author: BLANCHE, Justice.

text:
    Mrs. Jerry SMITH, Born Cheryl Edlyn Stephens v. Roy B. STEPHENS, Dow L. Stephens and Jeannette Stephens Proctor.
    No. 81-C-2008.
    Supreme Court of Louisiana.
    April 5, 1982.

      Robert W. Fenet, Woodley, Barnett, Cox, Williams & Fenet, Lake Charles, for relator.
    Robert G. Nida, Gold, Little, Simon, Weems & Bruser, Alexandria, Edwin L. Ca-bra, Cabra, Leach & Tilley, Elvin C. Fon-tenot, Jr., Simms, Tillman & Fontenot, Thomas A. Self, Leesville, for respondents.
   BLANCHE, Justice.

Plaintiff in this suit, Mrs. Jerry Smith, born Cheryl Edlyn Stephens, seeks recognition as a surviving child and irregular heir of James Edward Stephens, and claims an interest in the Stephens estate. Named as defendants in the action are the legitimate heirs of James Edward Stephens and several purchasers of property forming a part of the Stephens estate.

Roy 0. Martin Lumber Company, the purchaser of a portion of the Stephens estate property, filed a dilatory exception of prematurity, based upon plaintiff’s failure to obtain a judgment recognizing her as an irregular heir prior to claiming an interest in the succession property. This exception was sustained by the trial court and suit against Roy 0. Martin Lumber Company was dismissed. On appeal by plaintiff, the Third Circuit affirmed. 401 So.2d 674 (La.App.). We granted plaintiff’s application for writs to determine the correctness of this ruling by the lower courts.

Cheryl Edlyn Stephens was born July 16, 1952, purportedly the issue of an adulterous union between James Edward Stephens (also known as J. Ed Stephens) and Louise Callie Stephens. Although their surnames appear the same, James Edward Stephens and Louise Callie Stephens were unrelated. At the time of plaintiff’s birth, James Edward Stephens was married to Jeanette Dow Stephens. Of that marriage, three children were born: Roy B. Stephens, Dow L. Stephens and Jeanette Stephens Proctor. A final divorce ended the marriage in February of 1957.

James Edward Stephens died intestate on December 10, 1957. A judgment of possession was signed on August 10,1959 in favor of the three children born of James Edward Stephens’ marriage to Jeanette Dow Stephens, placing each in possession of an undivided one-third interest in property owned by Stephens at the time of his death. In 1971, Roy 0. Martin Lumber Company purchased property formerly belonging to the estate of James Edward Stephens.

In her petition, plaintiff sought to be recognized as an heir and to be recognized as entitled to the ownership and possession of an undivided one-fourth interest in all property owned by James Edward Stephens at the time of his death. Alternatively, plaintiff sought a money judgment in an amount equal to the value of one-fourth of James Edward Stephens’ estate. Roy 0. Martin Lumber Company opposed the maintenance of plaintiff’s suit, filing a dilatory exception of prematurity. For reasons set out in the text below, we find that this exception was improperly titled, and should have been treated as a peremptory exception of no right of action. Nevertheless, both lower courts sustained the exception on the basis of prematurity and we must first discuss their reasons for doing so.

The trial court, sustained the dilatory exception of prematurity filed by Roy 0. Martin Lumber Company, stating:

[I]t is the opinion of the writer that, as of this date, the plaintiff has a right of action in which she may seek to have herself declared an irregular heir of the decedent, James Edward Stephens. As a part of such an action she may allege her paternity and the acknowledgment of the relationship and offer evidence to prove these allegations. If she is successful in meeting her burden of proof, she is entitled to recognition as an irregular heir. Until she has done so, she has no ownership interest in the property belonging to the succession of her alleged father. She likewise is premature in asserting any cause of action connected with those properties.

The court of appeal affirmed, concluding that under the rule of law announced in Glenn v. West, 151 La. 522, 92 So. 43 (1922) and Hibbert v. Madd, 294 So.2d 518 (La.1974), “plaintiff, as an irregular heir has only the right of action to have herself placed in possession, owning no interest in the succession property until contradictory proceedings are filed with other heirs or claimants and a judgment secured recognizing her as owner.”

As did both lower courts, we reject plaintiff’s argument that this Court’s opinion in Succession of Brown, 388 So.2d 1151 (La.1980), accorded to an illegitimate heir the full rights of legitimate status without the necessity of proving his or her entitlement to those rights. In Brown, we held that both the United States and Louisiana Constitutions prohibit the total denial of inheritance rights to acknowledged illegitimates in the succession of the father who is survived by other relatives. Nevertheless, we acknowledged that the state has a valid interest in providing for the orderly distribution of succession property and stability of land titles. Recognition of that very interest led the United States Supreme Court in Lalli v. Lalli, 439 U.S. 259, 99 S.Ct. 518, 58 L.Ed.2d 503 (1978), to uphold a New York statute which required illegitimate children who would inherit from their father to secure an order of filiation from a court of competent jurisdiction during the lifetime of the father.

As noted by the trial court, the removal of the exclusion embodied in C.C. art. 919 permits an illegitimate to prove paternity and acknowledgment and, thus, be recognized as an heir. Under C.C. art. 925, illegitimate children are permitted to take possession of a succession that has fallen to them, but only by the order of the judges of the parish in which the succession is opened. Such a requirement, in the interest of orderly devolution of property and the stability of land titles, is not an unconstitutional burden placed upon acknowledged illegiti-mates.

The plaintiff also contends that the lower courts erred in refusing to allow her to combine her action to be recognized as an irregular heir of James Edward Stephens, and her action claiming an interest in the Stephens estate. In dismissing the suit against Roy 0. Martin Lumber Company on an exception of prematurity, the trial court impliedly ruled that the two actions could not be brought in a single suit. We disagree.

In her petition, plaintiff first seeks recognition as a surviving child and heir of James Edward Stephens. Assuming that the plaintiff can prove her entitlement to such recognition, there is no procedural bar to the cumulation of a prayer for recognition as an heir with a claim of interest in the property of the decedent’s succession. The cases cited by the lower courts do not require that an illegitimate child’s right of action for recognition as an irregular heir be asserted in a wholly separate suit from that in which an interest in the succession property is claimed.

In Glenn v. West, supra, Frances Scott Glenn brought a petitory action against the owner of certain property in Claiborne Parish, claiming ownership as the legal heir of her deceased father, Homer Scott. The petitory action was met with an exception of no cause of action filed by George West. The property in question had formed a portion of the estate of Scott’s wife, Lona McGee, who died intestate, and without ascendants, descendants or collaterals. The court noted that Homer Scott, as an irregular heir of Lona McGee, had only a right of action to be placed in possession of her estate, and plaintiff as his legal heir, acquired no greater rights upon her father’s death. The exception of no cause of action was sustained, because the plaintiff’s petition failed to allege that that right of action had been exercised by Scott before his death; nor did it assert that plaintiff had, at any time, exercised her right of action as the legal heir of Homer Scott, deceased, to be placed in possession of the estate of Lona McGee.

Hibbert v. Mudd, 294 So.2d 518 (La.1974) involved a concursus proceeding, in which R. E. Hibbert sought to determine the ownership of accrued production royalties under an oil and gas lease executed between Edna Mudd Anderson, as lessor, and himself, as lessee. Anderson had died intestate in 1961, without legitimate ascendants, descendants or collaterals. Ownership of the accrued royalties was disputed by two groups of illegitimate relations, each claiming to have succeeded Anderson as irregular heirs. As in Glenn v. West, supra, these heirs had failed to secure judgments placing them in possession of Anderson’s estate. For this reason, the judgment of the trial court ordering payment of the royalties to one group of illegitimate relations was reversed.

These cases are a jurisprudential statement of the statutory rule now provided by C.C. art. 949, and establish that a judgment of recognition as an irregular heir is a prerequisite to an assertion of ownership rights in succession property. However, they do not require that recognition be sought and granted in a wholly separate suit before an ownership interest may be claimed. The plaintiff in Glenn v. West, and the claimants in Hibbert v. Mudd, made no attempt to obtain recognition as irregular heirs, either prior to claiming ownership rights in succession property, or contemporaneously with asserting those rights.

The plaintiff in the instant suit does seek a judgment of recognition, although she combines her prayer for recognition with a claim of interest in the Stephens estate. As noted above, such cumulation is not procedurally prohibited. Additionally, all defendants will necessarily be affected by a judgment of recognition, and will have an interest in contesting such an action. As for the defendant succession purchaser, considering the extent to which his ownership interest in the property would be imperiled, it would seem that he would have every reason to object had he not been made a party to the suit. For these reasons, we find that judicial economy will best be served by allowing the plaintiff to seek recognition as an irregular heir of James Edward Stephens and claim an interest in the Stephens succession in a single suit. The judgment of the trial court sustaining the exception of prematurity filed by Roy 0. Martin Lumber Company was improperly granted and accordingly, we reverse.

We note, however, that the plaintiff’s suit is subject to exception on other grounds. The circumstances alleged in the dilatory exception of prematurity filed by Roy 0. Martin Lumber Company could more effectively support a peremptory exception of no right of action. The exception of prematurity is normally applicable in cases in which the obligation is certain, but the right to enforce it has not yet accrued. Pringle Associated Mortgage Co. v. Eanes, 211 So.2d 399 (1st Cir. La.App. 1968), writ ref. 252 La. 887, 214 So.2d 715 (1968). Plaintiff in this case brings suit to enforce an obligation which is at best conditional.

A judgment of recognition is granted to an irregular heir only upon the establishment of filiation between the heir and the deceased relation. Maintenance of a suit for recognition is, therefore, contingent upon a showing by the plaintiff that she is a member of the class to which the relief she seeks is legally available. Where proof of filiation is not contained within the pleadings, a suit for recognition as an irregular heir is subject to an exception of no right of action.

