jurisprudential consensus on this issue. 610 F.2d at 446.

      . In Blackledge v. Perry, supra, the Supreme Court also made clear that the prosecutor is not free to substitute a more serious grade of an offense originally not charged for one that resulted in conviction but was overturned on appeal. In this case, of course, the prosecution began with the 'more serious charge of armed robbery and elected to bargain from that position. A different result might well obtain here if the state had charged only simple robbery at the outset and defendant had managed on appeal to set his plea to that offense aside. In that case, recharging the defense after this successful appeal as armed rather than simple robbery, might appear vindictive under Blackledge, supra.


author: DIXON, Chief Justice. LEMMON, Justice. DENNIS, Justice, DIXON, Chief Justice

text:
    Darrell DANOS et al. v. Terry ST. PIERRE et al.
    Nos. 66876, 66882.
    Supreme Court of Louisiana.
    March 2, 1981.
    On Rehearing July 2, 1981.
    Rehearing Denied Sept. 4, 1981.

      Steven B. Witman, Johnston & Duplass, New Orleans, for applicant, Allstate Ins. Co.
    Darryl J. Carimi, Bordelon & Carimi, Gretna, L. Albert Forrest, Roy & Forrest, Ltd., New Iberia, John L. Lanier, Pugh, Lanier & Pugh, Thibodaux, for respondents in 66,882.
    L. Albert Forrest, Roy & Forrest, Ltd., New Iberia, John L. Lanier, Pugh, Lanier & Pugh, Thibodaux, for defendant-applicant in 66,882.
    Steven B. Witman, Johnston & Duplass, New Orleans, Darryl J. Carimi, Bordelon & Carimi, Gretna, for plaintiff-respondents in 66,882.
   DIXON, Chief Justice.

Writs were granted in these cases to review a ruling by the district court, affirmed by the Court of Appeal (383 So.2d 1019 (La.App. 1st Cir. 1980)), that the mother and father of a stillborn child could recover damages for the wrongful death of a fetus. The district court judgment awarded damages to the husband for his injuries, plus $10,000 for “loss of his unborn child.” His wife was awarded $20,000 for her “pain, suffering and mental anguish and anxiety,” plus $10,000 for the “loss of her unborn child.” The only injuries of the mother discussed by the trial judge were a rejected claim for dental injuries and the abdominal injury which resulted in the hospitalization of the mother and the stillbirth of the six or seven month old fetus.

We affirm the judgments of the courts below, except for the awards of $10,000 to each parent for the loss of the unborn child, which we reverse. We hold that the mother may recover damages for an injury which caused a miscarriage, but that there is no right of recovery under C.C. 2315 for the wrongful death of a fetus.

C.C. 2315, the basis for the claims in these cases, has been much amended through the years (see Voss, The Recovery of Damages for Wrongful Death, 6 Tul.L.Rev. 201 (1931)), almost every time in response to a restrictive interpretation by this court limiting recovery to claimants. The predecessor of this article in C.C. 1825 eliminated explanatory words from the 1808 version (Art. 16 p. 320) reproducing Art. 1382 of the Code Napoleon. Those words now form the first sentence of 2315: “Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” In 1851 this court held that there could be no recovery for the wrongful death of another, in spite of the broad language of the code article. Hubgh v. New Orleans and Carrollton Railroad Co., 6 La.Ann. 495 (La.1851). Act 223 of 1855 amended the article and provided for the survival of a personal injury action “in case of death” to certain beneficiaries. Act 71 of 1884 added “an additional cause of action, the right of the survivors to damages sustained to themselves by reason of the wrongful death of their parent or husband.” Wharton, Rights of Children to an Action for Wrongful Death Under Article 2315, 14 Tul.L.Rev. 612, 613 (1940).

In addition to the first sentence, C.C. 2315 now provides:

The right to recover damages to property caused by an offense or quasi offense is a property right which, on the death of the obligee, is inherited by his legal, instituted, or irregular heirs, subject to the community rights of the surviving spouse. The right to recover all other damages caused by an offense or quasi offense, if the injured person dies, shall survive for a period of one year from the death of the deceased in favor of: (1) the surviving spouse and child or children of the deceased, or either such spouse or such child or children; (2) the surviving father and mother of the deceased, or either of them, if he left no spouse or child surviving; and (3) the surviving brothers and sisters of the deceased, or any of them, if he left no spouse, child or parent surviving. The survivors in whose favor this right of action survives may also recover the damages which they sustained through the wrongful death of the deceased. A right to recover damages under the provisions of this paragraph is a property right which, on the death of the survivor in whose favor the right of action survived, is inherited by his legal, instituted, or irregular heirs, whether suit has been instituted thereon by the survivor or not. As used in this article, the words ‘child’, ‘brother’, ‘sister’, ‘father’, and ‘mother’ include a child, brother, sister, father, and mother, by adoption, respectively.”

Only one reported decision has been found that was required to address the issue which the present cases raise. In Wascom v. American Indemnity Corp., 348 So.2d 128 (La.App. 1st Cir. 1977), damages were sought for the loss of twin fetuses that were delivered stillborn. The court sustained exceptions of no cause or right of action on the ground that C.C. 2315 does not apply to “the death of a child never born alive.” 348 So.2d at 130. This court denied writs, stating that the judgment was correct (an action which does not make law). 350 So.2d 1224 (La.1977). The Court of Appeal in the Wascom case relied upon C.C. 28, which states:

“Children born dead are considered as if they had never been born or conceived.” Dicta in a prior decision indicated that Article 28 established the principle that child born dead never acquired “a legal personality distinct from its mother.” Youman et al. v. McConnell & McConnell, Inc., 7 La.App. 315, 317 (2d Cir. 1927). Other cases allowing an expectant mother’s recovery for damage caused by miscarriages or abortions are consistent with this principle. See, e. g., White v. Juge, 176 La. 1045, 147 So. 72 (1933); Joiner v. Texas & P. Ry. Co., 128 La. 1050, 55 So. 670 (1911); Stewart v. Arkansas Southern R. Co., 112 La. 764, 36 So. 676 (1904); Sibley v. Wilcox, 125 So.2d 49 (La.App. 1st Cir. 1960); Moncrieff v. Lacobie, 89 So.2d 471 (La.App. 1st Cir. 1956); Green v. Frederick, 141 So. 505 (La.App. 1st Cir. 1932).

