author: MARCUS, Justice.

text:
    STATE of Louisiana v. Helen FISHER.
    No. 64872.
    Supreme Court of Louisiana.
    Jan. 28, 1980.
    Rehearing Denied March 3, 1980.

      James Miguez and Carl A. Leckband, Jr., Lake Charles, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leonard K. Knapp, Jr., Dist. Atty., Charles W. Richard, Evelyn Oubre, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.
   MARCUS, Justice.

Helen Fisher was charged by the grand jury in the same indictment with two separate counts of second degree murder in violation of La.R.S. 14:30.1. After trial by jury, defendant was found guilty as charged as to both counts and was sentenced on each conviction to imprisonment at hard labor for life without eligibility for parole, probation or suspension of sentence for a period of forty years. The court expressly directed that the sentences be served concurrently. On appeal, defendant relies on eight assignments of error for reversal of her convictions and sentences.

ASSIGNMENT OF ERROR NO. 1

Defendant contends the trial judge erred in denying her motion to suppress her confession. She argues that her confession was not free and voluntary because of her depressed condition at the time it was made. She further argues that the trial judge improperly placed the burden of proving the voluntariness of her confession on her rather than the state.

Defendant’s trailer was consumed by fire during the early morning hours of Sunday, October 29, 1978. The fire caused the deaths of her husband and son. Immediately after the fire, defendant was hospitalized and treated for smoke inhalation. The next day (Monday), she was released into police custody and during an interview with the police that afternoon she orally admitted setting the fire.

A suppression hearing was conducted prior to trial. E. J. Welborn, district supervisor for the office of fire protection, Arthur Ogea and Harvey Boyd, both deputy sheriffs, testified that they were present at the time defendant’s statement was taken. They stated that, after having been fully advised of her constitutional rights as well as that she was being investigated for murder, defendant admitted setting fire to the trailer by placing a cigarette in some towels in the bathroom. She indicated that she understood her rights and stated that she did not want an attorney. They stated that defendant was calm, alert and cognizant of her surroundings during the interview which lasted about fifteen to twenty minutes, although she did cry a bit toward the end of the interview. They further stated that defendant did not have any problem recalling facts at the time. Finally, while admitting she set the fire, she refused to give a written statement.

Defendant testified that, while she recalled leaving the hospital (about noon on Monday) and being transported to jail, she suffered a loss of memory from that time until that evening when she spoke to her attorney. She claimed to have no recollection of the interview with the police on Monday afternoon at which time she allegedly admitted setting the fire.

Dr. Gilíes R. Morin testified that he examined defendant on February 3, 1979 (some three months after the confession) for the purpose of determining her mental capacity to proceed with trial. He found defendant to be depressed at that time. He stated that persons in such a condition, while hearing the words and being cognizant of their surroundings, would not understand their rights because of not caring about what was going on about them.

Dr. Harper F. Willis, Jr., testified at trial that he examined defendant on February 5, 1979, for the purpose of determining her mental capacity to proceed with trial. He found her to be in a state of grief over the deaths of her husband and son rather than depressed at that time. He stated that, while it was possible that a person in circumstances similar to those of defendant might not understand questions, if such a person was behaving in a “normal fashion without any kind of mental aberration,” she would know what she was saying.

Dr. Michael E. Cormier testified at trial that he treated defendant for smoke inhalation during her stay at the hospital. He stated that at the time of her release on October 30, 1978 (same day defendant allegedly confessed), she was physically healthy, alert and oriented. Moreover, she understood his remarks, responded to questions and displayed no signs of visible grief; she was not crying or hysterical.

Before a confession may be introduced in evidence, the state has the burden of affirmatively proving that it was free and voluntary and was not made under the influence of fear, duress, intimidation, menaces, inducements or promises. La.R.S. 15:451; La.Code Crim.P. art. 703(C). It must also be established that an accused who makes a confession during custodial interrogation was first advised of his Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). A confession need not be the spontaneous act of the accused and may be obtained by means of questions and answers. La.R.S. 15:453. The admissibility of a confession is in the first instance a question for the trial judge. His conclusions on the credibility and weight of testimony relating to the voluntariness of a confession for. the purpose of admissibility will not be overturned on appeal unless they are not supported by the evidence. State v. Hutto, 349 So.2d 318 (La.1977); State v. Adams, 347 So.2d 195 (La.1977); State v. Ross, 343 So.2d 722 (La.1977).

In the instant case, although the trial judge misstated the law at the suppression hearing as to who had the burden of proving the voluntariness of the confession, he noted in a per curiam to this assigned error that the “[sjtate had met its burden of proof concerning the voluntary nature of all confessions made by the accused.” After reviewing the record, we reach the same conclusion. Hence, the trial judge did not err in denying defendant’s motion to suppress her confession.

Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant contends the trial judge erred in denying her motion for a continuance of the pretrial suppression hearing based on the absence of a witness.

On February 28, 1979, immediately prior to the commencement of the suppression hearing, defendant filed a motion for a continuance based on the absence of Dr. Harper F. Willis, Jr., a psychiatrist, who had examined defendant and had been subpoenaed to testify at the hearing.

Pretermitting consideration of whether defendant exercised due diligence in procuring Dr. Willis’ attendance at the hearing (although the suppression hearing had been fixed twenty days in advance, defendant did not attempt to subpoena Dr. Willis until two days prior to the hearing), we do not find that defendant was prejudiced by the denial of the continuance. Dr. Gilíes R. Morin, a qualified psychiatrist who examined defendant within days of Dr. Willis’ examination of defendant, testified at the suppression hearing concerning defendant’s depressed condition. The absent witness, Dr. Willis, testified at trial; his testimony was substantially the same as that of Dr. Morin. Moreover, we considered Dr. Willis’ testimony in determining that the trial judge did not err in denying defendant’s motion to suppress her confession (see discussion in Assignment of Error No. 1). Under the circumstances, we find no merit to this assigned error.

ASSIGNMENT OF ERROR NO. 3-

Defendant contends the trial judge erred in denying her motions for a mistrial and a continuance for the failure of the state to timely inform her of an oral statement made by her to Deputy Scott Mount on June 26, 1978 (some four months prior to the crimes charged) despite her request for all inculpatory statements made by her. She argues that as a result she was unable to properly prepare for trial.

On January 5, 1979, defendant filed a motion requesting, inter alia, all oral incul-patory statements and/or admissions made by her. On February 21, 1979, defendant was notified that the state intended to offer in evidence an oral confession made by defendant on October 30, 1978. On March 8, 1979, defendant received notice that the state intended to offer in evidence other oral statements made by defendant. On March 13, 1979, just prior to opening statements, defendant received notice that the state intended to offer in evidence defendant’s statement to Deputy Mount on June 26, 1978. A summary of the contents of the statement, written by Deputy Mount, was attached to the motion.

Defendant moved for a mistrial on the ground that she was prejudiced in her defense as a result of the state’s failure to timely inform her of her statement to Deputy Mount on June 26, 1978. After argument, trial was recessed until the next day. On the following day (Wednesday, March 14, 1979), there was further argument on the motion for a mistrial which was denied by the trial judge. Thereafter, defendant moved for a continuance urging the same ground on which she had previously moved for a mistrial. Evidence was adduced relative to the prosecutor’s knowledge of the statement and her decision to offer it in evidence at trial.

W. P. Hastings, Jr., an investigator for the district attorney’s office, testified that he had been investigating the case for about five days; however, he did not learn of defendant’s statement until Monday, March 12, 1979, at which time he was approached by Deputy Bob Fullington who informed him that another deputy knew of a statement made by defendant which might prove helpful at trial. Hastings stated that he was not advised of the content of the statement until Tuesday, March 13, 1979, at which time he spoke with Deputy Mount for the first time. He immediately advised the prosecutor of the statement.

Deputy Robert H. Fullington testified that Mount told him about the statement about one week prior to the hearing; however, it was not until Monday, March 12, 1979, that he told Hastings about the existence of the statement and that he would be contacted by Deputy Mount. Fullington stated that he did not inform Hastings of the content of the statement at that time as he was unaware of it.

Deputy Scott Mount testified that he first spoke to Hastings on Tuesday, March 13, 1979, at which time he informed him of defendant’s statement to him on June 26, 1978, /. e., that he had gone to defendant’s residence to investigate a disturbance and was told by defendant’s husband that defendant was in a suicidal mood and had been threatening them; he spoke with defendant at the request of her husband; defendant threatened to harm herself and her family. Mount stated that he informed Fullington of the statement about a week prior to his testimony.

After hearing the evidence, the trial judge denied defendant’s motion for a continuance.

La.Code Crim.P. art. 716(C) provides:

Upon motion of the defendant, the court shall order the district attorney to inform the defendant of the substance of any oral statement which the state intends to offer in evidence made by the defendant, whether before or after arrest, in response to interrogation by any person then known to the defendant to be a law enforcement officer.

La.Code Crim.P. art. 729.3 provides:

If, subsequent to compliance with an order issued pursuant to this Chapter and prior to or during trial, a party discovers additional evidence or decides to use additional evidence and such evidence is or may be, subject to discovery or inspection under the order issued, he shall promptly notify the other party and the court of the existence of the additional evidence, so that the court may modify its previous order or allow the other party to make an appropriate motion for additional discovery or inspection.

La.Code Crim.P. art. 729.5(A) provides:

If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this Chapter or with an order issued pursuant to this Chapter, the court may order such party to permit the discovery or inspection, grant a continuance, order a mistrial on motion of the defendant, prohibit the party from introducing into evidence the subject matter not disclosed, or enter such other order, other than dismissal, as may be appropriate.

