text:
    STATE of Louisiana v. Paul Mitchell GOODLEY.
    No. 80-KA-2500.
    Supreme Court of Louisiana.
    May 18, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leonard K. Knapp, Jr., Dist. Atty., Evelyn Oubre and Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.
    Steven Broussard, Lake Charles, for defendant-appellant.
   CALOGERO, Justice.

Defendant Paul Goodley was charged by grand jury indictment on November 2, 1979 with the crime of first degree murder in violation of R.S. 14:30. After trial by jury beginning on June 23, 1980, he was found guilty of manslaughter (R.S. 14:31) with ten of the twelve jurors concurring in the verdict. On September 12,1980, the trial court sentenced defendant to fifteen years imprisonment at hard labor. Defendant now appeals his conviction and sentence to this Court, urging a single assignment of error, a challenge to his sentence as excessive.

In reviewing the record, we have discovered a possible error in the case which requires our consideration notwithstanding the absence of an assignment of error, that is, whether the verdict, concurred in by only ten of the twelve jurors, was valid. Because we hold that the verdict was not valid, requiring the reversal of defendant’s conviction and sentence, we pretermit consideration of defendant’s claim that his sentence is excessive.

Article 920 of the Code of Criminal Procedure dictates the scope of our review in criminal appeals and provides in pertinent part as follows:

“The following matters and no others shall be considered on appeal ... (2) An error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.” (emphasis provided)

Under this provision, the Court will consider any errors that are “discoverable by a mere inspection of the pleadings and proceedings,” or patent errors.

In the present case, defendant was charged with first degree murder, a capital offense, i. e., one in which a sentence of death may be imposed. The trial court instructed the jury that while twelve jurors had to concur in order to find defendant guilty as charged, only ten of the twelve had to agree on the responsive verdicts of second degree murder or manslaughter. This instruction also appeared on the verdict sheet handed by the jury. The jury returned a verdict finding defendant guilty of manslaughter by a ten to two vote.

This Court has consistently held that while the jury charge does not constitute a patent error, that is, one discoverable by inspection of the pleadings and proceedings and reviewable without being assigned as error, the jury verdict does. State v. Cook, 396 So.2d 1258 (La.1981); State v. Vincent, 387 So.2d 1097 (La.1980); State v. Wrestle, 360 So.2d 831 (La.1978); State v. Craddock, 307 So.2d 342 (La.1975); and State v. Sanford, 248 La. 630, 181 So.2d 50 (1965). Thus under the authority of C.Cr.P. art. 920 and the above jurisprudence, we must consider whether or not the ten to two verdict returned in this case was proper.

Article 1, § 17 of the Louisiana Constitution of 1974 provides, as does its statutory counterpart, C.Cr.P. art. 782, that,

“A criminal case in which the punishment may be capital shall be tried before a jury of twelve persons, all of whom must concur to render a verdict." (emphasis provided)

In addition to these express provisions it has been determined that a conviction on a lesser included offense operates as an acquittal on the greater charged offense. C.Cr.P. art. 598; Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). Therefore, in view of the above, it is clear that the vote on the lesser included offense, which acts as an acquittal verdict on the capital charge, must conform to the requirements for a lawful verdict on the greater offense, a unanimous verdict. Any other conclusion would violate the constitutional mandate that “a verdict” in a capital case must be by a unanimous jury.

The issue in this case is complicated, however, by the fact that prior to trial, in response to a defense motion, the state stipulated that it “. .. has not and does not intend to seek the death penalty.” Thus the question presented here is not simply whether a unanimous verdict is required to convict one charged with a capital offense of a lesser included offense, but rather, whether a unanimous verdict is required to convict of a lesser offense a person charged with a capital offense where the state has stipulated that it will not seek the death penalty. For the following reasons, we hold that a unanimous verdict is required.

The Legislature, in enacting the controlling provision herein, relied on the severity of the punishment provided for a crime as the basis for its classification scheme in providing the number of jurors which must compose a jury and the number of jurors which must concur to render a verdict. As stated above, La.Const. of 1974 Art. I, § 17 and C.Cr.P. art. 782 provide in pertinent part:

“A criminal case in which the punishment may be capital shall be tried before a jury of twelve persons, all of whom must concur to render a verdict.”

Thus, the Legislature determined that for crimes that were so serious as to validly carry the death penalty, certain special procedural rules were additionally required, among which was the requirement of a unanimous jury to render a verdict. This determination is not based on an after the fact examination of what crime the defendant may eventually be convicted of, nor is it based on an after the fact examination of what sentence he receives. Rather, the scheme is based on a determination by the Legislature that certain crimes are so serious that they require more strict procedural safeguards than other less serious crimes. It was determined that in charged capital offenses a unanimous verdict for conviction, not just sentencing, is necessary and there is no attendant provision giving the state the authority to alter that scheme on its own motion by simply stipulating that the death penalty will not be sought in a certain case.

The meaning of these provisions has previously been considered by this Court in State v. Gilmore, 332 So.2d 789 (La.1976), in a somewhat similar situation. In Gilmore, defendant had originally been charged with first degree murder. However, the state later amended the indictment and defendant went to trial on the charge of second degree murder. Defendant therein argued that since he had originally been charged with the crime of first degree murder, a capital crime, a unanimous jury would be required to convict him of the lesser offense of second degree murder. In holding for the state the Court, considering the above provisions, concluded that:

“Although the number of jurors to try a case is determined by the gravity or nature of the crime charged ... an indictment will not unalterably fix the composition of the jury .... We think it clear, then, that the charge under which an accused is prosecuted is the determining factor.”

More recently when faced with the identical question presented here, whether a unanimous verdict was required in a first degree murder case where the state had stipulated it would not seek the death penalty, this Court, in a per curiam writ denial in response to a pre-trial writ application ruled:

“The trial court has not erred in ruling that the jury verdict must be twelve out of twelve.” State v. Sermon, 383 So.2d 38 (La.1980).

In view of these court actions in Gilmore, supra, and Sermon, supra, and the constitutional and statutory provisions .outlined above, we find that a unanimous jury is required in a case where the defendant is being prosecuted under an unamended charge of first degree murder, a capital offense, to render any verdict, notwithstanding the fact that the state may have stipulated that it would not seek the death penalty.

As was the result in Gilmore, supra, if the state does not want to meet the unanimous verdict requirement mandated in prosecutions of capital crimes, it can re-charge the defendant with a non-capital crime.

In-view of our holding that defendant’s conviction was not valid because not returned by a unanimous jury and that his conviction and sentence must be set aside, we pretermit consideration of defendant’s argument that his sentence was excessive.

Decree

For the foregoing reasons, the conviction and sentence of defendant must be set aside and the case remanded to the trial court for a new trial.

REVERSED AND REMANDED.

LEMMON, J., dissents and will assign reasons.

      . The verdict sheet provided the jury appeared as follows:
      “1. We, the jury, find the defendant guilty as charged. (AH twelve of you must agree)

        FOREPERSON
      June_, 1980
      2. We, the jury, find the defendant guilty of second degree murder. (Ten of you must agree)
      FOREPERSON
      June_, 1980
      3. We, the jury, find the defendant guilty of manslaughter. (Ten of you must agree)
      FOREPERSON
      June_, 1980
      4. We, the jury, find the defendant not guilty. (All twelve of you must agree)
      FOREPERSON
      June_, 1980”

      . This conclusion is further supported by our holding in State v. Stanford, 204 La. 439, 15 So.2d 817 (1943). In Stanford the question presented was how many jurors were needed to try a particular offense. Therein we held that “... the number of jurors to try a case is determined by the gravity or nature of the crime charged and not by the verdict returned of a lesser offense.”

      . The language of the provisions considered in Gilmore was identical to the language of the provisions considered here, but it was as found in Article 7, § 41 of the 1921 La. Constitution rather than Article 1, § 17 of the 1974 Constitution.

      . This Court considered a similar issue in State v. Jones, 385 So.2d 786 (La.1980) and in a brief per curiam writ grant in response to a pre-trial writ application recited that the “[c]rime of aggravated kidnapping is not capital, nor is it capital for procedural purposes.” However, Jones is distinguishable from the case under consideration because Jones involved a situation where the death penalty provision had been declared unconstitutional, whereas here the death penalty provision is valid and enforceable, making first degree murder “a criminal case in which the punishment may be capital.”


source: Caselaw Access Project

author: CALOGERO, Justice.

license: Public Domain

text:
    The DELTA NATIONAL BANK OF YAZOO CITY v. M. G. HOLDER.
    No. 80-C-2527.
    Supreme Court of Louisiana.
    May 18, 1981.
    Steven F. Griffith, Destrehan, for plaintiff-relator.
    Leon C. Vial, III, Hahnville, for defendant-respondent.
   CALOGERO, Justice.

This case involves the denial of a Motion for Summary Judgment filed by plaintiff, Delta National Bank of Yazoo City, against defendant, M. G. Holder, in its suit against defendant to have a Mississippi judgment against this defendant made executory in Louisiana.

The facts as can be drawn from this record appear to be as follows. Holder entered into a contract with Delta National Bank, in Mississippi, for the loan of $7,050.40. Upon default by Holder, Delta instituted suit on the loan against Holder in the County Court of Yazoo County, Mississippi. Personal jurisdiction over the defendant was obtained pursuant to the Mississippi Long Arm Statute. Service of process was effected as required by the statute and judgment was thereafter taken against defendant on June 14, 1978. Defendant did not appeal and the judgment against him became final.

Upon defendant’s failure to satisfy the judgment, plaintiff initiated the present suit against him, in district court in St. Charles Parish, Louisiana, to have the Mississippi judgment made executory and to compel a Judgment Debtor Rule. Defendant attached to his petition an authenticated copy of the Mississippi judgment as required by the Code of Civil Procedure in making a judgment executory. C.Civ.P. art. 2541.