In support of its exception, Roy 0. Martin Lumber Co. asserts that the plaintiff’s petition does not allege formal acknowledgment or subsequent marriage of her purported parents, or other proof of filiation other than her assertion that she was born of their union. These allegations are insufficient to support a finding that Cheryl Edlyn Stephens is the acknowledged illegitimate daughter of James Edward Stephens. Her suit, therefore, may be met with an exception of no right of action.

The exception of no right of action is employed in cases, where the law affords a remedy, to raise the question as to whether plaintiff belongs to the particular class in whose exclusive favor the law extends a remedy, or to raise the issue as to whether plaintiff has the right to invoke a remedy which the law extends only conditionally. Babineaux v. Pernie-Bailey Drilling Company, 261 La. 1080, 262 So.2d 328 (1972).

In Babineaux, the plaintiff, representing her minor children, brought suit for the wrongful death of their alleged father. Therefore, paternity was at issue. The court noted that on an exception of no right of action, evidence is admissible when necessary to support or contradict the exception. C.C.P. art. 931 (1960). Plaintiff in the instant case may introduce evidence of her filiation and, thus, her entitlement to recognition as an irregular heir, at a hearing on the exception of no right of action. If she is successful in proving filiation, the grounds for the exception will be removed, and the suit may proceed.

For the foregoing reasons, the decision of the court of appeal is reversed and the case is remanded to the trial court for a hearing on the exception of no right of action.

      . The venue and jurisdictional requirements for cumulation set out in C.C.P. art. 462 are satisfied by the instant combination of actions, as is the requirement of community interest ament, the several defendants set out in C.C.P. art. 463.

      . For instance, proof of filiation may be established by the pleadings through attachment and incorporation of a notarial act of acknowledgment.

      . Courts should look through the caption of a pleading in order to ascertain its substance and to do substantial justice to the parties. Smith v. Cajun Insulation, Inc., 392 So.2d 398 (La.1980).


source: Caselaw Access Project

author: WATSON, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Robert Lee GASTON.
    No. 81-KA-2053.
    Supreme Court of Louisiana.
    April 5, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., John R. Harrison, Gaynelle Griffin Jones, Asst. Dist. Attys., for plaintiff-appellee.
    Percy A. Ford, Jr., of Ford & Avants, for defendant-appellant.
   WATSON, Justice.

Defendant, Robert Lee Gaston, was convicted by a jury of aggravated rape and sentenced to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. LSA-R.S. 14:42. Defendant has appealed his conviction and sentence, assigning three errors by the trial court.

On Friday, October 31, 1980, the victim returned to her home about 10:20 A.M. after a brief absence. She was confronted by a man with a butcher knife, wearing a black tank top and a pair of dark blue pants. The man asked for money, threatened her life, and then had sexual intercourse with her. He took two dollar bills which were at the head of the bed. The victim told him she would not report the crime to prevent embarrassment of her two daughters. As the rapist was leaving by the back door, she noticed a discoloration on one shoulder. The victim went to Roosevelt Wright’s nearby cab stand crying and shaking. They went for a drive in an unsuccessful attempt to spot the criminal. Fearful for a daughter’s safety, the victim went to escort her home from Carroll Junior High School. While walking, the victim started crying again and stopped at the cab stand to call the police. She described the rapist’s height, weight, clothes and the skin discoloration on one shoulder. She was taken to the hospital between 3:30 and 4:00 P.M. From the rape kit which was used at the hospital, Linda Armstrong, a criminalist at the North Delta Crime Lab in West Monroe, determined that sexual intercourse had taken place. Although Ms. Armstrong’s test tended to exclude Gaston as the guilty party, the four and a half hour interval before the rape kit sample was taken made this evidence unreliable. Gaston returned to the victim’s home approximately a week later. While the victim and a male friend were looking for some means of protection, Gaston left, apparently taking from the mailbox a money order in an envelope addressed to Louisiana Power & Light. The police apprehended Gaston behind a building a few blocks from the victim’s house. The Louisiana Power & Light envelope was found nearby. The victim identified Gaston as the rapist. At trial, Gaston’s black tank top and dark blue pants were introduced into evidence. A scar or tattoo on the defendant’s shoulder was exhibited to the jury. After the jurors retired to deliberate, they returned and asked if it would be possible to see Gaston dressed in the tank top. This was allowed by the trial court despite a defense objection.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant contends that a mistrial was mandated when the State in opening argument referred to Gaston taking the Louisiana Power & Light envelope from the mailbox. An objection was made on the ground that this was an inadmissible reference to another crime. LSA-C.Cr.P. art. 770. A motion for mistrial was overruled. The trial court instructed the jury that the opening statement was not to be considered as evidence.

When Gaston returned to the victim’s house, she immediately recognized him as the rapist. The envelope was a link connecting Gaston with the victim and was therefore relevant and admissible evidence. LSA-C.Cr.P. art. 770 only bars reference to another crime “as to which evidence is not admissible”. The theft of the envelope was another crime, but it was a crime which was material to the rape prosecution and the evidence was admissible. State v. Madison, 345 So.2d 485 (La., 1977).

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO

After the jury retired to deliberate, they were allowed to see defendant dressed in the black tank shirt. This is assigned as error. The trial judge relied on LSA-C. Cr.P. art. 793 as follows:

“A juror must rely upon his memory in reaching a verdict. He shall not be permitted to refer to notes or to have access to any written evidence. Testimony shall not be repeated to the jury. Upon the request of a juror and in the discretion of the court, the jury may take with it or have sent to it any object or document received in evidence when a physical examination thereof is required to enable the jury to arrive at a verdict.”

The jury had previously viewed both the black tank top and the defendant’s naked shoulder. They did not see any new evidence, but reexamined prior physical evidence in a slightly different context. Testimony cannot be repeated to the jury. State v. McCully, 310 So.2d 833 (La., 1975). However, physical evidence can be examined to help the jury arrive at a verdict. State v. Carney, 260 La. 995, 257 So.2d 687 (1972). The victim testified that she had noticed the shoulder scar as Gaston was going out the back door. The jury obviously wanted to determine if that area was visible while the defendant was clothed in the tank top. Allowing the naked shoulder and the black tank top to be put together did not adduce new evidence. It was properly permitted to aid the jury’s verdict.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER THREE

Defendant contends that the verdict was contrary to the law and the evidence. Although the defendant did not file a motion for acquittal or a new trial, due process requires that the question of sufficiency of the evidence be reviewed. State v. Fontana, 396 So.2d 1251 (La., 1981). Linda Armstrong established that sexual intercourse had occurred. The victim testified that Gaston made her submit to that intercourse by threatening her life while armed with a knife. Her unequivocal identification was corroborated by the envelope, which was found near Gaston, and the identifying mark on his shoulder. Due to the time lapse before the rape kit was utilized, Linda Armstrong could not exclude the possibility that Gaston was the guilty party. A rational trier of fact could have found the essential elements of this crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

This assignment of error lacks merit.

For the foregoing reasons, the conviction and sentence of defendant, Robert Lee Ga-ston, are affirmed.

AFFIRMED.

       Judges Nester L. Currault, Jr. and Fred S. Bowes of the Twenty-Fourth Judicial District Court, and Edward A. Dufresne, Jr. of the Twenty-Ninth Judicial District Court participated in this decision as Associate Justices pro tempore, joined by Chief Justice Dixon and Justices Marcus, Blanche, and Watson.

      . LSA R.S. 14:42 provides:
      “Aggravated rape is a rape committed where the anal or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:
      “(1) Where the victim resists the act to the utmost, but whose resistance is overcome by force; or
      “(2) Where the victim is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution; or
      “(3) Where the victim is prevented from resisting the act because the offender is armed with a dangerous weapon; or
      “(4) Where the victim is under the age of twelve years. Lack of knowledge of the victim’s age shall not be a defense.
      “Whoever commits the crime of aggravated rape shall be punished by life imprisonment at hard labor without benefit of parole, probation or suspension of sentence."

      . LSA -C.Cr.P. art. 770 provides:
      “Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
      “(1) Race, religion, color, or national origin, if the remark or comment is not material and relevant and might create prejudice against the defendant in the mind of the jury;
      “(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;
      “(3) The failure of the defendant to testify in his own defense; or
      “(4) The refusal of the judge to direct a verdict.
      “An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, requests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial.”


text:
    STATE of Louisiana v. James J. FARRIA.
    No. 81-KA-2168.
    Supreme Court of Louisiana.
    April 5, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Bob Hester and Kay Kirkpatrick, Asst. Dist. Attys., for plaintiff-appel-lee.
    David Randall Buckley, Asst. Public Defender, Bonnie P. Jackson, Public Defender, for defendant-appellant.
   BLANCHE, Justice.

Defendant James Farria was indicted and tried before a jury in East Baton Rouge Parish on charges of aggravated rape (R.S. 14:42), aggravated burglary (R.S. 14:60) and two counts of armed robbery (R.S. 14:64). At the conclusion of trial, a twelve member jury returned a verdict of guilty as charged, and defendant was subsequently sentenced by the trial court. On appeal defendant challenges his conviction and sentence on the basis of three assignments of error. We find no reversible merit to any of these assignments and, accordingly, defendant’s conviction and sentence are affirmed.

The occurrence giving rise to the charges took place on the evening of August 14, 1980 at the Baton Rouge home of John Ozier and his family. As Ozier went to check on his sleeping daughter, he observed the defendant standing in a bedroom with Ozier’s wallet in one hand and a revolver in the other. Defendant took the money from the wallet and moved with Ozier into a porch room where Mrs. Ozier was watching television. Forcing both victims to lie face down on the floor, defendant removed Ozier’s gold wedding band and wrist watch and Mrs. Ozier’s watch and rings.

After tying Ozier’s hands and feet, defendant ordered Mrs. Ozier to get her purse, and went with her into the kitchen of the residence. Finding the purse, defendant went through its contents in the dining room. He then told Mrs. Ozier to turn out all the lights in the house, and to remove her clothes. When she resisted defendant struck her forehead with the revolver, inflicting a small cut near the hairline. Defendant forced Mrs. Ozier to disrobe, tied her hands and feet, and raped her. Soon after, defendant fled and Mrs. Ozier was able to free herself and her husband and notify the police. At trial, both Mr. and Mrs. Ozier were able to positively identify their attacker.

