author: BLANCHE, Justice.

text:
    STATE of Louisiana v. Charlie F. LINDSAY.
    No. 66872.
    Supreme Court of Louisiana.
    Sept. 3, 1980.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Marion Farmer, Dist. Atty., Abbott Reeves, Asst. Dist. Atty., Director, Research and Appeals, for plaintiff-respondent.
    Anderson, Toledano & Courtney, Rykert O. Toledano, Jr., Covington, for defendant-relator.
   BLANCHE, Justice.

Defendant was charged by bill of information with disturbing the peace by being intoxicated in violation of R.S. 14:103A(3) and with resisting an officer in violation of R.S. 14:108. Following a bench trial, defendant was acquitted of disturbing the peace but was found guilty of resisting an officer. For the latter offense, he was fined $150. We granted writs to review defendant’s contention that he had a right to resist the officer because no probable cause existed to arrest him for any crime.

On the evening of November 22, 1978, two St. Tammany Parish police officers went to defendant’s residence on Stafford Road to investigate a report of a domestic disturbance. According to Sergeant Grow, the driveway was blocked by two vehicles, so he and his partner, Deputy Sharp, exited their police car and separated such that Grow was walking past a cattle guard and up the driveway on the right side of the vehicles, while Sharp walked on the left side of the vehicles. At this point, defendant approached Grow and demanded to know why the officers were on his property. Defendant allegedly used an obscenity in connection with this demand. According to Grow, defendant appeared intoxicated and continued to ask the same question in a loud voice and while using obscenities. Grow testified that defendant noticed Deputy Sharp standing on the bumper of one of the vehicles and yelled “Get off my [obscenity] truck.” Defendant then rushed past Grow in the direction of Sharp. At this point, Sergeant Grow arrested defendant, who fought the arrest by seizing a mirror on the truck with his hands. After the officers subdued defendant, they advised him of his Miranda rights and that he was under arrest for disturbing the peace due to his intoxication.

Defendant and his witnesses presented an entirely different version of the incident. They claimed that as soon as defendant walked up the officers grabbed him and began beating him. The trial judge believed the officers’ version of the facts, but acquitted defendant of the charge of disturbing the peace by being intoxicated because defendant was not in public but was on his own property. Defendant was convicted of resisting an officer, which is defined as:

“... the intentional opposition or resistance to, or obstruction of, an individual acting in his official capacity and authorized by law to make a lawful arrest or seizure of property, or to serve any lawful process or court order, when the offender knows or has reason to know that the person arresting, seizing property, or serving process is acting in his official capacity.
“The phrase ‘obstruction of’ as used herein shall, in addition to its common meaning, signification and connotation mean:
“(a) Flight by one sought to be arrested before the arresting officer can restrain him and after notice is given that he is under arrest.
“(b) Any violence toward or any resists anee or opposition to the arresting officer after the arrested party is actually placed under arrest and before he is incarcerated in jail.
“(c) Refusal by the arrested party to give his name and make his identity known to the arresting officer.
“(d) Congregates with others on a public street and refuses to move on when ordered by the officer.” R.S. 14:108.

It is a long-established principle in Louisiana law that a citizen has the right to resist an unlawful arrest. White v. Morris, 345 So.2d 461 (La.1977); City of New Orleans v. Lyons, 342 So.2d 196 (La.1977); State v. Lopez, 235 So.2d 394 (La.1970); City of Monroe v. Ducas, 203 La. 974, 14 So.2d 781 (1943); La.R.S. 14:108; C.Cr.P. art. 220. As was stated in a 1943 opinion, Monroe v. Ducas, supra:

“The right of personal liberty is one of the fundamental rights guaranteed to every citizen, and any unlawful interference with it may be resisted. Every person has a right to resist an unlawful arrest; and, in preventing such illegal restraint of his liberty, he may use such force as may be necessary.” 14 So.2d at 784.

In a more recent opinion, we reaffirmed the right to resist an unlawful arrest, and concluded its basis is found in statutory law (R.S. 14:108, resisting an officer, supra, speaks of a lawful arrest; C.Cr.P. art. 220 requires a “person . .. submit peacefully to a lawful arrest”), White v. Morris, supra, although there has been some suggestion that the right is constitutionally mandated as well. See Wainwright v. New Orleans, 392 U.S. 598, 88 S.Ct. 2243, 2253, 20 L.Ed.2d 1322 (1968) (Douglas, J., dissenting) (Writ of Certiorari dismissed as improvidently granted due to inadequacy of record); White v. Morns, supra; State v. Lopez, supra.

The sole question presented in this case is whether lawful grounds existed to arrest defendant. If not, then his conviction of resisting an officer in violation of R.S. 14:108 must be reversed because defendant’s resistance of his arrest would have been an exercise of his right to resist an unlawful arrest.

In his brief in behalf of the state, counsel asserts the arrest was lawful but does not explain the basis of this contention. In our review, we will consider the lawfulness of the arrest from two approaches: (1) Did defendant’s intoxication provide probable cause for an arrest? (2) Was the arrest lawful, as the trial judge apparently concluded, because defendant’s antagonistic language and movement toward Deputy Sharp constituted a violation of resisting an officer (R.S. 14:108) in that it was an obstruction of the officers’ lawful authority to investigate?

Defendant’s Intoxication

Although defendant was acquitted of disturbing the peace by being intoxicated, it remains possible that the officers did, in fact, have probable cause to arrest defendant on the charge, even though the state could not prove the offense beyond a reasonable doubt. Probable cause exists when the facts and circumstances known to the arresting officer, and of which he has reasonably trustworthy information, are sufficient to justify a person of ordinary caution in believing the person to be arrested has committed a crime. State v. Davis, 357 So.2d 519 (La.1978); State v. Dunbar, 356 So.2d 956 (La.1978); State v. Johnson, 192 So.2d 135, 249 La. 950 (1966).

Disturbing the peace is “the doing of any of the following in such a manner as would foreseeably disturb or alarm the public: ... (3) appearing in an intoxicated condition.” R.S. 14:103.

In State v. Jordan, 369 So.2d 1347 (La.1979), we concluded that the words “fore-seeably disturb or alarm the public”, as found in R.S. 14:103, “encompass only conduct which is violent or boisterous in itself, or which is provocative in the sense that it induces a foreseeable physical disturbance.” (Quoting from Garner v. Louisiana, 368 U.S. 157, 82 S.Ct. 248, at 253, 7 L.Ed.2d 207.)

Like the trial judge, it is difficult for us to imagine how defendant’s conduct on his own property, and under the circumstances of this case, could foreseeably have disturbed the public. The incident took place in a rural area outside of Covington. There is no evidence which indicates the encounter with defendant occurred close to any other dwelling place where the public might possibly be alarmed. In fact, the officers testified that no one except defendant’s family observed the incident. Because we conclude no probable cause existed to believe defendant’s conduct could have foreseeably disturbed or alarmed the public, defendant’s intoxication did not provide grounds for his arrest for disturbance of the peace and his arrest cannot be justified on that basis.

Interference with the Officers’ Authority to Investigate

The trial judge appears to have concluded defendant was guilty of resisting an officer in violation of R.S. 14:108, supra, because defendant’s abusive language and move toward Officer Sharp interfered with the two officers’ lawful authority to investigate.

In State v. Huguet, 369 So.2d 1331 (La.1979), we rejected the contention that interference with an officer’s investigation is a violation of R.S. 14:108, resisting an officer. See also State v. Grogan, 373 So.2d 1300 (La.1979). We interpreted R.S. 14:108 as prohibiting conduct which obstructs officers “acting in their official capacity, while attempting to seize property, serve process or arrest ...” If the officer is not engaged in attempting one of those three things, then a defendant who opposes him cannot be considered guilty of resisting an officer.

Consequently, any behavior of defendant, such as his movement toward Officer Sharp, which may have interfered with the investigation, did not provide grounds for arrest of defendant for violation of R.S. 14:108. The arrest cannot be found lawful on that ground.

For the above reasons, we hold that the arrest of defendant in this case was unlawful, and because he had a right to resist the unlawful arrest, his conviction of resisting an officer must be reversed.

REVERSED.


source: Caselaw Access Project

author: BLANCHE, Justice. LEMMON, Justice, CALOGERO, Justice,

license: Public Domain

text:
    STATE of Louisiana in the Interest of Brent Vail Joseph BRUNO.
    No. 67771.
    Supreme Court of Louisiana.
    Sept. 3, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Marion B. Farmer, Dist. Atty., Abbott J. Reeves, Roy K. Burns, Asst. Dist. Attys., for plaintiffs-respondents.
    Glass & Reed, John Wilson Reed, New Orleans, for defendant-relator.
   BLANCHE, Justice.

This proceeding involves a sixteen year old child who has been charged in juvenile court with second degree murder, and whom the state is seeking to have transferred to district court for trial as an adult pursuant to R.S. 13:1571.1, et seq. At present, there has been neither an order of transfer nor an adjudication of delinquency. On motion of the state and over objection of the child, the juvenile court ordered the child to submit to a psychiatric and psychological examination, to take place at a state facility, for the purpose of evaluating the child’s “amenability” to the juvenile system. We granted writs on the juvenile’s challenge of the court’s power and authority to issue the order.

The juvenile transfer statute, as amended in 1978, provides that a juvenile court judge may transfer a juvenile, charged with delinquency based on criminal conduct, to an adult court if a hearing is conducted, proper notice is given, and probable cause exists to believe that the child committed first or second degree murder, manslaughter, aggravated rape, armed robbery, aggravated burglary, or aggravated kidnapping. R.S. 13:1571.1. In State in the Interest of Erin Hunter, Docket No. 65,512, 387 So.2d 1086 (1980) (Blanche, J. dissenting), this Court held that statute unconstitutional because of “vagueness caused by its failure to set forth standards to enable juveniles to protect themselves against arbitrary and discriminatory forfeiture of the special rights and immunities of juvenile court jurisdiction”, and because the statute allowed for transfer of juveniles “without regard to the individual merits of each case”. However, this Court further held that the statute, as it existed prior to the passage of Act No. 460 of 1978, requiring the judge, before transferring a child to adult court, to find “reasonable grounds to believe that the child is not amenable to treatment of rehabilitation through facilities available to the juvenile”, was still in effect.

