author: DIXON, Chief Justice.

text:
    J. Randolph OGDEN v. Walter R. BANKSTON and Alice Folkes Bankston.
    No. 80-C-2281.
    Supreme Court of Louisiana.
    May 18, 1981.

      Curtis K. Stafford, Jr., Baton Rouge, for defendants-applicants.
    Gerard E. Kiefer, of Forrest, Kiefer, Ba-cot & Moore, Baton Rouge, for plaintiff-respondent.
   DIXON, Chief Justice.

Plaintiff is the owner of an enclosed estate bordering on the Amite River. His estate enjoys a servitude of passage to Greenwell Springs Road over land now owned by defendants, Walter R. Bankston and Alice Folkes Bankston. Defendant Walker R. Bankston, a land developer who desires to subdivide and market his property as a residential neighborhood, contends that the present location of the servitude of passage interferes with his plans to develop, and sell the property. The issue before us is whether defendant has a right to relocate the servitude.

Plaintiff petitioned the district court to enjoin the defendant from disturbing his right of passage. Defendant, in his answer and reconventional demand, sought a declaratory judgment to establish his right to have the servitude moved to a different location.

After trial on the merits, the district court granted a permanent injunction, forbidding any further interference with the servitude. The reconventional demand for a declaratory judgment was dismissed on the grounds that defendant failed to prove that the present site of the right of passage had become burdensome.

The Court of Appeal affirmed the decision of the trial court. Odgen v. Bankston, 387 So.2d 1355 (La.App. 1st Cir. 1980). The court held that defendant did not have a contractual right to relocate the servitude, and that the legal right of relocation under the provisions of the Civil Code could not be claimed, since the record did not establish that the continued existence of the servitude in its present location had become burdensome. Defendant seeks review.

I

The record discloses that the actual roadway has been in existence at least since 1922; it is described as a rustic, tree lined avenue, and is almost a mile in length. Throughout these proceedings, defendant has assumed that the servitude itself was created in 1963, when one of plaintiff’s ancestors in title, Margaretta L. Meares, sold a 5.33 acre tract to James B. Ott. Included in this sale was a “perpetual servitude” at the rear of part of the tract, and the servitude of passage to Greenwell Springs Road. In regard to the latter, the act of sale recites the following:

“A servitude of passage for the use and benefit of the above described property, 30 feet wide from the aforesaid property to the Greenwell Springs Road along and adjacent to the South line of the Vaughn Tract owned by vendor. The vendor, however, reserves the right to relocate this servitude of passage at any other location within the Vaughn Tract, provided, however, that if such servitude is relocated, the property herein shall be provided with either a private or a public means of access from the property herein sold to the Greenwell Springs Road, in a condition equal to or better than the condition of any roadway existing on such servitude of passage at the time of such relocation. Nothing herein contained shall obligate the vendor to maintain the aforesaid servitude of passage. This servitude is shown as a private servitude on the map attached hereto.”

By this language, Mrs. Meares attempted to reserve the right to relocate the servitude, contingent only upon the obligation to provide an alternate right of passage to the public road “in a condition equal to or better than” the existing corridor. So long as she could provide an alternate passageway, Mrs. Meares was not required to justify or explain her decision to relocate the servitude. As will be shown, this contractual right of relocation was somewhat broader than the privilege of relocation afforded by the law.

It is the defendant’s contention that the benefit conferred by the proviso in the act of sale from Mrs. Meares to James B. Ott is applicable in this case. However, defendant fails to note that this very same servitude was described in a prior act of conveyance. In 1923 Charles C. Bird sold a small parcel of land to Clive W. Kernan. The act of sale recites that the consideration for the purchase was $25.00 in cash:

“. .. and the additional consideration of a perpetual servitude of way and passage herein granted by the said Clive Wethe-rill Kernan to the vendor over and along a certain strip of land thirty (30) feet in width acquired by Clive Wetherill Kernan from Mrs. Elizabeth V. Redden, and indicated on the sketch made by A. G. Mun-dinger . .. said strip of land having a front of thirty (30) feet on the Greenwell Springs Road and extending along the southern boundary of the strips of land owned by Clive Wetherill Kernan ...”

The plat attached to this conveyance clearly shows that the servitude described above is over the same ground as the servitude mentioned in Mrs. Meares’ act of sale to Ott. An act of correction was filed by Clive W. Kernan in 1931, which modified the servitude so that it conformed with the actual location of the roadbed. (According to this act, the roadbed meandered from the lines established for the servitude in the first 500 feet east of Greenwell Springs Road). The parcel of land to which this servitude was due was never part of defendant’s chain of title; it passed instead to plaintiff’s vendor, while title to the servient estate passed to defendant’s vendor.

At all times relevant to this litigation, the provisions of the Civil Code of 1870 were in effect. The code provides that servitudes may arise “from 'the natural situation of the places, from the obligations imposed by law, or from contract between respective owners.” C.C. 659 [C.C. 654 (Supp.1977)]. The term “contract” is understood to include “all acts by which property can be transferred ...” C.C. 743 [C.C. 722 (Supp.1977)]. In the present case, the servitude of passage to Greenwell Springs Road was established in 1923 in an act of sale conveying property to Clive W. Ker-nan. When servitudes are created by convention between property owners, their use and extent “are regulated by the title by which they are granted ...” C.C. 709 [C.C. 697 (Supp.1977)]. This principle is amplified in C.C. 722, which defines the servitude of passage:

“The right of passage, or of way, is a servitude imposed by law or by convention, and by virtue of which one has a right to pass on foot, on horseback, or in a vehicle, to drive beasts of burden or carts through the estate of another.
When this servitude results from the law, the exercise of it is confined to the wants of the person who has it.
When it is the result of a contract, its extent and the mode of using it is regulated by the contract.”

This court must give effect to the terms by which such servitudes are established: property owners have the right to establish whatever servitudes they deem proper, “. .. their power in that respect being limited only by considerations of public order ...” Bernos v. Canepa, 114 La. 517, 520, 38 So. 438, 440 (1905).

In general, a servitude must be imposed upon an “estate” or in favor of an “estate;” the service is not to be imposed “on the person or in favor of the person.” C.C. 709 [C.C. 646 (Supp.1977)]. A servitude established in favor of immovable property is “predial,” a real right that is inseparable from the property to which it is attached. C.C. 653-54 [C.C. 650 (Supp. 1977)]. Although the language creating the servitude in the 1923 act of sale recites that the passageway was granted “to the vendor,” it is evident that the right of passage was a real benefit to the estate itself. For this reason, the servitude must be construed as a real right, not one which was personal to the grantee:

“If the right granted be of a nature to assure a real advantage to an estate, it is to be presumed that such right is a real servitude, although it may not be so styled.
C.C. 756 [C.C. 733 (Supp.1977)].

See also C.C. 754-55; Burgas v. Stoutz, 174 La. 586, 141 So. 67 (1932); Coguenhem v. Trosclair, 137 La. 985, 69 So. 800 (1915). This conclusion is bolstered by the language in the 1931 act of correction, filed by Clive W. Kernan, in which it was said that the right of way and passage was “actually laid out for the benefit of the property” of the grantee, Charles C. Bird. A real advantage was secured for the dominant estate because, without the servitude of passage, it would have been enclosed by lands belonging to others, thereby diminishing its value and impairing its utility. The benefit conferred by the establishment of the servitude was not merely personal to the grantee, but was of demonstrable value to subsequent owners of the tract. For these reasons, the servitude must be deemed predial in nature, governed by the contract which established it. C.C. 757 [C.C. 734 (Supp.1977)]. See also C.C. 648 [C.C. 646 (Supp.1977)]; Plaisance v. Gros, 378 So.2d 178 (La.App. 1st Cir. 1979); McLure v. Alexandria Golf & Country Club, Inc., 344 So.2d 1080 (La.App. 3d Cir. 1977).

The Court of Appeal was correct in determining that, once a predial servitude is established by contract, the owner of the servient estate “may not superimpose relocation rights over property sold not subject to a right of relocation.” 387 So.2d at 1356. The fact that Mrs. Meares acquired ownership of the servient estate did not give her an accompanying right to alter the terms of the initial grant of the servitude:

“Servitudes being essentially due from one estate to another for the advantage of the latter, they remain the same as long as no change takes place in regard to the two estates, whatever change may take place in the owners.” C.C. 653 [C.C. 650 (Supp.1977)].

The original servitude was established in favor of an estate which did not form part of defendant’s chain of title. As owner of the servient estate, Mrs. Meares was without the right to alter the servitude granted to the original dominant estate:

“He whose estate is incumbered with a servitude, may impose on it other servi-tudes of any kind, provided they do not affect the rights of him who has acquired the first.” C.C. 749 [C.C. 720 (Supp. 1977)].

From the records, it is evident that two servitudes of passage exist over the same roadbed: the one created in 1923 by Mr. Kernan, and the one established in 1963 by Mrs. Meares. And, while Mrs. Meares’ right of relocation was effective as to the vendee of the 5.33 acre tract, it was entirely void as to the owner of the original dominant estate. It is thus unnecessary to consider the argument that defendant is entitled to a contractual right of relocation: Mrs. Meares could not exercise any greater rights than could her ancestor in title, Mr. Kernan. C.C. 2015. Since Mr. Kernan did not reserve a right of relocation when he established a servitude in favor of the estate owned by Mr. Bird, Mrs. Meares was without authority to impose one. More to the point, her vendee was without the power to grant such a concession, since he did not own the previously established dominant estate.