In his first assignment of error, the defendant contends that the trial court erred in admitting photographs of Mrs. Ozier’s face showing the cut inflicted by defendant. Over defense objection, the state introduced two color photographs depicting the wound to the victim’s head. Both photographs show dried blood running from the side of Mrs. Ozier’s head onto her face. Defendant argues that the photographs are unwarrantedly gruesome, making a minor injury appear more serious, despite testimony by state witnesses to the effect that the injury was only a minor cut that bled profusely.

The trial judge admitted the photographs in evidence, ruling that the prejudicial effect of the photographs was outweighed by their probative value. We agree. The photographs are not so gruesome that they would overwhelm reason. See State v. Lindsey, 404 So.2d 466 (La.1981). Moreover, the photographs corroborate the testimony of Mrs. Ozier concerning the aggravated rape. They also tend to prove that the victim resisted the rape but was overcome by force. Since the probative value of the photographs was greater than the possible prejudice that may have resulted from their display to the jury, the trial judge did not abuse his discretion in allowing the introduction of this evidence. State v. Myles, 389 So.2d 12 (La.1980).

Defendant’s remaining assignments of error challenge the sentence imposed by the trial court as unconstitutional and excessive. On the aggravated rape conviction, defendant received the mandatory sentence of life imprisonment at hard labor. Sentenced as a multiple offender, defendant received 40 years at hard labor without benefit of parole, probation or suspension of sentence on each conviction of armed robbery, the two sentences to run concurrently with each other, but consecutively to the life sentence imposed for aggravated rape. Defendant was sentenced to 15 years at hard labor on the aggravated burglary conviction, to be served consecutively to the sentences imposed for aggravated rape and armed robbery.

R.S. 14:42 provides a mandatory life sentence in all cases resulting in a conviction of aggravated rape. We first reject defendant’s argument that this mandatory life sentence is violative of the Eighth Amendment of the U. S. Constitution as cruel and unusual punishment. With respect to statutes not requiring capital punishment, mandatory sentences are not unconstitutional. See Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976). In State v. Prestridge, 399 So.2d 564 (La.1981), we upheld the mandatory life sentence imposed under R.S. 14:42, finding it a valid exercise of the state legislature’s prerogative to determine the length of sentence imposed for crimes classified as felonies.

Defendant finally contends that the trial court erred in imposing consecutive sentences for armed robbery and aggravated burglary, rather than ordering that those sentences be served concurrently with the life sentence for aggravated rape. As all of the charges against defendant arose from a single incident, defendant argues that imposition of consecutive sentences renders the sentences excessive.

Louisiana C.Cr.P. art. 883 provides in pertinent part:

If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all shall be served consecutively.

This Court has recognized concurrent, rather than consecutive, sentences as the general rule for convictions arising out of a single course of criminal conduct, at least for a defendant without a previous criminal record and in the absence of a showing that the public safety requires a longer sentence. State v. Ortego, 382 So.2d 921 (La.1980); State v. Underwood, 353 So.2d 1013 (La.1977). However, we have never held a sentence to be excessive merely because consecutive sentences were imposed for convictions which arose from a single incident. Other factors must be considered. State v. Ortego, supra. Moreover, the trial court is given wide discretion in the imposition of sentences within statutory limits, and the sentences imposed by that court should not be set aside as excessive in the absence of manifest abuse of its discretion.

The presentence investigation report prepared on this defendant, and referred to by the trial court during sentencing, revealed an extensive criminal record dating back to 1970. The trial court also noted that defendant had been on probation for burglary as a juvenile. Defendant was sentenced as a fourth felony offender, with previous convictions for aggravated battery, possession of stolen property and simple robbery. Defendant had been released from custody on this last charge only six months before the commission of the instant offense.

The trial court noted that no mitigating circumstances were presented by the pre-sentence report. Citing the defendant’s repetitive history of criminal conduct, the trial court imposed the sentences set forth above. In light of defendant’s prior record and his propensity for violence, we conclude that the trial judge did not abuse his discretion in imposing consecutive, rather than concurrent, sentences in the instant case.

Defendant’s conviction and sentence are affirmed.

AFFIRMED.

       Judge Walter I. Lanier, Jr. of the Court of Appeal, First Circuit and Judges Fred S. Bowes and Nestor L. Currault, Jr. of the Twenty-Fourth Judicial District Court participated in this decision as Associate Justices pro tempore, joined by Associate Justices Calogero, Dennis, Blanche and Lemmon.


author: CURRAULT, Justice Pro Tern.

text:
    STATE of Louisiana v. Norman PHAGANS.
    No. 81-KA-2205.
    Supreme Court of Louisiana.
    April 5, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Kay Kirkpatrick, John Diguillio, Asst. Dist. Attys., for plaintiff-ap-pellee.
    David Randall Buckley, Baton Rouge, for defendant-appellant.
   CURRAULT, Justice Pro Tern.

On January 15, 1980, Norman Phagans was charged with the armed robbery of Betty Montgomery on September 28, 1979. A jury trial was begun on March 16, 1981, ending in a mistrial on March 18. A subsequent trial, concluded on March 20, 1981, ended in a unanimous guilty verdict against the defendant. On June 1, 1981, he was sentenced to serve fifteen years at hard labor without benefit of probation, parole, or suspension of sentence. From this conviction and sentence the defendant appeals on six assignments of error.

Factual Synopsis

At approximately 9:00 P.M. on September 28, 1979, two men wearing ski masks, one armed with a sawed-off shotgun and the other with a pistol, entered the Gulf Service Station on Scenic Highway and robbed Betty Montgomery, the cashier, of all the money in the cash register. Ms. Eartha Osborne was travelling southbound on Scenic Highway when she observed the two men walking to the Gulf Service Station wearing the ski masks. Suspecting a robbery, she turned her car around. She then saw the same men exit the store and get into an old green Oldsmobile. There was a woman already occupying the Oldsmobile as they drove out of a parking lot around the corner from the service station. Ms. Osborne followed the car into an apartment complex and was able to identify the first three or four digits on the license plate as “11X” or “114X”. She then returned to the service station and gave the police a description of the vehicle and license number.

At approximately 10:30 P.M. Officer Pat Walsh of the Baton Rouge Police Department observed a green Oldsmobile fitting an earlier broadcasted description of the vehicle used in this robbery. Two men and a woman were in the car and the first three digits on the license plate were “11X”. After radioing for assistance, Walsh pulled the vehicle over to the side of the road. Anthony Burrell, a co-defendant, was driving while the defendant Phagans and Diane Bowie, another co-defendant, were passengers. Walsh obtained consent to search the vehicle from Burrell and recovered a sawed-off shotgun, two ski masks and rolls of coins from inside the car. Walsh observed orange lint on the defendant’s hair, which resembled an orange ski mask worn by one of the robbers and subsequently found in the car. All three persons were arrested.

Assignment of Error No. 1

In Assignment of Error No. 1, the defense argues that the trial court erred by admitting into evidence a photograph when, relying on the State’s answers to the defense motions for discovery, the defense believed the photograph would not be introduced at trial.

Shortly after the defendant’s arrest, a photograph was taken showing orange-colored lint (the color of the ski mask worn by the perpetrator) in his hair. Pre-trial Discovery Motions filed by the defendant pursuant to Louisiana Code of Criminal Procedure Articles 716 et seq. requested, among other things, to inspect photographs.. .which are within the possession, custody, or control of the State, and which are intended for use by the State as evidence at the trial. In response to the motion, the State’s answer was “none”, and that if the requested items were to be used at trial, a copy would be furnished to the defendant. Subsequently, defense counsel was allowed to view and inspect all the evidence accumulated in the case, including the contested photograph. After the inspection of the State’s evidence by defense counsel, an Amended Answer to Defendant’s Motion for Discovery in which the State agreed not to use inculpatory statements was filed. No reference was made to the use of the photograph at trial. During trial, the State attempted to introduce the photograph. Outside the presence of the jury, defense counsel objected on the grounds that she was misled into believing that the photograph would not be introduced because a copy of it had not been sent to her, nor had the State’s answers to the Discovery Motions indicated that the photograph was to be used as evidence. The State argued that the defense counsel’s inspection of the photograph was all that was required per the Motion for Discovery and additionally, that since the inspection of the evidence had occurred after the filing of the State’s Answer to Motion for Discovery, a tacit amendment was indicated. The trial court agreed, overruling the defendant’s objection admitting the photograph into evidence.

Louisiana Code of Criminal Procedure Article 718 provides:

Subject to the limitation of Article 723, on motion of the defendant, the court shall order the district attorney to permit or authorize the defendant to inspect, copy, examine, test scientifically,- photograph, or otherwise reproduce books, papers, documents, photographs, tangible objects, buildings, places, or copies or portions thereof, which are within the possession, custody, or control of the state, and which:
(1)are favorable to the defendant and which are material and relevant to the issue of guilt or punishment, or
(2) are intended for use by the state as evidence at the trial, or
(3) were obtained from or belong to the defendant.
The court may determine whether evidence is subject to the provisions of Paragraph (1) hereof by in-camera inspection.

Although it appears counsel may have been misled by the State’s Answer to Motion for Discovery because a copy of the photograph was never sent to her, it is apparent that the State did comply with requirements of Louisiana Code of Criminal Procedure Article 718 and the specific request made by defense counsel in her Motion for Discovery.

This Court has consistently held that if a defendant is lulled into a misapprehension of the strength of the State’s case as a result of the State’s discovery answers and prejudice results, a reversal is warranted. State v. Davis, 399 So.2d 1168 (La.1981); State v. Statum, 390 So.2d 886 (La.1980).