In State v. Everfield, 342 So.2d 648 (La. 1977), we interpreted the above phrase regarding amenability to treatment and rehabilitation in the juvenile system as sanctioning transfer of only those youths for whom there is “no hope of treatment or rehabilitation in the types of facilities utilized by juvenile courts.” In addition, we suggested considerations relevant to the application of this standard. These factors include:

“.. . age, maturity and sophistication of the juvenile; the nature and seriousness of the offense charged; prior acts of delinquency, if any, and their nature and seriousness; past efforts at rehabilitation and treatment and the juvenile’s response thereto; whether the juvenile’s behavior might be related to physical or mental problems; and the techniques, programs, personnel and facilities available to the juvenile court system which might be competent to deal with the problems of the particular juvenile whose transfer is being considered.” Everfield at 655-656.

In the instant case, the juvenile judge ordered a psychological examination of the child for the purpose of securing information pertinent to these factors.

Counsel for the child argues that various provisions of the Code of Juvenile Procedure bar the juvenile court from ordering a child to undergo a psychological examination regarding his amenability to treatment and rehabilitation in the juvenile system.

The Code of Juvenile Procedure defines three categories of children over whom jurisdiction is exercised: a “delinquent child”; a “child in need of supervision”; and a “child in need of care”. A “delinquent child” is a child who has committed a “delinquent act”, C.J.P. arts. 13(12) and 13(7), and a “delinquent act” is a violation of the criminal law. C.J.P. arts. 13(12) and 13(7). A “child in need of supervision” is a child who violates the school attendance laws, is ungovernable, or who absents himself from home. C.J.P. art. 13(13). A “child in need of care” is a child whose parent inflicts physical, mental or emotional abuse upon him. C.J.P. art. 13(14). The Code establishes various procedures for dealing with each of these classifications of children.

In the chapter on pre-adjudication motions and relief, C.J.P. art. 61 provides:

“A. On its own motion or on the motion of the child or district attorney, the court may order any child concerning whom a petition has been filed to be examined by a physician.
“B. On its own motion or on the motion of the child or district attorney, after a contradictory hearing and a showing of good cause, the court may order any child alleged to be in need of supervision or care to be examined by a psychologist or psychiatrist.
“C. On motion of the child, the court may order a child concerning whom a petition has been filed, to be examined by a psychologist or a psychiatrist.
“D. Any examination as herein provided shall be made and the findings submitted to the court within thirty days of the date the order is entered. Such period may be extended by the court for good cause.
“E. Copies of any reports of findings submitted to the court shall be available to counsel for all parties.
“F. Nothing contained in this Article shall amend R.S. 13:1583(C).”

R.S. 13:1583(C), referred to in C.J.P. art. 61, § F, provides:

“C. If a juvenile is.adjudged delinquent and in need of supervision, the juvenile court may order, when in the discretion of the judge such is appropriate, that the juvenile’s parents or guardian, as well as the juvenile, participate in a suitable counseling program as the court deems will aid in the rehabilitation of said juvenile.”

Counsel for the child argues that Section A of article 61 allows a simple physical examination, other than a psychological examination, by a physician, and provides that it may be ordered upon motion of the state, the child or the court; Section B provides that the state or the court may obtain a psychological examination, but only as to children alleged to be in need of supervision or care, and not as to children alleged to be delinquent; Section C provides that the child himself may obtain a psychological or psychiatric examination in any case. Counsel argues the scheme is a comprehensive one that considers every possibility and, by not stating that the state or the court may obtain a psychological examination of a child alleged to be delinquent, art. 61 clearly prohibits it and, consequently, prohibits a motion which concerns information pertinent to a question of transfer of a delinquency adjudication to adult court.

Courts should construe a statute so as to accomplish the purpose for which it was enacted and to give effect to the legislative will. Board of Trustees of E. Baton Rouge Mortgage Finance Authority v. All Taxpayers, 336 So.2d 306 (La.App. 1st Cir. 1976); Johnson v. Sewerage District No. 2 of Parish of Caddo, 239 La. 840, 120 So.2d 262 (1960). A meaning which the legislature never intended to be covered should not be imposed. Smith v. State through Dept. of Public Safety, 366 So.2d 1318 (La. 1978); Emmons v. Agriculture Ins. Co., 245 La. 411, 158 So.2d 594 (1963).

We believe the legislature, in enacting C.J.P. art. 61, considered it a provision which would permit a juvenile judge, prior to an adjudication, to obtain medical information in cases where a knowledge of the child’s mental or physical condition is essential to a proper adjudication of the case. In cases where a child is alleged to be in need of care or supervision, the child’s mental or physical condition is a primary factor in the resolution of the allegations. However, the same is not true in cases where the child is alleged to be delinquent because, in those situations, the determination to be made is a factual one as to whether the juvenile committed a criminal act. Consequently, we conclude art. 61 was never intended to apply to delinquency proceedings. We are supported in this conclusion by C.J.P. art. 61, § F, which states that nothing in the article shall amend R.S. 13:1583(C), a provision which does deal with children adjudged delinquents.

Notwithstanding the conclusion, we do not believe that the legislature intended for art. 61 to prohibit a juvenile judge from obtaining psychological information when the same would be of relevant and probative value in a juvenile transfer hearing.

The legislative scheme for transfer of juveniles to adult court requires a full-blown hearing at which the child has a right to an attorney, and which involves the presentation of evidence by both the child and the state, including cross-examination of witnesses. R.S. 13:1571.2; R.S. 13:1571.3; R.S. 13:1571.4. Indeed, a hearing with effective assistance of counsel is required by due process of law. Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966); In re Gault, 387 U.S. 1, 12, 87 S.Ct. 1428, 1435, 18 L.Ed.2d 527 (1967). At the conclusion of the hearing, the juvenile judge is required to exercise his discretion and judgment as to whether the child is amenable to the juvenile system and, thus, whether the juvenile proceeding should be transferred to adult court. We do not believe the legislature, in enacting art. 61, intended to inhibit the judge’s ability to fulfill this mandate.

For the above reasons, we conclude C.J.P. art. 61 does not prevent a judge from ordering a child in a juvenile transfer proceeding to undergo a psychological evaluation.

Finally, counsel for the child contends that, given the protections provided by the juvenile system, such an order violates the child’s state and federal right against self-incrimination. It is argued that the burden is on the state to prove beyond a reasonable doubt that the child should be transferred to adult court, and that such an order requires a child to assist the state in the presentation of its case.

Both the United States and the Louisiana Constitutions provide that a person cannot be compelled in any criminal case to be a witness against himself. U.S.Const. Amend. V; La.Const. art. I, § 13. In addition to these constitutional provisions, R.S. 13:1571.4 states that a child, who is the subject of a transfer hearing, shall not be required to give evidence against himself.

The state argues that a psychological evaluation, like blood testing and fingerprinting, is not within the scope of the privilege. See Schmerber v. State of California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); State v. Carthan, 377 So.2d 308 (La.1979); State v. Sheppard, 350 So.2d 615 (La.1977).

In Schmerber, supra, the United States Supreme Court held that “the privilege protects an accused only from being compelled to testify against himself, or otherwise provide the state with evidence of a testimonial or communicative nature”. See also State v. Carthan, supra; State v. Sheppard, supra. Because psychological examination of the juvenile will involve “evidence of a testimonial or communicative nature”, it is evidence that falls within the scope of the privilege.

However, we conclude the psychological evaluation ordered in the instant case does not violate the privilege against self-incrimination for other reasons. We believe both the constitutional privilege against self-incrimination and the privilege provided by R.S. 13:1571.4 prohibits the use of compelled testimony regarding a person’s guilt or innocence of a crime charged. The psychological evaluation is not being conducted for use at the adjudication hearing to determine the child’s guilt or innocence of the crime charged, but as an aid to the court in its determination of amenability to treatment in the juvenile system. Consequently, it does not violate the child’s right not to be compelled to give evidence against himself. Therefore, for these reasons, no statements, either inculpatory or exculpatory, made to the psychologist or psychiatrist during the examination, will be admissible in evidence at the trial on the merits of the child’s guilt or innocence.

For the above reasons, the ruling of the juvenile judge is found to be correct, and the case is remanded for further proceedings not inconsistent with this opinion.

LEMMON, J., concurs and assigns reasons.

CALOGERO, J., dissents and assigns reasons.

WATSON, J., dissents.

LEMMON, Justice,

concurring.

While I substantially agree with the reasoning of the majority decision, I would allow an order for the psychiatric or psychological examination of a juvenile to be issued only after a determination that there is probable cause to believe the juvenile committed a crime enumerated in R.S. 13:1571.1. Once probable cause has been established, it is a reasonable exercise of the court’s inherent power to order the juvenile to submit to a psychiatric or psychological examination for the purpose of determining whether he is amenable to treatment or rehabilitation through facilities available to the juvenile court system.

Another important consideration is the self-incrimination problem if the juvenile judge reviews the psychiatric or psychological reports and the juvenile is ultimately tried in juvenile court (either because the juvenile judge denies transfer or a reviewing court reverses a transfer order). In that situation great care must be taken to insure that the right against self-incrimination is adequately protected, perhaps by reallotting the matter for adjudication by another juvenile judge who has not reviewed the reports which are pertinent only to the transfer hearing.

CALOGERO, Justice,

dissenting.

The Code of Juvenile Procedure, made effective on January 1, 1979, is a comprehensive set of procedural and substantive rules governing the disposition of children in the juvenile justice system.