The plaintiffs contend that Article 28 was not meant to define legal personality for the purposes of personal injury and wrongful death, but that it only applies to inheritance and other property rights. See Note, Wrongful Death — Right of Action — Viable Unborn Child, 6 Loy.L.Rev. 157 (1952). It is entirely clear, as all parties apparently concede, that a stillborn fetus has no cause of action for its own injuries. A cause of action is a property right. It may arise by the effect of obligations or through the operation of law. C.C. 870. The ownership of property and rights in property is confined to natural or juridical persons. C.C. 479. Cf. C.C. 493 (1870). In terms of property rights, which include rights of inheritance, a child’s legal personality exists from the moment of its conception. See C.C. 29, 953-57 and 1482. However, under Article 28, the effect of acquiring a legal personality is dissolved if the child is not born alive; the stillborn child cannot acquire a cause of action, or any other form of property. Cf. C.C. 955-56 and 1482. A cause of action to recover damages caused by prenatal injury is a property right that remains inchoate until the “person” so injured is born alive. Compare Note, Torts — Prenatal Injuries— Characterization of Unborn Child as a “Person” Immaterial to Recovery, 20 La.L.Rev. 810 (1960); Comment, Tort Liability for Prenatal Injury, 24 Tul.L.Rev. 435 (1950).

The Code establishes a clear and consistent scheme in regard to the definition of legal personality. From the moment of conception, a child is considered in law as if it had already been born, and is entitled to certain rights and privileges. However, this reputed legal personality is conditioned upon the child’s live birth; if the child is not born alive, the effects of its fictional legal personality are considered never to have existed. This scheme was explained in Cooper v. Blanck, 39 So.2d 352 (Orleans App.1923). There, a child was born prematurely as a result of an injury to its mother; it died shortly after its birth. The court concluded that the fact that the injury was inflicted prenatally did not alter the child’s right to bring suit, or the parents’ right to bring the action after the child’s death. The decision was based upon C.C. 29, which states in part:

“Children in the mother’s womb are considered, in whatever relates to themselves, as if they were already born ...”

The court specifically ruled that this provision was not limited to inheritance rights. As noted, the article does apply to the acquisition of property rights, and a cause of action is such a right. The court correctly stated that:

“We think it manifest that injury to a child at this period is in contemplation of law, injury to a living child, for which the child if it survives its birth, may maintain an action under art. 2315 of our Code ...” 39 So.2d at 360 (emphasis added).

However, the court went on to indulge in the following dictum:

“... and if the child be killed at this period, before its birth, we see no reason why its parents cannot maintain an action for the death of their child.” 39 So.2d at 360.

It is also argued that, since Article 28 predates the enactment of a wrongful death provision in Louisiana, the article can have no application to cases of wrongful fetal death. See Stone, Tort Doctrine, 12 Louisiana Civil Law Treatise § 63 (1977). While scholarship on the source provisions of the law is enlightening, more recent legislative action should not be ignored. In 1976 Senate Bill 261 was proposed. The bill’s avowed purpose was:

“To amend and reenact Article 2315 of the Louisiana Civil Code, relative to liability for acts which cause damage, to provide that the terms ‘man,’ ‘another’ and ‘person’ shall include a human being from the moment of conception.”

The bill was referred to the Committee on the Judiciary, but was never enacted. Had the bill become law, an action for wrongful fetal death would have been permitted. The purpose of the proposed amendment was precisely that — to allow recovery “for the wrongful death of a fetus occurring at any stage of its development.” Legislative Symposium, 37 La.L.Rev. 89, 116 (1976). The fact that the amendment was proposed but not enacted is at least a strong indication that the legislature is aware that C.C. 2315, in its present form, and as interpreted by the courts, does not allow a wrongful death action in cases of fetal death. The failure to adopt the proposal precludes any inference that a legislative intent favoring recovery exists in cases of wrongful fetal death; instead, the opposite inference should be made.

We are constrained by the clear and explicit provisions of existing law to deny recovery in cases of wrongful fetal death.

At any rate, the plain words and clear meaning of C.C. 28 and 29 should not be ignored, and must be considered along with C.C. 2315. The mother of a child born dead can recover her damages for the injury to herself and the fetus. The stillborn child has no rights, and can transmit none.

Three other defendants in this case were passengers in the ear driven by the defendant. One of these was the owner. The trial judge concluded that all of the passengers were jointly responsible for the negligent operation of the car, because they allowed the defendant to drive even though they were aware that he was intoxicated. The Court of Appeal reversed this decision in part after finding that, although the owner of the vehicle was liable for the damages caused by entrusting the car to an incompetent driver, the passengers were under no corresponding duty to protect against such risks. Danos v. St. Pierre, supra. We find no error in this ruling, nor in the ruling that, although proper service was not made on one of the parties, any objection to the court’s jurisdiction was waived. C.C.P. 6 and 7. Nor do we find merit in the argument that damages awarded were excessive.