In our view, the district attorney informed defendant of her statement to Deputy Mount on June 26, 1978, immediately upon coming into possession of it. It was not until this point that it could be said that the state intended to offer the statement in evidence at trial. We are convinced from the evidence that the district attorney was in good faith and had no knowledge of the statement prior to the time it was fully-disclosed to defendant. Disclosure of the statement was made prior to the opening statements. Under the circumstances, we consider that the state substantially complied with La.Code Crim.P. arts. 716(C) and 729.3. Moreover, the trial was recessed until the next day after defendant had been informed of the statement. Hence, we are unable to say that the trial judge abused his discretion in failing to grant defendant’s motion for a continuance or in ordering a mistrial on motion of defendant.

Assignment of Error No. 3 is without merit.

ASSIGNMENT OF ERROR NO. 4

Defendant contends the trial judge erred in refusing to allow her to withdraw her former plea of not guilty and enter a plea of not guilty and not guilty by reason of insanity.

Defendant entered a plea of not guilty and not guilty by reason of insanity at the arraignment on December 27, 1978. After a sanity hearing, defendant was found competent to stand trial. On March 12, 1979, prior to selection of the jury, defendant withdrew her plea of not guilty and not guilty by reason of insanity and entered a plea of not guilty. After the jury had been selected but prior to the time the first witness was sworn, defendant moved to withdraw her plea of not guilty and reinstate the plea of not guilty and not guilty by reason of insanity. Defendant’s motion was made in response to receipt of notice from the state that it intended to offer in evidence a statement made by defendant containing a reference to her self-destruction. The motion was denied by the trial judge.

La.Code Crim.P. art. 561 provides that the defendant may withdraw a plea of “not guilty” and enter a plea of “not guilty and not guilty by reason of insanity” within ten days after arraignment. Thereafter, the court may, for good cause shown, allow such a change of plea at any time before the commencement of the trial. Under this article, the change of plea can be made only before commencement of trial. A jury trial commences when the first prospective juror is called for examination. La.Code Crim.P. art. 761. Since the jury had been impaneled at the time of defendant’s motion to change her plea, the motion was properly denied as untimely because it was made after the commencement of trial. State v. George, 262 La. 409, 263 So.2d 339 (1972), vacated on other grounds, 411 U.S. 902, 93 S.Ct. 1532, 36 L.Ed.2d 303 (1973).

Assignment of Error No. 4 is without merit.

ASSIGNMENT OF ERROR NO. 5

Defendant contends the trial judge erred in failing to prohibit the state from introducing into evidence her oral statement made to Deputy Scott Mount on June 26, 1978 (some four months prior to the crimes charged) because of its failure to timely disclose the statement to defendant despite her request for all inculpatory statements made by her. She also argues that at the time the statement was made, she was “unaware of and could not comprehend any rights given to her.”

Defendant’s first contention is substantially the same as disposed of under Assignment of Error No. 3. La.Code Crim.P. art. 729.5(A) provides:

If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this Chapter or with an order issued pursuant to this Chapter, the court may order such party to permit the discovery or inspection, grant a continuance, order a mistrial on motion of the defendant, prohibit the party from introducing into evidence the subject matter not disclosed, or enter such other order, other than dismissal, as may be appropriate.

In Assignment of Error No. 3, in finding that the state had substantially complied with La.Code Crim.P. arts. 716(C) and 729.3, we concluded that the trial judge did not abuse his discretion in failing to grant defendant’s motion for a continuance or in ordering a mistrial on motion of defendant. For the same reasons assigned therein, we do not consider that the trial judge abused his discretion in failing to prohibit the state from introducing into evidence the statement made by defendant to Deputy Mount on June 26, 1978.

Next, we find no merit to defendant’s contention that she was' “unaware of and did not comprehend any rights given to her” at the time the statement in question was made. Miranda warnings required by the United States Supreme Court do not come into play until the accused is subject to custodial interrogation. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). At the time the statement was made, defendant was conversing with Deputy Mount in her own home; he had been called there to investigate a disturbance and was speaking with defendant at her husband’s request. Clearly, she was not subject to “custodial interrogation” at the time the statement was made. Hence, defendant had no right to be informed of her constitutional rights. State v. Berain, 360 So.2d 822 (La.1978).

In sum, Assignment of Error No. 5 is without merit.

ASSIGNMENT OF ERROR NO. 6

Defendant contends the trial judge erred in denying her motion for a mistrial because of the state’s failure to inform her of the substance of a statement made by her to Deputy Robert Fullington on October 29, 1978, despite her request for all inculpa-tory statements.

On January 5, 1979, defendant filed a motion requesting, inter alia, all oral statements and/or admissions made by her. On March 8, 1979, defendant was notified by the state of its intent to offer in evidence defendant’s statement made on October 29, 1978, to Deputy Fullington but the substance of the statement was not disclosed. Trial of the matter was held on March 12-16, 1979.

The statement was admitted in evidence during the testimony of Deputy Fullington. He testified that he was called to defendant’s residence (trailer) on October 29,1978, at 12:20 a. m. (approximately one hour before the fire) to investigate a report of a prowler. Defendant told him that she had observed a prowler setting fire outside her trailer. He searched the area but, finding no one, left the scene. At 1:19 a.m., Full-ington responded to a report that defendant’s trailer was on fire. He approached defendant, who was outside the trailer, because she was “hollering” and seemed to want to go toward the trailer. As he approached defendant, she held her hands in front of her face and said, “See, I told you you would be sorry.”

Defendant moved for a mistrial on the ground that the state had failed to inform her of the substance of the statement despite her request for all inculpatory statements made by her. The trial judge denied the motion for a mistrial.

La.Code Crim.P. art. 716(C) provides:

Upon motion of the defendant, the court shall order the district attorney to inform the defendant of the substance of any oral statement which the state intends to offer in evidence made by the defendant, whether before or after arrest, in response to interrogation by any person then known to the defendant to be a law enforcement officer.

La.Code Crim.P. art. 729.5(A) provides:

If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this Chapter or with an order issued pursuant to this Chapter, the court may order such party to permit the discovery or inspection, grant a continuance, order a mistrial on motion of the defendant, prohibit the party from introducing into evidence the subject matter not disclosed, or enter such other order, other than dismissal, as may be .appropriate.

The district attorney should have informed defendant of the substance of the oral statement made by her to Deputy Full-ington on October 29, 1978, in response to her motion. Instead, on March 8, 1979, the state only notified defendant of its intent to offer in evidence her statement to Deputy Fullington on October 29, 1978. Notwithstanding her status as the moving party in connection with the discovery motion, defendant did not provoke a hearing at which the trial court could have been called upon to judge the sufficiency of the state’s response. Defendant’s inaction effectively deprived the trial judge of an opportunity to make a ruling which would have prevented the commission of error. Hence, defendant waived her right to be afforded any relief on appeal. State v. Bonanno, 373 So.2d 1284 (La.1979).

ASSIGNMENT OF ERROR NO. 7

Defendant contends the trial judge erred in admitting evidence concerning events subsequent to her arrest because of the failure of the state to establish probable cause for her arrest.

Deputy Robert Fullington testified that he arrested defendant on October 29, 1978. Defendant objected to any further testimony in the trial on the ground that no probable cause for the arrest had been established. The objection was overruled.

The state controls the order in which its evidence is presented. See La.Code Crim.P. arts. 765(5) and 773. The proper procedural vehicle for defendant to raise the issue of whether the state has proven its case as required by law in a jury trial is by a motion for a new trial. State v. Jackson, 344 So.2d 961 (La.1977). Accordingly, the trial judge properly overruled defendant’s objection.

Assignment of Error .No. 7 is without merit.

ASSIGNMENT OF ERROR NO. 8

Defendant contends the trial judge erred in denying her motion for a new trial grounded on the claim that the verdict was contrary to the law and evidence.

Our review of the record before us reveals ample evidence to support the verdicts. Defendant confessed to setting the fire which resulted in the deaths of her husband and son by placing a cigarette in some towels in a bathroom of the trailer. E. J. Welborn, district supervisor for the office of fire protection, testified that in his opinion the fire originated in the same location (bathroom) specified by defendant as the place where she set the fire. Hence, we find substantial evidence from which the jury could have found defendant guilty of the crimes charged.

Assignment of Error No. 8 is without merit.

DECREE

For the reasons assigned, defendant’s convictions and sentences are affirmed.

DIXON, J., concurs, disagreeing with Assignment # 6.

      . In determining whether the ruling on defendant’s motion to suppress was correct, we are not limited to the evidence adduced at the hearing on the motion. We may consider all pertinent evidence given at the trial of the case. State v. Chopin, 372 So.2d 1222 (La.1979); State v. Schmidt, 359 So.2d 133 (La.1978); State v. Stewart, 357 So.2d 1111 (La.1978); State v. Shivers, 346 So.2d 657 (La.1977); State v. Smith, 257 La. 1109, 245 So.2d 327 (1971); State v. Andrus, 250 La. 765, 199 So.2d 867 (1967). We have reviewed the pertinent evidence given at the trial of the instant case.


source: Caselaw Access Project

author: DIXON, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Roger C. GORDY.
    No. 65288.
    Supreme Court of Louisiana.
    Jan. 28, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Howat A. Peters, Jr., Dist. Atty. ad hoc, Vernon Parish, 30th Judicial Dist., for plaintiff-appellee.
    Mark H. Kramar, Leesville, for defendant-appellant.
   DIXON, Justice.

The defendant was charged by bill of information with distribution of methamphetamine in violation of R.S. 40:967(A). The charge arose out of an incident in which the defendant met two other men in a Leesville bar on July 14,1978. One of the men was an undercover police officer and the other was a paid police informer. The officer, according to his own testimony, purchased one gram of methamphetamine from the defendant. The defendant was subsequently arrested and convicted by a twelve man jury. He was sentenced to serve nine years at hard labor, and fined $1000 (with an additional nine month sentence if he failed to pay the fine within one year). The defendant has appealed to this court urging fourteen assignments of error, three of which have been abandoned.