In Article 61 of that Code, provision is made for the examination of children of different legal classifications variously by a physician, psychiatrist, and/or a psychologist. The statute does not provide court authority for ordering the examination of a “delinquent” child by a psychiatrist or psychologist; and the majority so concedes.

To my mind, our inquiry on the issue presented in this case should cease at this point, for the procedures set forth in the Code of Juvenile Procedure make it unequivocally clear that a child charged with being a delinquent by commission of a criminal act may not, prior to an adjudication of guilt, be forced to submit to psychiatric and/or psychological examination.

In light of this statutory pronouncement on the topic, the majority poses unconvincing reasons for authorizing this additional court ordered examination to determine the delinquent child’s amenability to help from the juvenile system.

Absent statutory sanction and, of course, constitutional permissibility, we should find no legal authority for a court’s ordering a presumptively innocent child to be institutionalized, questioned, observed, and evaluated, without the benefit of counsel, by state appointed psychiatrists and/or psychologists, in advance of a determination of guilt or innocence, so that the judge may decide whether or not to have him tried as an adult and exposed to incarceration in the state penitentiary.

For these reasons, I dissent.

      . C.J.P. arts. 38-39 require a hearing within 72 hours, at which the state is required to prove the existence of a ground for continued custody, and this procedure provides the adequate safeguard.


author: WATSON, Justice.

text:
    LOUISIANA STATE BAR ASSOCIATION v. O. Romaine RUSSELL.
    No. 58273.
    Supreme Court of Louisiana.
    Sept. 3, 1980.

      Thomas 0. Collins, Jr., Executive Counsel, Harold J. Lamy, New Orleans, Roland J. Achee, Shreveport, Wood Brown, III, New Orleans, Sam J. D’Amico, Baton Rouge, Leonard Führer, Alexandria, Edgar H. Lancaster, Jr., Tallulah, Alfred S. Landry, New Iberia, A. Russell Roberts, Metair-ie, John B. Scofield, Lake Charles, for applicant, Louisiana State Bar Ass’n.
    Steve M. Marks, Baton Rogue, for respondent.
   DISCIPLINARY PROCEEDING

WATSON, Justice.

This is a disciplinary proceeding against Otis Romaine Russell brought by the Louisiana State Bar Association through its Committee on Professional Responsibility. The Supreme Court of Louisiana has original jurisdiction in disciplinary proceedings by the Louisiana State Bar Association against one of its members. Art. V, Section 5(B), Louisiana Constitution of 1974.

Attorney Russell was convicted on June 4, 1975, of violating 18 U.S.C. § 371 by conspiring with others to obstruct justice in the United States District Court for the Middle District of Louisiana by corruptly influencing witness Richard Baker to give false testimony. The Louisiana State Bar Association held a hearing on March 26, 1976, at which it was determined that Russell’s crime was a felony and a serious offense reflecting upon his moral fitness to practice law. Russell was suspended from the practice of law in Louisiana on July 24, 1976. A petition was filed by the Louisiana State Bar Association for his disbarment and a Commissioner was appointed to take evidence on the matter. At that hearing on November 21, 1979, Russell admitted his guilt and “bizarre behavior” (Hearing Tr., p. 12) but testified that he had recovered from the mental illness which had produced that behavior. He is also an uncontrolled diabetic. Both before and after his conviction Russell was hospitalized for treatment of mental illness. He was in the psychiatric division of Touro Infirmary from October 6 to October 11, 1973; the Southeast Louisiana State Hospital in Mandeville from October 11 to December 4, 1973; an out-patient at the Veterans Administration Hospital in Alexandria, Louisiana, from December 29, 1975, through July 28, 1976, and an in-patient from the latter date until August 27, 1976. Because of the nature of his illness, Russell was transferred to the Veterans Administration Hospital in Knoxville, Iowa, on August 31, 1976. That hospital was described as a specialized one for mental treatment of veterans from all over the nation. He remained there until May 20, 1977, when he became an out-patient with a weekly appointment which continued through January 9,1979. During his prison term, Russell was in the psychiatric ward for six months and was released in March of 1978. He was released on probation conditioned on continued psychiatric treatment. His probation in the State of Iowa ends on November 10, 1980. Russell’s out-patient treatment in Knoxville was by Dr. W. Dan Joslyn, a clinical psychologist. According to Dr. Joslyn, Russell has problems with “dys-social personality and temporal lobe dys-rhythmia”, which were treated with “psy-chopharmacology, psychotherapy” and a change of environment. (Exhibit R-5) Commencing in May of 1977, Russell worked as a short order cook, clerk and cleaning man in Des Moines, Iowa, at the Adventureland Hotel before and after his prison term. On January 9, 1979, he became a hearing officer for Job Service of Iowa, a position he has held since that time. The position requires a law degree and deals with unemployment cases. The position is analogous to that of an appeals referee in Louisiana. Russell is still being treated with Lithium and Dilantin and sees a psychologist once a month, but is functioning well as a hearing officer and has a stable home life with a wife and step-son.

After the hearing, the Commissioner recommended that he be disbarred and that the disbarment be effective on a prospective rather than retroactive date. There is no question that the crime of which Russell was convicted, the subornation of a witness, is a serious one which is directly connected with the practice of law and warrants disbarment. As pointed out in Louisiana State Bar Association v. Thierry, 366 So.2d 1305 (La., 1978), inducing a violation of the oath of a witness undermines the American justice system and is particularly reprehensible in a member of the bar. However, the Commissioner has not produced any convincing reason for the disbarment to be prospective and it is therefore ordered that the date of disbarment be retroactive to the date when Russell was suspended from the practice of law in the State of Louisiana, July 24,1976. Louisiana State Bar Association v. Thierry, supra.

For the reasons assigned,

IT IS ORDERED, ADJUDGED AND DECREED that the name of Otis Romaine Russell, respondent herein, be stricken from the roll of attorneys and his license to practice law in the State of Louisiana be revoked effective July 24, 1976. Respondent is to bear all costs of this proceeding.


text:
    PLAQUEMINES PARISH COMMISSION COUNCIL v. HERO LANDS COMPANY et al.
    No. 67042.
    Supreme Court of Louisiana.
    Sept. 3, 1980.

      Frank J. Peragine, John C. Hebert, Suzette T. Becker, Brian, Simon, Peragine, Smith & Redfearn, New Orleans, for defendant-applicant.
    Douglas A. Kewley, Louis B. Porterie, Duke, Porterie & Hantel, New Orleans, for plaintiff s-respondents.
   WATSON, Justice.

At issue is the right to dispose of spoil on the banks of a drainage canal. Both plaintiff and defendant Hero claim ownership of the dirt, Hero because it owns the underlying land and plaintiff because it has a servitude of drain.

Plaintiff, the Plaquemines Parish Commission Council, is the governing authority of the Parish and the successor of the Jefferson-Plaquemines Drainage District. It holds a drainage servitude and brought suit to enjoin the defendant land owner, Hero Lands Company, and the other defendants from excavating earth from the servitude. Plaintiff also sought to enjoin use of a shell road adjacent to the drainage canal for operation of a commercial landfill absent zoning approval and an occupational license.

The trial court enjoined all defendants from excavating earth from the servitude without permission of the Council; enjoined Hero from using the shell road, Buccaneer Road, except as permitted by the Council’s permit; and enjoined Hero from selling earth or operating a dump in areas zoned A-II without an occupational license from the Parish.

The Fourth Circuit Court of Appeal affirmed the preliminary injunction enjoining defendants from excavation on the servitude without permission of the Council, but reversed the remainder of the judgment and remanded for further proceedings. 380 So.2d 722. The Court of Appeal held that, despite Hero’s ownership of the soil, the Council was entitled to use and control its disposition as long as it might be used in connection with the drainage servitude and that defendants could not remove or sell the soil without the consent of the Council. The court stated that the soil might be needed to increase or decrease the flow of water through the drainage canal and that this was an accessory right which should have been contemplated by the landowner when it granted the servitude of drain.

The servitude agreement between the parties, dated August 16, 1957, granted the drainage district surface servitudes for drainage canal construction and maintenance according to an attached map. The servitude measured thirty feet on each side of the center line of each drainage canal, and twelve and one-half feet on each side of the center line of each seepage ditch. During construction, the drainage district was given the right to use the soil deposited in the clearing and dredging of the canals and ditches. The agreement states:

“.. . the Drainage District is herewith granted, during the period of construction of the aforesaid canals and ditches, the right to spoil or deposit debris created in clearing the rights of way and earth taken or dredged in the construction of canals and seepage ditches on lands of the respective ownerships outside and/or beyond the limits of the servitudes herein-above specified.” (Tr. 13-14).

A writ of review was granted to consider whether the Court of Appeal was correct in enjoining the defendant landowner against excavating earth from its property without permission of the servitude owner.

There was testimony that the Parish sometimes needs dirt for levee and canal work, and at other times has sold dirt. Council President Chalin Perez said that fill would be needed for future public purposes. It was conceded, however, that the spoil is not presently serving a levee function. According to the testimony of Numa Hero of Hero Lands Company, removal of the dirt, which commenced in 1970, has aided surface drainage of the adjoining property. Council President Perez testified in rebuttal that the increased flow of water from this raw land interfered with handling the runoff from developed areas and overburdened the pumping stations.