Defendant filed an answer to plaintiff’s petition to have the Mississippi judgment made executory, therein asserting the defense that the Mississippi court which rendered the judgment did not have jurisdiction over him. In response, plaintiff filed a Motion for Summary Judgment and attached a copy of the Mississippi judgment and affidavits from the Circuit Clerk, County Clerk and District Court Judge of Mississippi. Defendant failed to reply to the motion and instead chose to rest on his pleadings.

The district court dismissed plaintiff’s motion for summary judgment stating, “... the pleadings, in the opinion of the court, indicates (sic) a genuine issue of material fact.” The Court of Appeal refused to review the trial court ruling and upon application to this Court writs were granted.

The Louisiana Code of Civil Procedure, Article 966, provides that a plaintiff may make a motion for summary judgment at any time after the filing of the answer, and that mover shall be entitled to judgment in his favor on the motion “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” C.Civ.P. art. 967 further provides that once the Motion for Summary Judgment has been made and supported, an opponent may not simply rest on his pleadings but must come forth with a response setting forth specific facts showing that there is a genuine issue as to material fact. C.Civ.P. art. 967 provides in pertinent part:

“Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits.
When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.”

In the instant case, plaintiff presented, in his Motion for Summary Judgment and the attachments thereto, specific facts to support his contention that the Mississippi court had jurisdiction over Holder when it rendered the judgment which plaintiff was now seeking to make executory and that the Mississippi judgment was, therefore, valid and enforceable. As stated above, defendant did not respond to plaintiff’s motion but rather chose to rest on his pleadings. Under the explicit provisions of C.Civ.P. arts. 966 and 967, as stated above, the trial court should have rendered judgment on the Motion for Summary Judgment in favor of plaintiff as a result of defendant’s failure to file opposing affidavits, depositions or answers to interrogatories. and because there is no genuine issue as to material fact and plaintiff is entitled to judgment as a matter of law.

Decree

For the reasons stated above, the trial court’s denial of the Motion for Summary Judgment is reversed; the motion is granted; and the case is remanded for entry of the proper judgment in favor of plaintiff.

REVERSED AND REMANDED.

LEMMON, J., does not take part.

      . The Mississippi Long Arm Statute, found in the Mississippi Code Annotated, Section 13-3-57, provides in pertinent part:
      “Any nonresident person .. . who shall make a contract with a resident of this state to be performed in whole or in part by any party in this state, .. . shall by such act or acts be deemed to be doing business in Mississippi. Such act or acts shall be deemed equivalent to the appointment by such nonresident of the secretary of state of the State of Mississippi, or his successor or successors in office, to be the true and lawful attorney or agent of such nonresident upon whom all lawful process may be served in any actions or proceedings accrued or accruing from such act or acts, or arising from or growing out of such contract. ...”
      The presumed constitutionality of the Mississippi statute is bolstered by decisions upholding that law in the courts of both the state of Mississippi, Shackelford v. Central Bank of Mississippi, 354 So.2d 253 (Miss.1978), Jarred Motors, Inc. v. Jackson Auto and Supply Co., 237 Miss. 660, 115 So.2d 309 (1959), and in those of the United States, American International Pictures, Inc. v. Morgan, 371 F.Supp. 528 (N.D.Miss.1974).

      . Defendant filed a dilatory exception to the cumulation of the action to have the Mississippi judgment made executory with the Judgment Debtor Rule. The exception was sustained and the action for the Judgment Debtor Rule was deleted.

      . C.Civ.P. art. 2541 provides:
      “A party seeking recognition or execution by a Louisiana court of a judgment or decree of a court of the United States or a territory thereof, or of any other state, or of any foreign country must bring an ordinary proceeding against the judgment debtor in the proper Louisiana court, to have the judgment or decree recognized and made the judgment of the Louisiana court.
      A duly authenticated copy of the judgment or decree must be annexed to the petition.”

      . Defendant could have responded to plaintiff’s Motion for Summary Judgment with its attachments, by setting forth specific facts showing, for example,-that the bank was not a resident of Mississippi, that the contract was not to be performed in whole or in part in Mississippi, or that service of process had not been effected on the Secretary of State as required by the Long Arm Statute. However, defendant chose not to respond at all.


author:
      PRICE, Justice Ad Hoc.
     DENNIS, Justice,

text:
    STATE of Louisiana v. Charles Kenneth LAFLEUR.
    No. 80-KA-2571.
    Supreme Court of Louisiana.
    May 18, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. William Pu-cheu, Dist. Atty., A. Bruce Rozas, Richard W. Vidrine, Asst. Dist. Attys., for plaintiff-appellee.
    Jules R. Ashlock, Ville Platte, for defendant-appellant.
   PRICE, Justice Ad Hoc.

The defendant, Charles Kenneth Lefleur, was indicted by the Evangeline Parish grand jury for the first degree murder of Michael Jason Mayer (La.R.S. 14:30). A jury of twelve found the defendant guilty as charged and he was sentenced to life imprisonment without benefit of probation, parole, or suspension of sentence in accordance with the recommendation of the jury. The defendant appeals giving nine assignments of error. We find no reversible merit to them and therefore affirm.

At the time of the events involved in this case, defendant was living in Ville Platte, Louisiana with Sandra Mayer and her three children. On Monday morning, May 14, 1979, defendant was picked up at his house by a co-worker for the drive to their job site in Lafayette. Defendant inquired of Gerald Johnson, the driver of the car, if he could place a large box of trash in the trunk to be dumped on the road. After placing the box in the trunk of Johnson’s car, the two proceeded south on Louisiana Highway 29. After traveling a short distance Johnson asked defendant to remove the box from the trunk as the trunk would not close and he did not want the hinges on the trunk damaged. Approximately 2.5 miles south of Ville Platte, Johnson turned his car onto a blacktop parish road and told defendant to take the box out of his trunk. Defendant stated that he would rather not dump the box so close to the highway as it contained papers which would identify him as a “litter bug.” When Johnson insisted, defendant took the box from the trunk and placed it by a telephone pole in tall grass at the intersection of the parish road and Highway 29. After picking up another coworker the men proceeded to Lafayette.

Shortly after defendant left the house in Ville Platte at approximately 6:00 a. m., Sandra Mayer reported to neighbors that her 2V2-year-old son, Jason, was missing from his bedroom, and that someone had apparently broken into the house and kidnapped him. The sheriff’s department was called in and defendant was informed when he returned that evening that Jason was missing. Both defendant and Mayer told authorities that Jason had been put to bed the previous evening with the other two children. Neither of them mentioned the large box of trash defendant had hauled off Monday morning.

Dan Marcantel, investigator for the Evangeline Parish Sheriff’s Department, testified that he found no evidence of forcible entry at the Mayer house. The back door in the bedroom where Jason slept was opened approximately 2Vz feet when Mar-cantel examined the house. There were no visible signs of forcible entry at this door however, and there was a large wooden chest of drawers barring the door which Marcantel concluded had been moved from the inside.

The investigation continued throughout the week without result until Friday, May 18, when in the course of questioning Gerald Johnson, police investigators first learned of the box of trash defendant had left on the side of the road. Senior Trooper John Mouton of the state police testified that Johnson led him to the spot where the box had been placed the previous Monday morning. In addition to trash the box was found to contain the badly decomposed body of Michael Jason Mayer, later determined to have been killed by a severe blow to the head. Defendant and Sandra Mayer were arrested later that day in connection with the killing.

ASSIGNMENT OF ERROR NO. 1

Defendant contends the trial court erred in failing to order the indictment against him reduced from first degree murder to second degree murder. Defendant contends that the presence of an aggravating circumstance is an essential element of the crime of first degree murder, and since no aggravating circumstance was attendant to the crime in question, the indictment should have been quashed or reduced to second degree murder.

At the time of the subject offense La.R.S. 14:30 defined first degree murder as “the killing of a human being when the offender has the specific intent to kill or inflict great bodily harm.” Defendant relies on this court’s decision in State v. Payton, 361 So.2d 866 (La.1978) wherein it was held that the legislature had impliedly amended the first degree murder statute to require an aggravating circumstance. This holding was necessitated by a 1977 Act (Acts 1977, No. 121, § 1) which defined second degree murder, in part, as:

The killing of a human being when the offender has a specific intent to kill, under circumstances that would be first degree murder under Article 30, but the killing is accomplished without any of the aggravating circumstances listed in Article 905.4 of the Louisiana Code of Criminal Procedure.

Payton held that this amendment by implication redefined first degree murder as a specific intent homicide accomplished with a statutorily prescribed aggravating circumstance.

Defendant contends that the first degree murder statute applicable in Payton was in force at the time of the instant offense, and therefore, the same reasoning should apply.

This contention is without merit since the legislature, by subsequent amendment, deleted subsection B of La.R.S. 14:30.1 which was the source of the implied amendment rationale. As in State v. Perkins, 375 So.2d 1179 (La.1979) and State v. Martin, 376 So.2d 300 (La.1979) an aggravating circumstance was not an essential element of first degree murder at the time of the subject offense.

This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 2

Defendant contends that since no evidence was introduced at the guilt determination phase of the trial which would indicate that the homicide was committed in an atrocious, cruel, or heinous manner, the trial court erred in allowing the state to seek the death penalty and introduce photographs of the dead child’s body at the sentencing hearing. The defense contends that the pictures were inflammatory in that they did not show how the murder was accomplished, but simply depicted a badly decomposed body.