However, in the present case, this Court is of the opinion that the defendant was not prejudiced as a result of the introduction of the photograph. Detective Walsh testified that he removed orange lint from the defendant’s hair. The lint itself was introduced as evidence along with the orange ski mask and was inspected by the jury. Hence, the photograph was merely corroboration of the officer’s testimony and as such was cumulative in nature. Additionally, as defense counsel admits, she was aware of the existence of the photograph and had inspected it prior to trial. The only prejudice resulting was being misled as to the State’s trial strategy. Such does not warrant reversal.

This assignment lacks merit.

Assignments of Error Nos. 3 and 4

By these assignments, defendant contends that the trial court erred in admitting into evidence records kept by the Department of Corrections and defendant’s test scores from a state police examination.

On direct examination the defendant testified that he had been employed with the Department of Corrections at Angola, had quit because the drive was too far from his residence and because he was planning to take a state trooper test on the Monday following the robbery. On cross-examination he admitted that he had been terminated because a homosexual incident had taken place among the inmates under his supervision, and he had admitted to having been asleep at his post at the time. He maintained that he could have appealed the termination but did not as he had intended to change jobs anyway. He denied receiving any letter of dismissal. Additionally, on cross-examination, he denied ever having taken any previous examination to become a police officer or a state trooper. He then claimed he could not remember whether or not he had taken any examinations. And, finally, he claimed he may have taken a city police test but had never taken a test to become a state trooper. In rebuttal, Ms. Deer of the Department of Corrections testified that letters of dismissal are kept in the ordinary course of business and the dismissal letter issued to Norman Phagans was such a letter. Additionally, Ms. Deer testified that the records reflected Mr. Pha-gans had been employed on June 18, 1979 and terminated on August 9,1979. Defense counsel objected to the letter as hearsay. The trial court overruled the objection and the letter was admitted into evidence. Also testifying on rebuttal was Donald Courtney, Assistant Chief of Examining of Louisiana Civil Service Department. Mr. Courtney testified that he was the custodian of records and that test results were kept in the ordinary course of business. After such foundation, and over objection of defense counsel, records were introduced that the defendant had in fact taken the state trooper test and had received a grade below passing.

In State v. Monroe, 345 So.2d 1185, 1190 (La.1977), this court laid out the applicable foundation for the admission of business records as an exception to the hearsay rule.

Before the exception may be invoked by the State against the defendant, allowing introduction of a permanent record made in the ordinary course of business from personal knowledge of the facts recorded, or from information furnished by one having a business duty to observe and report the facts, it must be shown that the person who made the record is genuinely unavailable for testimony, that he had no strong motive to misrepresent, and that in all probability the evidence is trustworthy. State v. Monroe, 345 So.2d 1185

And further, in State v. Perniciaro, 374 So.2d 1244, 2147, (La.1979) holding:

In view of the constitutional right of an accused to confront and cross-examine the witnesses against him, U. S. Constitution Amendment VI; Louisiana Constitution 1974, Article I, § 16, and the statutory prohibition against hearsay evidence, except as provided by law, Louisiana Revised Statute 15:434, a broader business records exception for the admission of hearsay against a defendant in a criminal prosecution is unwarranted.

Accordingly, in this case, the hearsay evidence offered did not conform to the elements of the business records exception and the trial erred in its admission without the proper predicate having been laid.

The State argues alternatively that the introduction of the business records evidence was harmless error.

In State v. Gibson, 391 So.2d 421 (La.1980), this Court applied the standards enunciated in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) to determine what error may be deemed harmless. Applying the Chapman test to the present case, i.e., “whether there is a reasonable possibility that the evidence complained of might have contributed 'to the conviction” and that “the court must be able to declare a belief beyond a reasonable doubt that [the error] was harmless beyond a reasonable doubt,” we conclude that the error committed by the trial court in permitting the state to introduce the “hearsay documents” was harmless. The documents were of no value in linking the defendant with the robbery. Furthermore, the State’s proof that the defendant was the robber was very strong and in no way dependent upon the documents introduced. It is our belief that their erroneous admission into evidence was harmless beyond a reasonable doubt.

This assignment lacks merit.

Assignment of Error No. 5

By this assignment the defendant argues that the fifteen-year sentence imposed is excessive.

Louisiana Revised Statute 14:64 provides in pertinent part:

Whoever commits the crime of armed robbery shall be imprisoned at hard labor for not less than five years and for not more than ninety-nine years, without benefit of parole, probation, or suspension of sentence.

At a sentencing hearing held on June 1, 1980, the trial judge noted that the defendant had three delinquency adjudications as a juvenile for burglary and theft, and an adult conviction for burglary prior to the instant offense. He noted that the defendant was no stranger to the legal system and further that he showed no indication of any attempt to live by the rules [of society].

The fifteen-year sentence is well within the statutory limitations for a violation of Louisiana Revised Statute 14:64. The trial judge is given wide latitude in the imposition of sentences within statutory limits and the sentence will not be set aside as excessive in the absence of a manifest abuse of discretion. State v. Prados, 404 So.2d 925 (La.1981); State v. Douglas, 389 So.2d 1263 (La.1980); State v. Spencer, 374 So.2d 1195 (La.1979); State v. Sepulvado, 367 So.2d 762 (La.1979).

We have held that a sentence is excessive if it is grossly out of proportion to the severity of the crime, or if it is nothing more than the purposeless and needless imposition of pain and suffering. State v. Prados, supra; State v. Guiden, 399 So.2d 194 (La.1981); State v. Bonnano, 384 So.2d 355 (La.1980).

Based on this defendant’s record, under Code of Criminal Procedure Article 894.1, there is no abuse of the trial court’s discretion. Despite the youth of the offender at the time of the offense (age twenty-one years), he is a second felony offender with a prior juvenile record and was found guilty of a very serious crime. State v. Douglas, 389 So.2d 1263 (La.1981). The sentence imposed was well within the lower range of sentences which might have been imposed under the Statute.

Considering the factual circumstances of this case and the character and propensities of the defendant, this assignment of error lacks merit.

Assignments of Error Nos. 2 and 6

These assignments were neither briefed nor argued and are therefore considered abandoned. State v. Sterling, 377 So.2d 58 (La.1979); State v. Spencer, 374 So.2d 1195 (La.1979).

DECREE

Finding no reversible error in defendant’s assignments of error, we affirm his conviction and sentence.

       Judge Walter I. Lanier, Jr. of the Court of Appeal, First Circuit and Judges Fred S. Bowes and Nestor L. Currault, Jr. of the Twenty-Fourth Judicial District Court participated in this decision as Associate Justices pro tempore, joined by Associate Justices Calogero, Dennis, Blanche and Lemmon.


text:
    STATE of Louisiana v. John MOSE.
    No. 81-KA-2276.
    Supreme Court of Louisiana.
    April 5, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Eddie Knoll, Dist. Atty., Cliffe E. Laborde, III, Asst. Dist. Atty., for plaintiff-appellee.
    Michael J. Johnson, Cottonport, for defendant-appellant.
   EDWARD A. DUFRESNE, Jr., Justice Pro Tern.

Defendant was charged by bill of information with unlawfully possessing a firearm after having been convicted of a felony, to wit, aggravated battery. (La.R.S. 14:95.1) He entered a plea of not guilty and after a jury trial was found guilty by a unanimous verdict. Thereafter, the trial court sentenced the defendant to serve a term of three (3) years at hard labor and to pay a fine of $1,000.00, or in default thereof, to serve an additional six months at hard labor. From this conviction and sentence, the defendant has appealed.

Frederick L. Fontenot, a trooper with the State of Louisiana Department of Public Safety, testified that on December 20,1980, he was called to assist the Marksville city police in the investigation of a double shooting. The officers had been told that a participant in the shooting had taken refuge in the home of one John Mose after she was wounded. In an attempt to locate a weapon involved in the incident, they went to Mose’s home. Mose was seated on a sofa in his living room when the officers arrived. After they entered the home, they noted some blood spots on the floor. From his position in Mose’s living room, Officer Fon-tenot could see a gun rack, with weapons on it, located in a bedroom. Officer Fontenot thought he recalled that Mose had once been convicted of aggravated battery but since he was not certain of that fact, he did not arrest defendant at that time. After the officer left the house, however, he verified his suspicions concerning Mose’s conviction. On the basis of that information, the police obtained a warrant to search Mose’s residence. In the course of the search, four weapons were found on a gun rack inside the house, and defendant was arrested and read his constitutional rights.

On appeal, the defendant contends that there was insufficient evidence to sustain the conviction. The purpose of La.R.S. 14:95.1 is to limit the possession of firearms by persons who, by their past commission of certain enumerated felonies, have demonstrated a dangerous disregard for the law and present a potential threat of further or future criminal activity. State v. Amos, 343 So.2d 166 (La.1977). As a result, three elements must be proven in order to convict an accused of this offense:

1.) status of defendant as a convicted felon
2.) possession by the defendant
3.) the instrumentality possessed was a firearm

At the trial, the state proved that the defendant was a convicted felon and that the weapons found were firearms. The third element to be proven is “possession”. In State v. Day, 410 So.2d 741 (La.1982), this Court noted that R.S. 14:95.1 does not make “actual” possession a necessary element of the offense, nor does it specifically require that the defendant actually have the firearm on his person. Therefore, the Court concluded, “constructive” possession of a firearm satisfies the posses-sory element of 14:95.1. With regard to the sufficiency of the evidence, the applicable standard in this case is whether a rational trier of fact, after viewing the evidence in the light most favorable to the prosecution, could have found beyond a reasonable doubt that defendant was in possession of the firearms. State v. Day, supra; Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). At trial, defendant’s son testified that the guns were located in defendant’s bedroom, in defendant’s home. The jury could therefore have been convinced beyond a reasonable doubt that the defendant was in possession of the firearms, as well as of the fact that he was a convicted felon. Accordingly, this assignment of error is without merit.

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

AFFIRMED.