Hero’s land was burdened with a predial servitude. LSA-C.C. art. 646. It was granted “In consideration of the benefits to be derived to their ... properties because of the .. . canals and seepage ditches to be dug ... ”. (Tr. 13) The Council contends that it has a legal servitude under LSA-R.S. 38:113, as well as the conventional servitude granted by Hero. The record does not establish whether a legal public servitude existed prior to the conventional servitude established by agreement. LSA-C.C. arts. 665, 722. Even if a legal servitude did exist, it was altered by agreement of the parties. LSA-C.C. art. 729. In case of doubt, the extent of the Parish’s right must be resolved in favor of Hero, owner of the servient estate. LSA-C.C. art. 730. The agreement between the parties gave disposal rights to the soil dredged from the area to the drainage district only during construction. Control of the spoil thereafter reverted to landowner Hero. The landowner retains title to his land unless it is expropriated. Scott v. Red River-Bayou Pierre Levee & D. Dist. of Louisiana, 7 So.2d 429 (La.App. 2 Cir. 1942); Bernard v. State, 127 So.2d 774 (La.App. 3 Cir. 1961); Grayson v. Commissioners of Bossier Levee District, 229 So.2d 139 (La. App. 2 Cir. 1970); Justice v. Bourgeois, 288 So.2d 106 (La.App. 4 Cir. 1974); Daspit v. State, Department of Highways, 325 So.2d 368 (La.App. 3 Cir. 1975); LSA-Const. 1974, Art. 6, § 42. Any limitations on the owner’s use must be expressed in the servitude agreement. Here, there is nothing in the agreement that prevents Hero from disposing of the spoil. Therefore, the Parish is not entitled to an injunction against removal of earth from Hero’s land. For the reasons assigned by the Court of Appeal, the Parish is not entitled to the other injunctions issued by the trial court.

For the reasons assigned, the judgment of the trial court granting preliminary injunctions to plaintiff is reversed, and the injunctions are vacated; plaintiff’s petition is dismissed.

REVERSED IN PART; AFFIRMED IN PART.

      . Other defendants were only nominal parties. They are Charles Daniel “Chuck” Jackson, Jackson Truck Service, Inc., Leon “Sam” Du-plessis, and Leon Duplessis & Son, Inc., who allegedly hauled dirt from the servitude area with permission of Hero. It was stipulated that Leon Duplessis did not individually haul any dirt.

      . This opinion refers to the Civil Code articles by their current numbers. None of those cited represent a substantive change in the law.


text:
    CLAIBORNE ELECTRIC COOPERATIVE, INC. v. LOUISIANA PUBLIC SERVICE COMMISSION et al.
    No. 67300.
    Supreme Court of Louisiana.
    Sept. 3, 1980.

      Paul H. Spaht, Kantrow, Spaht, Weaver & Walter, Baton Rouge, W. M. Shaw, Shaw & Shaw, Jenifer W. Clason, Homer, for plaintiff-appellant.
    Marshall B. Brinkley, Baton Rouge, for defendant-appellant.
    J. Wayne Anderson, Andrew P. Carter, Eugene G. Taggart, Monroe & Lemann, New Orleans, for intervenor-appellee.
   WATSON, Justice.

In this territorial dispute between electric utility companies, Claiborne Electric Cooperative appeals from a trial court ruling upholding orders of the Public Service Commission in favor of Louisiana Power and Light Company. The issues relate to the Commission’s jurisdiction and the propriety of its ruling.

In July, 1978, L. L. Hollis applied for membership in Claiborne Electric Cooperative and requested that electric service be provided to his residence on Lyons Hill Road outside the Town of Homer, Louisiana. On August 29, 1978, Claiborne began construction of an electrical transmission line to the Hollis residence, which was completed on September 14,1978. The line was energized on November 2, 1978, and LP & L filed a complaint before the Public Service Commission two weeks later.

LP & L alleged that it owned, maintained and operated a line along Lyons Hill Road which could be used to serve customers in the area and the Hollis residence. LP & L complained that Claiborne’s construction was in violation of LSA-R.S. 45:123 and the General Order of the Public Service Commission dated March 12, 1974, “In re: Duplication of Electric Service.”

Claiborne filed a motion to dismiss the complaint for lack of jurisdiction, alleging first that the electrical line along Lyons Hill Road claimed by LP & L was actually owned by the Town of Homer, placing the dispute outside the jurisdiction of the Commission. Second, Claiborne contended that Act 77 of 1978 removed electrical cooperatives from the jurisdiction of the Public Service Commission except in cases involving violation of the “300 foot rule” of LSA-R.S. 45:123. Claiborne argued that the “300 foot rule” was not at issue and the Commission lacked jurisdiction.

The Commission denied Claiborne’s motion to dismiss and, after a hearing on the merits, ordered that LP & L serve the Hollis residence and that Claiborne dismantle its newly constructed line. Claiborne petitioned the district court for reversal of the Commission’s order and a preliminary injunction against its enforcement. The Commission’s order was affirmed by the trial court. Claiborne appeals. La.Constitution 1974, Art. 4 § 21(E); LSA-R.S. 45:1192.

THE COMMISSION’S JURISDICTION

The Constitution of 1974 removed municipally owned, operated or regulated electric utilities from Commission jurisdiction absent voter approval. La.Const. 1974, Art. 4 § 21(C). Since the electric line along Lyons Hill Road is municipally owned by the Town of Homer, Claiborne argues that the line and the entire dispute is outside the Commission’s jurisdiction. See Louisiana Power & L. Co. v. Louisiana Public Serv. Com’n., 250 La. 596, 197 So.2d 638 (1967).

By contract dated March 15, 1978, the Town of Homer and LP & L agreed that the town’s electrical system would be operated by and possibly eventually transferred to LP & L. Pursuant to that agreement, LP & L had the “sole and exclusive right” to “operate and maintain the Distribution System” and to make any additions, improvements, replacements, extensions, and retirements with respect to the system as it considered necessary or desirable. Agreement, 6-7. The agreement also provided that any additions, improvements and replacements made by LP & L to the system would remain the property of LP & L. Agreement, 14-15.

According to the terms of this agreement, any extension constructed by LP & L to serve the Hollis residence would have been the property of LP & L. Had such an extension been wrongfully built, it would have been the responsibility of LP & L to dismantle the line. The Commission could not have ordered the Town of Homer to demolish the construction, for it would not have belonged to the town. The Commission would not be regulating the Town of Homer, by determining whether such a line could or should have been built by LP & L. The Commission is not deprived of jurisdiction over a dispute involving the proposed LP & L line merely because it would tie into a municipally owned facility.

Claiborne’s second contention is that the Commission lacks jurisdiction by virtue of Act 77 of 1978. The Act provides in pertinent part:

“Section 1. Section 1163 of Title 45 of the Louisiana Revised Statutes of 1950 is hereby amended and re-enacted to read as follows:
“§ 1163. Power to regulate rates and services; exceptions
“The commission shall exercise all necessary power and authority over any street railway, gas, electric light, heat, power, waterworks, or other local public utility for the purpose of fixing and regulating the rates charged or to be charged by and service furnished by such public utilities; however, no aspect of direct sales of natural gas by natural gas producers, natural gas pipeline companies, natural gas distribution companies, or any other person engaging in the direct sale of natural gas to industrial users for fuel or for utilization in any manufacturing process shall be subject to such regulation by the commission. In addition, a schedule of rates of an electric cooperative shall not require approval of the commission if the schedule previously was approved by the board of directors of the electric cooperative and by the federal government or any agency thereof, nor shall the authority of the commission extend to the service rendered by electric cooperatives except to the extent provided in R.S. 45:123 and in orders of the commission promulgated to effectuate the purposes of R.S. 45:123.” (Emphasis added)

Claiborne argues that this Act legislatively removes the authority of the Commission to regulate the service rendered by electric cooperatives except as provided in LSA-R.S. 45:123 and orders of the Commission specifically enforcing that statute. Claiborne claims that there was no violation of the statute or of any Commission order specifically enforcing it, and the Commission therefore lacked jurisdiction.

However, an exception in Act 77 of 1978 allows the Commission to retain jurisdiction over electric cooperatives “to the extent provided in R.S. 45:123 and in orders of the Commission promulgated to effectuate the purposes of R.S. 45:123.” (Emphasis added) The purpose of LSA-R.S. 45:123 is, as stated by the Legislature:

“To amend and re-enact . . . Section 123 of Title 45 . . . relative to stabilizing the service practices of electric public utilities, including electric cooperatives, and to regulate the extension and construction of facilities for the furnishing of electric service; ...” (Acts, 1970 No. 34)

The statute was designed to avoid the needless duplication of electric facilities. Cent. La. Elec. Co. v. La. Public Serv. Com’n., 344 So.2d 1046 (La., 1977); Louisiana Power and L. Co. v. Louisiana Pub. Serv. Com’n., 322 So.2d 133 (La., 1975). The General Order of March 12, 1974, entitled “In Re Duplication of Service” is “an order promulgated to effectuate the purposes of R.S. 45:123”; this proceeding involves a violation of that General Order; and the Commission therefore has jurisdiction.

The “300 foot rule” enunciated in LSA-R.S. 45:123 is merely one way of effectuating the general statutory purpose. The General Order of March 12, 1974, was issued to achieve the same end. In LSA-R.S. 45:123, the legislature announced one test of duplicative electrical facilities, i. e., construction within 300 feet of another utility’s electric line. In the General Order, the Commission addressed broader aspects of the same issue. It ordered:

“That no extension of electric transmission or distribution lines shall be made by an electric public utility that will duplicate the transmission and distribution lines ... of another like utility, nor shall extensions be made to serve customers that could be served from such electric public facilities already in existence in an economic and justifiable manner.”

Therefore, this case does not come within the exceptions listed in Act 77 of 1978 and that Act does not deprive the Commission of jurisdiction.

MERITS

Claiborne argues that there was insufficient evidence to support the factual determination of the Commission that it violated the 300 foot rule of LSA-R.S. 45:123 or that it violated the General Order either by duplicating existing lines or by making an extension to serve a customer who could be served by existing LP & L facilities.

Claiborne is correct that no showing was made of violation of the 300 foot rule. The utility line nearest the Hollis property (pri- or to the construction of the extension by Claiborne) was the town-owned, LP & L operated line 713 feet away. Therefore, Claiborne was not in violation of LSA-R.S. 45:123 when it constructed a line to serve the Hollis residence.