It is also true that, when plaintiff purchased his property, the act of sale included the following language, virtually identical to that which is in the act of sale from Mrs. Meares to James B. Ott:

“Also a servitude of passage for the use of and benefit of the above described property, 30 feet wide from the aforesaid property to the Greenwell Springs Road along and adjacent to the South line of the Vaughn Tract owned by Margaretta L. Meares. Mrs. Meares, however, reserves the right to relocate this servitude of passage in any other location within the Vaughn Tract, providing however, that if such servitude is relocated, the property herein shall be provided with either a private or public means of access from the property herein to the Green-well Springs Road, in a condition equal to or better than the condition of any roadway resting on such servitude or passage at the time of such relocation. Nothing herein contained shall obligate Mrs. Meares to maintain the aforesaid servitude of passage. This servitude is shown as a private servitude on the map made by Toxie Craft, Civil Engineer, herein-above referred.”

This language was not effective in reviving a right of relocation. As noted, Mrs. Meares’ attempt to reserve the right of relocation was void ab initio, insofar as the reservation of that right affected the opposing rights of the owner of the first dominant estate. Mrs. Meares did not own the servitude, to do with it as she pleased: she owed it, and could not affect the rights inhering in the previously established dominant estate.

Even though the language embodying the right of relocation was carried over into the act by which plaintiff acquired title, plaintiff’s ownership of the original dominant estate entitled him to enjoy the servitude without being subject to a contractual right of relocation. When the initial establishment of a servitude does not, by its terms, reserve any special rights in favor of the servient estate, such rights cannot be recreated and superimposed over the terms of the original contract without the assent of the owner of the dominant estate. Under the terms of the act through which plaintiff acquired title to the 5.33 acre tract, plaintiff did not grant a right of relocation as to the prior servitude owed to the dominant estate; rather, he merely accepted title to property that enjoyed a second servitude which was subject to a right of relocation. Since Mrs. Meares did not extract the concession of relocation from the owner of the original dominant estate, the notion that she had an absolute right of relocation was unfounded. The fact that plaintiff ultimately became the owner of both estates — the 5.33 acre tract and the dominant estate originally owned by Mr. Bird — is important only insofar as it gave him the accompanying authority to allow an impairment of his real right. The titles, however, show that this was not done. Plaintiff is entitled to enjoy the servitude of passage created in 1923 and modified in 1931, even though he also acquired the servitude established by Mrs. Meares in 1963. Because the agreement creating the former servitude did not reserve a contractual right of relocation, the terms of the suppletive law must be considered.

II

When a servitude is established by convention, C.C. 777 [C.C. 748 (Supp.1977)] governs the right of relocation. Discon v. Saray, Inc., 262 La. 997, 265 So.2d 765 (1972). C.C. 777 provides:

“The owner of the estate which owes the servitude can do nothing tending to diminish its use, or to make it more inconvenient.
Thus he can not change the condition of the premises, nor transfer the exercise of the servitude to a place different from that on which it was assigned in the first instance.
Yet if this primitive assignment has become more burdensome to the owner of the estate which owes the servitude, or if he is thereby prevented from making advantageous repairs on his estate, he may offer to the owner of the other estate a place equally convenient for the exercise of his rights, and the owner of the estate to which the servitude is due can not refuse it.”

C.C. 777 establishes the general principle that the owner of a servient estate can do nothing to diminish the use or convenience of the servitude. The record indicates that the consummation of defendant’s plans will substantially destroy plaintiff’s present servitude of passage, and subject plaintiff to the inconvenience of using an alternate passageway through a residential neighborhood to reach him home. Nevertheless, C.C. 777 affords a right of relocation if the owner of the servient estate can prove that (1) the servitude has become “more burdensome” to the servient estate since the “primitive assignment,” or (2) the servitude prevents the construction of “advantageous repairs.” The law confers this right upon owners of servient estates essentially because predial servitudes are “restraints on the free disposal and use of property, and are not, on that account, entitled to be viewed with favor by the law.” Parish v. Municipality No. 2, 8 La.Ann. 145, 147 (1853).

Opposed to this consideration is the fact that the servitude itself was a bargained for convenience, established by contract between the respective owners of the dominant and servient estates. As noted, the general principle established in the law is that the owner of a servient estate can do nothing to diminish the use or convenience of the servitude. The jurisprudence is replete with decisions upholding this principle. See, e. g., Poole v. Guste, 261 La. 1110, 262 So.2d 339 (1972); Hymel v. St. John the Baptist Parish School Board, 303 So.2d 588 (La.App. 4th Cir. 1974); Kaffie v. Pioneer Bank & Trust Co., 184 So.2d 595 (La.App. 2d Cir. 1965). These decisions sanctioned the continued use of servitudes even where the restoration of such use imposed a financial burden upon the owners of the servient estates.

In denying defendant’s petition for relief, the trial judge concluded that defendant had failed to prove that the servitude was any more burdensome now than it was originally, and that defendant likewise failed to show how the servitude “prevented” the making of useful improvements. The Court of Appeal affirmed this conclusion on the basis that the only showing that was made was that the present location of the servitude impeded defendant from increasing his profits on the sale of the land. Because neither court found that defendant was entitled to relocate the servitude, the question of whether defendant could provide plaintiff with “a place equally convenient for the exercise of his rights” did not need to be addressed. In his written reasons for judgment, however, the trial judge commented that he would not approve the relocation plan proposed by defendant, which would require plaintiff to drive on public streets through a subdivision to reach his property.

Few cases have analyzed the right of relocation under C.C. 777, and those which have are proof of Planiol’s observation that “the .weighing of the reasons for the displacement is a matter of judicial discretion.” 1 M. Planiol, Civil Law Treatise § 2971 (LSLI trans., 1959). See, e. g., Dixie Electric Membership Corp. v. Jones, 360 So.2d 216 (La.App. 1st Cir. 1978); DeFelice Land Corp. v. Citrus Lands of Louisiana, Inc., 330 So.2d 631 (La.App. 4th Cir. 1976); Nelson v. Warren, 157 So.2d 762 (La.App. 2d Cir. 1963); Efner v. Ketteringham, 41 So.2d 130 (La.App. 2d Cir. 1949). Nevertheless, the exercise of discretion must be tempered by the words of the positive law.

It should be remembered that defendant’s sole object in developing his rural property is to market it as a suburb. As the trial judge noted, the present location of the roadway might to some extent hinder or impede the laying out of lots in the proposed subdivision, but it does not “prevent” it. Plaintiff introduced evidence showing that the subdivision could be designed in another manner that would not be greatly affected by the presence of the roadway. Moreover, it does not appear that the development of a tract of land for sale as a residential neighborhood constitutes “advantageous repairs” as contemplated by C.C. 777. Defendant’s estate is not being repaired or improved, but is being subdivided and sold. This development is of no intrinsic value to the servient estate, however advantageous it might be to defendant personally.

The critical question in this case is whether it has been satisfactorily shown that the present site of the servitude “has become more burdensome” to the present owner of the servient estate, defendant. In making this evaluation, “regard must be had to the circumstances of the country and its wants.” Parish v. Municipality No. 2, supra, at 148. According to the testimony, the one distinct disadvantage of the present location of the roadway is that it prevents some ten lots in the proposed subdivision from having a full depth of about 150 feet. Defendant himself acknowledged that the servitude could be maintained in its present location without causing any substantial interference with the planned subdivision, except for the first 1000 feet or so of the roadway as it leaves Greenwell Springs Road. (On the plat, this portion includes the area between Greenwell Springs Road and the proposed Wascom Lane). Defendant stated that the servitude would not significantly affect the other lots in the subdivision, since their depth was already in excess of 150 feet. Defendant, accepted by the trial court as an expert real estate appraiser, testified that the location of the servitude in the described area presented a problem because prospective purchasers of rural lots generally prefer to have lots that are at least 150 feet deep. Permitting the servitude to remain at the rear of these lots would diminish their depth below that figure and, as defendant stated, “It would definitely make them less desirable lots, there’s no doubt about it, and less desirable lots generally bring less money.” In essence, this is the sole proof appearing in the record that in any way explains how the servitude “has become more burdensome” to defendant: it will cause him to make less profit on the sale of less than a dozen lots. Yet, under C.C. 777, it is clear that the “primitive assignment” of the servitude has in fact become more burdensome. When the servitude was originally created in 1923, it is doubtful that the owner of the servient estate contemplated the use of his rural property as a suburban neighborhood. The potential for development arose when circumstances changed: it cannot be doubted that the existence of a country lane presents an altogether different imposition upon the owner of property when it runs through a residential subdivision rather than over rural, undeveloped land.

To the extent that defendant has shown that the servitude hinders his “free use of property,” C.C. 753, there is corresponding proof that the location of the servitude has become more burdensome than it was originally. At the same time, it should be recognized that defendant has assumed the position of the original grantor of the servitude, and may not eliminate the benefit conferred by contract simply because it has become a matter of personal inconvenience to him. The record shows that defendant is entitled to relocate the servitude only where it diminishes the depth of the lots in the proposed subdivision below the figure required for the most advantageous use of the property. On the plat, the property thus affected is the area between Greenwell Springs Road and the street designated as Wascom Lane. If defendant can offer plaintiff an alternate passageway between these points, the servitude may be displaced to that extent. It cannot seriously be contended that requiring plaintiff to drive over a residential street for a short distance does not provide him with “a place equally convenient for the exercise of his rights.” C.C. 777. The satisfaction plaintiff may derive from using the land as it is now cannot outweigh the burden imposed upon his neighbors.