       Judges Nestor L. Currault, Jr., and Fred S. Bowes of the Twenty-Fourth Judicial District Court and Edward A. Dufresne, Jr. of the Twenty-Ninth Judicial District Court participated in this decision as Associate Justices pro tempore, joined by Chief Justice John A. Dixon, Jr., and Associate Justices Walter F. Marcus, Jr., Fred A. Blanche, Jr., and Jack Crozier Watson.


author: BOWES, Justice Pro Tern.

text:
    STATE of Louisiana v. Terry J. DEATON.
    No. 81-KA-2427.
    Supreme Court of Louisiana.
    April 5, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Nathan Stansbury, Dist. Atty., Mike Harson, Bill Burris, Asst. Dist. Attys., for plaintiff-ap-pellee.
    Thomas E. Guilbeau, of Guilbeau & Joy, Lafayette, for defendant-appellant.
   BOWES, Justice Pro Tern.

The defendant, Terry J. Deaton, was convicted by a jury of second degree murder. He was sentenced to life imprisonment at hard labor, without benefit of parole, probation or suspension of sentence. On appeal, defendant urges twenty-one assignments of error. Assignments of Error Numbers 1, 3, 4, 5, 15, 16, 17, 20 and 21 were neither briefed nor argued, therefore they are considered abandoned. State v. Blanton, 325 So.2d 586 (La.1976).

On October 10, 1979 at approximately 2:30 a. m., Blake Cary was stabbed and killed during an altercation in the parking lot of the Caravelle Lounge in Lafayette, Louisiana.

The defendant, Terry Deaton, entered the lounge at approximately 12:30 a. m. Dea-ton approached Cary, who was sitting at the bar. After a verbal exchange erupted between the two men, Deaton went outside for about five minutes and then entered the lounge a second time. A short time later, Cary, and a female companion, Linda Thomas, left the bar through a rear door and went into the parking lot. Approximately five minutes after Cary’s departure, Deaton exited the lounge and an altercation ensued between the two men. As the two of them attempted to stand up from wrestling on the ground, Deaton stabbed Cary several times. Deaton then wiped the blade on his pants leg and ran out of the parking lot. The defendant was subsequently arrested.

Assignment of Error Number 2

By this assignment, defendant contends that the trial court erred in permitting the introduction of the murder weapon. The defendant argues that the defense stipulated to the length and nature of the knife and to the fact that it was the same weapon that he had in his possession prior to the killing. Therefore, he concludes that the probative value of the knife did not outweigh its prejudicial effect on the jury. He further argues that the knife was not relevant to a material issue at trial.

During the trial, a police officer testified that he found the murder weapon behind the Caravelle Lounge. He identified the knife and stated that it was photographed and placed in a sealed container as evidence. At that point, defense counsel offered a stipulation as to the chain of custody of the weapon, and also stipulated that the knife in the courtroom was the same one that the defendant had on the night of the murder. The prosecutor moved that the weapon be accepted into evidence and exhibited to the jury. Defense counsel objected and argued that the exhibition of this evidence would only inflame the jury and was unnecessary in light of the stipulation. After argument, the trial court overruled the defendant’s objection.

In considering whether demonstrative evidence is. admissible over an objection that it is unduly inflammatory, the test to be applied is whether the proffered evidence is relevant to any material issue in dispute and, if so, whether its probative value exceeds its probative prejudicial effect. State v. Manieri, 378 So.2d 931 (La.1980); State v. Hawthorne, 345 So.2d 1170 (La.1977).

In this case, the defendant claimed that the stabbing was committed in self-defense. The State correctly argued that the length and size of the knife was relevant to show the intent and state of mind of the defendant. Defendant argued that the knife was so large that its exhibition to the jury was inflammatory. However, testimony was placed before the jury as to the size of the weapon. The jury was entitled to view the knife to determine whether the defendant would be carrying such a large weapon for the sole purpose of protecting himself in a public place. Therefore, the trial court did not abuse its discretion in admitting the murder weapon into evidence and in allowing it to be exhibited to the jury.

This assignment is without merit.

Assignments of Error Numbers 6 and 7

By these assignments, defendant contends that the trial court erred in questioning a witness and in commenting on the evidence. Defense counsel argues that he was not able to attack the credibility of Ray Allen Landry, one of the State’s key witnesses, because of the trial judge’s unwarranted and prohibited intervention.

The defense complaint centers around the following portion of the transcript:

Mr. Macmanus (defense counsel)

Q Have you been convicted of any crimes?

A Not in the last — past, I’d say, two (2) years.

Q But, that’s not my question. Have you ever been convicted of any crimes?

A Yes, sir.

Q What are they?

THE COURT: You don’t remember, Mr. Landry?

THE WITNESS: I don’t remember.

MR. MACMANUS: I have no further questions. You may step down. I have no further questions.

No objection was made by defense counsel when the trial court questioned the witness.

This court has consistently held that an objection not contemporaneously raised in the lower court or ruled on by the trial judge cannot be availed on appeal. State v. Johnson, 404 So.2d 239 (La.1981); State v. Lawson, 393 So.2d 1260 (La.1981). Hence, absent an objection here, nothing is presented for our review.

In any event, the trial judge’s questioning of the witness was not reversible error. The State argued that the trial judge asked the question only after the witness did not answer for a substantial period of time. Additionally, defense counsel never questioned the witness further on this point and the witness clearly admitted to the crimes.

This assignment is without merit.

Assignments of Error Numbers 8 and 9

By these assignments, defendant contends that his prior defense counsel erred in failing to object to the improper questioning of the State’s key witness by the trial judge and to the trial judge’s comments on the evidence.

As noted in Assignments of Error Numbers 6 and 7, supra, defense counsel failed to object to the trial judge’s question to the witness. Therefore, these issues may not be raised on appeal. State v. Johnson, 404 So.2d 239 (La.1981). Additionally, defendant’s claim of ineffective assistance of counsel is more properly raised by application for a writ of habeas corpus in the district court, where a full evidentiary hearing may be conducted. State v. Hicks, 395 So.2d 790 (La.1981).

This assignment lacks merit.

Assignments of Error Numbers 10, 11, 12, 13, 14, 18 and 19

By this assignment, defendant contends that the trial judge erred in refusing to allow defense counsel to question witnesses concerning the dangerous character of the victim. Evidence of the victim’s dangerous character supports a plea of self-defense because it is relevant to show that the victim was the aggressor and that the defendant’s apprehension of danger was reasonable. State v. Lee, 331 So.2d 455 (La.1976); State v. Green, 335 So.2d 430 (La.1976). The foundation for admissibility of such evidence is found in La.R.S. 15:482:

“In the absence of evidence of hostile demonstration or of overt act on the part of the person slain or injured, evidence of his dangerous character or of his threats against accused is not admissible.”

During the trial, defense counsel attempted to ask several witnesses about the reputation of the victim. The prosecutor objected on the ground that the defense counsel had not laid a proper foundation for this testimony under R.S. 15:482. The trial court sustained the objection, ruling that there was insufficient evidence to constitute an “overt act” on the part of the deceased.

Subsequent to the trial court’s ruling, defendant requested to make a proffer of the excluded evidence. The trial judge granted the motion and the defense called five witnesses to testify to the victim’s bad character. The witnesses either testified that they had heard a few people from different towns talk about the victim, or that the persons, with whom they had discussed the victim, had been in a fight with him. In our opinion, these witnesses did not have the requisite qualifications to testify to the character of the victim.

La.R.S. 15:479 defines proof of character:

Character, whether good or bad, depends upon the general reputation that a man has among his neighbors, not upon what particular persons think of him.

Character testimony is the opinion by a member of the community exposed over an extended period of time to hearing the discussion by other members of the community shared by himself and the person whose reputation is at issue. Before being permitted to testify, the reputation witness must be shown to be qualified to testify on the subject as a member of the community in a position to speak with authority on the subject. State v. Frentz, 354 So.2d 1007 (La.1978).

None of the purported character witnesses belonged to the same community as the victim, nor was their opinion based on long-standing contacts with the same community as the victim. Debra Deaton, the defendant’s sister, admitted having only talked to people from the Lafayette area, the victim being from Rayne, Louisiana. In addition, Ms. Deaton could only testify that the victim was a good fighter and that he was not afraid of anyone. This trait was not relevant to show that the defendant acted in self-defense.

Mr. Jerry Guillot testified that he had only discussed the victim with about five people. Some of these people thought that Blake Cary was a nice person. The others could only state that Cary was a well-renowned boxer. When asked if the victim had a reputation for being mean or vicious, he answered, “I don’t know that at all.” This witness was not competent to testify to Blake Cary’s bad reputation in the community.

Another witness, Mr. Wade Bergeron, stated that he had discussed the victim’s reputation with less than five individuals from the Lafayette area. The only opinion he had heard was that Blake Cary would not quit a fight until it was over. Mr. Bergeron candidly admitted that he did not know of the victim’s reputation for starting fights, which was the relevant consideration in this case.

Two other witnesses, Reggie Angelle and Steve Menard, testified that they had each discussed the victim’s reputation with only two or three people. Mr. Angelle’s only knowledge was that Blake Cary was a “bad dude”, which he interpreted to mean that he was a good fighter. Steve Menard testified that he really didn’t know if the victim had a character trait of meanness. When asked if the people he talked to had an opinion as to Blake Cary’s character for fighting, Menard only related an incident where Cary had hit him.

Based on this testimony, the witnesses would not have been allowed to testify to the victim’s character. Since the character testimony would have been inadmissible under R.S. 15:479, we do not have to address the issue of whether an adequate foundation had been laid under R.S. 15:482 for admitting evidence of the victim’s dangerous character.

Accordingly, this assignment is without merit.

DECREE

For the foregoing reasons, the defendant’s conviction is affirmed.

       Judges Fred S. Bowes and Nestor L. Currault, Jr. of the Twenty-Fourth Judicial District Court and Edward Dufresne, Jr. of the Twenty-Ninth Judicial District Court participated in this decision as Associate Justices pro tempore, joined by Chief Justice Dixon and Associate Justices Marcus, Blanche, and Watson.