However, there is some evidence in the record that LP & L could have provided electrical service to the Hollis residence economically and justifiably by the use of existing facilities. In addition to the town-owned, LP & L operated line 713 feet from the Hollis residence, there was also an LP & L owned and operated line 1,848 feet from the home. The line constructed by Claiborne extended 3,494 feet. Although Claiborne attempted to show that because of heavily wooded areas around the Hollis residence, shorter lines might have been more expensive to build than longer ones, that evidence was not convincing to the Commission.

Orders of the Commission are entitled to great weight and are presumed to be valid. Judicial review considers whether they are arbitrary and capricious or show an abuse of authority. La. Power & Light Co. v. La. Public Serv. Com’n., 343 So.2d 1040 (La., 1977); Louisiana Oil. Car. Ass’n, Inc. v. Louisiana P. S. Com’n, 281 So.2d 698 (La., 1973). Claiborne, the party attacking the Commission order, bears the burden of demonstrating that it is defective. Menochem, Inc. v. Louisiana Public Service Com’n, 253 La. 1047, 221 So.2d 504 (1969). Claiborne has failed to carry this burden.

Finally, Claiborne contends that the copy of the Commission’s order served upon it was not signed by a majority of the Commission as required by the Commission’s own rules. A photocopy of the order as served shows the symbol “s/” followed by the typewritten name of the third commissioner to vote in favor of the order. However, a certified copy of the original shows the commissioner’s signature rather than a typewritten name. Although it would have been preferable for the Commission to have served upon Claiborne a copy of the order as signed rather than a copy on which a commissioner’s name had been typed, this technical violation of the Commission’s rules does not warrant invalidation of the order.

For the reasons assigned, the judgment of the trial court is affirmed.

AFFIRMED.

      . LSA-R.S. 45:123, sometimes referred to as the “300 foot rule”, prohibits one utility from constructing or extending its lines to a customer when another utility has a line within 300 feet of the customer’s point of connection. It provides:
      “No electric public utility shall construct or extend its facilities, or furnish, or offer to furnish electric service to any point of connection which at the time of the proposed construction, extension, or service is being served by, or which is not being served but is located within 300 feet of an electric line of another electric public utility, except with the consent in writing of such other electric public utility; provided, however, that nothing contained herein shall preclude (a) any electric public utility from extending service to an applicant for service at an unserved point of connection located within 300 feet of an existing electric line of such electric public utility, unless (i) such line was not in operation on April 1, 1970 and (ii) the point of connection is located within 300 feet of an existing electric line, of another electric public utility, which line was in operation on said date, or (b) any electric public utility from extending service to its own property, or to another electric public utility for resale; and provided further that any consumer who feels aggrieved with the electric service being received by him may apply to the Louisiana Public Service Commission for an order directed to his present supplier to show cause why the consumer should not be released from said supplier, and if the commission shall find that the service rendered to such consumer is inadequate and will not be rendered adequate within a reasonable time the release shall be granted. “As used in this section, an ‘electric line’ is a line constructed and operated for the transmission and/or distribution of electricity and which was not originally constructed for the principal purpose of preempting territory.
      “The provisions of this section shall not apply to municipally-owned or operated utilities of the State of Louisiana or to the parish of Orleans. Nothing in R.S. 45:121, 45:123, 45:1161, 45:1175 or R.S. 12:426 shall alter the rights or authority of municipalities with respect to franchises.”

      . This finding is in accord with that of the trial judge that the General Order was intended to promote the purposes of LSA-R.S. 45:123. However, the trial judge also concluded that Act 77 of 1978 did not deprive the Commission of jurisdiction for two other reasons. First, he found that the Act was unconstitutional as vio-lative of the Title-Body Clause, La.Const. 1974, Art. 3 § 15(A). Second, he found that the Act was inapplicable because it did not become effective until after Claiborne commenced construction of the allegedly offending line. Because we find that even if the Act were in effect, it would not deprive the Commission of jurisdiction over this matter, we need not address these issues. Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 56 S.Ct. 466, 80 L.Ed. 688 (1936); Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972); State v. Stripling, 354 So.2d 1297 (La. 1978).


author: LEMMON, Justice.

text:
    STATE of Louisiana v. Edmond GUIDRY.
    No. 67193.
    Supreme Court of Louisiana.
    Sept. 3, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry P. Con-nick, Dist. Atty., Paul G. Mayoral, New Orleans, for plaintiff-relator.
    William R. Ary, New Orleans, for defendant-respondent.
   LEMMON, Justice.

We granted the state’s application for a writ of certiorari in order to review a decision of the trial court granting defendant’s motion to suppress approximately $1,000,-000 worth of stolen property which had been found in a search of his residence conducted pursuant to a warrant. We reverse.

The search and seizure at issue resulted from information received in connection with the arrest of Robert King for armed robbery. When King’s confession implicated defendant as the person who received the property stolen in several robberies, a police officer on October 25, 1979 submitted an affidavit in support of a warrant for the search of defendant’s residence, which provided in pertinent part as follows:

“He (King) stated that he met a man at the gambling house at Terpsichore and South Rampart Street, known as Cookie, a negro male he described as being in his late 40’s or early 50’s. He stated that upon completion of each armed robbery, he would bring the jewelry to his residence and he would call Cookie at his residence and within the hour, Cookie would arrive at his residence, look at the jewelry, and take it. Cookie would then return in one or two days with an amount of cash and give him the cash for the jewelry. He stated that upon completion of the robbery of Mason’s Jewelers in Huntsville, Alabama, Cookie gave him $35,000 in U.S. currency. Upon completion of the armed robbery of Gordon’s Jewelers in Baton Rouge, Louisiana, Cookie brought him $18,000 in U.S. currency. He stated that upon completion of the robbery of the four Zale’s Jewelry Stores in the city of New Orleans, he received amounts in the following denominations: The first armed robbery-$13,-000; the second armed robbery-$14,000; the third armed robbery-$19,000 and the fourth armed robbery-$9,000. Upon completion of the armed robbery of Fakier’s Jewelers in Houma, Louisiana, Cookie gave him $75,000 in U.S. currency. When asked for the telephone number of this negro male, Cookie, Mr. King looked in his address book which he had in his wallet and furnished the telephone number of 861-1347. A check of the city directory showed that this number is listed to Edmund Guidry, who lives at 8324 Cohen Street. A check of this address and name in the MOTION computer shows an Edmund Guidry, Negro Male, DOB 4-9-26, New Orleans Police Department B of I number 114-384, residing 8324 Cohen Street. This subject, also known as Cookie, is well known to the members of the Career Offender Unit. On several occasions in the past six months, Det. Morse has received information that this individual was in possession of numerous amounts of stolen jewelry and flashing it around in several locations in the city of New Orleans. It has also been learned that this subject attempted to sell pieces of jewelry at a local pawnshop in the city of New Orleans. He has also been seen flashing large amounts of U.S. currency.
Det. Morse learned from Agent John Watson of the Federal Bureau of Investigation that the following armed robberies of jewelry stores were reported on the dates listed below:
Mason’s Jewelers, Huntsville, Alabama-September 18, 1979
Gordon’s Jewelers, Baton Rouge, Louisiana-September 6, 1979
Fakier’s Jewelers, Houma, Louisiana-October 12, 1979
Zale’s Jewelers, 3600 South Carrollton, New Orleans-July 10, 1979
Zale’s Jewelers, 3600 South Carrollton, New Orleans-July 24, 1979
Zale’s Jewelers, 3157 Gentilly Boulevard, New Orleans-August 14, 1979
Zale’s Jewelers, 3157 Gentilly Boulevard, New Orleans-August 24, 1979 Attached to this affidavit is a complete
listing of the articles taken in these armed robberies.
This warrant is being requested for the search of the residence of Edmund Gui-dry, located 8324 Cohen Street, in an attempt for the detectives to recover the articles listed as stolen in these armed robberies.”

Execution of the search warrant produced the stolen property which defendant moved to suppress. At the hearing on the motion defendant argued that the affidavit in support of the search warrant failed to show any relationship between illegal activity and defendant’s residence and thus failed to establish probable cause to believe any stolen property was located at defendant’s residence at the time. The trial court agreed and granted the motion to suppress.

A search warrant may be issued only upon an affidavit reciting facts which establish to the satisfaction of the issuing magistrate that probable cause exists to search the place described in the warrant. State v. Paciera, 290 So.2d 681 (La.1974). Probable cause exists when facts and circumstances, within the affiant’s knowledge and of which he has reasonably trustworthy information, are sufficient to support a reasonable belief that an offense has been committed and that evidence or contraband may be found at the place to be searched. State v. Turnipseed, 362 So.2d 486 (La. 1978).

King’s credibility is enhanced by the fact that he made declarations against his penal interest. State v. Mena, 344 So.2d 357 (La.1976); State v. Welsh, 371 So.2d 1314 (La.1979). As the Court stated in United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 2082, 29 L.Ed.2d 723 (1971):

“People do not lightly admit a crime and place critical evidence in the hands of the police in the form of their own admissions. Admissions of crime, like admissions against proprietary interests, carry their own indicia of credibility-sufficient at least to support a finding of probable cause to search.”

Furthermore, the information provided by King was based on his first hand knowledge and can certainly be considered reliable from that standpoint. See State v. Paciera, above. However, since the affidavit did not state that King knew where defendant took the jewelry when he left King’s residence, the principal issue concerns the validity of the magistrate’s finding that it was reasonable to conclude defendant would have any of the stolen property at his residence.

As to this issue defendant’s reliance on State v. Daniel, 373 So.2d 149 (La.1979), is misplaced. In Daniel the affidavit did not establish that the place to be searched was the defendant’s residence. The court noted that the affidavit did not state defendant lived at the address which the officers sought to search in connection with an investigation regarding stolen drugs.

In the present case there is considerable information in the affidavit linking the place which officers sought to search to defendant. The telephone number which King called to contact defendant was listed in the city directory to defendant at that address, and police records revealed that the place sought to be searched was defendant’s residence. Significantly, the affidavit established the fact that defendant was engaged in a continuing enterprise of receiving stolen property regularly over a period of several months, and that fact gives rise to the reasonable inference that some of the stolen property was probably located at defendant’s residence. Moreover, since defendant was regularly contacted at his residence in connection with the criminal activity, a relationship was shown between that place and the activity.