These photographs were not introduced until the sentencing phase of the trial at which time the defendant’s guilt had already been conclusively determined. In the course of their deliberations in the sentencing hearing, the jury failed to find an aggravating circumstance and recommended life imprisonment. Since the photographs were not introduced at the guilt determination phase of the trial, and the jury subsequently rejected any finding of heinousness, the defendant was not prejudiced by these pictures. Likewise, the jury’s rejection of the death penalty in favor of the only alternative available to them renders defendant’s contention that the state should have been forbidden to seek the death penalty moot.

This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 3

Defendant contends the trial court erred in permitting the state to announce at the inception of trial that it sought the death penalty on the basis of the “atrocious, cruel or heinous manner in which the alleged murder was committed because this criteria had earlier been declared unconstitutional by the Supreme Court.”

Examination of the record reveals that the only place prior to the sentencing hearing where the state mentioned the death penalty to the jury was during the course of voir dire examination of prospective jurors when they were asked whether they could return the death penalty if they were convinced beyond a reasonable doubt that the crime was committed in a particularly atrocious, heinous, or cruel nature. This is a legitimate question inasmuch as a juror who could not recommend the death penalty under such circumstances is subject to a challenge for cause by the state. La.C. Cr.P. Art. 798; Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).

Defendant mistakenly relies on State v. Payton, supra, for his contention that the aggravating circumstance now listed in La.C.Cr.P. 905.4(g) (the offense was committed in an especially heinous, atrocious, or cruel manner) is unconstitutional. Payton did hold that such language was too vague to serve as a constitutionally adequate element of a criminal statute, but at the same time recognized the appropriateness of such considerations in sentencing:

. . . Moreover, although the question of whether the crime was committed in an especially heinous, atrocious or cruel manner is an acceptable factor, among others, to be considered for purposes of sentencing. Gregg v. Georgia, 428 U.S. 153, at 201, 96 S.Ct. 2909, at 2938, 49 L.Ed.2d 859; Proffitt v. Florida, 428 U.S. 242, at 254-6, 96 S.Ct. 2960, at 2967-2968, 49 L.Ed.2d 913, these terms are too vague to serve as constitutionally adequate elements within the definition of a criminal offense. 361 So.2d at 871.

This assignment lacks merit.

ASSIGNMENTS OF ERROR NOs. 4, 5, and 6

By these assignments defendant contends his constitutional guarantees of due process and confrontation of witnesses were violated when the trial court ruled that his defense attorney had failed to lay the proper foundation for impeaching the testimony of Sandra Mayer by introducing evidence of a prior contradictory statement. At the close of the defense cross-examination of Mayer the following exchange took place between defendant’s attorney and Mayer:

Q. You have entered a plea of guilty to manslaughter, have you not?
A. I have.
Q. After your arrest back there in May, were you in the Parish Jail?
A. Yes sir.
Q. Do you remember telling an inmate there that Kenneth had nothing to do with the killing?
A. An inmate?
Q. Yes.
A. No sir.
Q. I put you on your guard and I will produce witnesses who will say that you told them that Kenneth had absolutely nothing to do with it. That you had done it and the only reason you implicated him was because he had mistreated you while you lived together. Do you deny it?
A. Do I deny what?
Q. What I’ve just said?
A. Yes sir.
BY MR. ASHLOCK, Counsel for defendant:
We’ll produce the witness. We have no further questions.
BY MR. PUCHEU, District Attorney: If Your Honor pleases he didn’t lay, we will argue that later.
BY THE COURT:
Proceed Mr. Pucheu.

Defendant contends that he was forbidden by the trial court the following day of trial from calling his most important witness; one who would have impeached Sandra Mayer’s testimony. Defendant contends he was informed by the trial judge in an off-the-record conference at the bench that he had failed to lay a proper foundation for introducing evidence of a prior contradictory statement, and therefore he would not be allowed to call his impeaching witness. Defendant maintains that the state’s objection and the court’s ruling were in off-the-record discussions which prevented him from maintaining an exception for the record and the judge’s failure to instruct the jury left them with the prejudicial implication that the impeaching witness was a fabrication.

La.R.S. 15:493 provides as follows:

Whenever the credibility of a witness is to be impeached by proof of any statement made by him contradictory to his testimony, he must first be asked whether he has made such statement, and his attention must be called to the time, place and circumstances, and to the person to whom the alleged statement was made, in order that the witness may have an opportunity of explaining that which is prima facie contradictory. If the witness does not distinctly admit making such statement, evidence that he did make it is admissible.

Defendant’s contention that a proper foundation was laid in accordance with La. R.S. 15:493 is without merit. As to the time the alleged inconsistent statement was made, defense counsel was vague in only referring to the witness’s incarceration in the parish jail. Defense counsel admitted that “the time is not precise because I didn’t know -the exact date.” The only place mentioned is the parish jail. This is particularly insufficient in that the witness Mayer was a trustee in the prison with more access and mobility than other prisoners, and the alleged statement could have been made in numerous unnamed places. Defense counsel did not call to Mayer’s attention any circumstances whatsoever under which the alleged statement was made. Although we are not prepared to say that the name of the person to whom the alleged statement was made must always be given, simply referring to an “inmate at the parish prison” does not comply with the statutory prerequisites. Defense counsel contends that he was hesitant in naming this inmate because he feared to “over identify” him and being a prison inmate, he could be “reached” and persuaded that to give such testimony was not in his best personal interest. We fail to understand how naming this inmate in a proper foundation on cross-examination of Mayer would lead to any more “pressure” being placed on the potential witness than he was already subject to. We note that this inmate had been named at the outset of trial as a defense witness and subpoenaed by the very authorities who would supposedly have encouraged him not to testify. Additionally, although defense counsel mentions an “inmate” at the parish prison, he tells Mayer: “... I will produce witnesses who will say you told them . . . . ” (Emphasis added.) It would be understandable in view of this questioning for the witness Mayer to be confused as to whom the alleged prior inconsistent statement was made.

The lack of sufficient specificity in calling to the witness’s attention the time, place, circumstances, and person to whom the alleged statement was made precluded defense counsel from introducing evidence of a prior inconsistent statement.

Defendant’s contention that the trial court forbade him from calling the impeaching witness is disputed by the state and not supported by the record. The record reveals that defendant’s counsel requested that the jury be withdrawn. What follows is argument from both defendant and the state as to the sufficiency of the foundation laid by defense counsel the previous day upon his cross-examination of Sandra Mayer. After hearing argument from both sides, the trial court ruled that defense counsel had not laid the proper foundation. Defendant’s contention that he was denied the opportunity to perfect his exceptions to an adverse ruling is likewise not supported by the record as is shown by the following:

BY THE COURT:
The Court will rule, Mr. Ashlock, that you have not laid the proper foundation.
BY MR. ASHLOCK, counsel for Defendant:
To which, Your Honor, we take exception making our Motion and your Ruling part of the record.
BY THE COURT:
It is so ordered.

We are not presented with the question of whether defendant should have been allowed the opportunity to place Mayer back on the stand for the purpose of laying a proper foundation. Defendant contends in brief that such a request was made and was denied, but this contention is not supported by the record.

These assignments lack merit.

ASSIGNMENTS OF ERROR NOs. 7 and 8

By these assignments defendant argues that the trial court erred in admitting the testimony of certain witnesses regarding the defendant’s prior treatment of the deceased child.

The state, in accordance with the guidelines of State v. Prieur, 277 So.2d 126 (La. 1973), served defendant with notice of its intention to introduce evidence of prior acts of violence by defendant as well as certain statements and threats made toward the deceased child. The state contends that this evidence was relevant to show that defendant had a motive for killing the victim. The defense filed a pretrial motion to suppress the evidence referred to in the Prieur, notice contending that it amounted to nothing more than evidence of defendant’s bad character which could only be used in rebuttal following an assertion by defendant of his good character.

Testimony by Marilyn Reed, Susan Soi-leau, Jennifer Turner, and Sandra Mayer was sufficient to show that the defendant had violently mistreated Jason Mayer. The victim was born with physical handicaps including club feet, one club hand, and a cleft palate. Because of his deformities, Jason was unable to walk, talk, or feed himself.

Reed testified that when Jason cried, the cleft palate apparently caused him to make a noise unlike a normal child’s crying, which sounded more like “whining and whimpering.” This noise annoyed and irritated defendant. Defendant had blown marijuana smoke in Jason’s face and given the child beer. Defendant had stated to Reed that he and Sandra Mayer would have had a better relationship were it not for the presence of the handicapped child.

Susan Soileau was a babysitter for the defendant and Sandra Mayer and witnessed the victim in the presence of defendant often. She testified that she observed defendant on multiple occasions physically strike the victim with the back of his hand, choke him, and kick him. She stated that these physical abuses often took place when the defendant was intoxicated and often occurred as a result of defendant’s apparent aggravation with the victim’s crying. Jason. was often observed with bruises on his face and chest. The defendant had made the statement in reference to the victim that “. . . it is about time we get rid of him

Jennifer Turner also witnessed bruises on the victim’s back and chest and had seen defendant hit Jason with his hand. Turner further corroborated the prior testimony which tended to show that the baby’s crying seriously aggravated defendant and apparently caused many of his attempts to quiet the baby by physical force. At one point the defendant stated that if Jason didn’t shut up, “I’m going to throw you in a trash can.”

In order to avoid the unfair inference that a defendant committed a particular crime simply because he is a man of criminal character, evidence of the commission of other crimes is inadmissible unless the evidence has an independent relevancy besides simply showing a criminal disposition. See State v. Abercrombie, 375 So.2d 1170 (La.1979); State v. Sutfield, 354 So.2d 1334 (La.1978).