Although defendant is not entitled to relocate the entirety of the servitude, that is not to say that the servitude can never be displaced: future owners of the encumbered land may well be able to claim the right of relocation, if plaintiff is provided an equally convenient passageway. As the matter now stands, however, defendant has simply failed to prove that the continued existence of the right of passage inflicts a burden upon him that is any greater than that which the original grantor had to bear, except in the area described above.

The judgment of the Court of Appeal is affirmed in part and reversed in part and the case is remanded to the district court for further proceedings consistent with this opinion. All costs of these proceedings are taxed equally to plaintiff and defendant.

BLANCHE, J., recused having previously acted in the case.

WATSON, J., dissents.

      . Perhaps through inadvertence, the parties did not favor this court with the plat supposedly attached to this act of sale, which is said to show the precise location of the 5.33 acre tract. From the description given in the conveyance, it is clear that this tract did not include any part of the dominant estate, owned by Charles C. Bird.

      . In 1977 Title IV of Book II of the Civil Code, consisting of articles 646 to 822, was amended and reenacted. Acts 1977, No. 514, § 1. The amended title, effective January 1, 1978, consists of articles 646 to 774. Because the articles pertinent to this case were not substantially changed in the revision, reference will be made to both the old and the new provisions.

      . C.C. 748 provides:
      “The owner of the servient estate may do nothing tending to diminish or make more inconvenient the use of the servitude.
      If the original location has become more burdensome for the owner of the servient estate, or if it prevents him from making useful improvements on his estate, he may provide another equally convenient location for the exercise of the servitude which the owner of the dominant estate is bound to accept. All expenses of relocation are borne by the owner of the servient estate.”


source: Caselaw Access Project

author: CALOGERO, Justice.

license: Public Domain

text:
    Dewey SMITH v. BOARD OF TRUSTEES OF LOUISIANA SCHOOL EMPLOYEES RETIREMENT SYSTEM.
    No. 80-C-2295.
    Supreme Court of Louisiana.
    May 18, 1981.

      J. Arthur Smith, III, Baton Rouge, for plaintiff-applicant.
    William J. Guste, Jr., Atty. Gen., William T. Reeves, Jr., Asst. Atty. Gen., for defendant-respondent.
   CALOGERO, Justice.

Plaintiff Dewey Smith sued the Board of Trustees of Louisiana School Employees Retirement System for the restoration of payment of disability retirement benefits. After trial, the district court entered judgment for defendant. Plaintiff appealed and the First Circuit Court of Appeal affirmed the judgment of the district court. Plaintiff applied to this Court for writs of certio-rari which we granted to review the decisions of the lower courts. 393 So.2d 748 (La.1980).

Smith began employment as a bus driver for the Washington Parish School Board in May 1955. He applied for membership in the Louisiana School Employees Retirement System and began his creditable service in July 1956. Eight years later, in July 1964, plaintiff suffered a ruptured disc. The following school year, 1964-1965, plaintiff employed a substitute driver approximately 30% of the time and personally drove the school bus the other 70% of the time. During the 1965-1966 school year he used the substitute driver 70% of the time and personally drove the bus 30% of the time. In April 1966, he applied for disability retirement benefits. For the 1966-1967 school year plaintiff hired a substitute driver full time and did not personally drive the bus at all. The Washington Parish School Board knew and approved of the use of the substitute driver.

In January 1967, the Retirement System approved plaintiff’s application for disability retirement benefits effective back to June 1, 1966. In March 1967, the system paid Mr. Smith $836.20 in retroactive benefits and then terminated the benefits on April 19, 1967, after learning that Mr. Smith was still being paid by the Washington Parish School Board to provide bus transportation for students although he was not personally driving the bus during the then current school year. Plaintiff ended his employment with the Washington Parish School Board on March 20,1967, the day he received the disability retirement payment. Consequently, at the time that the Retirement System terminated his benefits, plaintiff was no longer employed and being paid by the school board. Plaintiff applied for the restoration of benefits and later filed the instant suit when the system refused to reinstate them. ,

The law regarding application for disability retirement, at the time plaintiff applied, read:

“Upon the application of a member in service or of his employer, any member who has had five or more years of creditable service may be retired by the board of trustees, not less than thirty and not more than ninety days next following the date of filing such application, on a disability retirement allowance, provided that the medical board, after a medical examination of such member, shall certify that such member is mentally or physically incapacitated for the further performance of duty; that such incapacity is likely to be permanent; and that such member should be retired. No member shall be retired prior to July 1, 1948.” R.S. 17:914

A report of the Medical Board, dated June 2, 1966, states that plaintiff was examined and the Board certifies that he “is physically incapacitated for the performance of duty and should be retired.” On January 23, 1967, the Retirement System notified Smith of the finding of the Medical Board. There is no question but that Mr. Smith has the requisite creditable service, for he had been a school bus driver and had personally driven his bus more than five years, minimally, for the inclusive period 1956-1964.

The Retirement System defended the suit on the grounds that plaintiff was not personally driving the bus at the time he applied for benefits and therefore did not qualify. The trial judge agreed that Mr. Smith could not be a “school bus driver” within the context of the statute if he was not personally driving a school bus. Therefore, the court held that plaintiff was not entitled to benefits. The Court of Appeal essentially adopted the reasons of the trial judge as the basis for its opinion. In this Court, as in the courts below, plaintiff argues that the statute did not require that a “school bus driver” personally be driving a school bus to qualify for retirement benefits. Additionally, plaintiff contends that the Retirement System is foreclosed from litigating this issue because in a pre-trial order the system stipulated that plaintiff was a “member in service” at the time he applied for benefits.

We agree with plaintiff that defendant in its answer and later in the pre-trial order stated that plaintiff was a “member in service” at the time he applied for benefits. An admission in a pleading falls within the scope of a judicial confession and is full proof against the party making it. La. Civ. Code art. 2291; Cheatham v. City of New Orleans, 378 So.2d 369 (La.1979). Nevertheless, a fair construction of defendant’s answer and stipulation indicates that defendant may well have meant only that plaintiff was being carried as a “member in service” while not legally eligible to be so classified, because other portions of the answer and the pre-trial order assert that plaintiff was “not legally entitled to be a member of the [retirement] system.” Thus it is clear that defendant did not intentionally concede plaintiff’s status within the retirement system. However, it is significant that defendant’s only witness, a former Secretary-Treasurer of the Retirement System, testified that part time credit was given when part time service was rendered. The witness did not state that full time service was a prerequisite for eligibility for benefits.

Regardless, we base our decision upon a more pertinent ground — our finding that plaintiff was legally a member of the system at the time of his application and that at such time he had at least five years of creditable service.

In holding that plaintiff was not a member in service at the time he applied for benefits, the trial judge relied in part upon an amendment to the statute which postdates plaintiff’s application. In 1968, the Legislature amended the definition portion of the statute to read: “(11) ‘Employee’ means any person legally occupying a position as a school bus driver who actually renders a service by driving a school bus during the full time of his employment, ...” R.S. 17:882(11) as amended by Acts 1968, No. 30, § 1.

To the trial court, this indicated a clear expression of legislative intent that a bus driver be only a person actually driving a school bus. We consider an equally compelling interpretation of the amendment to be legislative recognition that the statute before the amendment did not require that the “bus driver” personally drive the bus to qualify as an “employee” in the system. In this regard we note that when the Legislature intended that the “bus driver” drive the bus personally (to qualify for tenure), it so stated in unmistakable terms. See R.S. 17:492 concerning the manner in which a bus driver may acquire tenure. That statute requires that the school bus operator “personally operate and drive the school bus he is employed to operate” to acquire tenure as a bus driver. That very statute was in effect during the time that plaintiff was employed by the Washington Parish School Board. Plaintiff, having personally driven the bus for the requisite period of time, was a tenured driver. With that exception, a school bus driver acquiring tenure, there was no statutory requirement that an individual personally drive the bus for the school board. Significantly, at the time plaintiff made his application, the pertinent portions of R.S. 17:882 read:

“(11) ‘Employee’ means any person legally occupying a position as a school bus driver, school janitor, school custodian or school maintenance employee and who is an employee of a parish or city school board of the State of Louisiana, and shall include the employees of this retirement system.
* * * * * *
“(14) ‘Member’ means any school bus driver, school janitor, school custodian or school maintenance employee or employee of the Retirement System included in the membership of the systems as provided in Sub-part B of this Part. A school bus driver must be twenty-one years of age or over and less than fifty years of age at the time of employment." (emphasis provided.)

These definitions are virtually the same as when defendant became a member of the Retirement System in 1956. The statute, before the 1968 amendment, did not specify that a school bus driver must render a service “by driving a school bus,” but rather simply required that the employee be one “legally occupying a position as a school bus driver” (“school bus operator” as the law stood in 1956) and that a member includes or means any school bus driver, presumably a person legally occupying a position as a school bus driver. Plaintiff, as a person legally occupying a position as a school bus driver, was entitled to membership in the Retirement System. Having the required minimum creditable service and being certified by the Medical Board as physically incapacitated for the performance of duty, plaintiff met the legal requirements for disability retirement payments and the Retirement System was in error in failing to reinstate the payments after plaintiff terminated his employment with the Washington Parish School Board.