We conclude that the issuing magistrate properly determined, from the facts stated in the affidavit, that stolen goods might reasonably be expected to be found at defendant’s residence. When confronted with a similar situation, the Supreme Court of Minnesota in Rosillo v. State, 278 N.W.2d 747, 748-749 (Minn.1979) reached a similar result, stating:

“Although the affidavit did not contain any averment of firsthand information that fruits of the crime would be found at defendant’s residence, the Fourth Amendment does not make such information essential. All that is required is that the affidavit, interpreted in a common sense and realistic manner, contain information which would warrant a person of reasonable caution to believe that the articles sought are located at the place to be searched.”

See also United States v. Rahn, 511 F.2d 290 (10th Cir. 1975); United States v. Lucarz, 430 F.2d 105 (9th Cir. 1970).

Affidavits supporting the issuance of search warrants must be read in a common sense manner. United States v. Harris, above. In evaluating the showing of probable cause necessary to support a search warrant, the court must heed the sound admonition in United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965):

“The Fourth Amendment commands, like all constitutional requirements, are practical and not abstract. If the teachings of the Court’s cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.”

Finally, the issue before us does not involve a particular individual’s right to a fair determination of his guilt or innocence. The issue is the applicability of the exclusionary rule, which is totally unrelated to the guilt or innocence of this particular individual. The exclusionary rule involves a balancing between society’s right to have its individual members live in privacy and freedom from police state tactics and society’s right to have its individual members live in safety and freedom from crime. The federal and state constitutions only protect citizens from unreasonable searches and seizures. Since all police procedures in this case were conducted reasonably, there is no reason to interpret probable cause technically or to apply mechanically a rule intended to deter misconduct and bad faith law enforcement procedures.

We conclude that the intrusion into defendant’s privacy in an area shown to be connected with significant and continuous illegal activity was justified under the information contained in the affidavit.

Accordingly, the judgment of the trial court is reversed, the motion to suppress is denied, and the case is remanded for further proceedings.

REVERSED AND REMANDED.

DENNIS, J., dissents with reasons. [The dissenting opinion will be separately published.]

        . Relevant considerations include the type of crime, the nature of the items sought, the opportunity for concealment, and the inference as to where a criminal would hide stolen property. Although the property in this case could have been stored elsewhere, it was reasonable to assume that the normal place a criminal dealing in stolen jewelry would keep such items at his house.


author: PER CURIAM. BLANCHE, Justice

text:
    STATE of Louisiana v. Wilfred A. SMITH.
    No. 66731.
    Supreme Court of Louisiana.
    Sept. 3, 1980.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
    Edna Sakir Morgan, New Orleans, for defendant-appellant.
   PER CURIAM.

In this appeal defendant’s principal contention is that he was unable to obtain a fair trial before a jury that was exhausted and frustrated after 12 hours of sequestration between jury selection and commencement of trial.

The record established that the jury was selected at 10:00 a. m., was sequestered while other cases were being tried until defendant’s trial began at approximately 10:00 p. m., heard evidence until 12:30 a. m. the following morning, deliberated without reaching a verdict from 12:41 a. m. until 2:46 a. m., was sequestered until deliberations resumed at 10:00 a. m., and then at 11:35 a. m. returned a 10 to 2 verdict of guilty of second degree murder. On this record, however, we cannot reach defendant’s contention because, although defendant’s present counsel asserts that an objection to proceeding under these circumstances was made by defendant’s former counsel, the record does not disclose such an objection. The record also does not contain any evidence of complaints and expressions of dissatisfaction allegedly made to the trial judge by individual jurors. The question of whether the trial court’s refusal of defendant’s request to recess the trial or to declare a mistrial under these circumstances constitutes reversible error cannot be adjudicated until it is determined that such a request was made and refused.

Accordingly, the matter is remanded to the trial court (1) for an evidentiary hearing on whether defendant’s attorney objected to proceeding under the circumstances shown in the record, (2) for other relevant evidencé bearing on the issue of the fairness of the trial under the overall circumstances, and (3) for reconsideration of the application for new trial in the light of this evidence.

REMANDED FOR EVIDENTIARY HEARING.

BLANCHE and MARCUS, JJ., dissent.

BLANCHE, Justice

(dissenting).

I respectfully dissent. No objection was made for reasons best known to trial counsel, and cannot be raised for the first time on appeal.


author: PER CURIAM.

text:
    STATE of Louisiana v. Jake CRATER, Sr.
    No. 66549.
    Supreme Court of Louisiana.
    Sept. 3, 1980.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leonard K. Knapp, Jr., Dist. Atty., Lester A. Robertson, Abbott J. Reeves, Asst. Dist. Attys., Director, Research & Appeals Div., for plaintiff-appellant.

      James Miguez, Miguez & Leckband, Lake Charles, for defendant-appellee.
   PER CURIAM.

The State charged defendant, Jake Crater, with “maintaining a place of public entertainment ... in which lewd dancing is permitted, in violation of LSA-R.S. 14:281.” (Tr. 5)

LSA-R.S. 14:281 reads:

“No person shall maintain a place of public entertainment or a public resort or any place, room, or part of a building open to the public in such a manner as to disturb the public peace and quiet of the neighborhood, or in which lewd dancing is permitted, or in which lewd pictures are accessible to view.
“Whoever violates this Section shall be fined not less than twenty-five dollars nor more than one hundred dollars or imprisoned for not less than thirty days nor more than ninety days, or both.”

The trial court granted a motion to quash the charge, holding that LSA-R.S. 14:281 is unconstitutionally vague. The court stated that today’s moral climate has rendered the words “lewd dancing” subject to many conflicting interpretations.

A statute must “convey a sufficiently definite warning of the proscribed conduct that the public and law enforcement officials will be put on notice as to its meaning.” State v. Baker, 359 So.2d 110, 113 (1978).

“.. . a disorderly house is hereby defined as any house of public entertainment, or a public resort, or open to the public, conducted in such a manner as to disturb the public peace and quiet of the neighborhood, also any place in which lewd dancing is permitted .. . State v. Rose, 84 So. at 644.

The prohibition of “lewd dancing” in LSA-R.S. 14:281 is not sufficiently specific to meet the requirements of Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). Miller provides two examples of permissible definitions of “obscene”:

“(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.
“(b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.” 413 U.S. at 25, 93 S.Ct. at 2615.

Both definitions go beyond simply rephrasing the word “obscene”; the definitions present specific examples of proscribable conduct. State v. Defrances, 351 So.2d 133 (La., 1977) applied the Miller test in Louisiana obscenity cases. Here, the statute defines “obscene only by means of its synonym: “lewd”. Webster’s Third International Dictionary (1976) notes that “obscene” is a synonymous cross-reference of “lewd”.

In the only Louisiana interpretation of the words “lewd dancing”, the Supreme Court reviewed the 1912 ancestor to the present LSA-R.S. 14:281. That statute contained a practically identical prohibition of “lewd dancing” to that in LSA-R.S. 14:281. “Lewd dancing” was found to have had a commonly accepted meaning: Dancing was lewd if it was “lascivious, lecherous, [and] tending to excite lustful thoughts.” State v. Rose, 147 La. 243, 84 So. 643 at 646 (1920).

Today, however, the word “lewd” does not have a consensual meaning. The quality of lewdness, in the absence of specific legislative definition, is in the mind of the beholder. Some might consider a modern dance like the “bump” to be lewd. See State v. Defrances, 351 So.2d at 136. Many dances that were once thought to be lewd-such as the waltz and the tango-are today considered tame. Under LSA-R.S. 14:281, the owners of most nightclubs and discotheques might be in danger of random prosecution. Legitimate forms of expression might be impaired under the vague interpretation of “lewd” provided in the Rose opinion.

Therefore, State v. Rose, supra, is overruled insofar as it conflicts with this opinion. The general wording of LSA-R.S. 14:281 does not place the public on notice of the type of dancing that the statute seeks to prohibit. Simply calling a type of generic conduct “obscene” does not meet the constitutional requirement of a specific statutory definition; neither does the use of “lewd”, which is merely a synonym for “obscene” meet that constitutional requirement.

For the foregoing reasons, the decision of the trial court is affirmed.

AFFIRMED.

      . Even the statute struck down in Miller attempted to establish a reasonable definition of “obscene”:
      “ ‘Obscene’ means that to the average person, applying contemporary standards, the predominate appeal of the matter, taken as a whole, is to prurient interest, i. e., a shameful or morbid interest in nudity, sex, or excretion, which goes beyond customary limits of candor in description or representation of such matters and is matter which is utterly without redeeming social importance.” Miller, 413 U.S. at 17, 93 S.Ct. at 2611.”

      . Although the precise language scrutinized in State v. Defrances, 351 So.2d 133, differs from the words under analysis in this case, the rationale of the Defrances opinion applies to the fact situation now under review. In Defrances, LSA-R.S. 14:104 was under attack for vagueness. LSA-R.S. 14:104, in part reads:
      “Keeping a disorderly place is the intentional maintaining of a place to be used habitually for any illegal purpose or any immoral sexual purpose.”
      The language “immoral sexual purpose” was found to have been unconstitutionally vague under the Miller test. The Defrances court noted that:
      “The danger lies in the potential of this language encompassing certain activity that most would agree is generally not considered to constitute criminal activity. For example, the owners of certain establishments are not informed by 14:104’s language as to whether the following activity is prohibited: (1) owners of ‘swinging singles’ apartment complexes; (2) owners of places where sparsely-clad ‘go go dancers’ perform; (3) apartment building owners who rent to unmarried couples who cohabit; (4) owners of bars and lounges that provide comfortable surroundings to accommodate patrons ‘making out’; (5) owners of bars and lounges where customers engage in the current dance crazes such as ‘the bump’ which is suggestive of sexual intercourse. The foregoing activity, which might annoy some and shock others, could hardly have been what the legislature had in mind when it was aiming to control the proliferation of bawdy houses. Nevertheless, some law enforcement personnel could construe this conduct as ‘sexually immoral’ and subject otherwise innocent individuals to criminal prosecution. Leaving the definition function to the courts tends to promote the kind of arbitrary and discriminatory enforcement the due process clause sought to protect against. A person of ordinary intelligence must be better informed than he is at present under R.S. 14:104 of conduct which crosses the line from non-criminal to criminal; it is a legislative function to draw the line distinctly.” 351 So.2d at 136 [emphasis added].