In addition to the statutorily prescribed purposes of knowledge, intent, and system (La.R.S. 15:445, 446), other crimes evidence may also be independently relevant to show motive, i. e., to show that the defendant had a reason to commit the crime he is charged with. State v. Sutfield, supra. In order for this evidence to have independent relevance the established motive must be factually peculiar to the victim and the charged crime and must additionally satisfy two tests:

... 1) there must be clear and convincing evidence that the defendant did indeed commit the other crimes, and 2) the probative value of the evidence must outweigh the risk of prejudice — the risk that the evidence will be used to convict the defendant because he is a man with a criminal disposition.

State v. Abercrombie, supra at 1175

Applying these rules to the challenged evidence, we hold that the testimony of witnesses Reed, Soileau, Turner, and Mayer was properly admissible to prove motive. The state was attempting to prove that defendant was the perpetrator of the senseless killing of a small child. The prosecution’s case depended largely on inferences to be drawn from circumstantial evidence, so any evidence tending to prove that the defendant had a motive or reason for committing this crime was extremely probative. Defendant’s physical abuse of the victim and his stated desire to rid himself of the child illustrate a motive factually peculiar to the murder of Jason Mayer.

The commission of these other crimes by defendant was established by clear and convincing evidence in the form of eye witness testimony to defendant’s physical abuse of the victim. While acknowledging the possibility of some prejudice to defendant by the admission of this testimony, this risk of prejudice is far outweighed by the proba-tiveness of the evidence in that it bore so directly on defendant’s guilt of the murder of Jason Mayer.

These assignments lack merit.

ASSIGNMENT OF ERROR NO. 9

The defendant contends that the state presented no evidence of the essential elements of the crime charged. Sandra Mayer was indicted with defendant for the victim’s .murder and originally entered a plea of not guilty and not guilty by reason of insanity. Mayer subsequently entered a plea of guilty to the reduced charge of manslaughter. Defendant contends that Mayer’s admission of the homicide together with the lack of direct evidence linking him with the crime necessitates a reversal.

A convicted defendant’s attack upon the sufficiency of the state’s evidence to prove his guilt is judged by determining whether “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Morgan, 389 So.2d 364 (La. 1980); State v. Landry, 381 So.2d 462 (La. 1980).

The state adduced the following evidence at trial: Following defendant and Mayer’s move to a new house, Mayer packed up several boxes of discarded items and placed the boxes outside. Mayer testified that the boxes had been outside for days when defendant took one away in Gerald Johnson’s car on the morning of May 14, 1979. He had not attempted to dispose of any of the boxes of trash before this date and did not dispose of any of the boxes later. Defendant reluctantly placed the box on the side of the road at the insistence of Johnson. Neither defendant nor Mayer mentioned the box of trash to the police, and on May 18 Johnson led police to the box containing Jason Mayer’s body. Although Mayer told police that she suspected kidnapping, police investigation revealed no evidence of forcible entry at the house. There was no evidence that anyone other than defendant or Mayer could have entered the house and harmed the child between the time he was put to bed on the evening of May 13 and the time he was reported missing by Mayer the morning of May 14, shortly after defendant had left for work with the box of trash. Upon returning from work on May 14, defendant, when told of Jason’s absence, told Mayer to stick to the story of kidnapping. Defendant testified that he was surprised and shocked to learn of Jason’s disappearance upon arriving home on May 14, when in fact he had already been informed of the “kidnapping” by Hugh Bordelon (whose house he had stopped by on the way home). There was testimony of defendant’s frequent physical abuse of the victim corroborated by Mayer. Mayer testified that she did not report defendant’s violent behavior and his resentment and abuse of the victim because she was afraid of him since he had threatened to kill her and her children.

This court has held:

Where, as here, the State’s case depends upon circumstantial evidence the rule is: “* * * assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” La. R.S. 15:438. We have held that the issue of whether every reasonable hypothesis of innocence had been excluded presents a question of law. State v. Pryor, 306 So.2d 675 (La.1975); State v. Williams, 310 So.2d 513 (La.1975).
State v. Smith, 339 So.2d 829, 833 (La. 1976), cert. denied 430 U.S. 986, 97 S.Ct. 1685, 52 L.Ed.2d 381 (1977).

The totality of the evidence indicates that only defendant and Mayer had access to the victim the night of May 13-14, 1979. The evidence presented is sufficient to support a finding that defendant was guilty as a principal, if not directly responsible for the killing. See La.R.S. 14:24. Because of the evidence summarized throughout this opinion we conclude that, if the jury assumed every fact to be proved that the evidence tended to prove, it would have been justified in concluding that every reasonable hypothesis 'of innocence had been excluded.

This argument lacks merit.

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

DENNIS, Justice,

dissenting.

The defendant was deprived of his right to call an impeachment witness after laying a sufficient foundation.

       Judges O. E. Price of the Court of Appeal, Second Circuit, G. William Swift, Jr., of the Court of Appeal, Third Circuit, and Fred W. Jones, Jr., of the Court of Appeal, Second Circuit, participated in this decision as Associate Justices Ad Hoc, joined by Chief Justice John A. Dixon, Jr., and Associate Justices Walter F. Marcus, Jr., James L. Dennis, and Jack C. Watson.

      . La.R.S. 14:30 (Acts 1976, No. 657) states:
      Whoever commits the crime of first degree murder shall be punished by death or life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence in accordance with the recommendation of the jury.


author: PRICE, Justice Ad Hoc.

text:
    STATE of Louisiana v. John R. KENNEDY.
    No. 80-K-2612.
    Supreme Court of Louisiana.
    May 18, 1981.
    Philip H. Kennedy, New Orleans, for relator-applicant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Edwin O. Ware, Dist. Atty., Donald Johnson, Asst. Dist. Atty., for plaintiff-respondent.
   PRICE, Justice Ad Hoc.

Defendant, John R. Kennedy, was charged with operating a motor vehicle on a public highway at a rate of speed in violation of La.R.S. 32:61. Defendant was found guilty and sentenced to pay a fine of sixty dollars, which was suspended. He was also ordered to pay court costs of twenty-three dollars. Remedial writs were granted by this court to review the conviction of the accused whose conviction allegedly was obtained through the use of radar equipment without any evidence of the reliability or accuracy of the equipment being presented at trial.

The state elicited the following testimony from State Trooper Andrew Rafaleowski at trial. On April 6, 1980, at approximately 7:55 p. m., Trooper Rafaleowski, traveling in a southerly direction, was patrolling U.S. Highway 71 in Rapides Parish when a signal/alarm on his radar unit indicated the presence of a speeding vehicle. The officer’s attention was immediately directed to the opposing lanes of traffic where he observed defendant’s car passing a northbound pickup truck. He then locked his radar display onto the targeted vehicle’s speed and proceeded to cross the median, turning his squad car around, and headed north. Trooper Rafaleowski pursued defendant, stopped him, and issued him a speeding citation.

Trooper Rafaleowski testified that according to the radar unit in his squad car, the defendant’s vehicle was traveling at 71 miles per hour. The posted speed limit in that area was 55 miles per hour. The officer testified that his squad car is equipped with a Decatur radar apparatus which had been set to detect vehicles traveling at speeds over 65 miles per hour. He further testified that he had personally checked the calibration of his unit before beginning his patrol duties at about 3:00 p. m. on the day of the offense by checking the radar display’s indication of speed against two pre-calibrated tuning forks supplied by the radar manufacturer. According to his testimony, the tests showed the radar unit to be operating properly. No objection was made by defendant to any of the testimony of Trooper Rafaleowski.

When the state rested its ease counsel for defendant moved for a directed verdict of acquittal claiming that the state failed to prove its case beyond a reasonable doubt because it did not establish the accuracy of the radar unit or the manufacturer’s tuning forks. The trial court denied the motion.

In defendant’s sole assignment of error, he contends the trial court erred in denying his motion for acquittal when the state failed to establish a prima facie case against him. More specifically he alleges that the state failed to produce any evidence regarding the reliability of stationary or moving radar as an indicator of vehicular speed, and that the state presented no evidence establishing the accuracy of Trooper Rafaleowski’s radar equipment on the date of the offense. He thus contends the trial court was in error in relying upon the speed clockings of the officer’s radar unit when a proper foundation for its admittance was not laid.

During the direct examination of Trooper Rafaleowski by the state, defendant raised no objections to the admissibility of the radar and speedometer evidence. In the absence of a contemporaneous objection, an alleged error or irregularity at trial cannot be reviewed by this court. La.C.Cr.P. Art. 841; State v. Mitchell, 356 So.2d 974 (La. 1978); State v. Matthews, 354 So.2d 552 (La.1978); State v. Lee, 346 So.2d 682 (La. 1977); State v. Alford, 384 So.2d 761 (La. 1980). Because of defendant’s failure to object to the introduction of this evidence at trial, there is nothing for this court to review. This assignment of error is without merit.

The decision of the trial court is affirmed.

       Judges O. E. Price of the Court of Appeal, Second Circuit, G. William Swift, Jr., of the Court of Appeal, Third Circuit, and Fred W. Jones, Jr., of the Court of Appeal, Second Circuit, participated in this decision as Associate Justices ad Hoc, joined by Chief Justice John A. Dixon, Jr., and Associate Justices Walter F. Marcus, Jr., James L. Dennis, and Jack C. Watson.


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

text:
    Michael Don KEYS v. SAMBO’S RESTAURANT, INC., et al.
    No. 80-C-2618.
    Supreme Court of Louisiana.
    May 18, 1981.

      James M. Buck, Alexandria, for plaintiff-applicant.
    Gregory S. Erwin of Bolen & Erwin, Alexandria, for defendants-respondents.
   BLANCHE, Justice.