For these reasons, the judgments of the courts below awarding plaintiffs Darrell Danos and Gayle Danos each $10,000 are reversed; otherwise, the judgments are affirmed, and plaintiffs are cast with the costs of the proceedings in this court.

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

DENNIS, J., dissents for reasons assigned by LEMMON and LOTTINGER, JJ., of the Court of Appeal.

LEMMON, J., dissents and will assign reasons.

ON REHEARING

LEMMON, Justice.

We granted rehearing to reconsider the principal issue in this case — whether parents may recover the damages they sustain when a tortfeasor’s fault causes a prenatal injury to a fetus who is subsequently born dead because of the injury.

Mrs. Darrell Danos’ six-month old fetus was born dead because the maternal placenta separated prematurely when she was involved in an automobile accident caused by defendants. Mr. and Mrs. Danos filed suit, seeking recovery of certain itemized damages, including the “loss of his (her) unborn baby girl”. The trial court granted recovery, and the court of appeal affirmed. 383 So.2d 1019.

Defendants rely on earlier decisions of the intermediate courts, including Youman v. McConnell and McConnell, 7 La.App. 315 (2d Cir. 1927) and Wascom v. American Indem. Corp., 348 So.2d 128 (1st Cir. 1977), cert. den. 350 So.2d 1224, which held that parents have no cause of action to recover damages for the wrongful death of a child which is born dead. The intermediate court’s decision in this case is clearly contrary to these decisions.

C.C. art. 2315, when considered alone, would permit recovery of such damages. The elements of fault, damage and causation are satisfied when there is proof that the tortfeasor’s fault caused the parents to suffer the loss of a child who, but for the fault, more probably than not would have been born normally. Defendants point out; however, that the third paragraph of C.C. art. 2315, authorizing recovery of damages (other than property damages) by certain enumerated relatives if the injured person dies, contemplates damages for the wrongful death of a person. They accordingly argue, citing C.C. art. 28, that since a child born dead is considered as if it had never been born or conceived, the loss suffered by the parents in this case was not the loss of a legal person. In essence defendants are asserting that C.C. art. 28 precludes recovery for the wrongful death of a child born dead, even if damages were otherwise recoverable under C.C. art. 2315.

The Legislature had no such intention in enacting C.C. art. 28. At the time the Legislature initially adopted C.C. art. 28 in 1808, no recovery for wrongful death was allowed because of judicial decisions, and one cannot fairly infer that the article was intended to limit recovery for wrongful death. Therefore, the decision of whether or not to recognize the cause of action asserted in this case (for damages which are clearly recoverable by the literal terms of the fountainhead article of Louisiana tort law) is one to be made, not on the basis that the original legislative intent of C.C. art. 28 was to preclude recovery of such damages, but on the basis of a logical resolution of a problem in which the Legislature has not specifically expressed its intent to authorize or prohibit such recovery.

There are numerous persuasive considerations favoring the allowing of recovery. It would be totally illogical and arbitrary for the cause of action to depend on whether the child lives outside the womb for a few minutes. The loss to the parents of a child who otherwise would have been born normally is substantially the same, whether the tortfeasor’s fault causes the child to be born dead or to die shortly after being born alive, and a cause of action for the loss should be recognized in either event, at least in the absence of specific legislation expressing a contrary intent. Moreover, a decision not to recognize a cause of action when the child is born dead would benefit the tort-feasor who causes a more serious injury, since the tortfeasor would have to pay damages if his fault causes a child to be born disabled, but would not have to pay any damages if his fault causes prenatal death.

Another reason for recognizing the cause of action is the recent legislative pronouncement in Acts 1976, No. 256 that a human being exists from the moment of fertilization and implantation. That legislation to some extent indicates a legislative favoring of applying laws such as wrongful death articles to unborn children.

On the other hand, the arguments against recognition of the cause of action are not as logical or persuasive. Difficulty in proof of causation and damages and the possibility of fraudulent claims is not a valid reason for denying recognition of an otherwise valid cause of action. The denial of valid claims in order to discourage fraudulent ones and to avoid difficult problems in determining causation and fixing damages not only is totally illogical, but also disregards the very essence of the judicial process.

The argument that an unborn child is part of its mother’s anatomy was rejected in Johnson v. South N. O. Lt. & Traction Co., No. 9,048 (Orl.App.1923), cert. den. No. 26,443 (La.1924). The court reasoned:

“(T)he theory of the defendant is that an unborn infant is not a child within the meaning of that statute, and that any one can abuse it, maim it, disfigure it, cripple it, and even kill it, with impunity, as far as pecuniary redress is concerned; that the infant is without action of its own and that the mother’s only redress is the physical injury she might endure in the process of wounding or killing the infant and that is the jurisprudence of the country.
$ * jjs * * *
“The argument of the defendant is that the infant before it is born is not a child, not a human being, that it is only a thing a part of the anatomy of the mother, as are her organs. We cannot accept that theory. We believe the infant is a child from the moment of its conception although life may be in a state of suspended animation the subject of love, affection, and hope and that the injury or killing of it, in its mother’s womb, is covered by the statute of 1884 and gives the bereaved parents a right of action against the guilty parties for their grief, and mental anguish.” (Emphasis supplied.)

We conclude that the arguments favoring recovery more fully satisfy logical reasoning and application of the natural law. Since we find nothing in the Civil Code which expressly or impliedly denies recovery to parents for this very real loss, and since the fault which causes the fatal injury to the child also causes the loss to the parents, we conclude that parents should be entitled to recover this item of damages.

The judgments of the lower courts are affirmed.

AFFIRMED.

MARCUS, J., dissents, adhering to decision on original hearing.