      . Lafayette is approximately fourteen miles from Rayne, where Blake Cary lived.


author: DUFRESNE, Justice Pro Tem.

text:
    STATE of Louisiana v. Bobby O’Neal WILLIAMS.
    No. 81-KA-2474.
    Supreme Court of Louisiana.
    April 5, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., Allen Harvey, Asst. Dist. Atty., for plaintiff-appellee.
    Martha Minnie weather, of Jefferson & Minnieweather, Bastrop, for defendant-appellant.
   DUFRESNE, Justice Pro Tem.

Defendant was charged by bill of information with attempted second degree murder (La.R.S. 14:27/30.1). He pleaded not guilty but withdrew his former plea and pursuant to a plea bargain, pleaded guilty to one count of aggravated battery (R.S. 14:34) and one count of second degree battery (R.S. 14:34.1). He was sentenced to serve ten (10) years at hard labor for aggravated battery, and five years at hard labor for second degree battery, the sentences to run concurrently. Although the defendant entered a plea of guilty pursuant to plea discussions, he now argues that the sentence imposed was excessive and that there were inadequate supporting reasons.

According to the pre-sentence investigation report, the defendant indicated he and his younger brother were in the Rockhouse Club No. 2 in Collinston, Louisiana on New Year’s Eve night, 1980 when an argument ensued between his brother and Don Earl Penn. Defendant dragged his brother out of the club," but his brother took Penn’s overcoat with him. Once outside, his brother took a cigarette lighter and burned a large hole in the coat. When Penn came outside, another argument started and in its course the defendant, armed with a .25 caliber pistol, shot the unarmed victim, Don Penn, four times, striking him in the arms, chest and stomach.

From a review of the record, the trial judge gave adequate consideration to the sentencing guidelines. Review should therefore focus on whether the trial court’s large discretion in sentencing has been abused. State v. Spencer, 374 So.2d 1195 (La.1979).

The defendant is a first offender. However, he was originally charged with attempted second degree murder, an offense for which he could have received up to 50 years. The record also reflects that he had a .25 caliber automatic pistol with him and that he shot the victim four times.

The sentence is therefore not so disproportionate to the crime as to shock the court’s sense of justice. State v. Bonanno, 384 So.2d 355, 358 (La.1980). The trial court has not abused its great discretion in sentencing.

The defendant’s assignments of error have no merit.

The conviction and sentence of the defendant are affirmed.

AFFIRMED.

       Judges Nestor L. Currault, Jr., and Fred S. Bowes of the Twenty-Fourth Judicial District Court and Edward A. Dufresne, Jr. of the Twenty-Ninth Judicial District Court participated in this decision as Associate Justices pro tempore, joined by Chief Justice John A. Dixon, Jr., and Associate Justices Walter F. Marcus, Jr., Fred A. Blanche, Jr. and Jack Crozier Watson.


text:
    STATE of Louisiana v. Mark Wayne THIBODEAUX.
    No. 81-KA-2481.
    Supreme Court of Louisiana.
    April 5, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., L. K. Knapp, Jr., Dist. Atty., Charles W. Richard, Terry Johnson, Evelyn Oubre and Eugene Bouquet, Asst. Dist. Attys., for plaintiff-appel-lee.
    Alcide J. Gray, Gray, Clemons & Spruel, Lake Charles, for defendant-appellant.
   NESTOR L. CURRAULT, Justice Pro Tempore.

Mark Wayne Thibodeaux was charged by bill of information with the attempted armed robbery of Geralyn Ann Hurley at the Hoot Owl Dairy Bar in Lake Charles, Louisiana, a violation of La.R.S. 14:27, 14:64. He pleaded not guilty to that charge but was found guilty of attempted simple robbery after a trial by jury. The trial judge sentenced the defendant to three and one-half years with the Louisiana Department of Corrections, to run consecutively with any sentence the defendant might receive as a result of probation revocation. Subsequently, a joint probation revocation/multiple offender hearing concluded with the finding that the accused was a probation violator as well as a multiple offender and the Court sentenced the defendant pursuant to Louisiana Revised Statute 15:529.1 to seven years imprisonment at hard labor. Defendant now appeals this conviction on the basis of one assignment of error.

Factual Synopsis

On April 2, 1978, the victim, Geralyn Hurley was employed at the Hoot Owl Dairy Bar in Lake Charles, Louisiana. Being approached by a young black male at the service window, she requested his order. At that time he reached through the window, grabbed her wrist and said, “Give it up, give it all up.” As she hesitated, attempting to comprehend the situation, she noticed the man was armed with a knife. She screamed and attempted to get away from him. Still holding her wrist, he lunged through the window and as Ms. Hurley tried to crawl away, the robber stabbed her in the shoulder. Hearing the screams, another employee gave chase to the retreating robber who got into a green car. Other witnesses gave chase long enough to get a good description of the car and the license plate numbers. Based upon the information given by the witnesses, Officer Gordon Fontenot at the Lake Charles City Police located the vehicle that same afternoon in the parking lot of an apartment complex a short distance away. Two black males were standing by the vehicle. After advising them of their rights, the officer questioned them concerning the car’s ownership. The defendant was then arrested. A subsequent search of the trunk resulted in the recovery of a pair of brown pants worn by the perpetrator during the robbery. The defendant was subsequently identified by all four witnesses.

Assignment of Error

The defendant contends the trial court erred when it prohibited him from putting on the clothes introduced into evidence and moving swiftly across the courtroom in order to demonstrate that the clothes were not his and it was impossible for him to have worn those clothes at the time of the offense.

The record reflects that during the trial the State introduced the pants removed from the getaway car used in the crime. The pants had the words “ROYTHIBD” written inside.

On motion of the State, the jury was removed from the courtroom and, in their absence, the State asked the trial court to order the defendant to hold the pants up to him. The defense attorney then moved that the defendant be required to wear the pants. The State agreed and the defendant changed clothes. The jury was returned to the courtroom, and the defendant, dressed in the seized trousers, walked in front of the jury box and back to his seat. After two more witnesses were examined, the State rested.

Prior to the presentation of any testimony, the defense requested that the defendant again be allowed to don the pants that were previously exhibited, as well as the cap and glasses introduced into evidence, “for the purposes of showing the jury what the witnesses have testified as to what they saw for identification purposes; and in our attempt in the defense to show that there was no way for them to have identified this individual.”

The defense additionally requested that while the defendant was so dressed he was to move “rapidly [from the center doors of the court] to the radiator area in the southeast corner of the courtroom.” Although the trial court denied the defendant the opportunity to don the trousers again and run across the courtroom, the Court did permit the defendant to put on the hat and sunglasses before the jury. In the trial judge’s per curiam, he stated:

The court refused [the motion] for two principal reasons. Eyewitness identifications had been made by at least three (3) people who had seen defendant at the time of the offense, and immediately thereafter, at distances ranging from as near as three feet to about what would have been thirty feet, all outside any building and on a bright sunshiny day. The demonstration in the courtroom would have been in fluorescent light with the very dark old oaken walls as a background at distances ranging from about thirty to fifty feet from the jury. Additionally, and as the principal reason for the court’s refusal, counsel for the defendant and the State advised the court in chambers that defendant had gained a substantial amount of weight while awaiting trial; their estimate being approximately fifty pounds. Whether the weight gain was deliberate for the proposed demonstration was not known. Both counsel agreed that defendant could not wear the clothing in evidence; would in fact be unable to zip up the trousers.

The defense, in brief, cites State v. Tillett, 351 So.2d 1153 (La.1977) In Tillett, this Court reversed the lower court’s ruling that refused to allow the defendant to demonstrate his voice to the jury for their determination as to its qualities. The issue concerned whether or not defendant had a Spanish accent. The State could compel the defendant to speak since that did not violate his Fifth Amendment rights; therefore, one of the essential ingredients of due process is reciprocity. Thus, in Wardius v. Oregon, 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973), this Court held that the' defendant had a right to demonstrate his voice to the jury.

In differentiating this case from Tillett, this Court notes that the defendant had an opportunity to wear the pants, hat and glasses before the jury (albeit not to run in them), giving the jury a chance to see that the pants were too tight for him and how much of his face was obscured by the hat and glasses.

The trial judge deemed the second demonstration irrelevant. A trial judge’s ruling as to the relevancy of evidence should not be disturbed absent a showing of a clear abuse of discretion. State v. Joseph, 407 So.2d 712 (La.1981); State v. Alford, 384 So.2d 761 (La.1980).

Considering the facts presented in this case, this court does not find that the trial judge abused his considerable discretion.

Accordingly, this assignment lacks merit.

DECREE

For the foregoing reasons, the sentence and conviction of the defendant is affirmed.

       Judges Nestor L. Currault, Jr. and Fred S. Bowes of the Twenty-Fourth Judicial District Court and Edward A. Dufresne, Jr. of the Twenty-Ninth Judicial District Court participated in this decision as associate justices pro tempore, joined by Chief Justice Dixon and Associate Justices Marcus, Blanche and Watson.


text:
    STATE of Louisiana v. ELLWEST STEREO THEATRES, INC.
    No. 81-KA-2524.
    Supreme Court of Louisiana.
    April 5, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Joseph Meyer, Jr., Louise Korns, Asst. Dist. Attys., for plaintiff-ap-pellee.
    Jacques F. Bezou, of Garon, Brener & McNeely, New Orleans, for defendant-appellant.
   NESTOR L. CURRAULT, Justice Pro Tempore.

The defendant, Ellwest Stereo Theatres, Inc. was charged by two bills of information with four counts of obscenity, a violation of La.R.S. 14:106. On January 31, 1980, the corporation was tried before a six-person jury and was found guilty on all four counts. On February 13, 1980, the court sentenced the defendant-corporation on bill # 272-784 “B” Count 1 to pay a fine in the amount of $916.00 and in default thereof to serve eleven months in Parish Prison, and court costs of eighty-four dollars or to serve an additional thirty days in jail. On the second count, the court ordered the corporation to pay one thousand dollars or in default thereof to serve one year in Parish Prison. Identical sentences were imposed in bill # 273-410 “B”. All sentences were to run consecutively.