Plaintiff, Michael Don Keys, instituted this suit against the defendants, Sambo’s Restaurant, Inc. (Sambo’s) and Terry Smith, Sambo’s Alexandria assistant manager, claiming damages for unlawful restraint, false imprisonment, and personal injuries. The trial jury found in favor of the defendants and dismissed the plaintiff’s suit. On appeal, the Third Circuit Court of Appeal, 389 So.2d 1360, agreed with the plaintiff that the trial court had improperly instructed the jury. However, applying the proper standards to the complete record before them, that court also concluded that the defendants’ actions were justified and, therefore, they affirmed the trial court. We granted plaintiff’s writ of certiorari, La., 395 So.2d 340, having doubts as to whether plaintiff committed a felony so as to justify a citizen’s arrest. The writ was also granted on the belief that even if plaintiff did fraudulently procure food from a restaurant without paying, he was due something for a broken ankle which he received at some time during his arrest, regardless of the legality thereof.

Though there is conflicting and contradictory testimony, the following facts are deduced from the record. On December 9, 1978, the plaintiff and his friend, John Wells, were celebrating Wells’ forthcoming birthday and, during the course of the evening, consumed an unspecified amount of alcohol. At approximately midnight, they decided to stop at Sambo’s for a late night supper. According to the plaintiff and Wells, Wells had agreed to pay for the meals as he had been paying for most of their evening’s expenses up to that point.

Each sat at the counter and ordered a chicken dinner, with both orders being written up on the same ticket. Before their food came, Wells became sick and vomited on the counter. Feeling even worse, he left the restaurant, went outside where he was again sick, and crawled into his car where he slept until approximately 6:00 a. m.

Thereafter, one of the waitresses informed defendant Smith of Wells’ absence and, after having been apprised of this information, Smith then approached the plaintiff and asked where his friend (Wells) had gone, to determine if the order should be completed. The plaintiff responded he didn’t know where Wells was, but he assured Smith that he would pay for Wells’ meal if he did not return. With that assurance, Smith returned to the cook stand where he was helping prepare orders.

Both chicken dinners were served, and plaintiff ate all of his. As Wells had not returned, plaintiff ate one piece of chicken off Wells’ plate and put another piece in his pocket for his own consumption later.

Plaintiff went to the restroom and then returned to where he had been sitting for a sip of coffee. He then began walking out of Sambo’s without paying for either meal, and without explaining to any employee why he was departing without paying. Informed by a waitress of plaintiff’s actions, Smith hurriedly proceeded to the exit and caught the plaintiff after he had gotten through the first set of double doors but before he could get through the second set of doors which led outside.

Smith requested that plaintiff return inside and pay for the costs of the two meals. In compliance with this request, plaintiff returned inside Sambo’s and offered to pay $5.00 for his meal, but refused to pay for Wells’ meal. Smith refused the offer, contending that it was not enough to cover the expense of the two meals.

Plaintiff again attempted to leave, but Smith prevented this by holding the doors shut. Finding his way blocked by the defendant Smith, plaintiff then became extremely angry and began cursing profusely and swinging his arms until he finally hit Smith. Smith, in retaliation, grabbed plaintiff by the coat and escorted him to the men’s restroom. Smith, a large man at 6'1" in height and weighing 295 pounds, placed the smaller plaintiff in the men’s restroom and held the door shut until the police arrived. Smith justified his actions on the ground that the plaintiff, who reeked of alcohol and was yelling and swinging, exhibited conduct which made Smith fearful that plaintiff would endanger the other customers and Sambo’s employees.

Two policemen arrived shortly thereafter and found the plaintiff in the men’s restroom in a seated position and a dazed condition. Again, the plaintiff became boisterous and began cursing the officers. One of the officers, believing that plaintiff was preparing to strike one of them, struck the plaintiff in the face. Plaintiff was then bodily carried out of the restaurant, placed in the police car, and taken to the police station. Plaintiff was charged with disturbing the peace, failure to pay for a meal and resisting arrest.

Plaintiff was bailed out by his father and, early the next morning, was taken to the hospital because of his intense leg pain. Plaintiff’s ankle was diagnosed as broken and it was put in a cast. Shortly thereafter, plaintiff brought this lawsuit.

The court of appeal, after a meticulous review, of the evidence, made the following findings:

(1) Plaintiff committed the felony proscribed by R.S. 21:21.

(2) A violation of R.S. 21:21 is a felony.

(3) Plaintiffs departure from the restaurant with no explanation for his non-payment constituted prima facie evidence of intent to defraud under R.S. 21:22.

(4) Plaintiff could have rebutted the pri-ma facie evidence, but failed to do so. The court particularly noted that it was not persuaded by plaintiff’s hindsight that he was going outside to look for his friend.

(5) Alternatively, even if plaintiff did not actually leave the restaurant and fraudulent intent could not be inferred, the plaintiff still had committed the crime of an attempt to fraudulently procure food from a restaurant without paying for it.

(6) Finally, plaintiff’s personal injuries were the result of his doomed attempt to resist a lawful arrest.

Errors assigned by the plaintiff, in essence, complain solely of the correctness of the court of appeal opinion in making the foregoing findings. Our review of the evidence as set forth hereinabove and the law applicable thereto convinces us that the court of appeal is correct. Plaintiff did, in fact, commit a felony, R.S. 21:21, which authorized a private person to make his arrest, C.Cr.P. art. 214. The defendant used only that force which was necessary to detain the plaintiff until the police arrived and which would insure the safety of the other customers and employees. Plaintiff’s injury, though it was never established how or when it occurred, was the result of his own misbehavior, and defendants are not liable for it.

For the foregoing reasons, the writ issued herein is recalled, vacated and set aside and the judgment of the court of appeal is affirmed. All costs are assessed against the plaintiff.

LEMMON, J., concurs and assigns reasons.

DIXON, C. J., dissents.

WATSON, J., dissents and assigns reasons.

LEMMON, Justice,

concurring.

I do not necessarily agree that the evidence established plaintiff had committed a felony by violating R.S. 21:21. However, the evidence did establish that Smith had reasonable grounds to believe plaintiff was attempting to procure food without paying for it and with intent to defraud. Smith acted reasonably when he attempted to cut off plaintiff’s exit. When plaintiff became belligerent and began fighting and cursing, Smith reacted reasonably by forcefully restraining plaintiff (who was acting like an obstreperous drunk) until the police arrived.

The judgment dismissing plaintiff’s suit was correct.

WATSON, Justice,

dissenting.

The majority errs in finding that plaintiff committed a felony proscribed by R.S. 21:21; this conclusion is not supported by the statement of facts. Plaintiff offered to pay for his meal. This gives the lie to the idea that he “. . . procure[d] food without paying therefor, with intent to defraud. ...”

On the other hand, the agent of the restaurant committed the torts of false imprisonment and battery on the plaintiff. Have we come to the time in this country when a fast food restaurant is able to collect charges for its products by closing a customer in a restroom and breaking his leg?

I respectfully dissent.

      . C.Cr.P. art. 214 provides:
      “A private person may make an arrest when the person arrested has committed a felony, whether in or out of his presence.”

      . R.S. 21:21 provides in pertinent part:
      “No person shall:
      “(1) Obtain accommodations at any hotel, inn, boarding house or restaurant or procure food without paying therefor, with intent to defraud, except when credit is given by express agreement.
      ******
      “(6) Obtain accommodations, food, property or services by other than the use of a credit card from any hotel, inn, boarding house or restaurant by the use of deception knowing he is without sufficient means to pay for them.
      “Whoever violates any provision of this section shall be fined not more than five hundred dollars, or imprisoned, with or without hard labor, for not more than two years, or both.”

      . R.S. 14:2(4) defines “felony” as “any crime for which an offender may be sentenced to death or imprisonment at hard labor.”

      . R.S. 21:22 provides in pertinent part:
      “The failure of any person to pay the proper charges due for any food, lodging, beverages, or anything of value due to any hotel, inn, boarding house or restaurant before departing from the premises, without first personally appearing before the room clerk or other agent of the establishment before departing and protesting the amount alleged to be due, or without working out satisfactory credit arrangements for the payment thereof, is prima facie evidence of intent to defraud, within the meaning of R.S. 21:21; ...”

      .R.S. 14:27, in pertinent part, defines “attempt” as:
      “A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.”


author: DENNIS, Justice.

text:
    DIXIE CAMPERS, INC. v. VESELY COMPANY.
    No. 80-C-2631.
    Supreme Court of Louisiana.
    May 18, 1981.

      William G. Nader of Love, Rigby, Dehan, Love & McDaniel, Shreveport, for plaintiff-applicant.
    Michael G. Crow and Philip A. Franco of Adams & Reese, New Orleans, for defendant-respondent.
   DENNIS, Justice.

We are called upon to decide whether the court of appeal correctly affirmed a summary judgment declaring that a retail dealer’s franchise to sell a company’s “camping trailers” is unambiguous and does not include the right to market its “travel trailers” or “mini-homes.” The previous courts’ decisions terminated the retail dealer’s damage suit based on its franchiser’s marketing of “travel trailers” and “mini-homes” through other dealers in the same territory. We reverse, 389 So.2d 889 (La. App.) holding that, taken as a whole, the franchise to sell “Apache camping trailers and parts and accessories” and “Apache products” is ambiguous as to whether it relates to a class of trailers including travel and mini-home trailers or refers to one type of trailer within a group. The parties in their affidavits have cited conflicting parol evidence as to the intended meaning of the ambiguous terms which would be admissible at trial. Since the intention of the parties as to the meaning of the franchise is a material fact as to which there is a genuine issue, the motion for summary judgment completely dismissing plaintiff’s suit should have been denied.