Having determined that plaintiff is entitled to receive disability retirement benefits, we must now consider whether the payments due him are subject to any offset under R.S. 17:915, 916. Louisiana Revised Statute 17:915 (now repealed) required that “[a]ny amount received by a member or any benefits received under any Workmen’s Compensation Law shall be applied as an offset to any benefits provided for herein in such manner as shall be provided by the rules of the board of trustees.” Louisiana Revised Statute 17:916 (also now repealed) provided that the retiree be re-examined by the medical board periodically at the request of the board of trustees of the Retirement System and that his benefits be reduced if he is found able to engage in a gainful occupation. A series of amendments beginning in 1971 changed the wording of the above statutes to require an adjustment in benefits when the recipient earned certain amounts. These sections were repealed in 1978 and their provisions are now incorporated into R.S. 42:702-706.

We must determine whether the benefits due plaintiff are to be offset by “any amount received” by him. We first note that it is not just that “any amount” is to be offset, but that the amount is to be offset “in such manner as shall be provided by the rules of the board of trustees.” When the Retirement System sent plaintiff his check in March 1967, it notified him that he would be permitted to earn not more than $1,411.56 annually. This amount added to his retirement benefits equals his average annual compensation for the ten years before he retired. Plaintiff filed this letter in evidence. Also in evidence are minutes of meetings at which retirement benefits were adjusted to reflect the earnings of the annuitants. Defendant further filed into evidence forms which were submitted to each annuitant on which the retiree was required to complete a notarized statement of his earnings for the year. The policy of the board of trustees of the Retirement System provides for an offset by the amount of plaintiff’s earnings which would, when combined with his retirement benefits, exceed his average annual compensation for the ten years preceding his retirement. In a letter to the trial court, written on June 27,1979, plaintiff admitted that for three years his earned income exceeded the amount allowed by the Retirement System. Therefore, for those three years plaintiff is not entitled to receive retirement benefits.

Additionally, plaintiff received retirement benefits for a period of time during which he was still employed by the Washington Parish School Board. We can understand how this situation developed. Although he applied for disability retirement in April of 1966, stating that he planned to retire in June of that year, plaintiff was not notified of the board’s decision until January of 1967 and did not receive any retirement pay until March 20, 1967. Plaintiff’s good faith in remaining an employee of the Washington Parish School Board after applying for retirement is demonstrated by the fact that he immediately terminated his employment after receiving his retirement benefits. Notwithstanding this good faith, however, plaintiff was not entitled to receive retirement benefits during the period when he was still being paid by the Washington Parish School Board and this amount must be offset from the benefits due plaintiff by the Retirement System.

Decree

For the foregoing reasons, we reverse the holdings of the lower courts. Plaintiff is entitled to retirement benefits with legal interest beginning as of April 1967. These benefits are to be offset by the $836.20 plaintiff received for a period of time when he was still employed by the Washington Parish School Board. Further, plaintiff is not entitled to receive benefits for the three years (1967, 1968, 1969) during which he earned more than the amount allowed by the Retirement System. The case will be remanded to the district court for such additional proceedings as may be deemed necessary and for entry of judgment in plaintiff’s favor consistent with the findings and reasons expressed in this opinion.

REVERSED AND REMANDED.

      . The law in 1956 read in pertinent part:
      “(11) ‘Employee’ means any person legally occupying a position as a school bus operator, school janitor, school custodian or school maintenance employee and who is an employee of a parish or city school board of the State of Louisiana, and shall include the employees of this retirement system.
      ******
      “(14) ‘Member’ means any school bus driver, school janitor, school custodian or school maintenance employee included in the membership of the system as provided in Sub-part B of this Part.”


text:
    STATE of Louisiana v. Ray JONES.
    No. 80-KA-2379.
    Supreme Court of Louisiana.
    May 18, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James L. Davis, Dist. Atty., Herman L. Lawson, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-ap-pellee.
    Robert L. Salim, of Kelly & Salim, Natch-itoches, for defendant-appellant.
   DIXON, Chief Justice.

For the second time, defendant appeals from the severity of the sentence after a plea of guilty.

He was originally charged with distribution of marijuana, a violation of R.S. 40:966(A). After a plea bargain was negotiated, the state reduced the charge to attempted distribution of marijuana (R.S. 40:966(A); R.S. 14:27) and the defendant pleaded guilty. He was sentenced to five years imprisonment at hard labor and fined $7000.

In his appeal, defendant alleged that his guilty plea was involuntary because it was induced in part by the state’s promise that he would receive no jail sentence, and he claimed that the sentence was excessive. We found that we had no criteria by which to assess the appropriateness of the sentence because the trial judge failed to state for the record the factual bases for the sentence imposed, noting only that there was an undue risk that the defendant would commit another crime if given probation or a suspended sentence, and that a lesser sentence would depreciate the seriousness of the crime. Holding that this was inadequate compliance with C.Cr.P. 894.1, we vacated the sentence and remanded for re-sentencing. State v. Jones, 386 So.2d 85 (La.1980).

Pursuant to our instructions, a re-sentencing hearing was held, and defendant was provided with a copy of the presen-tence report relied upon by the judge so that he could refute any erroneous information contained therein.

After hearing testimony, the trial judge imposed the same sentence on the defendant. He acknowledged that the defendant appeared to be working regularly and contributing to his family’s support, but he thought that his prior employment history was spotty. He remained convinced that the defendant was likely to commit another crime if placed on probation. He emphasized the dangers of drug use and concluded that the seriousness of the crime required a severe sentence, even if it caused hardship to the defendant’s family.

Defendant again contends that the sentence is excessive. He notes the absence of prior criminal convictions and the small amount of marijuana involved. The sentence given the defendant is virtually the maximum sentence for attempted distribution of marijuana — five years imprisonment and a $7500 fine. The state could have charged the defendant with two counts of distribution of marijuana, and exposed him to a potential punishment of twenty years imprisonment, but he was in fact charged with only one count of attempted distribution. Considering that defendant had no previous record of dealing in contraband, and that the amount of marijuana involved was small, this is not an egregious case which calls for the imposition of the maximum penalty allowed by law.

Trial judges are granted great discretion in imposing sentences, but even sentences within statutory limits may be excessive under certain circumstances. State v. Spencer, 374 So.2d 1195 (La.1979). Sentences must be individualized to be compatible with the offenders as well as the offenses. In deciding whether to confine a defendant or to grant him probation, the judge must consider certain factors enumerated in C.Cr.P. 894.1(A) and (B). His consideration should be based upon factual determinations. For example, he should review the defendant’s personal history, his prior criminal record, the seriousness of the offense, the likelihood that he will commit another crime, his potential for rehabilitation through correctional services other than confinement. State v. Jackson, 360 So.2d 842 (La.1978); State v. Frank, 344 So.2d 1039 (La.1977). He must then state for the record the considerations taken into account and the factual basis therefor. C.Cr.P. 894.1(C). In this case, the trial judge considered the factors mentioned in C.Cr.P. 894.1, but it is difficult to discern the factual basis for his conclusion that the defendant was an unlikely prospect for probation. The defendant’s conduct in the past year would indicate that he can be rehabilitated by other means than imprisonment.

In both appeals to this court, defendant has alleged that his guilty plea was induced in part by the state’s promise that he would receive no jail sentence. He argues that the trial court should honor this agreement, or should allow him to withdraw his guilty plea and have a trial on the merits.

The disposition of criminal charges by agreement between the prosecutor and the accused, sometimes called “plea bargaining,” has been characterized as “an essential component of the administration of justice.” Santobello v. New York, 404 U.S. 257, 260, 92 S.Ct. 495, 498, 30 L.Ed.2d 427, 432 (1971). Courts have encouraged the practice while cautioning that it must be properly administered. The guilty plea must be knowingly and voluntarily made, since it waives important constitutional rights. If the guilty plea rests in any significant degree on a promise or agreement of the prosecutor, the essence of the promise must be made known and the promise must be fulfilled. Santobello v. New York, supra. Where a defendant shows that a prosecutor has reneged on a sentencing agreement made in connection with a plea bargain, federal courts have held that he is entitled to relief, either enforcement of the agreement, or withdrawal of the plea.

This court has also held that due process is denied when the state fails to comply with the material representation or promise which induced the defendant’s guilty plea. State v. Neitte, 363 So.2d 425 (La.1978). In Neitte we remanded with instructions to vacate the guilty plea because the record indicated that the district attorney broke his promise to recommend probation in exchange for the defendant’s guilty plea and promise to testify at the trial of another defendant. In that case, the record contained a letter from the defendant’s attorney to the defendant apprising him of the terms of a proposed plea bargain. Both the defendant and his attorney testified that the district attorney promised to recommend probation.

In this case, the record is unclear as to the exact terms of the agreement. At the arraignment, assistant district attorney Joseph Toups stated that “as part of a plea bargain,” the state would reduce the charges from distribution of marijuana to attempted distribution. The trial judge stated, “You understand that I am not a party to that (plea bargain),” and, “It is up to me to decide whether or not I accept it.” He then questioned the defendant to ascertain that he understood the plea bargain and the constitutional rights he was waiving by pleading guilty. Asked if he had been promised any particular sentence or anything of value in return for his plea, the defendant responded no.