      . The relevant part of Act 199 of 1912 reads:

      . In California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 390 (1972) the United States Supreme Court tacitly held that serious communicative dance is a constitutionally protected type of First Amendment “speech”.


text:
    STATE of Louisiana v. Jude GLYNN, Jr.
    No. 66895.
    Supreme Court of Louisiana.
    Sept. 10, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry J. Morel, Jr., Dist. Atty., John Crum, Jr., Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-ap-pellee.
    Becnel & Faucheux, Robert R. Faucheux, Jr., Reserve, for defendant-appellant.
   PER CURIAM.

Defendant was charged by bill of information with attempt aggravated rape, in violation of La.R.S. 14:27; 14:42. After trial by jury beginning on September 5, 1979, he was found guilty of attempt forcible rape. On September 24, 1979, the trial court sentenced him to eight years’ imprisonment at hard labor. As a condition of this sentence, defendant will spend one year “without benefit of parole, suspension, or probation.” Defendant now appeals his conviction and sentence to this Court, urging the three assignments of error filed below.

We have reviewed defendant’s assignments and find them without merit. Accordingly, we now affirm his conviction. We note, however, an error patent on the face of the sentence imposed that will require remand of this case to the trial court. La.C.Cr.P. Art. 920. In sentencing defendant, the trial judge looked to La.R.S. 14:42.1 defining the offense of forcible rape. That statute calls for a sentence of not less than two years, and not more than forty years’ imprisonment, and requires that “[a]t least two years of the sentence imposed shall be without benefit of probation, parole, or suspension of sentence.” In addition, La.R.S. 14:27, defining attempt, provides a maximum sentence of not more than one half the longest term for the completed offense. The trial court reasoned that for an attempt forcible rape, La.R.S. 14:27; 14:42.1, defendant was required to spend one year in jail without benefit of parole or probation.

We express no opinion on the trial court’s conclusions under La.R.S. 14:27 and 14:42.1. We note, however, that it has looked to the wrong rape statute in this case. Defendant committed the offense on August 11, 1978. At the time, La.R.S. 14:43.1 defined the crime of forcible rape. That statute provided simply that “[wjhoever commits the crime of forcible rape shall be imprisoned at hard labor for not less than two nor more than forty years.” La.R.S. 14:42.1, Acts 1978, No. 239 § 1, amending and reenacting La.R.S. 14:43.1, and adding the conditions on suspension of sentence, probation and parole, did not become effective until September 8, 1978, after the commission of the offense in this case.

The trial court therefore lacked authority to impose any restriction on defendant’s parole eligibility when it sentenced him to jail. La.R.S. 14:43.1. Accordingly, we vacate the sentence in this case and remand to the trial court for resentencing in compliance with the views expressed herein. La. C.Cr.P. Art. 882; State v. Wymore, 372 So.2d 283 (La.1979); State v. Delaney, 359 So.2d 976 (La.1978); State v. Jones, 341 So.2d 3 (La.1977).

CONVICTION AFFIRMED: SENTENCE VACATED AND CASE REMANDED.


text:
    STATE ex rel. Richard S. HALVORSEN v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 67159.
    Supreme Court of Louisiana.
    Sept. 10, 1980.
    Joseph Maselli, Jr., New Orleans, for plaintiff-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for defendant-respondent.
   PER CURIAM.

Relator Richard S. Halvorsen was charged by bill of information with fifteen counts of aggravated crime against nature, La.R.S. 14:89.1, and multiple counts of conspiracy to commit aggravated rape and aggravated crime against nature, La.R.S. 14:26 (14:89.1 and 14:42). On May 11, 1977, pursuant to a plea bargain, relator pleaded guilty to eleven of the fifteen counts of aggravated crime against nature (nos. 1-6, 8, 9, 11, 13 and 15), whereupon the state entered a nolle prosequi as to the remaining charges. On August 19, 1977, the trial court sentenced relator to serve ten years at hard labor on counts, 1, 4, 15, with the sentences to run consecutively, and five years on each of the remaining counts, with the sentences to run concurrently with each other and those imposed on counts 1, 4 and 15.

Subsequently, by petition for a writ of habeas corpus, relator urged the district court to set aside his guilty pleas to counts 1 and 15, claiming that the indictments on those counts failed to charge offenses punishable by law and that therefore his pleas had not been understandingly made. Those contentions, rejected by the trial court, have been resubmitted to us. We granted writs to consider relator’s claims with regard to count 1 only.

The indictment at issue charged unnatural carnal copulation with a juvenile, committed by relator’s “plac[ing] his penis in the area of the [juvenile’s] anus . . . ” (emphasis supplied). Omitted from the express terms of the indictment was any allegation that there had occurred penetration, an essential element of anal-genital crime against nature. See, State v. Phillips, 365 So.2d 1304 (La.1978). Without notice of that element, relator asserted, he was inadequately informed of the nature of the charge to which he pleaded guilty.

We have said that a defendant may not complain of the insufficiency of the indictment after conviction if the offense charged has actually been identified and no prejudice has resulted from a lack of notice. State v. Gainey, 376 So.2d 1240 (La.1979); State v. Murray, 357 So.2d 1121 (La.1978); State v. Pichler, 355 So.2d 1302 (La.1978); State v. James, 305 So.2d 514 (La.1974). In determining whether the defense has been unduly surprised or prejudiced, we have looked to the availability of pretrial discovery procedures that permit the clarification of a vague indictment and to a degree, we have held the defense responsible for seeking clarification. Id. That approach has only been taken, however, in the review of post-trial attacks on the sufficiency of an indictment, where our concern has been for the ability of the defense to prepare for trial on the notice provided for the admission at trial of evidence pertinent to the charge and for the compilation of a record that protects the defendant against double jeopardy. See, State v. Gainey, supra, and State v. James, supra.

A challenge to the sufficiency of an indictment following conviction by a plea of guilty stands on a far different footing: there has been no determination of the accused’s guilt by a judge or jury; rather, the accused stands convicted by his admission of guilt. If that admission did not encompass every element of the crime, the guilty plea cannot be considered voluntary in the constitutional sense. As the United States Supreme Court declared in Hender-son v. Morgan, 426 U.S. 637, 645, 96 S.Ct. 2253, 2257-2258, 49 L.Ed.2d 108 (1976), “[a]nd clearly [a plea cannot] be voluntary in the sense that it constitute^] an intelligent admission that he committed the offense unless the defendant receive[s] ‘real notice of the true nature of the charge against him, the first and most universally recognized requirement of due process.’ ” (citation omitted).

Notice was not adequately provided here by the bill of information that omitted an essential element of the crime, penetration. Nor was the gap filled in the recorded plea colloquy, during which relator was simply asked, “Do you know what you are pleading guilty to,” and “Are you familiar with the allegations and charges in the bill of information?” Nor did relator recite or acquiesce in any statement of facts necessarily implying that penetration had occurred. On the present record, then, we cannot conclude that relator’s plea was entered with complete understanding of the charge, i. e., voluntarily.

We are not prepared, however, to set aside the plea solely on the lack of an affirmative record regarding notice of the nature of the crime. Although the preferred procedure would be for the trial judge to explain the elements of the crime before accepting the plea, the due process requirement of notice may be satisfied by an explanation from another source, e. g., defense counsel. Accordingly, we remand the case to the district court for an eviden-tiary hearing in which relator will bear the burden of proving that he did not receive actual notice of the nature of the crime to which he pleaded guilty.

Should relator satisfy that burden, the plea must be set aside. We do not at this stage of the proceedings reach the question whether the entire plea bargain might be nullified by the vacating of this plea.

REMANDED.


text:
    STATE of Louisiana v. Niles CLAY.
    No. 67273.
    Supreme Court of Louisiana.
    Sept. 10, 1980.
    Keith B. Nordyke, Moore & Walter, Baton Rouge, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Kay Kirkpatrick, Asst. Dist. Atty., for plaintiff-respondent.
   PER CURIAM.

We granted writs to consider whether relator Niles Clay was properly held in contempt of court for failure to appear timely as a witness in a trial of which he had actual notice but for which he had not been subpoenaed. We find that absent service of a subpoena to appear in court, a witness’ tardiness is not punishable as contempt.

Relator was to serve as a defense witness in the simple battery trial of one Steve Shaffett. Defense counsel advised relator of the trial date and further requested issuance of a subpoena, which the sheriff’s return indicates was never served. On the morning of trial, March 25,1980, defendant failed to appear; an instanter subpoena was issued, and the trial proceeded to the point at which relator was needed. On the assurance that relator’s appearance was forthcoming, the court granted a several hour recess, until 2:00 p. m. When trial resumed, relator was present.

At the conclusion of relator’s testimony the court inquired into his late arrival. Relator admitted knowing that he was supposed to be in court at 10:00 a. m., but explained that he had not received a subpoena and had overslept. Dissatisfied with these responses and with what it considered a disrespectful delivery, the court held relator in contempt and sentenced him to serve ten days in parish prison. As directed, relator remained in the courtroom until the end of trial, whereupon the court suspended the balance of his sentence. This application for writs followed.

La.C.Cr.P. Art. 21 provides in pertinent part:

“A direct contempt includes, but is not limited to, any of the following acts:
* * * * * * “(2) Contumacious failure to comply with a subpoena or summons to appear in court, proof of service of which appears of record . . . ”
(emphasis supplied).