On October 8, 1974, Dixie Campers, Inc., plaintiff, and Vesely Company, defendant, entered an “Apache Dealer Agreement,” containing the following provisions. Vesely appointed Dixie Campers as its authorized Apache dealer for the sale and distribution of “Apache camping trailers and parts and accessories marketed by Vesely (herein called ‘Products’).” Vesely agreed to sell to Dixie Campers “Products for delivery in accord with quotas mutually agreed upon” by the parties, and to grant it the right to use the nationally known trade name “Apache”, provided that Dixie Campers would not use the trade name in marketing any product except “ ‘Apache’ branded products.” Dixie Campers further agreed to “actively and aggressively promote, display and sell the Products” and to maintain a “stock of Products which Vesely deems adequate to properly represent and promote Vesely’s market penetration in the area.” In a separate, contemporaneously executed addendum to the contract, the parties agreed that Vesely would not, during the term of the Dealer Agreement, sell “Apache products” to any person maintaining a place of business for “sale of products” in a marketing area consisting of Jefferson, Orleans, Plaquemines, St. Bernard and St. Charles Parishes. •

Dixie Campers filed suit for damages against Vesely Company on July 31, 1978 alleging that Vesely had violated the contract by appointing firms in Jefferson and St. Tammany Parishes as its dealers “for the sale and distribution of Apache products” and that these dealers had purchased and were continuing to purchase for resale “Apache products” from Vesely.

Vesely moved for summary judgment. In a supporting affidavit Vesely’s Director of Sales stated that “no Apache camping trailers were ever sold” to the Jefferson Parish firm and that the only “Apache products” sold to the firm were “four (4) Apache Travel Trailers.” The affiant further said that at the time the contract was entered Vesely Company also sold “Apache Travel Trailers and Apache Mini Homes” but that the agreement with Dixie Campers encompassed only “Apache camping trailers” and that it was the company’s standard procedure to specifically name Apache Travel Trailers and Apache Mini-Homes when it intended to include them in a contract.

In an affidavit in opposition to the motion for summary judgment Dixie Campers’ president stated that, at the time the Apache dealer contract was entered, Dixie Campers was aware that Vesely Company sold Apache Camping Trailers, Apache Travel Trailers, and Apache Mini-Homes; that Dixie Campers intended and understood that its franchise to sell Apache camping trailers included all of these products; and that Vesely had in fact sold all of these products to Dixie Campers for resale during the existence of the franchise.

Both previous courts determined that the contract was unambiguous, that parol evidence could not be admitted to vary its terms, and that Dixie Campers could not recover damages because its franchise related only to Apache Camping Trailers. We granted certiorari and now reverse the judgments below because the contract is ambiguous and there is a genuine dispute as to a material issue of fact.

1.

Although parol evidence is inadmissible to vary the terms of a written contract, La.C.C. art. 2276, when the terms of a written contract are susceptible to more than one interpretation, or there is uncertainty or ambiguity as to its provisions, or the intent of the parties cannot be ascertained from the language employed, pa-rol evidence is admissible to clarify the ambiguity and to show the intention of the parties. White v. Rimmer & Garrett, Inc., 340 So.2d 283 (La.1976); Gulf States Finance Corp. v. Airline Auto Sales, Inc., 248 La. 591, 181 So.2d 36 (1965); Moreau v. Otis Elevator Co., 531 F.2d 311 (5th Cir. 1976).

Applying this rule, we conclude that the contract in this case is susceptible to more than one reasonable interpretation rendering it ambiguous and uncertain as to the intention of the parties. The contract-grants the retail dealer an exclusive franchise to sell Apache camping trailers and Apache products in a particular territory. The term “camping trailer”, particularly when printed in lowercase as it is in the dealer contract, reasonably could refer to a whole group or class of trailers useful for camping. The term “Apache products” is even more general and reasonably could include more than Apache camping trailers. Although “Products” are defined in the . main contract as Apache camping trailers, parts and accessories, the addendum grants the dealer an exclusive right to market all “Apache products”, and it is not clear that the terms are interchangeable. Arguably, prudent business men would have specifically excluded from the franchise particular types of Apache camping trailers and products, such as travel trailers and mini-home trailers, if this had been their intention. The contractual requirement that Dixie Campers maintain a “stock of Products which Vesely deems adequate to properly represent and promote its market penetration in the area” suggests that Vesely intended to market aggressively its whole line of Apache camper products through Dixie. On the other hand, the contract is also susceptible to the interpretation espoused by Vesely, viz., that the agreement contemplated only the marketing of Apache Camping Trailers, as a distinct product, and not sales of Apache Travel Trailers or Mini-Homes. Accordingly, upon a trial of the case, parol evidence would be admissible to clarify the ambiguity and show the intention of the parties.

2.

A motion for summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. La.C.C.P. art. 966; Vermilion Corp. v. Vaughn, 397 So.2d 490 (La.1981); Chaisson v. Domingue, 372 So.2d 1225 (La.1979); Cates v. Beauregard Electric Cooperative, Inc., 328 S.2d 367 (La.1976). In the present ease, however, the affidavits show that there is a genuine issue as to a material fact. The parties have adduced conflicting parol evidence regarding both their subjective intention at the inception of the contract and their actual business practices under the agreement. The parol evidence would be admissible in this case because the contract is ambiguous. Accordingly, the intention of the parties as to the products to be covered by the contract, is a material fact which is genuinely at issue, rendering summary judgment unavailable on this issue.

The summary judgment was correctly granted, however as to the alleged breach of the franchise in St. Tammany Parish. In the dealer agreement Vesely obligated itself to refrain from selling Apache products to any other person purchasing for resale who to Vesely’s knowledge maintained a place of business for sale of products in Jefferson, St. Charles, Plaquemines, St. Bernard and Orleans Parishes. Accordingly, it appears to be undisputed that Vesely did not violate the agreement by appointing a dealer in St. Tammany Parish.

For the reasons assigned, the judgments below are reversed and set aside, and the case is remanded to the trial court with instructions to recast its judgment and conduct further proceedings in accordance with this opinion.

REVERSED AND REMANDED.


author: SWIFT, Justice Ad Hoc.

text:
    STATE of Louisiana v. Albert Lee SMITH.
    No. 80-KA-2651.
    Supreme Court of Louisiana.
    May 18, 1981.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James Caldwell, Dist. Atty., George F. Fox, Jr., Asst. Dist. Atty., for plaintiff-appellee.
    Samuel Thomas, Tallulah, for defendant-appellant.
   SWIFT, Justice Ad Hoc.

Albert Lee Smith was charged with attempted second degree murder in violation of La.R.S. 14:27 and 30.1. After trial by jury, he was convicted of attempted manslaughter and sentenced to imprisonment at hard labor for IOV2 years. The defendant relies on three assignments of error on this appeal. Having found that none constitute reversible error, we affirm his conviction and sentence.

At approximately 2:30 a.m. on November 22, 1979, defendant Smith and one Isabell Reed departed the Soul Bar and Grill in the Town of Lake Providence, Louisiana. Isabella boyfriend, Lonnie Sanders, left the establishment shortly thereafter and upon identifying the defendant’s car followed it in the Lake Providence area for approximately thirty minutes. On a black top road outside the city limits, Sanders pulled in front of the defendant, partially blocking the road. Smith stopped. Sanders entered defendant’s car and asked Isabell if “she was doing what she wanted to do.” Being assured that she was, Sanders exited the vehicle, cursing the defendant and threatened “to get his wife.” Defendant produced a .22 calibre pistol and fired five shots at Sanders. He then got back in his ear and drove off with Ms. Reed, leaving Sanders lying in the street. While driving by the scene shortly thereafter, Robert Bell and others discovered Sanders and notified local authorities.

ASSIGNMENT OF ERROR NO. 1

The defendant attempted to show at the trial that he shot Sanders in self-defense and that the shooting was justified under R.S. 14:19 to prevent a forcible offense against his person. To this end, Smith testified that Sanders normally carried a small .25 calibre automatic pistol in his trouser pocket and the latter reached for his pocket as he turned to walk back to his vehicle. Fearing for his own safety, defendant then opened fire on Sanders. Sanders acknowledged that he put both hands in his pockets as he turned away from Smith, “because it was cold that night.” However, he denied that he ever carried a gun on his person.

In an attempt to bolster his account of the shooting, defendant sought to adduce testimony from one William Fergerson concerning an earlier confrontation between Sanders and himself. The state objected to such testimony on ground that the defendant had failed to demonstrate any overt act on the part of Sanders as would justify the introduction of prior threats against the accused. La.R.S. 15:482. The trial court agreed with the state, but nevertheless ruled that such evidence was admissible for the purpose of impeaching Sanders’ assertion that he had never previously threatened the accused. Thereafter, Fergerson took the stand and testified Sanders had entered the “Silver Barn” approximately two weeks prior to the instant shooting and, while looking directly at defendant, stated that “something was going to happen to somebody and it was going to happen soon.” No limiting instruction was given the jury by the trial judge regarding the use of this testimony.

La.R.S. 15:482 provides:

“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.”

As noted in State v. King, 347 So.2d 1108, 1110 (La.1977), this court has repeatedly held that:

“[ejvidence of prior threats made by the victim . . . [is] relevant in a case where the plea of self-defense has been raised to show that the victim was the aggressor and that defendant’s apprehension of danger was reasonable. State v. Green, 335 So.2d 430 (La.1976); State v. Lee, 331 So.2d 455 (La.1976); I Wigmore on Evidence, § 63 (3rd ed. 1940); McCormick on Evidence, § 295 (2nd ed. 1972). However, evidence of dangerous character or threats against the accused is not admissible in the absence of evidence of hostile demonstration or of an overt act on the part of the person slain. La.R.S. 15:482. Overt act in this context means any act of the victim which manifests to the mind of a reasonable person a present intention on his part to kill or do great bodily harm. See State v. James, 339 So.2d 741 (La.1976); State v. Green, supra; State v. Lee, supra; State v. Brown, 172 La. 121, 133 So. 282 (1931).”