DIXON, C. J., dissents with reasons.

DENNIS, J., joins in the opinion of the court and assigns additional reasons.

WATSON, J., dissents, believing that the original opinion was correct.

DENNIS, Justice,

assigning additional concurring reasons.

Although I join fully in this court’s decision, I do so additionally for the reasons expressed by Judge Lottinger in his excellent and scholarly concurring opinion in this case in the court of appeal. 383 So.2d 1019, 1024 (La.App. 1st Cir. 1980).

DIXON, Chief Justice

(dissenting).

I respectfully dissent.

The question here is whether the wrongful death action is available when an injury to a fetus causes its death before it is born.

The plain answer is that C.C. 2315 does not provide for such recovery. An appropriate interpretation of C.C. 28 is relevant for a correct determination of the issue. Of course, the “legislature had no such intention” as blocking recovery for the wrongful death of a fetus when it enacted C.C. 28 in 1808. Parliament did not enact the first wrongful death statute until Lord Campbell’s Act of 1846. It was not until 1851, in Hubgh v. New Orleans and Carrollton Railroad Co., 6 La.Ann. 495, that the first wrongful death action in Louisiana was litigated (Voss, The Recovery of Damages for Wrongful Death at Common Law, at Civil Law, and in Louisiana, 6 Tul.L.Rev. 201 (1931)), in spite of the fact that wrongful death actions were known in early Roman, French and Spanish law. This court rejected the widow Hubgh’s demands, based on the common law.

C.C. 2315 says: “The right to recover all other damages caused by an offense or quasi offense, if the injured person dies, shall survive ...” (Emphasis added). If a stillborn fetus is an “injured person,” plaintiffs are entitled to recover. This court has not so held until today. Nor did the statutes define a fetus as a person until Act 256 of 1976 amended R.S. 14:2, which defines terms used in the Criminal Code, only.

In the civil law, our code has provided a consistent and symmetrical concept for the relationships of persons with unborn children, with no indication that an exception should be made in the case of the wrongful death of a fetus.

I would adhere to our original opinion.

      . In an unreported decision, wrongful death recovery in similar circumstances was apparently allowed. Johnson v. South N. O. Light & Traction Co., (No. 9048) (La.App.Orl.Cir.1923). The refusal of writs also went unreported. (No. 26443) (La. 1924). Other decisions indulged in dicta in treating the issue. See, e. g., Valence v. Louisiana Power & Light Co., 50 So.2d 847 (La.App.Orl.Cir.1951); Cooper v. Blanck, 39 So.2d 352 (La.App.Orl.Cir.1923) (published in 1949). Heins v. Guzman (unreported) (No. 9484) (La.App.Orl.Cir.1924). See also Note, Torts — Prenatal Injuries — Louisiana Law, 12 La.L.Rev. 519 (1952).

      . This bill was a companion to Senate Bill 260, which was enacted, amending R.S. 14:2(7) to define “person” as including a human being “from the moment of fertilization and implantation ...” Act 256 (1976). See State v. Brown, 378 So.2d 916 (La.1979), for a discussion of the legislative intent underlying the amendment.

      . There are, of course, constitutional limits to such an action, involving a woman’s right to terminate a pregnancy. A thoughtful cautionary note can be found in 37 La.L.Rev. at 117, nn. 33-35 and accompanying text.

      . Our grants of certiorari to two different insurers (see 384 So.2d 985) did not limit review to this issue. However, inasmuch as the other assignments of error do not raise issues in which analysis is necessary for the proper development of the law, and since the court of appeal reached the correct result in deciding these issues, we limit our discussion to the stated issue.

      . There were contrary holdings or language in dicta in other decisions. See Stewart v. Arkansas So. R. Co., 112 La. 764, 36 So. 676 (1904); Joiner v. Texas & Pac. Ry., 128 La. 1050, 55 So. 670 (1911); Cooper v. Blanck, 39 So.2d 352 (La.App.Orl.Cir.1923); Valence v. Louisiana Power & Light Co., 50 So.2d 847 (La.App.Orl.Cir.1951); and Sibley v. Wilcox, 125 So.2d 49 (La.App. 1st Cir. 1960).

      . While the author in Stone, Louisiana Civil Law Treatise-Tort Doctrine, § 63 (1977) suggests that the 1884 amendment to C.C. art. 2315, providing expressly for wrongful death actions, arguably amended C.C. art. 28 to remove wrongful death actions from the restriction of the earlier enacted article, the greater probability is that the Legislature did not consider the problem either in originally enacting C.C. art. 28 or in amending C.C. art. 2315 in 1884.

      . For a detailed history of C.C. art. 28 and its sources, see Judge Lottinger’s concurring opinion in the decision by that intermediate court in the present case. 383 So.2d at 1024 and following.

      . The fact may well have importance in inheritance matters, but is without relevance to a decision of whether or not to recognize a cause of action for wrongful death.

      . The arbitrariness would be vividly demonstrated in the case of prenatal injury to twins, after which one is born dead and the other is born alive, but dies after several minutes. Under defendants’ approach the parents could recover for the wrongful death of one, but not the other, and there is simply no justification for the distinction.


author: CALOGERO, Justice.

text:
    Ernest MORGAN, et al. v. HARTFORD ACCIDENT AND INDEMNITY COMPANY, et al.
    No. 81-C-0204.
    Supreme Court of Louisiana.
    June 22, 1981.
    Rehearing Denied Sept. 4, 1981.
    Gerard F. Thomas, Jr., Thomas & Duna-hoe, Natchitoches, for plaintiffs-applicants.
    William P. Crews, Jr., of Watson, Murchison, Crews, Arthur & Corkern, Natchitoch-es, for defendants-respondents.
   CALOGERO, Justice.