Defendant appeals on six assignments of error for reversal of the conviction. Assignment No. 6 was neither briefed nor argued and it is therefore considered abandoned.

Factual Synopsis

Officer Robert Hamilton, a detective assigned to the vice section of the New Orleans Police Department went to the Ellwest Stereo Theatre at 333 Bourbon Street on two occasions to view peep shows and movies. On each occasion, two films were viewed and determined to be obscene by the officer. Warrants were obtained based upon affidavits by the officer narrating the films’ events and four cassettes of film were seized. After establishing a chain of custody for the cassettes, they were introduced into evidence at trial and viewed by the jury. A verdict of “guilty as charged” was returned on all four counts, reflecting a finding by the jury that all four films viewed were adjudged obscene.

Assignments of Error 1 through 4

Defense assignments of error one through four assert error on the part of the trial court in denying defense challenges for cause of three prospective jurors and in granting one challenge for cause by the State.

Louisiana Code of Criminal Procedure Article 797 provides in pertinent part:

(1) The state or the defendant may challenge a juror for cause on the ground that:
(2) the juror is not impartial, whatever the cause of the partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied that he can render an impartial verdict, according to the law and the evidence.

Where an accused has exhausted all of his peremptory challenges before completion of the panel, he is entitled to complain on appeal of a ruling refusing to maintain a challenge for cause made by him. He need only show two things to obtain reversible error: (1) That the trial court erred in refusing a challenge for cause by him; and (2) that he exhausted all his peremptory challenges. He need not make the additional showing of injury resulting from the court’s action by forcing him to accept the challenged juror. The trial judge is vested with broad discretion in ruling on a challenge for cause which ruling will not be disturbed, on appeal, absent a showing of abuse of that discretion. State v. Sylvester, 400 So.2d 640 at 642 (La.1981).

During the voir dire of the challenged jurors Mrs. Landry, Mr. Williams and Ms. Borne all initially expressed reservations concerning the definition of the term “obscene” or the application of the law.

Mrs. Landry indicated that if she saw a film that had sexual intercourse in it she would automatically find that it was in violation of the law and obscene.

Mr. Williams explained that he felt sex was not a spectator sport, and the definition of the law as read was a grim thing to hear. And Ms. Borne replied that sex should be kept in the bedroom where it belongs.

However, these jurors, after being examined further by the State and by the Court, assured the Court that they could apply the applicable law and give the defendant a fair trial.

This Court has repeatedly dismissed a defense argument that its challenge for cause was improperly denied by observing that the juror, when questioned further by the prosecutor and the court demonstrated a willingness and ability to decide the case impartially, according to the law and the evidence. See e.g. State v. Claiborne, 397 So.2d 486 (La.1981); State v. McIntyre, 381 So.2d 408 (La.1980); State v. Allen, 380 So.2d 28 (La.1980); State v. Sonnier, 379 So.2d 1336 (La.1980); State v. Shelton, 377 So.2d 96 (La.1979).

It is the opinion of this Court that the jurors were sufficiently rehabilitated by the trial court and the prosecution, and there was no abuse of discretion in the refusal to allow the challenges for cause.

Mr. Osby, a juror challenged by the State for cause, which challenge was granted by the court, indicated on examination that he felt that he could not adjudicate any sexual activity criminally obscene. The defense declined to attempt the rehabilitation of Mr. Osby despite opportunity by the Court. Again, this Court finds no abuse of discretion in the granting of the challenge for cause by the trial court.

These assignments lack merit.

Assignment of Error No. 5

Defendant contends it was reversible error for the trial court to comment on the evidence during defense counsel’s opening argument in violation of Louisiana Code of Criminal Procedure Article 772.

During the opening argument, the State objected to the defense statement that a corporation can only be convicted through its agent. During the dialogue following the objection, the defendant alleges that the Court made impermissible comment concerning the burden of proof in a criminal case. We excerpt that portion of the argument.

BY DEFENSE ATTORNEY: And, a corporation, as you will learn can only be convicted through its agent or — they’ve got to prove knowledge on the part of the corporation—
BY PROSECUTING ATTORNEY: Your Honor, I’m object to that. Agent — a corporation is a legal entity, does not have to be convicted through its agents—
BY THE COURT: Yes, you’re making an argument, too.
BY PROSECUTING ATTORNEY: Yes, sir. I’m [sic] object to that, also.
BY THE COURT: You should be telling this Jury only what you intend to prove during the course of this trial, and nothing else. You’re making an—
BY DEFENSE ATTORNEY: —That’s right, Your Honor.
BY THE COURT: —an argument to them.
BY DEFENSE ATTORNEY: I’m sorry, Your Honor.
BY THE COURT: Okay. Get on to something else. What you intend to prove only.
BY DEFENSE ATTORNEY: Well, I don’t have to prove anything, as the Judge will tell you.—
BY THE COURT: —Yes, its true, but you can sit down if you’re not going to prove anything, because that’s all you can talk about.
BY DEFENSE ATTORNEY: (Continues argument)

Louisiana Code of Criminal Procedure Article 772 provides, “The judge in the presence of the jury shall not comment upon the facts of the case, either by commenting upon or recapitulating the evidence, repeating the testimony of any wit-' ness, or giving an opinion as to what has been proved, not proved, or refuted.”

When the judge said "... that’s all you can talk about”, it is clear he was referring to the limitations set forth by law as to the scope of the defendant’s opening statement. In State v. Bell, 263 La. 434, 268 So.2d 610, 615 (1972), this Court held:

. . . that defense counsel who avails himself of the opportunity to make an opening statement under Code of Criminal Procedure Article 765(4) must confine his remarks to an explanation of the nature of the defense and the evidence by which he expects to establish it.

In the present ease, the judge was not commenting on the facts of the case, nor was he commenting on evidence, nor what has to be proved, not proved, or refuted as defined in Article 772, supra, but rather reminding defense counsel that he could not permit argument during opening statements. This scarcely represents prohibited comment.

Alternatively, defense counsel failed to raise an objection to the judge’s remark at trial. Under Louisiana Code of Criminal Procedure Article 841, such failure to raise a contemporaneous objection waives the argument for appeal. State v. Toomer, 395 So.2d 1320 (La.1981)

This assignment lacks merit.

Finding no merit in any of the assignments of error raised, we affirm the conviction and sentence.

       Judge Walter I. Lanier, Jr. of the Court of Appeal, First Circuit and Judges Fred S. Bowes and Nestor L. Currault, Jr. of the Twenty-Fourth Judicial District Court participated in this decision as Associate Justices pro tempore, joined by Associate Justices Calogero, Dennis, Blanche and Lemmon.


author: BLANCHE, Justice. MARCUS, Justice

text:
    Eula Thompson BARTLETT, et al. v. Stella CALHOUN, nee Herron.
    No. 81-C-2933.
    Supreme Court of Louisiana.
    April 5, 1982.

      William P. Brumfield, Brumfield & Brumfield, Baton Rouge, for applicant.
    George C. Murray, Jr., Calhoun, Murray & McLemore, Vidalia, for respondent.
   BLANCHE, Justice.

This is a petitory action. The disputed property is a 300 acre tract of land located near the Black River in Catahoula Parish and owned at one time by W. C. Thompson and his wife. The Thompsons purportedly sold this tract to defendant, Stella Calhoun, on November 30,1949. It appears from the record that thereafter the property was transferred by Ms. Calhoun to Grey Ramon Brown by act of sale dated December 10, 1949. Finally, in October of 1951, Ms. Calhoun re-purchased the property from Mr. Brown and it has remained in her possession since that date.

Plaintiffs, the alleged heirs of the Thompsons, filed this suit in 1977 seeking ownership and an accounting of revenue from the contested property. They challenge the validity of the November 30, 1949 act of sale, claiming that the Thompsons’ signatures were forged.

Defendant moved for summary judgment, 404 So.2d 516 (La.App.), urging that because there was no issue as to a material fact, she was entitled to judgment as a matter of law. At the hearing on this motion, Ms. Calhoun contended that she had acquired the land in question by acquisitive prescription of ten years. Louisiana Civil Code article 3479, which sets forth the requisites for ten year acquisitive prescription, provides:

Art. 3479. To acquire the ownership of immovables by the species of prescription which forms the subject of the present paragraph, four conditions must concur:
1. Good faith on the part of the possessor.
2. A title which shall be legal, and sufficient to transfer the property.
3. Possession during the time required by law, which possession must be accompanied by the incidents hereafter required.
4. And finally an object which may be acquired by prescription.

Plaintiffs argued that defendant, because of the alleged false signatures in the November 30,1949 act of sale, was not in good faith. Defendant, in response to plaintiff’s claim, urged that, even if she was in bad faith when she originally acquired the tract, she could take advantage of Grey Brown’s (her transferee’s) good faith, tack her subsequent possession to his, and own the property after the passage of ten years.

Both lower courts were of the opinion that the holding of Liuzza v. Heirs of Nunzio, 241 So.2d 277 (La.App. 5th Cir. 1970) was controlling in the instant case. When confronted with the identical issue, the court in Liuzza came to the following conclusion:

In the very early ease of Devall v. Choppin, 15 La. 566 (1840) the Supreme Court enunciated the proposition that if a successor showed that one of his authors was a possessor in good faith and had all the necessary ingredients for ten year prescription, he could acquire by such prescription even though he as well as an intermediary author possessed in bad faith. This interpretation has become the rule in our jurisprudence.

Accordingly, the trial and appellate courts held that, because Ms. Calhoun could rely on Grey Brown’s good faith, it did not matter whether defendant was or was not herself in good faith. Concluding that plaintiff’s challenge to Ms. Calhoun’s plea of prescription did not bear on a material fact, summary judgment was rendered in favor of defendant. C.C.P. art. 966.

We granted writs to determine whether the lower courts’ conclusion that defendant’s status as a good or bad faith possessor was not a material fact was proper. In so doing, we re-evaluate the soundness of the jurisprudential rule which permits a bad faith possessor to tack his possession to that of his good faith author in order to acquire ownership by acquisitive prescription of ten years.