Assignment of Error No. 1

By this assignment the defendant argues that the trial court erred in not declaring a mistrial because of the state’s introduction of evidence which the defendant claims relates to crimes other than the one for which the defendant was on trial. In State v. Prieur, 277 So.2d 126 (La.1973), we held that the state must give the defendant notice when it intends to introduce such evidence of other crimes and that such evidence can only be used to show system, intent or knowledge as contemplated by R.S. 16:445-6. The defendant notes six instances in which he claims statements or exhibits were admitted which amounted to evidence of other crimes.

First, the defendant points to three incidents which could have indicated to the jury that there was more than one item of evidence seized and examined by police in this case. Two witnesses referred to the existence of two items of evidence. In addition, a receipt for evidence was partially covered to conceal information as to part of the evidence received. Full testimony was taken only as to the evidence which formed the basis for this prosecution. There was no indication in the testimony, as to the nature of the second item of evidence, and there was no evidence that the second item was connected with any criminal activity. The testimony of the witnesses and the receipt were relevant to show the nature of the substance that the defendant sold to the police officer and to establish the chain of custody of that substance. The oral references to the possible existence of other evidence were inadvertent and were cut short before the nature of the second item of evidence was disclosed. After a review of the record, we conclude that neither the testimony of the witnesses nor the receipt conveyed the impression that the defendant had committed other crimes.

The next point of contention is the admission of a summons issued by the state for a witness who failed to appear at trial. The summons was issued for Kenny Willis, who had been present in the bar when the sale took place. The summons had two case numbers and two dates on it. The trial court ordered the covering of both dates and of the number not applicable to this case. The summons was relevant to show that the state had attempted to obtain the witness’ testimony, and to negate any inference that the witness would have testified against the state. The tape used to cover the omitted information, though prominent, gives no indication of the nature of the material covered nor does it even clearly indicate that anything was being kept from the jury. There was nothing about the summons from which a juror could have inferred that the defendant had committed another crime.

The next incident involves a question posed by the state to a criminologist as to the value of one ounce of methamphetamine. This case involved the sale of one gram of the substance. The defendant did not object to the question or the answer to it, which was simply, “Twenty-six times that. Whatever that would be.” Under C.Cr.P. 841 an irregularity or error at trial cannot be availed of after verdict unless the party makes known his objection and the grounds for it. State v. Kelly, 375 So.2d 1344 (La.1979); State v. Hysell, 364 So.2d 1300 (La.1978). In any event, there was no suggestion that the defendant had ever sold any other drug besides that involved in this case. The testimony did not constitute evidence of another crime.

Finally, the defendant argues that the district attorney made reference to other crimes when he commented in closing argument upon the profits that could come from the large scale sale of methamphetamine. As the trial court instructed the jury, the arguments of counsel are not evidence. The comments of a prosecutor may amount to grounds for a mistrial under C.Cr.P. 770. In the present case the comments of the district attorney refer to criminal activity and the profits attendant thereof, but there was no allegation that the defendant had sold any drugs aside from those involved in this case. In any event, the defendant failed to move for a mistrial. He must therefore be content with the trial court’s admonition that there is no indication that there was any incident involving this defendant.

This assignment of error lacks merit.

Assignments of Error Nos. 2 and 4

By these assignments the defendant challenges the admission of the methamphetamine allegedly sold by the defendant, and of the receipt of the evidence package containing the drug.

As noted in State v. Paster, 373 So.2d 170, 177 (La.1979):

“To admit demonstrative evidence at trial, the law requires that the object be identified. The identification can be visual, that is, by testimony at the trial that the object exhibited is the one related to the case. It can also be identified by chain of custody, that is, by establishing the custody of the object from the time it was seized to the time it was offered in evidence. For the admission of demonstrative evidence, it suffices if the foundation laid establishes that it is more probable than not that the object is relevant to the case. Lack of positive identification goes to the weight of the evidence rather than to its admissibility. Ultimately, connexity if a factual matter for determination by the trier of fact. State v. Drew, 360 So.2d 500 (La.1978).”

In this case the testimony of the officer who purchased the drug, the officer who transported it to the crime lab and the chemist who identified it as methamphetamine established more probably than not that the substance introduced was the one involved in the sale.

The admission of the receipt, already dealt with in Assignment No. 1, was not an abuse of the trial court’s discretion, although it may have worked some prejudice on the defendant, in light of the fact that the receipt was highly relevant in establishing the chain of custody which the defendant was contesting.

We find no merit in these assignments of error.

Assignments of Error Nos. 5 and 6

The defendant filed two motions to have the trial judge recused. The trial court denied both motions without referring the motions to another judge for a hearing. The defendant assigns error to the trial court’s action.

The defendant’s first motion alleged that the trial judge should recuse himself because he had represented the defendant in a criminal matter some ten years ago, and because the trial judge had made comments in court that “left the Defendant with the distinct impression that the Honorable Ted R. Broyles would not be completely impartial towards the Defendant.” The second motion repeated the allegations of the first and expanded the defendant’s allegation as to the judge’s comments to claim that the trial judge had stated, to the best of the defendant’s recollection, “Your face is getting pretty familiar around here and we’re getting tired of looking at it.” The defendant also asserted in his second motion that a state police officer had told the defendant that if he appeared before Honorable Ted Broyles that the judge would see to it that the defendant would be convicted and “put away for the maximum that the law would allow.” The defendant concluded'that for these reasons and “others to be shown at a hearing” the trial judge would be unable to conduct the trial in a fair and impartial manner.

The defendant argues that the allegations are such that, if proved, recusation would be required under C.Cr.P. 671, which provides in part:

“In a criminal case, a judge of any court, trial or appellate, shall be recused when he:
(1) Is biased, prejudiced, or personally interested in the cause to such an extent that he would be unable to conduct a fair and impartial trial;
(6) Would be unable, for any other reason, to conduct a fair and impartial trial.” C.Cr.P. 674 provides in part:
“. . . If a valid ground for recusation is set forth in the motion, the judge shall either recuse himself, or refer the motion for hearing to another judge or to a judge ad hoc, as provided in Article 675.”

The provision that a judge may be recused because of bias or prejudice was introduced in the Code of Criminal Procedure in order to further the policy that courts should avoid even the appearance of partiality. See the Official Revision Comment for C.Cr.P. 671. The bias or prejudice must be of a substantial nature, however. State v. Qualls, 377 So.2d 293 (La.1979); State v. Maduell, 326 So.2d 820 (La.1976); Official Revision Comment for C.Cr.P. 671. In State v. Lukefahr, 363 So.2d 661, 663 (La.1978), we stated:

“A motion to recuse a trial judge must be based on more than mere general conelu-sory allegations. State v. Bell, 346 So.2d 1090 (La.1977); State v. Maduell, 326 So.2d 820 (La.1976); State v. Collins, 288 So.2d 602 (La.1974). If the motion, on its face, does not show grounds to recuse even if the allegations are proved, the trial judge may overrule the motion without referring it to another judge. La.C. Cr.P. art. 674; State v. Bell and State v. Collins, cited above.”

In the present case the defendant made no specific factual allegations that would warrant the recusal of the trial judge. Although the defendant quotes a statement of the state police officer that might indicate that the judge was prejudiced, there was no showing that the officer’s statement intended to reflect a pretrial opinion of the judge. The statement merely reflected the officer’s opinion of what might occur, and does not support a' conclusion that the judge should have been recused. Nor does the allegation that the defendant was left with the impression that the judge was not impartial warrant recu-sation. Such a claim is merely conclusory and does not present any factual basis for the motion. The statement that the trial judge was tired of coming into contact with the defendant, made during the proceeding to appoint counsel for the defendant, is not evidence of the substantial bias or prejudice required for recusation.

In State v. Arena, 254 La. 358, 223 So.2d 832 (1969), we rejected the contention that the mere fact that the trial judge had previously been employed by the defendant was grounds for recusation. In this case there was no explanation by the defendant to support his contention that the prior employment would prejudice the judge against him. There is no intimation that the trial judge had received any confidential information as to the defendant or that he had in any way developed a bias against the defendant as a result of the employment.

In addition, the bare assertion that there are other reasons that the judge should be recused is a mere conclusion unsupported by facts. Such a conclusion will not support recusal. Therefore, the defendant’s motion to recuse failed to present factual allegations that would, if proved, amount to substantial bias or prejudice on the part of the trial judge.

These assignments are without merit.

Assignment of Error No. 8

The defendant assigns as error the trial court’s denial of a motion for a continuance, filed prior to trial, requested because of the absence of a witness, Mike McKinley, who had been subpoenaed to appear at trial.

The record indicates that trial was originally set for March 12, 1979. Upon the state’s motion the case was reset for April 16; it was later reset for May 14 on motion of the state and by agreement of both parties. On April 11, the defendant obtained an order for a subpoena for McKinley to appear on April 16. When the time for trial was delayed, the defendant caused another subpoena to issue to the witness. The order was obtained on May 10 and filed on May 11, only three days before the trial was to commence. The subpoena issued in April had been returned marked “Received too late to serve” and “Unable to locate.” The subpoena issued in May is not part of the record, and there is no indication of what efforts were made to serve it. In any event, the witness failed to appear at trial, and the defendant moved for a mistrial on that ground.

C.Cr.P. 709 states:

“A motion for a continuance based upon the absence of a witness must state:
(1) Facts to which the absent witness is expected to testify, showing the materiality of the testimony and the necessity for the presence of the witness at the trial;
(2) Facts and circumstances showing a probability that the witness will be available at the time to which the trial is deferred; and
(3) Facts showing due diligence used in an effort to procure attendance of the witness.”