This wrongful death and survival action presents several issues: whether defendant Westside Baptist Church was negligent in failing to warn its patrons of an eight inch step down between two rooms in the building; whether, in the absence of defendant’s negligence, defendant is strictly liable for any injuries caused by a defect in the building; whether contributory negligence is a defense to strict liability; whether the deceased, Mrs. Morgan, was contributorily negligent in failing to keep a proper lookout, and in falling; and whether plaintiff’s survival action is barred by prescription.

Plaintiffs, four children of Mrs. Jessie Morgan, brought this wrongful death and survival action against defendant Westside Baptist Church and its insurer to recover damages sustained by their mother, Mrs. Morgan, and themselves, when Mrs. Morgan fell in defendant’s building suffering injuries that eventually resulted in her death. On April 17, 1977 Mrs. Jessie Morgan accompanied her daughter, Doris Morgan Whitstine, to the Westside Baptist Church. Mrs. Morgan was not - herself a regular member of the church but had been there on several prior occasions with her daughter who was a regular member. Services were held from approximately noon until 12:30 p. m. on that day. After services there was a luncheon served outside. At the end of lunch, Mrs. Morgan had to go to the restroom which was located in the gown room in the church. Mrs. Morgan had not had cause to use these facilities prior to this occasion. Mrs. Morgan could have reached the gown room from outside but since she was much closer to the front door she entered the church through the front door and proceeded down the hallway to the gown room. When she reached the doorway between the hallway and the gown room, where the eight inch step down is located, she tripped and fell. As a result of the fall Mrs. Morgan suffered a broken hip and, because of further complications after surgery for the hip injury, Mrs. Morgan died. The fall occurred on April 17, 1977. Mrs. Morgan died on April 21, 1977. Suit was filed on April 20, 1978.

Defendants responded to the suit with an exception of prescription which was overruled. After trial on the merits, judgment was returned in favor of defendants apparently based on consideration of the case under La.Civ.Code art. 2315 only. The trial judge found that defendant was not negligent and that in any event Mrs. Morgan was contributorily negligent. The Court of Appeal affirmed, 391 So.2d 499.

We granted writs to determine whether the building was defective and defendant strictly liable under La.Civ.Code art. 2317 notwithstanding the absence of negligence on the part of defendant. Morgan v. Hartford, 396 So.2d 1327 (La.1981).

In reviewing this case, we find that, not only is defendant strictly liable for damages sustained by Mrs. Morgan as a result of her fall in defendant’s building because of a defect in the structure, but additionally that defendant was in fact negligent in its failure to warn of this hazardous condition.

La.Civ.Code art. 2317 provides in pertinent part as follows:

“We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable or of the things which we have in our custody.”

The legal requirements for imposing liability under Article 2317 have been described by this Court in Jones v. City of Baton Rouge, 388 So.2d 737 (La.1978) as follows:

“When harm results from the conduct or defect of a person or thing which creates an unreasonable risk of harm to others, a person legally responsible under these code articles for the supervision, care, or guardianship of the person or thing may be held liable for the damage thus caused, despite the fact that no personal negligent act or inattention on the former’s part is proved. The liability arises from his legal relationship to the person or thing whose conduct or defect creates an unreasonable risk of injuries to others.”

Additionally, in Shipp v. City of Alexandria, 394 So.2d 267 (La.1981), this Court further explained that:

“An injured party seeking damages under art. 2317 need not prove negligence, that is, that any particular act or omission on the part of the defendant caused his injuries. He must only prove that the thing which caused the damage was in the care or custody of the defendant, that the thing had a vice or defect, that is, that it occasioned an unreasonable risk of injury to another, and that his injury was caused by the defect.”

In the instant case, the parties have not disputed the fact that the building was under the care and custody of defendant Westside Baptist Church. The building had been owned and operated by defendant as a church since January 1976. Moreover, it is clear that Mrs. Morgan’s injury was caused when she stepped from the hallway to the gown room where the eight inch drop was located. Her daughter also testified that when she heard about the fall and ran to tend to her mother her mother told her that “she just didn’t see the step and she fell.” Thus the only issue remaining for our consideration is whether the plaintiffs met the burden of proving by a preponderance of the evidence that the eight inch drop off occasioned an unreasonable risk of injury.

Plaintiffs established by unrebutted evidence that the eight inch step down violated the Life Safety Code in two respects: the door was not far enough away from the step; and the step itself exceeded the maximum height for steps. Plaintiffs also showed that the floor in the hallway and the floor in the gown room (standard grey concrete) were exactly the same color and texture making it difficult if not impossible for the approaching patron to discern the difference in levels of the floor. Plaintiffs presented an architect who testified that it appeared to him, upon examination of this passageway, that there was no drop separating the two rooms. Finally, it was established that there was no warning informing one approaching the passageway that there was an unusual condition, nor was there a highlight of the area to make it more visible, both remedies which could have been easily provided without affecting the utility of the passageway. In view of the above evidence, and in addition to the fact that the building in question is a church where strangers are often in attendance, we find that this unexpected drop between two rooms in the building without attendant warning presented an unreasonable risk of injury. Therefore, defendant is liable, under La.Civ.Code art. 2317, for the injuries sustained by Mrs. Morgan and her survivors.

For the same reasons which prompt us to conclude that the eight inch drop presented an unreasonable risk of injury making defendant strictly liable for the resulting injuries occasioned by this defective condition, if required to do so, we would conclude that defendant was negligent in failing to warn of this unexpected condition.