At the re-sentencing hearing, after the remand of this case, defense counsel testified that prior to the defendant’s plea, he had discussed the case with assistant district attorney Toups. Toups agreed to reduce the charges with the understanding that the defendant would be placed on probation and would pay a “large” fine. Defense counsel thought that Toups was willing to make the bargain because the defendant had no serious criminal record and because the state could not produce its only eyewitness (the undercover agent to whom defendant sold the marijuana) at trial. At the re-sentencing hearing, assistant district attorney Herman Lawson disclaimed any knowledge of a promise to place the defendant on probation instead of in prison. (In an affidavit submitted with the state’s brief, district attorney James Davis declares that the extent of his “negotiations” amounted to the proposition “that the state would not accept a plea of possession to a charge of distribution, but would accept a plea to attempted distribution, but the defendant would be taking the risk insofar as the sentence was concerned.”).

Davis and Toups were not present at the hearing. Defendant testified, but was not cross-examined. The presentence investigation is not before us; the record indicates that each factor in the report which the trial judge found adverse to defendant was adequately refuted or explained. On the record before us, defendant is reflected as a man who works in the construction industry, regularly employed, conscious of his family responsibility, supporting his common-law wife and children, and contributing to the support of his mother, two sisters and their children. No prior convictions are shown.

The only evidence of the plea bargain is defense counsel’s testimony, unrefuted and unquestioned at the hearing.

On the original sentencing, defendant said he knew the judge had not agreed to any plea bargain; the defendant answered in the negative when asked if he had been promised any particular sentence. When the apparently heavy sentence was imposed, the record reflected only silence from defendant and his lawyer until a written motion was filed several days later.

We do not know whether the assistant district attorney informed the judge of the entire plea bargain before sentence. If the judge knew defendant’s plea was induced by the promise of a “large fine and probation,” and, in spite of that knowledge, sentenced defendant to five years at hard labor and a $7000 fine, the sentence should be set aside and the plea bargain honored. On the other hand, we do not know that the defendant did not know that the trial judge intended to impose such a sentence.

Even in the absence of a plea bargain, this record would not support the sentence imposed. The two offenses charged involved two sales of marijuana for $12.00 each to the same undercover agent in a one month period. Defendant pleaded guilty to one charge, reduced to an attempt. Maximum sentences are appropriately imposed in cases involving the most serious violations of the described offense, and for the worst kind of offender. Nothing else will justify the great sentencing discretion given the trial judge in Louisiana. This “bargain” gave the state a sure conviction in a case in which the state’s main witness was out of the country. What benefit went to the defendant is difficult to find.

Because fault in the deficiency of the record lies both with the prosecution and the defense, the sentence imposed is again set aside, and a new sentence hearing is ordered. If the new evidence supports the finding that defendant’s plea of guilty was induced in part by a promise by the state of probation, or no jail or prison time, the plea bargain must. be enforced. If there was no such plea bargain, but defendant justifiably believed there was, and pleaded guilty in part because of that justifiable belief, the guilty plea was not knowingly made and must be set aside, and defendant must be allowed to plead anew. If the new sentence hearing does not support either of these conclusions, the previous sentences were in any event excessive, and the defendant must be re-sentenced.

The case is therefore remanded for further proceedings consistent with this opinion.

MARCUS, J., specially concurs.

       Judges O. E. Price and Fred W. Jones, Jr. of the Second Circuit and Judge G. William Swift, Jr. of the Third Circuit participated in this decision as Associate Justices Ad Hoc, joined by Chief Justice Dixon and Associate Justices Marcus, Dennis and Watson.

      . The defendant sold a “lid” of marijuana to an undercover agent for $12.00 on November 1, 1978 and again on December 1, 1978.

      . The maximum punishment for distribution of marijuana is ten years imprisonment at hard labor and a $15,000 fine.


author: MARCUS, Justice. LEMMON, Justice, DENNIS, Justice,

text:
    STATE of Louisiana v. Stanley DARANDA.
    No. 80-KA-2413.
    Supreme Court of Louisiana.
    May 18, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Eddie Knoll, Dist. Atty., for plaintiff-appellee.
    Dee D. Drell, Gravel, Burnes & Robertson, Alexandria, for defendant-appellant.
   MARCUS, Justice.

Stanley J. Daranda was charged by bill of information with negligent homicide in violation of La.R.S. 14:32. After trial by jury, defendant was found guilty and sentenced to serve five years at hard labor. On defendant’s first appeal, his conviction was affirmed, but, finding that the trial judge failed to comply with La.Code Crim. P. art. 894.1(C) which requires him to state for the record the considerations taken into account and the factual basis therefor in imposing sentence, we vacated the sentence and remanded the case to the trial court for resen-tencing. On remand, the trial judge again sentenced defendant to serve five years at hard labor, the maximum term of imprisonment under the statute. On this appeal, defendant relies on four assignments of error to have his sentence set aside.

All of the assigned errors relate to either the trial judge’s failure to follow the sentencing guidelines set forth in La.Code Crim.P. art. 894.1 or his imposition of an excessive sentence.

The record reflects the following facts. On the night of January 19,1979, defendant was driving his automobile north on La. Highway 1 in Avoyelles Parish. At the same time, Ms. Hazel Bordelon was traveling south on the same highway in her automobile accompanied by two passengers, Mrs. Nester Deshotel, who occupied the front passenger seat, and Mr. John Juneau, who was seated in the rear of the vehicle. The roadway was straight, level and wide, with no obscurements. It was raining at the time. As the vehicles were about to pass, going in the opposite direction, defendant’s vehicle suddenly went into a spin, crossed into the southbound lane of traffic and collided headon with the Bordelon vehicle. After impact, defendant’s vehicle went into a ditch on the side of the highway and the other vehicle made a forced spin in its lane. Both vehicles were totally demolished. All occupants of the two vehicles, including defendant, were hospitalized with serious injuries. Mrs. Deshotel died on February 6, 1979, from a streptococcus infection in fluid which accumulated on her brain as a result of injuries sustained in the accident.

Trooper Clifford Devereaux testified that upon arriving at the scene of the accident, he proceeded to determine the extent of the injuries. He located defendant in the back seat of his vehicle and questioned him as to his injuries. The officer stated that defendant’s speech was slurred and that he had “a strong smell of alcohol on his breath” and the vehicle also had an odor of alcohol. Trooper Travis R. Wiley, who investigated the accident, stated that the physical evidence indicated defendant had been heading in a northbound direction on La.Highway 1 when he lost control of his vehicle and traveled into the southbound lane striking the vehicle in that lane head-on. The impact occurred wholly within the southbound lane. There was no evidence that the Bordelon vehicle was out of control, nor was any type of driver violation by Ms. Bordelon found. Trooper Wiley further testified that upon approaching defendant in his hospital room approximately two hours after the accident, he could detect a heavy alcohol odor. Defendant was behaving in a loud and belligerent manner and was using obscene language. His speech was slurred. Blood was taken from defendant to determine its alcohol content. When the trooper asked defendant if he had had anything to drink prior to the accident, defendant replied that he did not care what happened to him; that he was not going to lie; and that he had had “three quarts of beer and four or five small beers” before the accident. The state also introduced the blood analysis result of the test conducted by the State Police Crime Laboratory which showed that defendant’s blood contained .19 per cent alcohol by. weight, a percentage sufficient to give rise to the presumption pursuant to La.R.S. 32:662(A)(l)(c) that defendant was under the influence of alcohol. Dr. S. R. Abramson, the physician who drew the blood from defendant, also testified that defendant told him that he had been drinking. He further stated that defendant’s speech was sluggish and that he did not seem completely coherent and, in his opinion, defendant was intoxicated.

Ms. Bordelon testified that she was driving with her headlights illuminated but did not have them set on “bright” as defendant’s vehicle approached her, crossed into her lane and collided with her vehicle. She stated that she heard a loud noise as defendant’s car approached as if it were traveling at a high speed. On the other hand, defendant testified that he was blinded by the bright headlights of Ms. Bordelon’s oncoming vehicle and that he applied his brakes and signaled several times for her to dim her lights bút she failed to do so. Defendant stated that as he was applying his brakes, his car turned and he hit the other vehicle. Defendant estimated his speed at 30 miles per hour. He contended that he had had only two beers prior to the accident.

On resentencing, the trial judge sentenced defendant to serve five years at hard labor, the maximum term of imprisonment under the statute. He made specific reference to La.Code Crim.P. art. 894.1 and the considerations listed thereunder. He stated for the record that he felt there was an undue risk that during a period of suspended sentence or probation defendant would commit another crime of this nature; that defendant was in need of custodial environment which could be provided most effectively by his commitment to an institution; and that a lesser sentence would deprecate the seriousness of defendant’s crime. The trial judge also considered the presen-tence investigation report in imposing sentence on defendant. That report indicated that while defendant had no record of prior convictions, Mansura City Marshall Earl Gaspard stated that he had arrested defendant before for DWI and “on one occasion he [defendant] almost ran over the same lady that died from the accident” while he was “drinking and driving at a high rate of speed in town limits of Mansura.” Father Thompson, the Catholic priest in Mansura, stated that he had known defendant for a long time and, while he always helped in church matters when requested, he knew defendant “did drink quite a bit.” It was the recommendation of the probation and parole agent who compiled the presentence report that defendant be sentenced to the “fullest extent as the law allows.” The trial judge also considered the provisions of La.Code Crim.P. art. 894.1(B) and found no grounds which would cause him to suspend sentence or place defendant on probation.

La.Const. art. 1, § 20 prohibits the imposition by law of excessive punishment. Accordingly, we have held that imposition of a sentence, although within the statutory limit, may violate a defendant’s constitutional rights against excessive punishment that is enforceable by this court on appellate review. The trial judge’s reasons in imposing sentence, as required by La.Code Crim.P. art. 894.1, are an important aid to this court when called upon to exercise its constitutional function to review a sentence complained of as excessive. State v. Spencer, 374 So.2d 1195 (La.1979); State v. Gist, 369 So.2d 1339 (La.1979); State v. Sepulvado, 367 So.2d 762 (La.1979). Moreover, the trial judge is given wide discretion in the imposition of sentences within statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Spencer, supra; State v. Sepulvado, supra.