The decision to grant a continuance is placed in the discretion of the trial court. State v. Benson, 368 So.2d 716 (La.1979); State v. English, 367 So.2d 815 (La.1979); State v. Terry, 359 So.2d 172 (La.1978). See C.Cr.P. 712. This court has declined to reverse convictions absent an abuse of that discretion. State v. Durio, 371 So.2d 1158 (La.1979); State v. Benson, supra; State v. English, supra.

We cannot conclude that the trial court abused its discretion in this instance. Even assuming that the defendant’s efforts to insure that McKinley would appear at trial amounted to due diligence, and that the defendant’s motion sufficiently set forth the facts to which the defendant expected him to testify, there still were no facts alleged in the motion or produced at the hearing on the motion showing a probability that the witness would be available to testify at some later date. The defendant introduced no evidence indicating that future efforts to obtain the presence of the witness would be more fruitful than previous attempts had been. There was no positive statement as to the witness’ current whereabouts. There was no indication that he could be found in the future. Therefore, it was not an abuse of the trial court’s discretion to find that the defendant had neither alleged nor proved facts establishing the probability that the defendant would be available to testify at some future date.

This assignment lacks merit.

Assignment of Error No. 9

The defendant assigns error to the trial court’s refusal to hold a hearing on the defendant’s motion for bail after the verdict and before sentencing. On the date the bond hearing was set, the trial judge refused to hear defendant’s witnesses on the bail matter and denied bail pending sentence. (Defendant had requested that the sentencing be delayed for a week or ten days).

The court’s denial of presentencing bail became moot by the subsequent imposition of sentence. See State v. McCloud, 357 So.2d 1132 (La.1978); State v. Malvo, 357 So.2d 1084 (La.1978); C.Cr.P. 322.

There is no merit in this assignment.

Assignment of Error No. 10

Defendant assigns as error the trial court’s denial of a recess or continuance of the hearing on his motion for a new trial because of the absence of a witness.

A continuance is the postponement of a scheduled trial or hearing, and cannot be granted after the hearing is commenced. A recess, on the other hand, is a temporary adjournment of a trial or hearing after it has commenced. C.Cr.P. 708. In this case no motion for a continuance was made prior to the hearing. Kenny Willis, a witness who had been served, failed to appear; both the state and the defendant requested a recess so that Willis could be attached and brought into court. The trial court indicated its willingness to issue a bench warrant for the witness, but refused to grant a recess. The trial court was influenced by the defendant’s failure to file a motion for a continuance prior to the hearing, and by the fact that the parties had been admonished to have their witnesses ready.

As with most matters relating to the conduct of a trial or hearing, the trial court must be granted much discretion in determining whether to grant a recess in order that the proceedings be conducted with dignity and in an orderly and expeditious manner. State v. Humphreys, 319 So.2d 344 (La.1975). A trial court decision will not be overturned absent an abuse of that discretion. State v. Charles, 350 So.2d 595 (La.1977); State v. Jenkins, 340 So.2d 157 (La.1976); State v. Brown, 322 So.2d 211 (La.1975). In this case the defendant presented no compelling reasons to the trial court for the granting of the recess. Unless a compelling reason to grant the recess is shown to the trial judge, we will not find an abuse of discretion.

This assignment of error is without merit.

Assignments of Error Nos. 12 and 13

By these assignments the defendant attacks the sentence imposed by the trial court. He asserts that sentence was based on conjecture and speculation on the part of the trial court and was not supported by facts, and that the sentence was excessive.

The trial court conducted a presentence hearing at which the defendant’s probation officer, his mother and a man named Gordy testified. The court also obtained a report from the probation officer relating to the defendant’s prior criminal conduct; the court also questioned the defendant.

In State v. Spencer, 374 So.2d 1195, 1202 (La.1979), we stated:

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

The record in this case indicates that the trial court took into account the factors listed in C.Cr.P. 894.1 in imposing sentence. Specifically, the court was influenced by the perceived seriousness of the offense, and by the likelihood that the defendant would continue to engage in criminal activity if released on probation. The court also indicated that the defendant may benefit from rehabilitation in a confined environment. The court also noted the possible mitigating factors in the defendant’s favor, but found little to recommend probation in that regard. The record indicates that the defendant had an extensive prior criminal record, and was on probation from a conviction for theft of a cow when the offense involved in this case occurred. The record does not show that the trial court abused its discretion in imposing a sentence of nine years and a fine of $1000. Nor did the trial court err in directing that the sentence imposed would run consecutively with any other sentences the defendant was serving. This court has held that, for an offender without prior felony offenses, concurrent rather than consecutive sentences should be imposed unless the defendant posed an unusual risk to the safety of the public. See State v. Watson, 372 So.2d 1205 (La.1979). In the present case, however, the defendant had a significant prior history of felony conviction. The trial court did not err in imposing consecutive sentences.

These assignments of error lack merit.

Assignment of Error No. 14

By this assignment the defendant argues that we should recognize, as an error patent on the face of the record, error in the trial court’s questioning of witnesses. He argues that the questioning amounted to impermissible comment on the evidence by the judge. C.Cr.P. 772 prohibits such comment by the judge in the presence of the jury.

A judge in his discretion may examine a witness to bring out needed facts not elicited by the parties. The judge’s questioning must be closely guarded, however, so as to avoid any implied comment on the facts. State v. Nicholas, 359 So.2d 965 (La.1978). In State v. Refuge, 300 So.2d 489 (La.1974), we held that any error of the trial court in commenting on the facts is not an error discoverable from an inspection of the pleadings and proceedings under the judicial interpretation of C.Cr.P. 920. C.Cr.P. 920 has been amended since 1974 to provide that bills of exception need no longer be perfected. The language relative to errors patent, however, is unchanged since State v. Refuge was decided.

This assignment is without merit.

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

SUMMERS, J., concurs.


text:
    In re Ted R. BROYLES, Judge, 30th Judicial District Court.
    No. 65232.
    Supreme Court of Louisiana.
    Feb. 14, 1980.
   ORDER

On motion of The Honorable Ted R. Broyles, Judge, Division B, of the 30th Judicial District Court in and for Vernon Parish, Louisiana, and it having been made to appear that this Court has previously granted mover’s motion restraining him from hearing criminal cases, the order thereon being issued July 27, 1979, 373 So.2d 968; and it further appearing that the indictment which provoked the motion granting restraint has now been dismissed by order signed by the Honorable Earl E. Veron, Judge of the United States District Court for the Western District of Louisiana, dated January 4, 1980, it is therefore,

Ordered that the order restraining the Honorable Ted R. Broyles from hearing criminal cases issued by this Court on July 27, 1979 be and the same is set aside and recalled.


text:
    Roy R. DANZY, Individually and for the Use and Benefit of Jeffrey A. DANZY v. UNITED STATES FIDELITY & GUARANTY COMPANY.
    No. 65485.
    Supreme Court of Louisiana.
    March 3, 1980.

      James A. Pharis, Jr., Pharis & Pharis, Alexandria, for plaintiff-applicant.
    DeWitt T. Methvin, Jr., Gist, Methvin, Hughes & Munsterman, Alexandria, for defendant-respondent.
   DIXON, Justice.

Jeffrey Danzy was injured when the motorcycle he was riding was struck by a car driven by Mrs. Reley D. Bostick and insured by the defendant, United States Fidelity & Guaranty Company. At the time of the accident, Mrs. Bostick was acting in the scope of her employment as rural mail carrier for the United States Postal Service. Roy Danzy, Jeffrey’s father, filed suit in the United States District Court for the Western District of Louisiana against the United States of America, alleging the negligence of Mrs. Bostick while acting in the scope of her employment, and seeking the recovery of damages under the Federal Tort Claims Act. On the following day, Danzy instituted a direct action in the Louisiana Eighth Judicial District Court against Bostick’s insurer, alleging the same facts and seeking recovery of the identical damages. A year after both these suits were filed, Danzy entered into a compromise settlement of his federal court claims against the United States, releasing and discharging the United States in return for payment of $30,950. In accordance with the terms of the compromise, the federal court action was dismissed with prejudice.

In the pending state court proceedings, the defendant insurer filed peremptory exceptions of no right or cause of action, alleging that under the relevant provisions of the Federal Tort Claims Act, the only remedy available to plaintiff was an action against the United States. The defendant also filed a peremptory exception of res judicata, on the ground that plaintiff’s recovery was barred by his compromise settlement with the United States, and a motion for summary judgment. The trial court granted the motion for summary judgment and dismissed plaintiff’s claims. In its reasons for judgment, the trial court found that plaintiff had fully exercised his one cause of action in the federal court proceedings, that the exclusivity provision of the Federal Tort Claims Act ran in favor of the employee’s insurer and barred the state court action, and that plaintiff’s release of the United States without reserving rights against its solidary co-obligors had effected a release of the insurer. In affirming the dismissal, the Court of Appeal addressed only one issue, that of whether the act’s exclusivity provision precludes a direct action against the insurer of a federal employee. The appellate court concluded that, because the immunity from suit granted to a federal employee is not a purely personal immunity, it constitutes a defense which is also available to the employee’s insurer, We granted writs to review this ruling,

We affirm the trial court’s dismissal of plaintiff’s action but we find it unnecessary, on the facts before us here, to determine the effects of the immunity granted by the act’s exclusivity provision. Rather, we find that the trial court was correct in ruling that the defendant insurer was entitled to a summary judgment of dismissal by virtue of plaintiff’s release of his claim against the United States.