“Tacking”, or the “joining of possessors”, allows the present possessor to count, besides his own possession, that of his predecessor in order to prescribe. M. Planiol, Civil Law Treatise, Part 2, Sec. 2673 (12th Ed. La.St.L.Inst. trans. 1959). As a result, it is not necessary that the same individual possess the immovable during the entire period required for prescription. This joining, or tacking, of possessions is authorized by C.C. art. 3493, which provides:

Art. 3493. The possessor is allowed to make the sum of possession necessary to prescribe, by adding to his own possession that of his author, in whatever manner he may have succeeded him, whether by an universal or particular, a lucrative or an onerous title.

By the word “author” this codal provision contemplates the person from whom another derives his right, whether by universal title or by particular title. C.C. art. 3494. Thus, it is imperative that a juridical link exist in order for a successor to acquire his predecessor’s prescriptive rights. Though art. 3493 does not contain a separate provision for the universal successor as distinguished from the successor -by particular title, we believe that a differentiation must exist due to the nature of these types of transfers.

The French commentators agree that the universal successor continues the deceased’s possession and does not commence a new possession. 2 Aubry & Rau, Droit Civil Francais Nos. 218 (7th Ed. Esmein 1961), 2 Civil Law Translations at 365 (1966); Baudry-L .cantinerie & Tissier, Traite’ Theoreque et Pratique de Droit Civil, Prescription Nos. 346, 347 (1924), 5 Civil Law Translations at 181 (La.St.L.Inst. trans. 1972). See also Griffin v. Blanc, 12 La.Ann. 5 (La.1857). As noted by Planiol:

The universal successor merely continues the deceased’s possession (no. 2661). He succeeds to all of the latter’s obligations as well as rights. It is thus not a new possession that begins but it is the deceased’s possession that is transmitted to his heirs, with its virtues and its faults. Planiol, supra, Sec. 2674.

Because the universal successor’s possession is nothing more than a continuation of the deceased’s possession, he is bound by his author’s good or bad faith and is powerless to alter the prescriptive rights transmitted- to him. Aubry & Rau, Sec. 218, supra; Planiol, Sec. 2674, supra.

For instance, the decedent possessed with just title and in good faith, an immovable belonging to another. He was thus in the process of prescribing ten to twenty years. His possession continues in favor of his heir with the same characteristics and the prescription will be completed at the end of ten or twenty years, commencing with the date when the decedent entered in possession. It is irrelevant that the heir is in bad faith at the moment when the possession is transferred to him.
The effect of vices in the possession will be always the same as if the possession continued for the benefit of the decedent. It follows that vices incurable with respect to the decedent can not be cured by the heir. For instance, if the decedent was in bad faith from the beginning of his possession, his heir can prescribe only by thirty years although he is personally in good faith. Baudry-Lacantinerie, Sec. 348, supra.

Thus, it is evident that the provisions of C.C. art. 3482, which permit prescription to accrue after ten years as long as the possession is commenced in good faith, envisions only one possession and applies when property is transferred to a universal successor. Baudry-Lacantinerie, Sec. 351, supra. As far as the universal successor is concerned, it would be more accurate to leave out tacking and its connotations and describe the transaction as a mandatory substitution. Comment, “Tacking of Possession for Acquisitive Prescription”, 8 La. L.Rev. 105 at 107-110 (1948).

Contrary to the universal successor, an individual who acquires by particular title commences a new possession which is separate and distinct from his author’s possession. Aubry & Rau, Sec. 218, supra.

... This type of successor commences a new possession, completely distinct from that of his grantor. Here we have two mutually independent possessions. Baudry-Lacantinerie, Sec. 350, supra.

Though the particular successor can cumulate his and his author’s possessions, both must have all the statutory characteristics and conditions required for the completion of prescription. Domat, The Civil Law in its Natural Order, Sec. 2226 (2nd Ed., Cushing trans. 1861); Aubry & Rau, Sec. 218, supra; Baudry-Lacantinerie, Sec. 350, supra. The implications of this limitation on a particular successor’s right to tack are fully explained by Planiol:

Assuming that the preceding possessor was himself in the process of prescribing, several combinations may arise. If both of them were entitled to prescribe within from ten to twenty years, the new possessor would certainly have a right to consolidate the two possessions. The same result would obtain if neither of them was entitled to prescribe within these terms. In both cases, the thirty year period would be the only one available. In these two cases, the two successive possessions of the successor and of his author may be added together. They are of the same nature and of the same quality.
But if it be assumed that the two successive possessors are not in the same position, from the standpoint of prescription — but one of them have a just title and being in good faith — complications arise. They are solved by this very simple rule: The years that apply to the thirty years prescription, which requires neither just title nor good faith, cannot be used in completing the prescription running from ten to twenty years. The latter prescription requires that both conditions exist. But, on the contrary, the years that have run in connection with this favored prescription may be counted in computing the thirty years prescription. All that it requires is possession.
EXAMPLES: Where the vendor is a possessor in good faith, and the purchaser is in bad faith. If the ten years prescription has not run in favor of the vendor, at the time of the sale, the purchaser cannot prescribe except upon the basis of thirty years, but he can count his author’s years of possession.
Where the vendor was in bad faith but the purchaser in good faith, the latter can prescribe upon the basis of ten years but he cannot avail himself of his author’s possession, because it applied solely to the thirty year period. In such a contingency, it might sometimes pay the purchaser to abandon his claim to the prescription of ten years in order to take advantage of the thirty years prescriptive period commenced by his author. This interest will come into play whenever the prescription has less than ten years to run before being completed. There is no doubt about the fact that he can then join his possession to that of his author to complete the thirty years. If the latter’s possession would have applied to the shortened and privileged prescription it will a fortiori apply to the general prescription of thirty years.
Planiol, Sec. 2676, 2677, supra.

It is our opinion that this statement properly explains the restraints placed on a successor’s right to join his possession with his author’s possession for purposes of acquisitive prescription. Accordingly, any language to the contrary in previous opinions of this Court or of the courts of appeal must be disregarded. E.g. see Liuzza v. Heirs of Nunzio, supra; Devall v. Choppin, 15 La. 566 (1840); Liquidators of Prudential Savings and Homestead Soc. v. Langermann, 156 La. 76, 100 So. 55 (1924); Brewster v. Hewes, 118 La. 45, 36 So. 883 (1904); Wheat v. Bayer and Thayer Hardwood Co. Inc., 15 La.App. 306, 131 So. 307 (1930); Vance v. Ellerbe, 150 La. 388, 90 So. 735 (1922); Jackson v. D’Aubin, 338 So.2d 575 (La.1976).

Applying this civilian principle to the present case, it is evident that Ms. Calhoun’s status as a possessor is essential to her claim of acquisitive prescription of ten years. Defendant, as a purchaser, is a successor by particular title. If she was in good faith when she re-acquired the property in 1951, she could cumulate the requisite ten years on her own, or tack her possession to that of her good faith author. On the other hand, if defendant was in bad faith she could not avail herself of Grey Brown’s good faith and become owner of the land in question after the passage of ten years. Though she could still tack her possession to that of her author’s for thirty year acquisitive prescription, the institution of this suit in 1977 would interrupt her possession and preclude her claim of ownership. See C.C. art. 3518.

However, both lower courts were of the opinion that defendant’s status as a possessor did not present a material fact. As a result, it was never determined whether the pleadings, depositions, admissions of fact or affidavits established a genuine issue as to this materiál fact. This determination is to be made on remand.

Accordingly, the summary judgment rendered in defendant’s favor is reversed, and the case is remanded to the district court for further proceedings in accordance with law.

MARCUS, J., dissents and assigns reasons.

MARCUS, Justice

(dissenting).

La.Civ.Code art. 3479 sets forth the conditions that must concur to acquire the ownership of immovables by acquisitive prescription of ten years. One of these conditions is “[g]ood faith on the part of the possessor.” Article 3482 provides that “if the possession has commenced in good faith,” subsequent bad faith “shall not prevent the prescription.” Finally, art. 3493 provides that the “possessor is allowed to make the sum of possession necessary to prescribe, by adding to his own possession that of his author, in whatever manner he may have succeeded him, whether by an universal or particular .. . title.”

Under the above articles, prescription accrues after ten years as long as possession commenced in good faith. Subsequent bad faith is of no moment. A possessor may add to his own possession that of his author in title to make the sum of possession necessary to prescribe. Hence, a bad faith possessor is permitted to “tack” his possession to that of his good faith author in title to acquire ownership by acquisitive prescription of ten years. This has been the law of this state since Devall v. Choppin, 15 La. 566 (1840). I see no compelling reason to change it at this time.

In the instant case, Ms. Calhoun originally acquired the property on November 30, 1949. It is alleged that she was in bad faith at the time of this sale. However, Grey Brown acquired the property in good faith by act of sale from Ms. Calhoun on December 10, 1949. In October of 1951, Ms. Calhoun repurchased the property from Mr. Brown and it has remained in- her possession since that date. Since possession must be commenced in good faith, the prescription of ten years began to run when Mr. Brown acquired the property in good faith and by just title on December 10, 1949. As a subsequent possessor of the property, Ms. Calhoun is allowed to “tack” her possession to that of her author in title, Mr. Brown. Accordingly, Ms. Calhoun became the owner of the property by the acquisitive prescription of ten year on December 10, 1959. Hence, the trial judge correctly granted defendant’s motion for summary judgment. The court of appeal was correct in affirming that judgment. I would affirm. Accordingly, I respectfully dissent.

      . C.C. art. 3556(28) provides in pertinent part:
      There are in law two sorts of successors: the successor by universal title, such as the heir, the universal legatee, and the legatee by universal title; and the successor by particular title, such as the buyer, donee or legatee of particular things, the transferee.

      . Art. 3482. It is sufficient if the possession has commenced in good faith; and if the possession should afterwards be held in bad faith, that shall not prevent the prescription.