In the instant case, we conclude that the trial judge adequately stated for the record the considerations taken into account and the factual basis therefor in imposing sentence as required by La.Code Crim.P. art. 894.1. Additionally, after reviewing the record, including the evidence adduced at trial and the sentencing hearing as well as the trial judge’s reasons for imposing sentence, we are unable to say that the sentence is excessive, particularly in view of the evidence of' defendant’s extreme intoxication at the time of the accident. Clearly, the trial judge did not abuse his wide discretion. Hence, the assigned errors are without merit.

DECREE

For the reasons assigned, defendant’s sentence is affirmed.

DENNIS, J., dissents with reasons.

LEMMON, J., concurs and assigns reasons.

LEMMON, Justice,

concurring.

Although I agree that the record supports the sentence, giving due consideration to the wide discretion of the trial court in deciding a sentence, I am compelled to note that it is seldom appropriate for a probation officer to include in a presentence investigation report, or for a trial judge to consider, recommendations as to the length of sentence by law enforcement officers and prosecutors, unless these officials state the factual basis and reasons for recommendations. If the sentence in the case had been based solely or principally on the unsupported recommendations, I would vote to set aside the sentence and remand for re-sentencing.

DENNIS, Justice,

dissenting.

I respectfully dissent.

In my opinion, the record in this case does not support the trial judge’s decision to refuse probation or a lesser sentence in view of the defendant’s lack of a previous criminal conviction, his steady employment, his lack of intention to do harm, and the absence of any indication that the circumstances are likely to recur or that the defendant would not respond well to probationary treatment.

      . State v. Daranda, 388 So.2d 759 (La.1980).

      . La.R.S. 32:662(A)(l)(c) provides that, upon the trial of any criminal action arising out of acts alleged to have been committed by a person while driving under the influence of alcoholic beverages, the amount of alcohol in the person’s blood at the time alleged as shown by chemical analysis of the person’s blood shall give rise to the following presumption:
      If there was at that time 0.10 per cent or more by weight of alcohol in the person’s blood, it shall be presumed that the person was under the influence of alcoholic beverages.


author: DENNIS, Justice.

text:
    STATE of Louisiana v. Kerwin HILLARD.
    No. 80-KA-2430.
    Supreme Court of Louisiana.
    May 18, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., William Weatherford and Kay Kirkpatrick, Asst. Dist. Attys., for plaintiff-appellee.
    Anthony Marabella and M. Michele Four-net, Baton Rouge, Frank J. Shaia, Director, for defendant-appellant.
   DENNIS, Justice.

Defendant, Kerwin Hillard, was tried and convicted of first degree murder, La.R.S. 14:30, and sentenced to life imprisonment without benefit of parole, probation, or suspension of sentence, in accordance with the recommendation of the jury after a separate sentencing hearing. On appeal defendant argues four assignments of error. We find that three assignments present no reversible merit, but a fourth requires that we remand the case for a determination of whether the juvenile record of the key state witness is sufficiently probative of the witness’s veracity in this case that cross-examination should have been permitted on the subject.

Facts

On the evening of October 14, 1979, the Yellow Cab Company in Baton Rouge dispatched a cab driven by Michael Bonds to a Burger Chef restaurant. Defendant, Ker-win Hillard, and another man, Robert Johnson, entered the cab and asked to be taken to 1657 Groom Road in nearby Baker, Louisiana. Somewhere on Groom Road one of these two men shot Bonds four times in the head in the course of armed robbery. Bonds was dragged from the cab and was left lying in the middle of Groom Road. He died several hours later in a Baton Rouge hospital.

Both Robert Johnson and Kerwin Hillard were arrested in connection with the murder. Johnson gave a statement subsequent to his arrest in which he identified Hillard as the murderer and denied any foreknowledge of the armed robbery. Pursuant to a plea bargain with the district attorney’s office Robert Johnson agreed to testify against Kerwin Hillard and plead guilty to manslaughter and to being an accessory after the fact to armed robbery in exchange for a promise of a fifteen year sentence. At trial Johnson again identified Hillard as the murderer and again disclaimed any knowledge of the robbery. Hillard on the other hand claimed that he had no knowledge that a crime was going to be committed until he was awakened from the sleep into which he had fallen by Bonds’ plea for his life immediately precedent to being shot by Johnson.

The state also presented at trial three members of a family who testified that on the night of the murder the defendant admitted that he had killed somebody. However, some of these statements were inconsistent with prior statements these witnesses had made, and the prosecutor acknowledged that these witnesses had not come forward initially and that he “put the fear of God” in them by threatening to prosecute them as accessories after the fact.

ASSIGNMENT OF ERROR NO. 10

By this assignment, defendant challenges the trial court’s refusal to permit questioning of Robert Johnson about his juvenile record during cross-examination. Defendant argues that he was denied his constitutional right to confrontation by this trial court ruling.

The Sixth Amendment to the Constitution and Article 1, § 16 of our Louisiana constitution, guarantee the right of an accused in a criminal prosecution to be confronted with the witnesses against him. This right is secured for defendant in state as well as federal prosecutions. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). Confrontation means more than being allowed to confront the witnesses physically. “The main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination.” Davis v. Alaska, 415 U.S. 308, 315-16, 94 S.Ct. 1105, 1109-1110, 39 L.Ed.2d 347 (1974); J. Wigmore, Evidence, § 1395, p. 123 (3d ed. 1940). Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested. Further, the cross-examiner has traditionally been allowed to impeach, or discredit, the witness. One way of discrediting the witness is to introduce evidence of prior criminal convictions of the witness. By so doing the cross-examiner intends to afford the jury a basis to infer that the witness would be less likely than the average citizen to be truthful in his testimony. Davis v. Alaska, supra, 415 U.S. at 316, 94 S.Ct. at 1110.

In Davis v. Alaska, supra, the Supreme Court said that the denial of effective cross-examination “would be constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it.” 415 U.S. at 318, 94 S.Ct. at 1111. The court in Davis therefore held that the state’s interest in protecting the confidentiality of a juvenile offender’s record was subordinate to the constitutional right of effective cross-examination for bias of an adverse witness. Id. at 320, 94 S.Ct. at 1112.

Similarly in State v. Toledano, (La.) 391 So.2d 817 (1980), we held that when the defense moves for production of the juvenile’s record while cross-examining an alleged co-participant, a prior juvenile adjudication may be sufficiently probative of the witness’s veracity to necessitate disclosure. Thus, we held that the trial judge erred in denying the defense, motion without first examining that juvenile record.

The facts in this case suggest that the defendant may have been denied his constitutional right to confrontation, i. e., to effective cross-examination. The state’s case rested primarily on the testimony of the alleged co-participant in the crime, Robert Johnson. Though the state produced witnesses who testified that the defendant admitted killing someone, it was brought out during the trial that these witnesses were testifying because they had been threatened with prosecution if they did not cooperate with the state. The jury may not have given decisive weight to this testimony, or may have given great weight to it only because they also believed that Robert Johnson’s testimony about the' defendant being the trigger-man was true. Thus, it was crucial to the defense that Johnson’s testimony be discredited as fully as possible.

The jury was in fact presented with evidence which could have led it to discredit Johnson’s testimony. It was brought out at trial that Johnson had initially rejected plea bargain arrangements wherein he was first promised a twenty-six year sentence, and, after rejecting that, a twenty-one year sentence, which he also rejected. In addition Johnson agreed to plead guilty to a crime that he denied committing during the trial. Also, Johnson’s testimony concerning the crime was inconsistent. At least three times Johnson swore that he did not realize a homicide would be committed until he heard the sound of gun shots. However, at another point he testified that he heard the victim pleading for his life and saying he would “give you anything you want.” Further there was testimony adduced at trial which indicated that Johnson had possession of the murder weapon after the killing.

The defense also impeached Johnson’s credibility by causing him to admit that the statement given to the police after his arrest contained a number of lies regarding the details of the crime. Defense counsel also managed to bring out the fact that Johnson had been convicted of burglary.

Given the impeachment efforts of the defense and the other evidence tending to discredit Johnson, it is possible that evidence revealing a juvenile record might not have added anything to the defense’s cross-examination. But that determination could have been made only after an examination of the juvenile record by the trial judge and preservation of it for our review. State v. Toledano, supra. If for example, that record showed a history of violent crime such as adjudications involving armed robbery or involvement in a homicide or an attempted homicide, it would be very pertinent to a determination of Johnson’s veracity in this case because of the divergent stories of Johnson and Hillard, and because Hillard testified that he had never been convicted of anything before. Likewise, if Johnson’s juvenile adjudications reveal a life history of pathological dishonesty, it would also be very relevant to the issue of Johnson’s veracity. If on the other hand his record shows only a few adjudications of minor offenses, given the significant impeachment that had already occurred, it perhaps could not be fairly said that the defendant was denied his right to effective cross-examination.