The Stipulation for Compromise Settlement, a certified copy of which was submitted in support of defendant’s motion for summary judgment, by its very terms constitutes a release of the United States from any and all liability on the claims for which plaintiff seeks recovery in his state court action. It is important to note that the settlement also constitutes a release of Mrs. Bostick, the government’s employee, under 28 U.S.C. § 2672, which provides in pertinent part:

“The acceptance by the claimant of any such award, compromise, or settlement shall be final and conclusive on the claimant, and shall constitute a complete release of any claim against the United States and against the employee of the government whose act or omission gave rise to the claim, by reason of the same subject matter.” (Emphasis added).

While federal law governs the question of what constitutes a release under this section of the Federal Tort Claims Act, state law is to be applied in determining the effects of such a release. Wright v. United States, 427 F.Supp. 726 (D.Del.1977); Robinson v. United States, 408 F.Supp. 132 (N.D.Ill.1976).

The question to be resolved by the application of Louisiana law is the effect upon the insurer, defendant here, of plaintiff’s release of its insured, Mrs. Bostick. Under the Direct Action Statute, the insurer is liable to the claimant in solido with its insured. Shaw v. New York Fire & Marine Underwriters, Inc., 252 La. 653, 212 So.2d 416(1968); R.S. 22:655. With regard to the effect which a release of one solidary obligor has upon the liability of another solidary obligor, C.C. 2203 provides in pertinent part:

“The remission or conventional discharge in favor of one of the codebtors in solido, discharges all the others, unless the creditor has expressly reserved his right against the latter.”

The compromise settlement executed by plaintiff in connection with his federal court action contains no express reservation of rights against any party. The release of the United States and its employee, defendant’s insured and solidary co-obligor, therefore discharged the defendant from liability to plaintiff for any claim arising from this accident.

For the reasons assigned, the judgment appealed from is affirmed. The costs of this appeal are assessed to plaintiff-appellant.

MARCUS, J., concurs.

       Chief Judge Paul B. Landry, Retired, participated in this decision as an Associate Justice Ad Hoc.

      . Roy Danzy filed suit individually and as administrator of the estate of his minor son. Jeffrey Danzy reached majority during the pend-ency of the proceedings and was joined as a party plaintiff. In both the federal and the state courts, the Danzy suit was consolidated with an action brought by MFA Mutual Ingurance Company on a subrogation claim arising from its payment of certain of Danzy’s medical expenses. Because all plaintiffs concurred in all the actions taken, reference is made to only one plaintiff for purposes of convenience.

      .Provisions of the United States Code which are relevant to the Federal Tort Claims action discussed here include the following.
      28 U.S.C. § 2674 provides in pertinent part: “The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages.” 28 U.S.C. § 1346 provides in pertinent part: “(b) Subject to the provisions of chapter 171 of this title, the district courts, together with the United States District Court for the District of the Canal Zone and the District .Court of the Virgin Islands, shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.”
      28 U.S.C. § 2672 provides in pertinent part: “The head of each Federal agency or his desig-nee, in accordance with regulations prescribed by the Attorney General, may consider, ascertain, adjust, determine, compromise, and settle any claim for money damages against the United States for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the agency while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred: Provided, That any award, compromise, or settlement in excess of $25,000 shall be effected only with the prior written approval of the Attorney General or his designee.
      Subject to the provisions of this title relating to civil actions on tort claims against the United States, any such award, compromise, settlement, or determination shall be final and conclusive on all officers of the Government, except when procured by means of fraud.

      The acceptance by the claimant of any such award, compromise, or settlement shall be final and conclusive on the claimant, and shall constitute a complete release of any claim against the United States and against the employee of the government whose act or omission gave rise to the claim, by reason of the same subject matter.”
      28 U.S.C. § 2679 provides in pertinent part: “The remedy against the United States provided by sections 1346(b) and 2672 of this title for injury or loss of property or personal injury or death, resulting from the operation by any employee of the Government of any motor vehicle while acting within the scope of his office or employment, shall hereafter be exclusive of any other civil action or proceeding by reason of the same subject matter against the employee or his estate whose act or omission gave rise to the claim.”

      . The compromise was effected under the authority of 28 U.S.C. § 2672, supra note 2.

      . See especially 28 U.S.C. § 2679, supra note 2.

      . We note, however, that the Court of Appeal was apparently incorrect in concluding that the immunity granted by the act is not merely personal to the federal employee. H.R.Rep.No. 297, 87th Cong., 1st Sess. 4 (1961), the report accompanying the bill which was subsequently enacted as 28 U.S.C. § 2679, stated that the bill “would exclude suits against employees in their individual capacities . . .’’ In Gustafson v. Peck, 216 F.Supp. 370, 372-373 (N.D.Iowa 1963), the court found that this section of the act granted an “immunity from personal liability to Federal employees . ” on the basis of the following analysis:
      “The remaining question is whether the Congress has now manifested its intent to immunize federal employees from suit eo nomine arising out of their negligent operation of motor vehicles in the scope of their federal employment and now intends that such suits shall be against the United States. Actually, these immunity statutes probably do not completely obliterate the liability of the individual tort-feasor, but at best there is no direct liability against such tortfeasor as long as the United States Government both accepts the responsibility for the tort and declared the tortfeasor immune. See Gardner v. Panama Ry. No., 342 U.S. 29, 72 S.Ct. 12, 96 L.Ed. 31.”
      See also Jarrell v. Gordy, 162 So.2d 577, 585 (La.App.1964), in which Judge Tate, later to become an associate justice of this court, dissenting on other grounds, found that “[t]his immunity granted to the federal employee while on the government work is personal to him. . . . It is a personal private right of the government employee, granted to him by the national legislature as a matter of statutory right.”
      This court has long held that where an immunity from suit is merely personal, an insurer is not entitled to plead such immunity as a defense to a suit brought under the Direct Action Statute. Edwards v. Royal Indemnity Co., 182 La. 171, 161 So. 191 (1935); Comment, The Louisiana Direct Action Statute, 22 La.L.Rev. 243 (1961). In Edwards the court made the following observation concerning the intent of the legislature in providing for a direct action against the insurer:
      “It is, therefore, our opinion that the Legislature intended to give the insurer the right to plead defenses which it could urge against the insured, but not defenses which are purely personal between the insured and claimant, and in no way growing out of, or connected with, the accident or policy.” 182 La. at 181, 161 So. at 195.
      The statutory basis for this doctrine is found in C.C. 2098, which concerns suit against a co-debtor in solido, the status occupied by an insurer vis-a-vis its insured, and which provides that the codebtor “can not plead such exceptions as are merely personal to some of the other codebtors.”
      The following forms of immunity from suit have been found to be merely personal to an insured and therefore unavailable to the insurer: interspousal immunity, Edwards v. Royal Indemnity Co., supra, LeBlanc v. New Amsterdam Cas. Co., 202 La. 857, 13 So.2d 245 (1943); father-son immunity, Deshotel v. Travelers Indemnity Co., 257 La. 567, 243 So.2d 259 (1971); governmental immunity, Snell v. Stein, 261 La. 358, 259 So.2d 876 (1972); charitable immunity, Lusk v. U. S. Fidelity & Guaranty Co., 199 So. 666 (La.App.Orl.1941); an insane person’s incapacity to be liable for his torts, von Dameck v. St. Paul Fire & Marine Ins. Co., 361 So.2d 283 (La.App.1978). In a case similar to the one before us, to the extent that it necessitated reconciling the immunity granted to shipowners by the Federal Limitation of Liability Act, 46 U.S.C. § 183(a) with the Louisiana Direct Action Statute, the United States Fifth Circuit Court of Appeals found that because the statutory right to limit liability is personal to the shipowner, it does not preclude a direct action against its insurer. Olympic Towing Corp. v. Nebel Towing Co., 419 F.2d 230 (5th Cir. 1969), cert. den. 397 U.S. 989, 90 S.Ct. 1120, 25 L.Ed.2d 396 (1970).
      In holding that the exclusivity provision of the Federal Tort Claims Act bars direct action against the insurer, the Court of Appeal placed great reliance on Smith v. Rivest, 396 F.Supp. 379 (E.D.Wis.1975). In that case, the federal employee and his insurer were dismissed as parties defendant to a third party claim (filed by the original defendant in a suit brought by a passenger in the truck driven by the government employee, against the driver of the car with which the truck collided). The appellate court’s reliance on this case appears to be erroneous, in light of two salient differences between Smith and the situation before us here. First, in Smith the third party claim was filed against both the federal employee and his insurer, not directly and solely against the insurer, so that the dismissal of the insured necessarily resulted in dismissal of his insurer. Second, the dismissal was granted only after the United States had removed the action from the state court in which it was instituted to the federal district court, a procedure authorized by the Federal Tort Claims Act, and the dismissal was a consequence of the United States’ uncontested motion to be substituted for the employee and his insurer, as third party defendant. Thomason v. Sanchez, 539 F.2d 955 (3rd Cir. 1976), is also inapposite because it did not involve a direct action against an insurer. We also question the Court of Appeal’s analogy between the situation presented here and that involved when an insurer defends on the basis of the immunity of its insured, an employer, to a tort action brought by an injured employee. The critical difference between these two situations is that under the Federal Tort Claims Act, the injured party’s right and remedy in tort are preserved, but the United States is substituted for the actual tortfeasor. The Workmen’s Compensation Act, on the other hand, serves as an absolute bar to any action in tort by an injured employee against any party; his sole right and remedy are provided by the act. An injured employee may not bring a direct action in tort against his employer’s insurer because a tort action is unavailable to him. But one injured by the negligence of a federal employee has an action in tort, and the tortfeasor’s personal immunity should pot bar a direct action against his insurer. See Ruiz v. Clancy, 182 La. 935, 162 So. 734 (1935); Guidry v. Aetna Casualty & Surety Co., 359 So.2d 637 (La.App.1978).


author:
      DIXON, Justice.