The owner of a building, although he does not have a duty to insure against the possibility of all accidents on his premises, does have a duty to act reasonably in view of the probability of injury to others. Shelton v. Aetna, 334 So.2d 406 (La.1976). In the instant case, the eight inch drop between the two rooms presented an unexpected condition and, because of the identical texture and color of the floors in both rooms, a condition that was difficult to discern for the unwary patron. Thus it could easily be concluded that one might trip and fall because of this unexpected drop. The precautionary measure of either warning of the drop or highlighting the area would have been virtually costless and would not have interfered with the use of the passageway. Therefore, failure to take such a precautionary measure was unreasonable when balanced against the possibility of accidents resulting from the drop off, and it was a breach of the defendant’s duty to its invited guests.

After reviewing the record to determine whether the deceased’s contributory negligence could be a defense to plaintiff’s action, we conclude that the record simply does not support a finding of contributory negligence on the part of Mrs. Morgan. Therefore, we do not address the question of whether contributory negligence may serve as a defense to strict liability.

There is no evidence in the record of contributory negligence on the part of Mrs. Morgan. Mrs. Morgan was 83 years old but lived by herself and got around fine on her own without assistance. Mrs. Morgan did require the use of glasses but was wearing the glasses at the time of the accident. There is no evidence in the record that Mrs. Morgan was drinking at the luncheon or was having any difficulty functioning on that day. In fact, there is no proof that the deceased did anything but walk down the hall to the gown room and fall over the sudden drop in floor levels.

The burden of proving contributory negligence is on the defendant and the test is the same for proof of primary negligence: that is, did the person’s conduct fall below the standard to which a person should conform for his own safety and protection; the standard of a reasonable man in like circumstances. Defendant has simply not met its burden by the evidence presented in this case, and therefore we conclude that the trial court and court of appeal were clearly wrong in holding otherwise.

Finally, defendant contends that the plaintiffs’ survival action should be barred by prescription. Defendant argues that since the accident happened on April 17, 1977, and suit was not filed until April 20, 1978 the action has prescribed.

La.Civ.Code art. 2315 is clear on this point and contrary to defendant’s argument. La.Civ.Code art. 2315 provides in pertinent part as follows:

“The right to recover damages to property caused by an offense or quasi offense is a property right which, on the death of the obligee, is inherited by his legal, instituted, or irregular heirs, subject to the community rights of the spouse.
“The right to recover all other damages caused by an offense or quasi offense, if the injured person dies, shall survive for a period of one year from the death of the deceased in favor of: ....
“... ” (emphasis provided)

While it is true that the accident occurred on April 17, 1977, Mrs. Morgan did not die until April 21, 1977, giving the survivors until April 21, 1978 to file their suit. Therefore, the action had not prescribed although not filed until April 20, 1978.

Decree

For the foregoing reasons, we hold that defendant is liable to plaintiffs for injuries sustained as a result of Mrs. Morgan’s fall in defendant’s building, and further, that Mrs. Morgan was not contributorily negligent. Therefore, the lower court judgments are reversed and the case is remanded to the Court of Appeal for that court to fix damages.

REVERSED; REMANDED.

      . Prior to defendant’s purchase of the building, it had been used as a hunting lodge and it housed game birds in pens. After defendant purchased the building, it was renovated to facilitate its use as a church. In the course of renovations, the eight inch step down between the hall and the gown room was not altered.

      . There was a door at the passageway between the hall and the gown room. The door was located at the edge of the drop on the hall or high side and it opened into the gown room. The effect of this positioning of the door was that the drop was not at all evident when the door was closed and the unsuspecting patron, while opening the door, would step off the drop. The Life Safety Code requires that, in these situations where there is a door by a step, a distance of the width of the door be left between the door and the step.

      . The question of whether contributory negligence can serve as a defense in a strict liability case has recently been considered by this Court in Dorry v. Lafleur, 399 So.2d 559 (La.1981), and answered affirmatively in a plurality opinion. Application for rehearing is pending.

      . For a more in depth discussion of this issue see Johnson, Death on the Calíais Coach: The Mystery of Louisiana Wrongful death and Survival actions, 37 La.L.Rev. 1 (1976).


author: MARCUS, Justice.

text:
    STATE of Louisiana v. Darrell MILES.
    No. 80-KA-2779.
    Supreme Court of Louisiana.
    June 22, 1981.
    Rehearing Denied Sept. 4, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Donald Foret, Louise Korns, Asst. Dist. Attys., for plaintiff-ap-pellee.
    Arthur L. Harris, Harris, Stampley, McKee, Lombard & Cates, New Orleans, for defendant-appellant.
   MARCUS, Justice.

Darrell Miles was indicted by the grand jury for the crime of aggravated rape in violation of La.R.S. 14:42. After trial by jury, defendant was found guilty as charged and sentenced to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. On appeal, defendant relies on nine assign-merits of error for reversal of his conviction and sentence.

At trial, the victim testified that at approximately 11:00 p. m. on Friday, December 15, 1978, she left the sweet shop owned by her parents on Holly grove Street in New Orleans. She walked to the next block and entered the Peacock Lounge where she ordered a drink and conversed with a girlfriend. During this time, she noticed defendant whom she had never seen before. After being in the bar for about fifteen minutes, she headed for home walking out of the bar towards the bus stop located a block away at the corner of General Ogden and Pontchartrain Boulevard, After unsuccessfully attempting to catch a departing bus, she noticed defendant lurching along drunkenly across the street from her. He asked her for directions on how to get uptown and she informed him that he would have to cross the street and catch the bus on her side of the street.