The examples given in the preceding paragraph do not of course cover every situation. The crucial question in each case involving a witness’s juvenile adjudications and the right to confrontation is whether the defendant will be prevented from employing a means of impeachment that would be effective in his particular case if the juvenile record cannot be referred to. Note, Constitutional Restraints on the Exclusion of Evidence in the Defendant’s Favor: The Implications of Davis v. Alaska, 73 Mich.L.Rev. 1465, 1471 (1975). If the trial judge determines that the admission of evidence of juvenile adjudications is necessary for a fair determination of the defendant’s guilt or innocence then the evidence should have been admitted, and a new trial will be necessary. State v. Toledano, supra, 391 So.2d at 820; see also Rule 609(d) of the Federal Rules of Evidence. If on the other hand it is determined that the evidence was not sufficiently probative of Johnson’s veracity such that its admission was not necessary for a fair determination of defendant’s guilt, then the judgment of the trial court may be reinstated, reserving to the defendant the right to appeal such a ruling.

The defendant has briefed and argued three other assignments of error. Even though none of these present reversible merit for the sake of judicial efficiency we will dispose of these at this time. Thus, defendant’s conviction is conditionally affirmed, pending final disposition of the issue discussed under assignment of error number ten.

Defendant’s remaining assignments of error concern alleged improprieties in the jury selection process.

ASSIGNMENT OF ERROR NO. 2

In this assignment defendant argues that the trial court erred in refusing to disqualify prospective jurors who had observed portions of an earlier trial during which the trial judge in convicting the accused emphasized the defendant’s failure to produce certain witnesses in his behalf. Defendant claims that the trial court’s remarks irrevocably prejudiced his right to a fair trial by creating the impression in the mind of prospective jurors that the defendant had some responsibility to produce evidence.

Prior to commencement of voir dire examination, the prospective jury panel observed a trial of an unrelated misdemeanor case. Facing charges of disturbing the peace and resisting arrest, the defendant, one Charles Elsy, took the stand in his own behalf. During his testimony, Mr. Elsy made repeated reference to witnesses who could corroborate his version of the incident. After Elsy completed his account, the judge questioned him about why he failed to produce these witnesses that were allegedly so vital to his defense.

A reading of the exchange between the judge and Elsy reveals that the judge’s remarks were merely intended to point out the lack of defense evidence refuting the state’s case. See State v. Clark, 352 So.2d 223 (La.1977); State v. Henderson, 352 So.2d 206 (La.1977). In view of the fact that Elsy made repeated claims during the portion of the trial viewed by the prospective jurors that his witnesses could contradict the police version of the event, the trial judge’s remarks about the absence of these witnesses probably would not have been interpreted by the jurors to mean that the defendant had a duty to establish his innocence. Even in the event that an individual juror might have become confused by the Elsy trial about a duty of the defense to adduce evidence of innocence, the trial judge cleared up this misunderstanding by instructing the jury during his final instructions about the presumption of innocence. See State v. Strange, 334 So.2d 182 (La. 1976).

This assignment is without merit.

ASSIGNMENTS OF ERROR NOS. 4 and 5

By these assignments, defendant contends that the trial court erred in excusing two prospective jurors on Witherspoon grounds. See Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). It is not necessary for this court to review the merits of the defendant’s With-erspoon argument because the state utilized only seven of its twelve peremptory challenges during the course of jury selection. See La.C.Cr.P. art. 799. Article 800 of the Code of Criminal Procedure provides that “the erroneous allowance to the state of a challenge for cause does not afford the defendant a ground for complaint, unless the effect of such ruling is the exercise by the state of more peremptory challenges than it is entitled to by law.” The fact that a Witherspoon challenge is involved in this case does not abrogate the provisions of La.C.Cr.P. art. 800. State v. Skelton, 340 So.2d 256 (La.1976).

These assignments are without merit.

Accordingly, the defendant’s conviction is conditionally affirmed pending disposition on remand of the issue discussed in assignment of error number ten in a manner not inconsistent with this opinion.

REMANDED.

       The Honorables Pike Hall, Jr., Charles A. Marvin and Jasper E. Jones, Judges of the Court of Appeal, Second Circuit, participated in this decision as Associate Justices ad hoc, joined by Associate Justices Calogero, Dennis, Blanche and Lemmon.

      . One of the members of the family testified that Hillard said “they” (referring to Johnson and himself) had robbed and killed someone.

      . The defendant for his part testified that he first became aware of the robbery as he was awakened from sleep by the cab driver, pleading for mercy and telling Johnson “you can have the money.”

      . A substantial juvenile record might also indicate that the plea bargain made by the state was so generous that Johnson is loath to do anything to upset the authorities before he actually pleads and that plea is accepted. See Commonwealth v. Ferrara, 368 Mass. 182, 330 N.E.2d 837 (1975).

      . One writer has suggested that the Supreme Court in Davis adopted a modified form of Rule 609(d) by constitutional interpretation. See Meier, 3 Am. Journal of Criminal Law, 221, 230 (1974).


author:
BLANCHE, Justice.
     CALOGERO, Justice,

text:
    STATE of Louisiana v. Charles M. STRICKLAND.
    No. 80-KA-2479.
    Supreme Court of Louisiana.
    May 18, 1981.
    Concurring Opinion May 19, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Samuel C. Ca-shio, Dist. Atty., T. Barry Wilkinson, Asst. Dist. Atty., for plaintiff-appellee.
    John M. Bemiss, Jr., Office of the Indigent Defender, Port Allen, for defendant-appellant.
   BLANCHE, Justice.

Defendant, Charles M. Strickland, was charged by bill of information with theft of an air compressor and tank valued at $5535. R.S. 14:67. Defendant waived his right to a trial by jury and was tried by a judge alone. Defendant was found guilty and was sentenced to eight years imprisonment. On appeal, he argues seven assignments of error. The following facts were brought forth at defendant’s trial.

In July 1974 a Jaeger model air compressor was purchased by the West Baton Rouge Parish Police Jury from Furlow-Laughlin Equipment, Inc., for $5535. That same compressor was stolen on or about October 25, 1977. In July 1979 the Jaeger compressor was taken to Furlow-Laughlin for repairs and identified by the salesman who had originally sold the compressor to the Police Jury. The salesman had been put on notice approximately one year prior to the time it was brought in for repairs that the Jaeger compressor had been stolen. The salesman recognized the compressor, as it was the only one of that particular type that he had sold.

After the theft, the compressor found its way to a third party, Mr. Evans, who was the person who took the compressor to Fur-low-Laughlin for repairs in July 1979. At trial, this third person testified that he had purchased the Jaeger compressor from the defendant around the first of November 1977. This was corroborated by other state witnesses who testified that the defendant was in possession of the Jaeger compressor in late October 1977, and that the defendant sold it to the third party in early November 1977.

Defendant asserted that the compressor he sold to Mr. Evans was sold in early October 1977, and was not the stolen Jaeger compressor, but was an Ingersoll-Rand compressor he had purchased in Alabama in January 1977.

The trial judge heard all the evidence and found the defendant guilty as charged. Now, on appeal, defendant urges the following assignments of error as grounds for the reversal of his conviction and sentence.

Assignment of Error Number 1

Defendant contends the trial court erred in permitting the state to amend the bill of information without a formal order by the court.

The bill of information originally stated that the compressor in question was stolen on October 25, 1977. When testimony at trial revealed the theft could have taken place three or four days prior to that date, the state moved to amend the bill to read “on or about” the 25th of October. The defense objected to the amendment, and the trial court overruled the objection.

The court may at any time cause an indictment to be amended in respect to any formal defect, imperfection, omission or uncertainty. C.Cr.P. art. 487. Here, though the date of the theft was essential, C.Cr.P. art. 468, the addition of the phrase “on or about” to the specific date was but a corrected omission.

Defendant contends that though the court may order an amendment per C.Cr.P. art. 488, such an affirmative act was not done in this case. We disagree, for when the state moved to amend its bill of information and the defendant objected, the trial court’s overruling of said objection can only be perceived as the court’s desire to allow the amendment. It is unnecessarily redundant to allow the court to approve the state’s amendment and then to say the court also must order an amendment.

Furthermore, there was no defense motion for a continuance based on the amendment, and no indication whatsoever that the defendant was prejudiced by the amendment. C.Cr.P. art. 489.

This assignment of error lacks merit.

Assignment of Error Number 2

Defendant contends the trial court erred in admitting certain photographs in evidence over defense counsel’s objections. Defendant argues that the photographs were unidentifiable because the distinguishing characteristics pointed out by the state witnesses were not visible in the photographs and that presentation of the photographs was prejudicial.

During the testimony of the Furlow-Laughlin salesman, Mr. Rock, the state sought to introduce three photographs of the stolen Jaeger compressor in evidence. Mr. Rock, having recognized the compressor as the stolen one, had had one of his employees, Mr. Linscomb, take three Polaroid snapshots of the compressor. When the state attempted to have Mr. Rock identify the photographs and introduce them in evidence, the defense objected, urging the individual who actually took the photographs was not present in court to identify them.

The state withdrew the evidence, requested an instanter subpoena for Mr. Linscomb, and later produced him and had him identify the photographs. The state then introduced the photographs in evidence over defense counsel’s objections.

Generally, photographs are admissible in evidence when they are shown to have been accurately taken, to be a correct representation of the subject in controversy, and when they shed light upon the matter before the court. State v. Cass, 356 So.2d 936 (La.1977), citing State v. Freetime, 334 So.2d 207 (La.1976). Sufficiency of identification of a photograph for purposes of admissibility thereof into evidence rests largely within the discretion of the trial judge. State v. Cass, supra, citing State v. Freetime, supra.