      MARCUS, Justice DENNIS, Justice,

text:
    STATE of Louisiana v. Robert H. GOODE, Jr.
    No. 65879.
    Supreme Court of Louisiana.
    March 3, 1980.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Johnny C. Par-kerson, Dist. Atty., Walter L. Perkins, Jr., Asst. Dist. Atty., for plaintiff-respondent.
    James A. Hobbs, Blackwell, Chambliss, Hobbs & Henry, West Monroe, for defendant-relator.
   DIXON, Justice.

On March 2, 1979 defendant was charged with simple battery of a person over the age of sixty-five in violation of R.S. 14:35 and 14:50.1. Defendant filed a motion to quash, alleging that R.S. 14:50.1 is unconstitutional because it subjects the defendant to excessive punishment for the crime of simple battery in violation of Article I, Section 20 of the Louisiana Constitution of 1974. The motion to quash was overruled and defendant’s application for writs was granted, staying the proceedings in the district court pending this decision.

The question to be decided is whether R.S. 14:50.1 is unconstitutional under Article I, Section 20 of the Louisiana Constitution of 1974 which prohibits excessive punishment.

R.S. 14:50.1 provides:

“Notwithstanding any other provisions of law to the contrary, any person who is convicted of manslaughter, simple rape, forcible rape, aggravated assault, aggravated battery, simple battery, aggravated kidnapping, simple kidnapping, or false imprisonment or any attempt to commit the aforementioned crimes where a victim of any such crime is sixty-five years of age or older shall in addition to any other penalty imposed, serve a minimum of five years without benefit of parole, probation or suspension of sentence and adjudication of guilt or imposition of sentence shall not be suspended, and lack of knowledge of the victim’s age shall not be a defense.
Such sentence shall be consecutive to any other sentence imposed for violation of the provisions of any state criminal law.”

The statute mandates a minimum of five additional consecutive years without benefit of parole, probation or suspension of sentence for certain crimes committed against the person of an individual sixty-five years of age or older. There is no maximum. The legislature has determined that this group of people is particularly vulnerable to crimes against the person and has mandated enhanced penalties for these crimes. Although the legislative motive is commendable, the statute suffers from some contradictions in the particular crimes which are included. For example, aggravated kidnapping already carries a mandatory life sentence. Aggravated battery and simple battery are both included in the statute, but second degree battery, which was added to the Criminal Code in 1978, has not yet been included. Simple robbery, R.S. 14:65, and purse snatching, R.S. 14:65.1, crimes frequently committed upon persons over sixty-five years old, are not included in the statute. However, the statute is not unconstitutional because of these apparent internal inconsistencies.

The sentencing provisions of the statute raise a more important issue., R.S. 14:50.1 can properly be viewed as an enhancement statute similar to the Habitual Offender Statute, 15:529.1, which provides for enhanced penalties for second and subsequent offenses. But unlike the enhanced penalties challenged here, those enhanced penalties are related to the sentence for the basic crime. The Habitual Offender Statute has long been upheld by this court against the attack that it inflicts cruel and unusual punishment, because it is a recidivist statute. State v. King, 355 So.2d 1305 (La.1978); State v. Williams, 326 So.2d 815 (La.1976); State v. Vale, 252 La. 1056, 215 So.2d 811 (1968). In contrast, a defendant charged under R.S. 14:50.1 might have committed only one offense but will receive an enhanced penalty because of the age of the victim. Nevertheless, the fact that the enhancement is triggered by the age of the victim does not render the statute unconstitutional.

Defendant’s main contention is that the penalty provided for in the statute is excessive under Article I, Section 20 of the Louisiana Constitution of 1974, which provides in part: “No law shall subject any person . . to cruel, excessive, or unusual punishment.” The deliberate inclusion by the redactors of the Constitution of a prohibition against “excessive” as well as cruel and unusual punishment broadened the duty of this court to review the sentencing aspects of criminal statutes. In “The Declaration of Rights,” 21 Loyola L.Rev. 9, 39 (1975), one of the co-authors of the Constitutional Convention’s Declaration of Rights, now Article I of the Louisiana Constitution of 1974, wrote: “This standard allows the courts to avoid strained interpretations of what is cruel and unusual punishment, in order to reach the sometimes more important question of whether the punishment does, in fact, fit the crime.”

In contrast with Louisiana’s Section 20, the United States Constitution does not in terms prohibit “excessive” punishment. The Eighth Amendment reads: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.” Although there is no mention of a prohibition against “excessive” punishment, decisions of the United States Supreme Court indicate that the notion of cruel and unusual punishment includes an element of excessiveness. In Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910), that court stated that it is a precept of fundamental law that punishment for crime should be graduated and proportioned to the offense. In determining what is excessive punishment under the Eighth Amendment’s prohibition against cruel and unusual punishment, the United States Supreme Court in recent years has adopted a standard that a sentence is excessive when it is grossly out of proportion to the severity of the crime. Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977); Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). Under the standards set forth in Gregg, a punishment is “excessive” and unconstitutional if it (1) makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime. In Gregg the court upheld the death penalty for deliberate murder, but in Coker the court concluded that a sentence of death is grossly disproportionate and excessive punishment for the crime of rape and is forbidden by the Eighth Amendment as cruel and unusual punishment.

In a concurring opinion (by Justice Tate) in State v. Williams, 340 So.2d 1382 (La.1977), it was noted that the Louisiana prohibition against excessive punishment was intended to prohibit a level of punishment out of proportion with the offense. Thus in determining what is excessive punishment both under the federal and our state constitutions the harshness of the penalty must be compared with the severity of the offense.

Under this analysis, R.S. 14:50.1 suffers from two infirmities. The mandatory nature of the penalty can result in a sentence which is disproportionate to the severity of a particular crime. The United States Supreme Court has held that unconstitutional excessiveness may result from the automatic imposition of a harsh penalty for all transgressions whatever the circumstances of the crime or the background of the individual offender. Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976). A sentence of five additional- consecutive years without benefit of parole, probation or suspension of sentence becomes excessive when a defendant, as here, is charged with a relatively minor misdemeanor, simple battery, which itself carries only a maximum sentence of six months. Although a simple battery on an elderly person could result in serious medical and psychological consequences to the victim, the mandatory minimum sentence of five years in addition to the sentence for the underlying offense fails to meet the test of being proportionate to the offense.

Furthermore, the statute fails to proscribe a maximum sentence which the court can impose; it merely provides for a minimum of five additional years. Therefore, a defendant charged under this statute could be faced with serving up to a life sentence, in addition to the sentence for the underlying offense. This possibility illustrates that the nature of the penalty provided for in the statute is unusually severe when compared with some of the offenses which are included in the statute, such as simple battery. A life sentence for simple battery is unquestionably disproportionate to the severity of the offense.

R.S. 14:50.1 is in violation of Article I, Section 20 of the Louisiana Constitution of 1974 prohibiting excessive punishment and therefore unconstitutional. The judgment of the district court overruling the motion to quash is reversed, and the prosecution under R.S. 14:50.1 is dismissed.

WATSON, J., concurs in the result.

MARCUS and DENNIS, J., concur in part and dissent in part and assign reasons.

BLANCHE, J., concurs in part and dissents in part for reasons assigned by MARCUS, J.

MARCUS, Justice

(concurring in part and dissenting in part).

I agree with the majority that in determining what is excessive punishment under both the federal and our state constitutions the harshness of the penalty must be compared with the severity of the offense, and that a mandatory sentence of five additional consecutive years without benefit of parole, probation or suspension of sentence is excessive where, as here, a defendant is charged with simple battery, a relatively minor misdemeanor which itself carries only a maximum sentence of six months. However, because an additional five year sentence is excessive and hence unconstitutional, I consider it unnecessary to determine the effect of the lack of a maximum term in La.R.S. 14:50.1. Additionally, although I consider the inclusion of simple battery in La.R.S. 14:50.1 to be invalid, such invalidity does not affect other provisions, items or applications of La.R.S. 14:50.1 which can be given effect without the inclusion of simple battery. Thus, the term “simple battery” can be severed from La.R.S. 14:50.1. See 1977 La.Acts No. 506 (source of La.R.S. 14:50.1). Therefore, in my view, we need hold only that La.R.S. 14:50.1 is unconstitutional insofar as it applies to simple battery.

Accordingly, I concur with the majority insofar as it reverses the judgment of the district court overruling the motion to quash and dismisses the prosecution under La.R.S. 14:50.1; however, I dissent insofar as it declares La.R.S. 14:50.1 totally unconstitutional.

DENNIS, Justice,

concurring in part and dissenting in part.

I respectfully concur with the majority opinion insofar as it declares unconstitutionally excessive a minimum five-year penalty for the offense of simple battery but I dissent from the holding barring similar punishment for other more violent offenses against elderly citizens.

       Chief Judge Paul B. Landry, Retired, participated in this decision as an Associate Justice Ad Hoc.