Defendant crossed the street and got behind the victim who was sitting on a fire hydrant smoking a cigarette. She testified that she then felt an object in her back and heard defendant say, “This is a stick-up.” She turned around in disbelief and heard defendant say, “I’m not kidding, this is a stick-up. I don’t want your money, I want your body.” Holding a pistol at her back, he led her across the street and behind some bushes. He then held the pistol at her breast forcing her to remove her pants and panties. From his pants, he removed a magazine that had a picture of a woman’s breasts on the cover. He told the victim to lie down on the ground where he proceeded to have vaginal and anal intercourse with her.

Defendant then told her that he was going to let her go but warned her not to tell anybody of the incident. He allowed her to put on her pants and then he emptied the contents of her purse into his hand. Some pennies fell on the ground. He allowed the victim to take some change for bus fare and stood behind a picket fence holding his gun as he watched her get on a bus. She took the bus to the intersection of Carrollton and Palmetto where she exited and called her mother from a pay phone by the K & B Drugstore. Her mother picked her up and brought her back to her house where the victim told her mother the story. When her father arrived home and was told of the incident, he advised her to call the police.

When the police arrived at the house at about 12:45 a. m., the victim stated her attacker had an afro and was wearing a “B-bob” cap, white V-neck shirt, brown speckle pants, brown shoes and tinted round glasses. Detectives then brought the victim back to the scene of -the crime where they recovered her panties and the magazine de-. fendant removed from his pants. Shortly thereafter at about 1:55 a. m., while sitting in a police car with two detectives, she saw defendant coming out of the parking lot of an apartment building located across the street. She told the officers that he was the man who raped her. The officers alighted from the vehicle and arrested defendant who was wearing a white shirt, dark pants and a “B-bob” cap. He was brought over to the car where the victim identified him as her attacker. The victim was then taken to the coroner’s office for tests which indicated the presence of seminal fluid and spermatozoa in her vagina.

An expert in the field of fingerprints and fingerprint identification testified that three of the four latent fingerprints he was able to lift off the magazine found at the scene of the crime matched those of defendant. An expert in criminology testified that tests he conducted on the genital areas of the victim’s panties and defendant’s undershorts both indicated the presence of seminal fluid.

Defendant testified that he was in the general vicinity of the Peacock Lounge at the approximate time of the rape; however, he denied seeing the victim that evening. He also claimed that at central lockup he was beaten and forced to touch and look through the magazine, thus leaving his fingerprints on its cover.

ASSIGNMENT OF ERROR NO. 2

Defendant contends the trial judge erred in allowing in evidence photographs and other physical evidence. At trial, he objected to the relevancy and materiality of the evidence; in brief to this court, he contends the items were evidence of other crimes.

Over defendant’s objection, the state was allowed to enter in evidence a series of photographs taken at the scene of the crime, including a picture of the magazine found at the site, pictures of the general area, pictures of the ground behind the bushes where the rape occurred and a closeup picture of the rape site showing a couple of pennies on the ground. The state also entered in evidence the following: the victim’s panties found at the scene, the magazine bearing defendant’s fingerprints, a pair of defendant’s shorts showing traces of seminal fluid, a slide of fingerprints removed from the magazine and fingerprints taken of the defendant the day before trial.

To be admissible in a criminal proceeding, evidence must be relevant to a material issue. La.R.S. 15:435. 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. La.R.S. 15:441. The trial judge is vested with wide discretion in determining the relevancy of evidence, and his ruling will not be disturbed on appeal in the absence of a clear showing of abuse of discretion. State v. Hathorn, 395 So.2d 783 (La.1981).

Photographs are admissible when they are shown to be accurate representations of the subject in question and shed light on the matter before the court. State v. Otis, 339 So.2d 343 (La.1976). The photographs in question are accurate representations of the scene of the rape. They were useful in corroborating the testimony of police and the victim. Clearly, the photographs were relevant and admissible. Hence, defendant’s objection to their admissibility was properly overruled.

All of the physical evidence admitted was relevant to material issues. The panties of the victim and the shorts taken from defendant both showed traces of seminal fluid thus tending to prove that both had recently engaged in sexual activity. The fingerprint evidence relating to the magazine corroborated the victim’s story that defendant was at the scene of the rape and had left a magazine there. Clearly, such evidence was admissible.

In brief to this court, defendant argues that the state introduced photographs and testimony of other crimes, in particular a theft and robbery, without providing him with pretrial notice of its intent to introduce such evidence. At trial, defendant made no objection to the testimony of the victim that defendant initially told her, “This is a stick-up.” Nor did he object to her testimony that after the rape he emptied the contents of her purse into his hand. An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. La. Code Crim. P. art. 841. Hence, defendant waived any objections to the alleged errors by failing to timely object. In any event, all of defendant’s actions at the scene of the rape formed one continuous transaction and as such constituted part of the res gestae of the offense charged. La.R.S. 15:448. What forms any part of the res gestae is always admissible in evidence. La.R.S. 15:447. As the victim’s testimony was independently admissible as res gestae of the charged offense, the state was not required to provide defendant with pretrial notice of its intent to introduce such evidence at trial. State v. Lawson, 393 So.2d 1260 (La.1981).

Assignment of Error No. 2 is without merit.

ASSIGNMENTS OF ERROR NOS. 4, 5, 6, 7 AND 8

Defendant contends the trial judge erred in overruling his objections to remarks by the prosecutor in closing argument. He argues that the remarks went beyond the permissible scope thereof.

During closing argument in discussing rape cases in general, the prosecutor observed that there are usually no witnesses and that both victim and defendant testify. He further stated that the victim could be believed or disbelieved but that it was a matter of “one on one.” He then added “that happens in ninety-nine percent of the rape cases. And you read the paper... . ” At this point, defendant objected and the judge directed the prosecutor to “Q¡]ust stay out of the papers.” The prosecutor then stated that, “Ninety-nine percent of all rape cases are one on one,” once again drawing an objection from defendant. The judge told the prosecutor to proceed, reminding him that “this is argument, not testimony.”