In the instant case the record clearly reflects that relator was not served with a subpoena. Actual notice is no substitute; and in disregarding such notice, relator, however he may have inconvenienced the court, did not demonstrate that disrespect for the court’s authority that characterizes contempt. Moreover, during the colloquy between relator and the trial judge, relator made direct responses to all questions put to him and consistently addressed the judge as “sir.” Although the record does not convey relator’s tone in answering, the content of his remarks indicates due regard for the court’s authority.

Accordingly, defendant’s contempt citation and sentence are set aside.


author: BOUTALL, Judge. BOUTALL, Judge.

text:
    Cleveland WILLIAMS, Jr. v. David J. SHARLOW and Arthur Wilson.
    No. 10575.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 1980.
    Leon C. Vial, III, Hahnville, for Cleveland Williams, Jr., plaintiff-appellant.
    The Law Offices of Becnel & Faucheux, Reserve, Daniel E. Becnel, Jr., Robert R. Faucheux, Jr. and Barry J. Landry, Reserve, for David J. Sharlow and Arthur Wilson, defendants-appellees.
    Before BOUTALL, SCHOTT and HOOD, Assigned, JJ.
   BOUTALL, Judge.

The owner of an automobile appeals from a judgment holding the negligence of its driver to be imputable to him.

Cleveland Williams, Jr. was the owner of an automobile being driven by Terry Williams when it was involved in a collision with another automobile owned by Arthur Wilson and operated by David J. Sharlow. Williams sued Wilson and Sharlow for the damages sustained by his automobile. Wilson and Sharlow answered and filed a re-conventional demand praying for property damage to Wilson’s automobile and physical injuries to Sharlow, the driver. The recon-ventional demand was later amended to pray only for property damage to Wilson’s automobile against both Cleveland Williams and Terry Williams.

On trial the court found “that the Plaintiff, as well as the Plaintiffs’ in Reconvention, were guilty of contributory negligence and” dismissed both the original demand and the reconventional demand. From this judgment only Williams has appealed. Neither Wilson nor Sharlow have appealed or answered the appeal.

The evidence consists solely of the testimony of Terry Williams and her passenger on one side and David Sharlow on the other. The damages to the automobiles were stipulated. The testimony for plaintiffs shows that Terry Williams approached the pumps in a gasoline station to get gas, and that she stopped for a vehicle coming from the opposite direction driven by Sharlow to ascertain at which pump he would get gas. Sharlow pulled behind a truck in one lane, and she determined that she would go on the other side of the pumps in another lane. During this maneuver, Sharlow suddenly cut out from behind the truck into her lane causing a frontal collision between the cars. Opposed to this Sharlow testified that he had already gotten gas and was in the process of leaving the pump in order to turn out to the Airline Highway when the Williams car approached him rather rapidly and he struck it on the side door. The repair estimates and the itemized damage would indicate a frontal collision as detailed by plaintiffs. The repair estimate is however not conclusive of the negligence of the parties, which is based more upon the credibility of the witnesses’ testimony. We have no problem in concluding that Sharlow was negligent, both because of the lack of credibility as to how the collision took place, but also because his testimony admits that he did not see the Williams’ vehicle until the collision was about to take place.

The trial judge however found Terry Williams to be guilty of contributory negligence, and although the record would indicate her lack of negligence, nevertheless there is sufficient evidence to support a finding of contributory negligence, and we cannot say that the trial judge has erred. In view of the relative speeds of the vehicles, it would appear that she may have been able to avoid the accident by either stopping or maneuvering her own vehicle. Accordingly, we accept the finding of contributory negligence by the trial judge.

The major problem in this case is that the plaintiff and the reconvenor both are owners suing for damages to their vehicles and neither was a driver. There is absolutely nothing in the record which would enable us to impute the negligence of the drivers to the owners of the vehicles. The owner of a vehicle is not liable for damages caused by some other person driving his vehicle unless the negligence of the driver is imputable to the owner. Ruthardt v. Tennant, 252 La. 1041, 215 So.2d 805 (1968); Murray v. Kuhn, 345 So.2d 917 (La.App.4th Cir. 1977); Umbehagen v. Liberty Mutual Ins. Co., 348 So.2d 122 (La.App.4th Cir. 1977.)

The judgment appealed is in error as a matter of law. Owner Cleveland Williams is entitled to judgment for his damages against driver David Sharlow. Because Wilson has not appealed nor answered the appeal we cannot consider his reconventional demand.

Accordingly, the judgment appealed is reversed in part, and there is now judgment in favor of Cleveland Williams, Jr. against David J. Sharlow in the sum of $534.30, together with interest from date of judicial demand until paid, and for all costs of these proceedings.

REVERSED IN PART AND RENDERED.

ORDER GRANTING REHEARING.

This matter had been submitted to the court without request for oral argument, and the court rendered judgment based upon the fact that no answer to the appeal had been filed in the record. In their petition for rehearing, appellees point out that an answer had in fact been filed in the District Court, and upon inquiry, this court discovered that the Clerk of the District Court did indeed have the answer to the appeal in his records, but had not included the answer in the record lodged with us. That answer has now been filed. We conclude that our previous judgment is incorrect and should be vacated and that rehearing should be granted.

IT IS ORDERED THAT OUR JUDGMENT dated January 10, 1980 is now annulled and vacated, and that rehearing in this matter be set for Monday, March 10, 1980 at 1:00 P.M. The rehearing shall be on written briefs and without oral argument. Either party may submit such additional briefs as he may desire at or before the time of rehearing.

Before BOUTALL, SCHOTT and BARRY, JJ.

ON REHEARING

BOUTALL, Judge.

In our original judgment, we did not consider the reconventional demand of the ap-pellees because no answer to the appeal was filed in the record before us. On application for rehearing, appellees informed us that an answer had been filed in the district court prior to lodging of the record here. Upon finding this to be a fact, we caused the answer to be transmitted to this court and granted rehearing.

The owner of an automobile appeals from a judgment holding the negligence of its driver to be imputable to him. The owner and driver of the other vehicle answer the appeal on the issue of their negligence.

Cleveland Williams, Jr. was the owner of an automobile being driven by Terry Williams when it was involved in a collision with another automobile owned by Arthur Wilson and operated by David J. Sharlow. Williams sued Wilson and Sharlow for the damages sustained by his automobile. Wilson and Sharlow answered and file a recon-ventional demand praying for property damage to Wilson’s automobile and physical injuries to Sharlow, the driver. The recon-ventional demand was later amended to pray only for property damage to Wilson’s automobile against both Cleveland Williams and Terry Williams.

On trial the court found “that the Plaintiff, as well as the Plaintiffs in Reconvention, were guilty of contributory negligence and” dismissed both the original demand and the reconventional demand. From this judgment plaintiff Williams has appealed. Plaintiffs in reconvention Wilson and Shar-low have answered the appeal.

The evidence consists solely of the testimony of Terry Williams and her passenger on one side and David Sharlow on the other. The damages to the automobiles were stipulated. The testimony for plaintiffs shows that Terry Williams approached the pumps in a gasoline station to get gas, and seeing the vehicle coming from the opposite direction driven by Sharlow, she stopped to ascertain at which pump he would get gas. Sharlow pulled behind a truck in one lane, and she determined that she would go on the other side of the pumps in another lane. During this maneuver, Sharlow suddenly cut out from behind the truck into her lane, causing a frontal collision between the cars. Opposed to this, Sharlow testified that he had already gotten gas and was in the process of leaving the pump in order to turn out to the Airline Highway when the Williams car approached him rather rapidly and he struck it on the side door. The repair estimates and the itemized damage would indicate a frontal collision as detailed by plaintiffs. The repair estimate is however not conclusive of the negligence of the parties, which is based more upon the credibility of the witnesses’ testimony. We have no problem in concluding that Sharlow was negligent, both because of the lack of credibility as to how the collision took place, but also because his testimony admits that he did not see the Williams’ vehicle until the collision was about to take place.

The trial judge however found Terry Williams to be guilty of contributory negligence, and although the record would indicate her lack of negligence, nevertheless there is sufficient evidence to support a finding of contributory negligence, and we cannot say that the trial judge has erred. In view of the relative speeds of the vehicles, it would appear that she may have been able to avoid the accident by either stopping or maneuvering her own vehicle. Accordingly, we accept the finding of contributory negligence by the trial judge.

The major problem in this case is that the plaintiff and one reconvenor both are owners suing for damages to their vehicles and neither was a driver. There is absolutely nothing in the record which would enable us to impute the negligence of the drivers to the owners of the vehicles. The owner of a vehicle is not liable for damages caused by some other person driving his vehicle unless the negligence of the driver is imputable to the owner. Ruthardt v. Tennant, 215 So.2d 805, 252 La. 1041 (1968); Murray v. Kuhn, 345 So.2d 917 (La. App.4th Cir. 1977); Umbehagen v. Liberty Mutual Ins. Co., 348 So.2d 122 (La.App.4th Cir. 1977).

The judgment appealed is in error as a matter of law. Owner Cleveland Williams is entitled to judgment for his damages against driver David Sharlow. Similarly, owner Arthur Wilson is entitled to his damages against driver Terry Williams.

Accordingly, the judgment appealed is reversed in part, and there is now judgment on the main demand in favor of Cleveland Williams, Jr. against David J. Sharlow in the sum of $534.30, together with interest from date of judicial demand until paid; there is now judgment on the recon ven tional demand in favor of Arthur Wilson against Terry Williams in the sum of $143.69, together with interest from date of reconventional demand until paid. The judgment is affirmed insofar as it dismisses the other demands; costs to be assessed equally between David J. Sharlow and Terry Williams.

REVERSED IN PART AND RENDERED.

       Due to the death of Judge John T. Hood, Jr., assigned to the vacancy in division “F”, Judge Denis A. Barry, later elected to Division “F”, was substituted on the panel for rehearing.