      . A survey of the other forty-nine states revealed that only three other states have enacted laws similar to R.S. 14:50.1. The states and their respective statutes follow:
      California Penal Code:
      “§ 1203.09 Crimes against persons 60 years of age or older, blind persons, paraplegics or quadriplegics; denial of probation and suspension of sentence
      (a) Notwithstanding any other provision of law, probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, any person who commits or attempts to commit one or more of the crimes listed in subdivision (b) against a person who is 60 years of age or older; or against a person who is blind, a paraplegic, or a quadriplegic, and such disability is known or reasonably should be known to the person committing the crime; and who during the course of the offense inflicts great bodily injury upon such person.
      (b) Subdivision (a) applies to the following crimes:
      (i) Murder.
      (ii) Assault with intent to commit murder, in violation of Section 217.
      (iii) Robbery, in violation of Section 211.
      (iv) Kidnapping, in violation of Section 207.
      (v) Kidnapping for ransom, extortion, or robbery, in violation of Section 209.
      (vi) Burglary of the first degree, as defined in Section 460.
      (vii) Rape by force or violence, in violation of subdivision (2) of Section 261.
      (viii) Rape by threat of great and immediate bodily harm, in violation of subdivision (3) of Section 261.
      (ix) Assault with intent to commit rape, sodomy, or robbery, in violation of Section 220.” Connecticut Penal Code:
      “§ 53a-59a. Assault of a victim sixty or older in the first degree. Class B felony
      (a) A person is guilty of assault of a victim sixty or older in the first degree, when he commits assault in the first degree under section 53a-59(a)(2) or 53a-59(a)(3) and the victim of such assault has attained at least sixty years of age or is blind or physically disabled, as defined in section 1 — If.
      (b) No person shall be found guilty of assault in the first degree and assault of a victim sixty or older in the first degree upon the samé incident of assault but such person may be charged and prosecuted for both such offenses upon the same information.
      (c) Assault of a victim sixty or older in the first degree is a class B felony. (1977, P.A. 77-422, § !•)”

        Hawaii Penal Code:
      “§ 706-661 Sentence of imprisonment for felony; extended terms. In the cases designated in section 706-662, a person who has been convicted of a felony may be sentenced to an extended indeterminate term of imprisonment. When ordering such a sentence, the court shall impose the maximum length of imprisonment which shall be as follows:
      (1) For a class A felony — life;
      (2) For a class B felony — twenty years; and
      (3) For a class C felony — ten years.
      The minimum length of imprisonment shall be determined by the board of paroles and pardons in accordance with section 706-669. [L 1972, c 9, pt of § 1]
      § 706-662 Criteria for sentence of extended term of imprisonment for felony. The court may sentence a person who has been convicted of a felony to an extended term of imprisonment if it finds one or more of the grounds specified in this section. The finding of the court shall be incorporated in the record.

      (5)- Offender against elderly or handicapped. The defendant is an offender against the elderly or handicapped whose commitment for an extended term is necessary for the protection of the public. The court shall not make such a finding unless:
      (a) The defendant inflicts serious bodily injury upon a person who is sixty years of age or older; or against a person who is blind, a paraplegic, or a quadriplegic; and
      (b) Such disability is known or reasonably should be known to the defendant; and
      (c) The defendant attempts or commits any of the following crimes: murder, rape, robbery, felonious assault, burglary and kidnapping, [am L 1978, c 210, § 1]”


author: PER CURIAM.

text:
    STATE of Louisiana v. Kenneth KAERCHER and Thomas Tighe, Defendants, and Allied Fidelity Insurance Company, Surety.
    No. 66678.
    Supreme Court of Louisiana.
    March 3, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Francis Dugas, Dist. Atty., John J. Erny, Jr., Asst. Dist. Atty., for plaintiff-respondent.
    Geoffrey H. Longenecker, James J. O’Connor, New Orleans, for Allied Fidelity Ins. Co., defendant-relator.
   PER CURIAM.

The instant case arises out of judgments of bail bond forfeitures which were entered in the district court in criminal proceedings and which the district court, by judgment entered on November 2,1979, refused to set aside. Allied Fidelity Insurance Company, alleged surety on the bail bonds in this matter, seeks to have the district court judgments reviewed and has filed with this Court a motion to have the record lodged as a direct appeal from the district court judgments. For the reasons assigned below, the surety has no right of appeal to this court. However, this Court does have jurisdiction over the matter and accordingly, the record is ordered filed as an application for writs.

A proceeding to forfeit a bail bond is a civil proceeding arising out of a contract under. private signature between a surety for the defendant and the state. Upon default of the conditions of the bail bond, a money judgment may be rendered against the principal and surety in solido in favor of the state. However, while the proceeding is civil in nature, judicial review of a proceeding to forfeit a bond lies to the court having jurisdiction over the criminal case. See State v. Johnson, 342 So.2d 863 (La.1977); Gennuso v. State, 339 So.2d 335 (La.1976); State v. Sandoz, 258 La. 297, 246 So.2d 21 (1971); State v. Kunzler, 248 La. 133, 177 So.2d 112 (1965); State v. United Bonding Insurance Co., 244 La. 716, 154 So.2d 374 (1963). See also Marr’s Criminal Jurisprudence, § 298 at 447 (2d ed. 1923). Accordingly, except for those cases where the proper court for review is the district court, see R.S. 13:1896 relative to review of city court convictions, this Court has jurisdiction to review judgments relating to bond forfeitures in criminal proceedings.

Although jurisprudence interpreting the 1921 Constitution gave the state, the defendant and the surety the right to appeal to this Court from judgments relating to bond forfeitures based on the nature of the offense charged in the bill of information or indictment, we do not similarly interpret the provisions of the 1974 Constitution. Under the Louisiana Constitution of 1974, a case is appealable to this Court if “a law or ordinance has been declared unconstitutional,” La.Const. Art. 5, § 5(D)(1) (1974), or if “the defendant has been convicted of a felony or a fine exceeding five hundred dollars or imprisonment exceeding six months actually has been imposed.” La. Const. Art. 5, § 5(D)(2) (1974). Neither of these provisions authorizes an appeal from judgments relating to bond forfeitures. Although it speaks in terms of “a case,” La. Const. Art. 5, § 5(D)(2) (1974) only permits appeals by defendants from felony convictions and from fines and sentences imposed. Cf. State v. James, 329 So.2d 713 (La.1976). Since they do not directly. involve either conviction or sentence, judgments by lower courts either refusing to forfeit or forfeiting bonds in criminal proceedings, regardless of whether the matter relates to pre-conviction or post-conviction actions, are not included in the right of appeal. Thus, parties seeking review of judgments relating to bond forfeiture, whether the state, the defendant, or the surety, do not have a right of appeal, but must file with this Court an application for writs of certiorari or review. See La.Const. Art. 5, § 5(E) (1974).

For the reasons assigned, the record in the above entitled matter is ordered filed with this Court as an application for writs. See La.Sup.Ct. Rules, Rule 1, § 11. Unless a motion for extension of time is filed and granted, relator Allied Fidelity Insurance Company is given fifteen days from the date of this opinion to file any brief or memorandum of law in support of its application for writs.

      . For a previous treatment of the state’s right to appeal or seek review of judgments relating to bond forfeitures, see State v. Johnson, 342 So.2d 863 (La. 1977).


text:
    STATE of Louisiana v. Robert G. ROCKY.
    No. 66110.
    Supreme Court of Louisiana.
    March 12, 1980.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
    Robert Barnard, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
   PER CURIAM.

Affirmed.

Even considering the supplemental assignment of error as formally filed, we find no merit in the assignments.


text:
    Marie SCHRINER v. RIVERSIDE COMPANIES, INC., d/b/a Parkview Estate Nursing Center.
    No. 66754.
    Supreme Court of Louisiana.
    March 3, 1980.
   In re Riverside Companies, Inc., d/b/a Parkview Nursing Center, applying for cer-tiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Winn. 378 So.2d 1035.

Writ denied.

MARCUS, J., would grant the writ.


text:
    State of LOUISIANA v. Mack J. ZARDES, Sr.
    No. 65457.
    Supreme Court of Louisiana.
    March 3, 1980.
   In re Mack Zardes, Sr., applying for remedial or supervisory writ. Parish of Orleans. No. 255-002.

Writ denied.


text:
    J. Donald KELLEY v. Patricia Hynes Adam, wife of J. Donald KELLEY.
    No. 66774.
    Supreme Court of Louisiana.
    March 3, 1980.
   In re J. Donald Kelley, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. No. 10,527. Parish of Orleans.

Denied.


text:
    STATE of Louisiana ex rel. Aristole DOMINO v. STATE of Louisiana.
    No. 66787.
    Supreme Court of Louisiana.
    March 3, 1980.
   In re Aristole Domino, applying for motion to remand appeal. Parish of Orleans. No. 267-728.

Denied.


text:
    STATE of Louisiana v. William COLACURCIO.
    No. 66794.
    Supreme Court of Louisiana.
    March 3, 1980.
   In re William Colacurcio, applying for writ of certiorari. Parish of Orleans. No. 267-972.

Denied.


text:
    State of Louisiana In the Interest of the Minors: Ronnie L. GULLETTE, Amos D. Garcia, Larhonda Paula Garcia, Lisinda Garcia and Francis M. Garcia.
    No. 66802.
    Supreme Court of Louisiana.
    March 3, 1980.
   In re Mrs. Mateen Gullette, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Bossier. No. 13,998.

Writ denied.


text:
    STATE of Louisiana v. Steven W. McCALLUM.
    No. 66806.
    Supreme Court of Louisiana.
    March 3, 1980.
   In re Steven W. McCállum applying for supervisory writs, writs of certiorari and judicial review. Parish of West Baton Rouge. No. 79,655.

Writ denied.


text:
    STATE of Louisiana v. Michael James HEBERT.
    No. 66828.
    Supreme Court of Louisiana.
    March 3, 1980.
   In re Michael James Hebert, applying for supervisory writs of certiorari, mandamus. Parish of East Baton Rouge. No. 6-79-507.

Writ denied.


text:
    Judy R. WASHES, wife of/and Daniel P. Waskes v. Fred D. POOLE and Red Ball Motor Freight, Inc.
    No. 66831.
    Supreme Court of Louisiana.
    March 3, 1980.
   In re Fred D. Poole and Red Ball Motor Freight, Inc., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. No. 10,529.

Denied.


text:
    Kris KRAJEWSKI, and Numerous Others Unknown v. COVINGTON COUNTRY CLUB, INC., et als.
    No. 66841.
    Supreme Court of Louisiana.
    March 3, 1980.
   In re Kris Krajewski, and Numerous Others. Unknown, applying for writs of review, certiorari, mandamus and prohibition. Parish of St. Tammany. No. 52628.