Here, the proper foundation was laid for the introduction of the photographs in evidence, as both Mr. Rock and Mr. Lin-scomb identified the photographs as having been accurately taken and a correct representation of the subject matter. The fact that some identifying characteristics, such as the serial number were not readily discernible does not render the photographs of the stolen equipment irrelevant or inadmissible.

Having ascertained that the photographs were accurately taken, fairly represented the subject in question and were relevant to the case, the trial judge did not abuse his discretion in admitting the photographs in evidence.

This assignment of error lacks merit.

Assignments of Error Numbers 3 and 6

Defendant contends the trial court erred in denying his motion for a directed verdict of acquittal at the end of the state’s case and his motion for acquittal at the conclusion of the trial.

Defendant argues that the state failed to prove each element of the offense in question beyond a reasonable doubt. According to the defendant, the element missing was the value of the stolen compressor as alleged in the bill of information.

The bill of information asserts that the compressor was valued at $5535. However, while the state’s witnesses testified its price, when new, was $5535 (in July 1974), the salesman who had originally sold the compressor testified its value, when recovered, had depreciated to $3500.

Revised Statute 14:67 provides for different grades of theft based upon the value of the stolen goods. The steepest grade of theft is for goods valued at over $500. Though the depreciated value of the compressor was not recited in the bill, the evidence clearly shows that it was valued at well over $500. Since $500 is the relevant amount by which to grade this theft, and the state did prove beyond a reasonable doubt that the value of the compressor was over $500, the defendant’s contention that an element of the crime was not proven is groundless.

Defendant further argues that his motions for acquittal should have been granted because the state was erroneously permitted to rely upon the presumption of R.S. 15:432. That statute provides in pertinent part “that the person in the unexplained possession of property recently stolen is the thief.”

We recognize that presumptions such as this one have come under close scrutiny recently. Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979); County Court of Ulster County v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979). This Court has indicated that this particular presumption must be used with extreme caution to ensure the presumption does not unconstitutionally affect the rights of the accused. State v. Bell, 373 So.2d 184 (La.1979).

In the case before us we are not confronted with the danger of a jury being confused by a presumption, for the case was tried by a judge alone. In such situations, the proper method of preserving such an issue of law for appellate review is to request the judge to charge himself before the verdict as to the disputed issue of law, C.Cr.P. art. 781, and to object to it if it is incorrect, C.Cr.P. art. 841, or if the trial court refuses to give a special charge correctly stating the law, C.Cr.P. art. 807. In the absence of such a procedure, the question of whether the trial judge decided the defendant’s guilt on the basis of an incorrect appreciation of the applicable legal principles is not determinable. State v. Reeves, 342 So.2d 605 (La.1977).

Nevertheless, we are not confronted with the normal danger of proof by the use of a presumption, as there was ample direct and circumstantial evidence in the record to support the defendant’s conviction. The trial judge, making no mention of the presumption, was of the opinion that the state had proved its case beyond a reasonable doubt.

Assuming for the sake of argument that the issue was properly reserved for appeal, it is obvious from the record that the defendant was not found guilty on the basis of the presumption but was found guilty on the basis of the overwhelming evidence against him.

The trial judge was correct in denying both of the defendant’s motions of acquittal. These assignments of error lack merit.

Assignments of Error Numbers 4 and 5

Defendant contends the trial court erred in allowing documents into evidence which the state failed to produce upon request by the defendant through his discovery motion.

Defense counsel filed a pre-trial discovery motion requesting production of any papers or documents which the state intended to use as evidence at the trial. The state replied that it had none.

At trial, Mr. Evans testified that he purchased the compressor from the defendant around the 1st or 2nd of November. At that point, the state sought to introduce in evidence a receipt for the sale from the defendant to Mr. Evans dated November 3, 1977. The defense objected alleging that the state had failed to produce this receipt through discovery and that they were unaware of its existence. The state responded that the receipt had come to their attention the day before the trial and long after the discovery motion was filed. The trial court postponed any ruling on the admissibility of the receipt but instructed the state to refrain from questioning the witness on that issue. The state complied with that directive.

Later, when the defendant took the stand, he admitted selling Mr. Evans a compressor, but alleged it was not the stolen Jaeger compressor. The defendant said he sold this other compressor to Mr. Evans in early October 1977, which was before the Jaeger compressor was stolen. If such was the case, the defendant would obviously be innocent of this charge.

In response to this testimony, the state sought to introduce the receipt and a bill of sale, which both stated the defendant had sold Mr. Evans an air compressor on November 3,1977. The bill of sale specifically referred to one “Yeager Air Compressor” being sold to Mr. Evans on that date. Defense counsel again objected to the use of the documents on the same discovery basis. This time, the trial judge noted that he would allow the evidence for the limited purpose of testing the witness’ credibility, but for no other purposes.

The cash receipt and bill of sale were clearly subject to discovery by the defendant. C.Cr.P. art. 718(2). The state had a continuing duty to disclose to the defendant the existence of these documents. C.Cr.P. art. 729.3. The state’s contention that the defendant’s discovery motion was submitted long before it discovered the documents and that they had just recently received the documents in no way excuses them from this continuing duty to disclose. Accordingly, the trial judge had various sanctions he could have imposed for the state’s failure to comply with the discovery procedures. C.Cr.P. art. 729.5.

The trial judge chose to prohibit the state from introducing in evidence the subject matter not disclosed, but then he altered that order to allow the documents to be admitted for the sole purpose of impeaching the defendant’s credibility as a witness.

We have previously held that where the defendant is lulled into a misapprehension of the strength of the state’s case and suffers prejudice when the statements are subsequently introduced at trial, basic unfairness which constitutes reversible error results. State v. Boothe, 310 So.2d 826 (La.1975); State v. Hatter, 350 So.2d 149 (La.1977). However, the state’s failure to comply with the discovery procedures will not automatically demand a reversal. Rather, we will examine the circumstancés of the case and the trial court’s reaction to see if the defendant was prejudiced and the trial judge was correct. State v. Statum, 390 So.2d 886 (La.1980).

In this case, the trial judge properly excluded the documents. Then, after three witnesses had testified the sale took place on November 3, 1977, the defendant took the stand and blatantly contended the sale took place in early October 1977. The documents with his signature, the type of compressor, and the date of the sale (November 3, 1977) were allowed to impeach him.

We see no error in allowing the documents to impeach the defendant. The state did not utilize the evidence in its case in chief, but only when faced with the defendant’s impeachable testimony did the court allow the evidence to be used. At that point the documents became highly relevant and the judge’s decision to allow their use for impeachment was correct.

Analogous to this situation is the far more serious use as an impeachment tool of an accused’s inculpatory statement, obtained without advising him of his constitutional rights, if it can be shown that the statement was freely and voluntarily given. Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971); State v. Kent, 371 So.2d 1319 (La.1979). Since we allow a free and voluntary confession to be used for impeachment purposes when all constitutional safeguards have not been met, we will likewise allow a discoverable piece of evidence to be used for impeachment purposes only when all discovery procedures have not been properly satisfied.

Besides properly limiting the documents to impeachment of the defendant’s credibility, the judge clearly did not consider the documents in rendering his decision. In his reasons for judgment, the judge stated:

“I wish to say before I do render verdict here that I am not considering the last two acts that were introduced [referring to the cash receipt and the bill of sale] whatsoever. I wanted them to get into evidence for the higher court, but this court is not considering them whatsoever. As you know, I haven’t looked at them; I’m not going to view them and I’m not considering them in the verdict that is being rendered here today. And I do believe that the State has proven its case definitely — I’m definitely of the opinion that the State has proven its case beyond a reasonable doubt, therefore, I hold the accused guilty.”

Clearly, then, the judge not only limited the use of the documents as was his prerogative per C.Cr.P. art. 729.5, but he did not consider them in rendering his decision. Thus, the defendant was not prejudiced by their use in any way.

These assignments of error lack merit.

Assignment of Error Number 7

Defendant contends the trial court erred in not permitting him to remain free on bail pending appeal.

Defendant was sentenced to eight years imprisonment for violating R.S. 14:67. C.Cr.P. art. 314 provides that where a defendant is sentenced to more than five years imprisonment, bail may be allowed after sentence pending appeal. Thus, the granting or denial of bail pending appeal in this case was within the discretion of the trial judge.

The trial judge heard defendant’s contention that he be freed on bail pending appeal but was not swayed. As he noted in his sentencing reasons, the defendant had a substantial previous criminal history, which included convictions for three burglaries, forgery, and several misdemeanors. He noted that due to this prior history of criminal conduct, he believed the defendant was dangerous to the public and he would not allow the defendant free on bail pending appeal. We see absolutely no abuse in the trial judge’s discretion in making this decision.

This assignment of error lacks merit.

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

AFFIRMED.

CALOGERO, J., concurs with reasons.

CALOGERO, Justice,

concurring.

Although I think it was error for the trial judge to admit the sales slip into evidence even for impeachment purposes, where the state had not informed the defendant of the evidence as required by the discovery articles, I nevertheless concur being of the belief that in this case its admission was harmless. Three other witnesses had testified that the sale took place in November and that they saw defendant in possession of a Jaeger air compressor. Therefore, the admission of the sales slip into evidence, although erroneous, added no new information and was merely cumulative in effect. For this reason I concur.

       The Honorables Pike Hall, Jr., Charles A. Marvin ánd Jasper E. Jones of the Court of Appeal, Second Circuit, participated in this decision as Associate Justices pro tempore, joined by Justices Calogero, Dennis, Blanche and Lemmon.