In this case the only evidence of an overt act was that related above, that Sanders had put his hand or hands in his pocket or pockets as he returned to his vehicle. It is doubtful that this testimony was sufficient to constitute the “appreciable evidence . . . tending to establish the overt act” which is required for admission of testimony concerning prior threats against the accused. State v. Lee, 331 So.2d 455 (La.1976). But even so, it is clear the defendant was in no way prejudiced in this instance since the objectionable evidence was actually introduced at trial. Under these circumstances, particularly since no limiting instruction as to such testimony was ever given the jury, it is clear that this assignment does not present reversible error. La.C.Cr.P. Art. 921.

ASSIGNMENT OF ERROR NO. 2

Similarly, defendant contends that the trial court erred in refusing to permit Ms. Reed to testify as to whether she knew of any bad blood between the victim and the defendant. A review of the record reveals no such limitation of cross-examination. In fact, Ms. Reed testified that Sanders and the defendant “didn’t like each other” at the time of the instant offense. She also stated that this enmity arose from the fact that Sanders had fathered a child by one of defendant’s cousins. Further inquiry into the subject was halted, however, when Ms. Reed admitted she had no personal knowledge of Sanders’ relationship with defendant’s cousin.

This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 3

In this assignment the defendant contends the trial court erred in denying his motion for a new trial which was based on the fact that one of the jurors, Mrs. Emma Jean Bell, was the wife of state witness, Robert Bell.

Mrs. Bell admitted on her voir dire examination that she and her husband had discussed his knowledge of the case. However, she stated unequivocably that she had not formed any opinion as to the guilt or innocence of the defendant and would be fair and impartial. Nevertheless, she was challenged for cause under La.C.Cr.P. Art. 797(3) which provides as a ground for a challenge for cause:

“The relationship, whether by blood, marriage, employment, friendship, or enmity between the juror and the defendant, the person injured by the offense, the district attorney, or defense counsel, is such that it is reasonable to conclude that it would influence the juror in arriving at a verdict;”

When it was pointed out before any ruling was made on the challenge that such a husband-wife relationship was not mentioned in this section, defendant’s counsel said, “[w]e accept her, Your Honor.” This would indicate that the challenge had been withdrawn.

Be that as it may, it certainly cannot be said that the trial judge abused the broad discretion that is vested in him in such matters had the challenge actually been denied. State v. Passman, 345 So.2d 874 (La.1977).

Normally, a prospective juror’s assurance that he or she can serve in an impartial capacity has been accepted at face value. Lately, however, this court has recognized that in certain situations it was unreasonable for the trial court to conclude that a prospective juror could be impartial despite his statement that he could. State v. Monroe, 366 So.2d 1345 (La.1978); State v. McIntyre, 381 So.2d 408 (La.1980); State v. Lewis, 391 So.2d 1156 (La.1980). A husband-wife relationship between a prospective juror and a state witness under some circumstances might be expected to give rise to such a situation. However, in the case at bar it is obvious that Mr. Bell’s knowledge related solely to discovery of Sanders lying unconscious beside his automobile. Mrs. Bell was not with her husband at the time and had no personal knowledge of the offense. Since acceptance of Mr. Bell’s testimony would in no way refute either the victim’s or the defendant’s versions of the incident, clearly this would not prevent her from serving as an impartial juror.

This assignment lacks merit.

DECREE

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

AFFIRMED.

       Judges O. E. Price and Fred W. Jones, Jr. of the Court of Appeal, Second Circuit, and Judge G. William Swift, Jr. of the Court of Appeal, Third Circuit, participated in the decision as associate justices ad hoc, joined by Chief Justice John A. Dixon, Jr. and Associate Justices Walter F. Marcus, Jr., James L. Dennis and Jack C. Watson.

      . Since this relationship was disclosed during the voir dire examination and the prospective juror was then challenged for a cause by the defendant it appears that in this assignment the latter is simply reurging the challenge and we will treat it as such.

      . Also, the record does not disclose the defendant exhausted his peremptory challenges before completion of the panel in this case, as is required by La.C.Cr.P. Art. 800 to successfully complain of an erroneous ruling in this regard.


text:
    STATE of Louisiana v. Terry Paul HAARALA.
    No. 80-KA-2668.
    Supreme Court of Louisiana.
    May 18, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Marion B. Farmer, Dist. Atty., James S. Farmer and Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.
    Robert A. Buckley, Chalmette, for defendant-appellant.
   DENNIS, Justice.

The defendant, Terry Paul Haarala, was convicted by a jury of simple burglary of the J. K. Hardware Store in Bogalusa, Louisiana, a violation of La.R.S. 14:62, and sentenced to four years’ imprisonment at hard labor. He appeals his conviction in nine assignments of error. We find none of the assignments meritorious and accordingly affirm his conviction and sentence.

The instant offense arose from the following factual sequence. On March 19, 1980 at approximately 3:45 a. m., a Bogalu-sa resident who lived near the J. K. Hardware Store and Starnes Drugstore was awakened by someone beating on the drugstore back door. The resident alerted the Bogalusa Police. Two officers, upon arrival, entered an alleyway behind the drugstore and discovered the defendant crouched behind an air conditioning unit apparently sleeping. They asked the defendant to stand up, and upon arising, a pipe cutter fell from the defendant’s overall pocket. Upon further investigation, the police officers found that a hole had been cut in the fence enclosing the hardware store’s pipe yard. They saw tennis shoe tracks in the pipe yard and noticed that the defendant was wearing tennis shoes which were covered with mud and grease similar to that in the pipe yard. The officers found a ball peen hammer on the defendant and a pneumatic scathing chisel at the foot of the back door of the drugstore about five feet from where the defendant was crouching. They seized these items and arrested the defendant. Subsequently, the owner of the hardware store identified the hammer, chisel, and pipe cutter as belonging to his store.

ASSIGNMENT OF ERROR NO. I

The defendant contends that the trial court erred in failing to disqualify three prospective jurors from service in his trial. The defendant concedes that no objection to these jurors was urged below. This court has long recognized that allegations concerning the competency of jurors are tardy when first raised after verdict. La.C.Cr.P. art. 841; State v. Collins, 359 So.2d 174 (La.1978); State v. Alexander, 351 So.2d 505 (La.1977). Accordingly, this assignment is without merit.

ASSIGNMENT OF ERROR NO. II

The defendant argues that the trial court abused its discretion in denying his motion for a continuance filed the day of the trial. The defense counsel alleges that he had received assurances that another client’s case would be tried first, and when this case was continued, he was inadequately prepared to try the defendant’s case.

Article 712 of the Code of Criminal Procedure gives the trial judge discretion to grant a continuance if good grounds for such are shown. As a general rule, the denial of a continuance is not grounds for reversal absent an abuse of discretion and a showing of specific prejudice caused by the denial. State v. Durio, 371 So.2d 1158 (La. 1979); State v. Hammontree, 363 So.2d 1364 (La.1978).

In the present case, the defense counsel had adequate time to prepare. He had been actively engaged in the representation of the defendant for about ten weeks prior to trial; the accused’s June 23rd trial date was set immediately following his arraignment on April 10, 1980. Discovery was completed well prior to trial. The defendant’s defense strategy apparently never materially varied and was not unduly complicated. No specific claim of prejudice was made, nor does support for such a claim appear in the record. Despite ample advance notice of the accused’s trial date, the defense failed to seek a continuance until the day of trial. Under these circumstances, we find the defendant’s argument without force.

ASSIGNMENT OF ERROR NO. Ill

By this assignment, defendant contends that the trial judge erred in denying his motion for mistrial based on the prosecution’s repeated references to other crimes and the state’s failure to give pretrial notice of its intention to introduce such evidence.

Defendant Haarala was originally charged in separate bills of information with both simple burglary of the J. K. Hardware Store and with attempted simple burglary of Starnes Drugstore. Both cases were called for trial on June 23, 1980, at which time the state announced that it would try only the hardware store burglary count. Shortly thereafter, in his opening remarks to the jury, the prosecutor made reference to the defendant’s beating on the back door of the Starnes pharmacy. The defense objected to this allusion as evidence of another crime, reference to which was impermissible during the opening statement since, at that time, there was no evidentiary basis for the admission of such evidence as res gestae. La.R.S. 15:447-48. The trial court agreed, but denied defendant’s request for mistrial, La.C.Cr.P. art. 770, upon the state’s assurances that evidence adduced at trial would demonstrate the attempted burglary of Starnes and the previous burglary of J. K. Hardware formed one continuous transaction. Thé defendant made his objection general to testimony which tended to indicate criminal conduct involving the drugstore and specifically objected several times to such testimony by various state witnesses. At the close of the state’s case-in-chief, the trial court denied defendant’s motion for a mistrial, convinced that the state had shown the references to the drugstore were admissible as res gestae.

The defendant argues that references to the attempted break-in of the drugstore did not serve to prove any contested issue at trial, but rather, sought only to depict the accused as a bad person. .Since evidence of other crimes is not admissible for that purpose, defendant claims that the trial court committed reversible error in failing to grant his motion for a mistrial. La.C.Cr.P. art. 770; State v. Prieur, 277 So.2d 126 (La.1973). Even assuming that the admission of such evidence was proper, defendant further urges that the state failed to provide him with pretrial notice of its intent to introduce this evidence as required by State v. Prieur, supra.