Writ denied.


text:
    STATE of Louisiana v. Pitt M. SMITH.
    No. 66843.
    Supreme Court of Louisiana.
    March 3, 1980.
   In re Pitt M. Smith, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Ouachita. No. M:42465.

Writ denied.

DIXON and CALOGERO, JJ., would grant the writ.


text:
    STATE of Louisiana v. David CHENEVERT.
    No. 66845.
    Supreme Court of Louisiana.
    March 3, 1980.
   In re David Chenevert, applying for writs of certiorari. Parish of East Baton Rouge. No. 10-79-100.

Writ denied.


text:
    STATE of Louisiana v. Kenneth BROWN.
    No. 66849.
    Supreme Court of Louisiana.
    March 3, 1980.
   In re Kenneth Brown applying for writs of certiorari, prohibition, mandamus, and for a stay order. Parish of Orleans. No. 272-517.

Denied.


text:
    STATE of Louisiana ex rel. Louis WILLIAMS v. CRIMINAL DISTRICT COURT, PARISH OF ORLEANS, SECTION I.
    No. 65807.
    Supreme Court of Louisiana.
    March 3, 1980.
   In re Louis Williams, applying for writ of mandamus. Parish of Orleans. No. 234-890.

Granted. Trial judge is to furnish relator with transcript forthwith or show cause to the contrary in writing within 10 days.


text:
    STATE of Louisiana ex rel. Joseph A. BRADBERRY v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 66307.
    Supreme Court of Louisiana.
    March 3, 1980.
   In re Joseph A. Bradberry, applying for writ of habeas corpus. Parish of Caddo. Number unknown.

Granted. Evidentiary hearing ordered on ineffective counsel.

MARCUS and BLANCHE, JJ., dissent.


text:
    STATE of Louisiana v. David WEST, a/k/a Garvin Dale White.
    No. 66373.
    Supreme Court of Louisiana.
    March 3, 1980.
   In re David West, a/k/a Garvin Dale White, applying for remedial writs. Parish of De Soto. No. 38,345.

Granted.


text:
    STATE of Louisiana ex rel. Jesty Adam TRAHAN v. Frank BLACKBURN.
    No. 66466.
    Supreme Court of Louisiana.
    March 3, 1980.
   In re Jesty Adam Trahan, applying for writ of habeas corpus. Parish of Jefferson. No. 79-52.

Writ granted. Evidentiary hearing ordered on whether plea bargain was broken.


text:
    Henry PHILLIPS et al. v. ROLLINS-PURLE, INC.
    No. 66703.
    Supreme Court of Louisiana.
    March 3, 1980.
   In re Henry Phillips and Alma Goodlow Phillips, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. No. 12,746. Parish of East Baton Rouge.

Granted.


text:
    STATE of Louisiana v. Richard TRASS.
    No. 65925.
    Supreme Court of Louisiana.
    March 3, 1980.
   In re Richard Trass, applying for remedial writs. Orleans Parish. No. 246-173.

Writ denied. Application is moot.


text:
    STATE of Louisiana ex rel. Harry O. CRAMER v. Frank C. BLACKBURN, Warden, et al.
    No. 66070.
    Supreme Court of Louisiana.
    March 3, 1980.
   In re Harry O. Cramer, applying for reconsideration of denied writ of mandamus on January 28, 1980. Parish of Orleans. No. 259-221.

Denied.


text:
    STATE of Louisiana ex rel. Thomas J. RANGE v. NINETEENTH JUDICIAL DISTRICT COURT, PARISH OF EAST BATON ROUGE.
    No. 66114.
    Supreme Court of Louisiana.
    March 3, 1980.
   In re Thomas J. Range, applying for writ of habeas corpus. Parish of East Baton Rouge. No. 9-77-337.

Writ denied.


text:
    STATE of Louisiana ex rel. Charles PETERSON v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 66452.
    Supreme Court of Louisiana.
    March 3, 1980.
   In re Charles Peterson applying for writ of mandamus. Parish of Livingston. Number unknown.

Denied. The district court has acted.


text:
    STATE of Louisiana ex rel. Milton PRATER v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 66456.
    Supreme Court of Louisiana.
    March 3, 1980.
   In re Milton Prater, applying for writ of habeas corpus. Parish of Orleans. No. 246-089.

Writ denied.


text:
    STATE of Louisiana ex rel. Lester D. O’TOOLE v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 66464.
    Supreme Court of Louisiana.
    March 3, 1980.
   In re Lester D. O’Toole, applying for writs of certiorari and mandamus. Rapides Parish. No. 133,764.

Denied.


text:
    STATE of Louisiana ex rel. Darrell W. JARRELL v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 66490.
    Supreme Court of Louisiana.
    March 3, 1980.
   In re State of Louisiana ex rel. Darrell W. Jarrell applying for writ of habeas corpus. Parish of St. Tammany. No. 66,698.

Writ denied.


text:
    STATE of Louisiana ex rel. Robert L. WYMORE v. PARISH OF ST. CHARLES, 29TH JUDICIAL DISTRICT COURT.
    No. 66495.
    Supreme Court of Louisiana.
    March 3, 1980.
   In re Robert L. Wymore, applying for writs of mandamus. Parish of St. Charles. Nos. 79-215 and 79-085.

Writ denied.


text:
    STATE of Louisiana ex rel. Clarence Ray HARDGE v. BOARD OF PAROLE AND PROBATION and Department of Corrections.
    No. 66497.
    Supreme Court of Louisiana.
    March 3, 1980.
   In re Clarence Ray Hardge, applying for remedial writ. Parish of East Baton Rouge. No. 6-78-365.

Writ denied.


text:
    STATE of Louisiana ex rel. Michael McCLOUD v. COURT REPORTER, OUACHITA PARISH.
    No. 66498.
    Supreme Court of Louisiana.
    March 3, 1980.
   In re Michael McCloud, applying for writs of mandamus and certiorari. Ouachita Parish. No. 66,498.

Denied.


text:
    STATE of Louisiana ex rel. Roosevelt JOHNSON v. Frank BLACKBURN, Warden, et al. Louisiana State Penitentiary.
    No. 66501.
    Supreme Court of Louisiana.
    March 3, 1980.
   In re Roosevelt Johnson applying for writs of certiorari, prohibition, mandamus, or habeas corpus. Parish of East Baton Rouge. No. 478,448.

Writ denied.


text:
    STATE of Louisiana ex rel. Melvin BAZILE v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 66502.
    Supreme Court of Louisiana.
    March 3, 1980.
   In re Melvin Bazile applying for writs of certiorari, prohibition, mandamus or habeas corpus. Orleans Parish. Number unknown.

Writ denied.


text:
    STATE of Louisiana ex rel. George H. ENGLISH v. CLERK OF COURT, 14th JUDICIAL DISTRICT COURT, PARISH OF CALCASIEU.
    No. 66506.
    Supreme Court of Louisiana.
    March 3, 1980.
   In re George H. English, applying for habeas corpus. Parish of Calcasieu. No. 10318-77.

Writ denied.


text:
    STATE of Louisiana ex rel. Jimmie VICKERS v. WARDEN, LOUISIANA STATE PENITENTIARY.
    No. 66652.
    Supreme Court of Louisiana.
    March 3, 1980.
   In re Jimmie Vickers, applying for writ of certiorari, probation and mandamus. Tangipahoa Parish. No. 18417.

Writ denied.

DENNIS, J., would grant the writ.


text:
    LINCOLN LOANS, INC. v. Leslie SMITH et ux.
    No. 66753.
    Supreme Court of Louisiana.
    March 3, 1980.
   In re Leslie Smith, et ux., applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Lincoln. No. 13,993.

Denied.


text:
    FRANKLIN PRINTING COMPANY, INC., et al. v. Richard H. COLLIN.
    No. 66850.
    Supreme Court of Louisiana.
    March 3, 1980.
   In re Bruce G. Reed, applying for writ of review, on judgement of contempt.

Writ denied.

CALOGERO and DENNIS, JJ., would grant the writ.


text:
    STATE of Louisiana v. Robert SATCHER.
    No. 66978.
    Supreme Court of Louisiana.
    March 5, 1980.
   In re Robert Satcher, applying for supervisory writs. Parish of Beauregard. No. CR-84-80.

Writ denied.


text:
    STATE of Louisiana v. Ronald A. CAMINITA.
    No. 67016.
    Supreme Court of Louisiana.
    March 6, 1980.
   In re Ronald Caminita, applying for stay order. Parish of Orleans. No. 272-902.

On the showing made, stay denied. Adequate remedy by review in the event of conviction.

CALOGERO, J., would grant the stay.


text:
    STATE of Louisiana v. Andre J. HAYNIE.
    No. 67010.
    Supreme Court of Louisiana.
    March 7, 1980.
   In re Andre J. Haynie, applying for supervisory and remedial writs, and bond reduction. Parish of Grant. Number unknown.

Writ granted. Bond reduced to $40,-000.00.


text:
    STATE of Louisiana v. Glenn DAUZAT.
    No. 67002.
    Supreme Court of Louisiana.
    March 7, 1980.
    Writ Dismissed April 16, 1980.
   In re Glenn Dauzat, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Avoyelles. Nos. 42,520 and 42,521.

Writ granted.


text:
    STATE of Louisiana ex rel. Donald Wayne HOLTON v. Judge Charles S. BECNEL, 23rd Judicial District Court.
    No. 67012.
    Supreme Court of Louisiana.
    March 7, 1980.
   In re Donald Wayne Holton, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of St. James. No. 65-F.

Granted. Preliminary examination ordered forthwith.