If an objection is sustained, defendant cannot on appeal complain of the alleged error unless at trial he requested and was denied either an admonition to disregard or a mistrial. State v. Nicholas, 359 So.2d 965 (La.1978). Defendant requested neither an admonition nor a mistrial after his objections regarding statistics of rape cases were sustained. Hence, he cannot complain on appeal of the alleged errors.

While describing the events of the evening, the prosecutor stated:

The father comes home, uses his good sense, and say[s], “We ought to call the police.” Not next week, not tomorrow; right now. We got to go back to the scene.

Defendant objected on the ground that the father did not testify. The judge did not respond to this objection and the prosecutor continued. La. Code Crim. P. art. 774 provides that the argument shall be confined to the evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case. We consider the remarks of the prosecutor regarding the victim’s father to be within the scope of art. 774. Although the victim’s father did not testify at trial, the victim testified that her father advised her to call the police. Hence, the prosecutor’s remarks related to evidence admitted.

During rebuttal, the prosecutor explained why the victim’s parents were not in court. Defendant objected on the ground that “that is not in evidence.” The objection was overruled by the trial judge, who stated, “You raised the issue, he’s got a right to answer.” The prosecutor’s explanation was within the scope of art. 774 as it related to conclusions of fact drawn by defendant regarding the failure of the victim’s parents to be in court.

Defendant’s explanation of why his fingerprints were discovered on the magazine found at the scene of the rape was that the police forced him to touch and look through the book by beating him. To refute this explanation, the prosecutor stated, “Well, if the police are going to make him put his fingerprints on this [referring to the magazine], they’re going to make every other criminal put their fingerprints.” Defendant’s objection that the remark was inadmissible was overruled. The prosecutor continued, “They’re going to make every other criminal put their fingerprints on any type of evidence they might have. But it’s not done.” These remarks were proper under art. 774 as they related to testimony of the defendant and conclusions drawn therefrom.

Moreover, even in the event that the above remarks constituted improper argument, we will not set aside a verdict unless we are thoroughly convinced that the jury was influenced by the remarks and that they contributed to the verdict. State v. Simms, 381 So.2d 472 (La.1980). Such was clearly not the case here.

These assignments of error are without merit.

ASSIGNMENT OF ERROR NO. 9

Defendant contends the trial judge erred in denying his motion for a new trial based on newly-discovered evidence.

At the hearing on the motion for a new trial, defendant called Leslie Davis and Kevin Pepp who both testified that the victim’s mother asked them to accompany her to the K & B Drugstore at Carrollton and Palmetto to pick up her daughter on the night in question. They stated that in the car the victim told them that she did not get raped but rather that someone had tried to rape her. They further testified that the victim described her attacker as wearing a light colored cap and being the same build, height and complexion as Pepp who was noticeably bigger and taller than defendant. Davis testified that about a week after the incident, the victim came out of the Peacock Lounge and told him that she had seen the guy who had raped her and that they had the wrong person. He also stated that he did not find out that defendant had been arrested for the rape until after completion of the trial. This testimony directly conflicted with Pepp’s testimony that he was told by Leslie Davis on the night of the incident that defendant had been arrested for the rape.

The victim and her mother testified that, although Davis and Pepp were in the car, neither was told by the victim that there had been a rape or an attempted rape or given a description of her attacker. The victim was upset and crying. She stated that all she said was something about a man having a pistol. She further testified that about a week after the rape, she ran out of the Peacock Lounge and said she had seen defendant, the man whom she had identified as her attacker. The state noted for the record that defendant was out on bail twelve days after he was arrested.

Under La. Code Crim. P. art 851(3), the court, on motion of defendant, shall grant a new trial whenever:

New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty; ....

This court has consistently held that the trial judge is accorded considerable discretion in evaluating the impact of newly-discovered evidence on the verdict and its reliability, and his ruling will be disturbed on appeal only where there is a clear showing of abuse of discretion. In considering a motion for a new trial based on newly-discovered evidence, the test to be employed is not simply whether another jury might bring in a different verdict, but whether the new evidence is so material that it ought to produce a different result than the verdict reached. State v. Williams, 362 So.2d 530 (La.1978).

In the instant case, the testimony of Davis and Pepp regarding the victim’s statements made in the car was in direct conflict with that of the victim and her mother. Although the trial judge did not assign reasons for denying defendant’s motion for a new trial, it is obvious that he did not believe the testimony of Davis and Pepp. Moreover, when considering the evidence adduced against defendant at trial, that is, the victim’s positive identification of him approximately two hours after the rape and at trial, his fingerprints on the magazine found at the scene of the crime, the presence of seminal fluid on both the panties of the victim and the underwear of defendant, the presence of seminal fluid and spermatozoa in the victim’s vagina, the victim’s accurate description of her attacker to police before she later identified him at the scene and even the pennies found at the scene that the victim told police had fallen out of her purse, it is clear that the evidence produced at the new trial hearing was not so material that it would have produced a different result than the verdict reached. Accordingly, the trial judge did not err in denying defendant’s motion for a new trial.

Assignment of Error No. 9 is without merit.

DECREE

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

      . Assignments of Error Nos. 1 and 3 were neither briefed nor argued. We therefore consider these assignments of error to have been abandoned. State v. Blanton, 325 So.2d 586 (La.1976); State v. Carlisle, 315 So.2d 675 (La.1975).