As a general rule, the prosecution may not introduce evidence of other criminal acts of the accused unless the evidence is substantially relevant for some purpose other than to show that the accused is a bad man and thus more likely to have committed the crime. State v. Monroe, 364 So.2d 570 (La.1978); State v. Sutfield, 354 So.2d 1334 (La.1978). This rule results from the belief that admission of this type character evidence creates a great risk of unjust convictions because the jury is likely to give the evidence excessive weight and convict the defendant merely because he is a bad man, because the defendant may well be unprepared to face such attacks, and because the jury is likely to be confused by proof of collateral issues. State v. Prieur, 277 So.2d 126 (La.1973); Comment, Other Crimes Evidence in Louisiana, 33 La.L.Rev. 614 (1973).

The general prohibition against the use of other crimes evidence does not bar admission of criminal acts which are an inseparable part of the whole deed. 1 Wig-more, Evidence § 218 (3d ed. 1940). In Louisiana, such acts are denominated as part of the res gestae and admitted under the authority of La.R.S. 15:447-48. A very close connexity between the charged offense and the other crimes evidence sought to be introduced under the res gestae exception is required. See State v. Schwartz, 354 So.2d 1332, 1334 (La.1978) and cases cited therein. This close connexity in time and location is essential to the exception because no notice of the state’s intention to introduce evidence of offenses which are part of the res gestae is required. See La.C.Cr.P. art. 720; State v. Prieur, supra ; Pugh, Louisiana Evidence Law 100-01 (Supp.1978) excerpting 35 La.L.Rev. 525, 526-27 (1975).

This Court has approved the admission of other crimes evidence when it is related and intertwined with the charged offense to such an extent that the state could not have accurately presented its case without reference to it. State v. Boyd, 359 So.2d 931, 942 (La.1978); State v. Clift, 339 So.2d 755, 760 (La.1976). In such cases, the purpose served by admission of other crimes evidence is not to depict the defendant as a bad man, but rather to complete the story of the crime on trial by proving its immediate context of happenings near in time and place. McCormick, Law of Evidence 448 (2d ed. 1972). The concomitant other crimes do not affect the accused’s character, because they were done, if at all, as parts of a whole; therefore, the trier of fact will attribute all of the criminal conduct to the defendant or none of it. And, because of the close connection in time and location, the defendant is unlikely to be unfairly surprised. 1 Wigmore, Evidence § 218 (3d ed. 1940).

After carefully reviewing the record, we conclude that the references to a possible attempted break-in of the drugstore were properly admitted as part of the res gestae. The beating on the drugstore door prompted the complaint to the police and the subsequent investigation. Reference to this disturbance was necessary to show the immediate context out of which the charged offense arose and to present accurately the state’s case. The state theorized that the tools were taken from the hardware store in order to break into the drugstore across the alleyway. The police officers testified that they had examined the alleyway fifteen minutes earlier and found nothing suspicious. Therefore, the burglary of the hardware store and the attempted burglary of the drugstore had to take place within a few minutes of each other. Also, the defendant was certainly not unfairly surprised by the reference to the attempted break-in of the drugstore because that charge had been scheduled for trial the same day.

Because the other crimes evidence was properly admitted without notice, no error is presented by this assignment.

ASSIGNMENT OF ERROR NO. IV

The defendant complains that though the trial judge sustained his objection to opinion testimony being offered by one of the state’s witnesses, he erred in not also admonishing the jury to disregard such testimony. However, the record indicates that the defendant did not request an admonition. Accordingly, this assignment is without merit.

ASSIGNMENT OF ERROR NO. V

The defendant contends that the trial court erred in allowing one of the investigating officers to testify that he observed tennis shoe prints in the greasy pipe yard area of the hardware store which were similar to those made by the shoes the defendant was wearing. The officer conceded that the prints in the pipe yard could have been made by anyone wearing the same type of shoe and that no cast had been taken of these footprints.

Although a witness may testify only as to facts within his personal knowledge, and unless properly qualified as an expert, may not offer his own opinions, he is not prohibited from testifying as to natural inferences drawn from facts he has personally observed. E. g., State v. Taylor, 347 So.2d 172 (La.1977); State v. Passman, 345 So.2d 874 (La.1977). In the present case, the officer directly observed both the footprints left at the hardware store and the shoes worn by the defendant at the time of his arrest. On the basis of these observations he was competent to testify that the prints found at the hardware store were of the same pattern as would have been made by the defendant’s shoes. Thus, the trial judge did not err in admitting such testimony-

ASSIGNMENT OF ERROR NO. VI

The defendant contends that the trial court erred in permitting the introduction into evidence of various tools without first requiring a foundation as to the relevancy of said tools to the instant prosecution.

The tools were seized and tagged as evidence in this case by the investigating officers. Thereafter, the tools were placed in the police evidence locker. At trial, the owner of the hardware store noted certain peculiarities about the tools which distinguished them as belonging to his business. The ball peen hammer was identified by a safety sticker and a distinctive design left by the oil and grease; the pipe cutter was identified by virtue of a new cutting wheel which the owner of the store had placed on it two days prior to the defendant’s arrest; the chisel bore a “V” imprint which he had notched on it. Following the store owner’s testimony, the trial court permitted the introduction of all three items.

Under the circumstances presented here, it is clear that the tools introduced into evidence at trial are, more probably than not, the same items that were taken from Klinczak’s hardware store. All three exhibits were identified both visually and by chain of custody. Lack of positive identification goes to the weight of the evidence rather than to its admissibility. Ultimately, connexity is a factual matter for determination by the trier of fact. State v. Paster, 373 So.2d 170 (La.1979); State v. Drew, 360 So.2d 500 (La.1978).

This assignment is without substance.

ASSIGNMENT OF ERROR NO. VII

The defendant argues that the trial court erred in failing to instruct the jury as to the limited purpose for which the jury might consider evidence of the attempted entry into drugstore.

The defendant did not challenge the accuracy of this instruction below however. An alleged error in the jury instruction is not preserved for appeal in the absence of a contemporaneous objection. La. C.Cr.P. art. 841; State v. Jefferson, 379 So.2d 1389 (La.1980). We note also that the other crimes evidence was admissible as part of the res gestae as earlier discussed. The trial judge adequately cautioned the jury that the defendant was not to be found guilty merely because he may have committed another offense. This assignment is without merit.

ASSIGNMENT OF ERROR NO. VIII

In this assignment, the defendant contends that the trial court erred in denying a continuance with regard to his motion for a new trial and sentencing.

Trial of this case was held and completed June 23,1980 and sentencing was scheduled for August 29, 1980. Shortly after trial, defendant’s present counsel was retained to represent the accused at sentencing and on appeal. On the date set for sentencing, counsel filed a motion for a new trial, urging that the jury’s verdict was contrary to the weight of evidence and that the ends of justice would be served by granting the new trial. Counsel asked that a hearing on the motion and sentencing be postponed for two weeks in order to allow him to prepare. The trial judge denied the motion upon learning that the present counsel had been retained over a month earlier and he had not yet requested a transcript. After defense counsel argued briefly, the motion for a new trial was denied. The defendant was thereafter sentenced to four years’ hard labor.

The denial of a motion for continuance on grounds of counsel’s lack of preparedness does not warrant reversal unless counsel is able to demonstrate specific prejudice resulting from this denial. State v. Durio, 371 So.2d 1158 (La.1979). There is no such allegation of prejudice here; defendant’s right to challenge the sufficiency of the evidence adduced below is fully protected by review in this Court. State v. Peoples, 383 So.2d 1006 (La.1980). In view of the considerable time available for the new defense counsel to prepare for the motion and the absence of allegations of specific prejudice, this assignment is without merit.

ASSIGNMENT OF ERROR NO. IX

In defendant’s last assignment, he challenges the sufficiency of the evidence supporting his conviction. Specifically, he claims that the state failed to demonstrate: 1) that he had actually entered the hardware store’s pipe yard, and 2) that this fenced area constituted a structure within the meaning of La.R.S. 14:62.

The hardware store owner testified that the hole in the fence to the pipe yard had been enlarged to a diameter of about eighteen inches. Prior to the night of the defendant’s arrest, there was only a small hole in the fence through which pipe was sometimes passed. The state offered testimony by the investigating officers that the defendant’s tennis shoes were greasy at the time he was apprehended and that their tread pattern appeared to match the prints inside the pipe yard. The tools found in the defendant’s possession were identified by the owner of the hardware store as his. Viewed in a light most favorable to the prosecution, the evidence in the record is clearly sufficient to support the jury’s findings that the defendant entered the pipe yard and to meet the Jackson standard of review. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

We also reject the defendant’s claim that the state failed to prove that the pipe yard is properly considered a structure under La.R.S. 14:62. The state witnesses testified that the pipe yard was completely enclosed and inaccessible to entry by the public. The outer walls of the two stores adjoining the hardware store extended beyond the rear of the hardware store. The resulting alcove was enclosed by the erection of a two by four open wire fence along the line formed by the rear of the surrounding businesses and by placing a tin roof over the entire area. The fence extended from the ground to the roof. We conclude that this enclosure is properly considered a “building-type structure,” the invasion of which is prohibited by La.R.S. 14:62. See State v. Alexander, 353 So.2d 716 (La.1977); State v. Baggett, 292 So.2d 201 (La.1974).

This assignment lacks merit.

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

AFFIRMED.

       The Honorables O. E. Price, Fred W. Jones, Jr. of the Court of Appeal, Second Circuit, and G. William Swift, Jr. of the Court of Appeal, Third Circuit, participated in this decision as Associate Justices pro tempore, joined by Chief Justice Dixon and Associates Justices Marcus, Dennis and Watson.