author: J. BURTON FORET, Justice LEMMON, Justice, MARCUS, Justice

text:
    STATE of Louisiana v. Donald WILSON.
    No. 66799.
    Supreme Court of Louisiana.
    Jan. 26, 1981.
    Rehearing Denied March 2, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., J. Kevin McNary, Asst. Dist. Atty., for plaintiff-appellee.
    Robert Barnard, New Orleans, Orleans Indigent Defender Program, William No-land, New Orleans, for defendant-appellant.
   J. BURTON FORET, Justice

Ad Hoc.

Defendant, Donald Wilson, was charged by bill of information, tried and convicted of distribution of heroin, in violation of LSA-R.S. 40:966(A). The defendant filed a motion for a new trial on May 2, 1975, and after supplementation, the motion was heard and denied. The defendant was then sentenced to life imprisonment at hard labor.

FACTS

An informant, one Michael Nicholas, contacted Agent Forrest Bethay of the New Orleans regional office of Drug Enforcement Agency (DEA) and informed him that he had been in contact with the defendant Apparently the informant told Bethay that the defendant was in the business of selling narcotics. Consequently, Bethay had the informant meet with him and Agent Raymond Egan, also of the DEA, at the DEA New Orleans Regional Office. The meeting took place at about 3:30 P.M. on April 2, 1974. At the meeting a plan was devised by which a controlled narcotics buy would be made from the defendant. Accordingly, the informant called the defendant and asked him “if he could get any heroin”. The defendant allegedly stated that he could and that the price would be $175.00 for a bundle of twenty-five units. The parties then agreed to meet at the intersection of Bienville and Roman Streets in New Orleans at about 6:00 P.M. that day.

Subsequently, Bethay and the informer proceeded to the agreed upon spot and arrived there at about 5:30 P.M. Bethay and the informer arrived in one car, Egan and another undercover officer trailed behind in another vehicle in order to maintain surveillance on the planned transaction. When Bethay and the informer drove up, defendant Wilson was standing on the corner talking to a few other black males. Wilson walked over to the car and said he didn’t have the “stuff” on him and that he would have it for them in about twenty minutes.

After going to pay phone to call the DEA office so as to inform those there what was going on, Bethay and the informer returned to the meeting place at about 6:15 P.M. There they observed an unknown black male seated in a parked 1973 Oldsmobile in the 1800 block of Bienville. This person called the informer over and told him that Wilson would return. A few minutes later the defendant arrived. Wilson walked over to Bethay’s vehicle and asked the informer to go with him to a pool hall located at the corner of Bienville and Roman. A few minutes later the informer returned and got back into Bethay’s vehicle. At that point Wilson walked up to the vehicle and Bethay noticed that he was acting “strange like he didn’t want to do the deal”. It turned out that the defendant suspected the informer of being a police officer. This misunderstanding was cleared up and the defendant told Bethay and the informer to drive down to the corner of Roman and Iberville and wait. A few minutes later Wilson drove up riding as a passenger in the previously observed automobile. Wilson now told agent Bethay that he would need the money “up front”. Bethay refused to comply and threatened to call off the deal. Wilson then simply told Bethay, “Okay, pull over behind me at the corner of Iberville and Derbigney, which is a block away”. Bethay did so and at that point, the defendant Wilson got out of his car and gave the agent twenty-six units of heroin in exchange for $175.00 in recorded currency. Agent Egan, accompanied by another agent, observed the narcotics transaction from a trailing unmarked vehicle. At defendant’s trial, both he and Bethay testified for the State and told essentially the same story.

After receiving the narcotics, agent Be-thay and the informer returned to the DEA office. The contraband was then mailed to a DEA lab in Miami where it was identified as heroin. Subsequently, a warrant of arrest was obtained and the defendant was arrested.

ASSIGNMENT OF ERRORS NUMBERS 1 and 2

In these two assignments, defense counsel contends that the trial court erred in denying his (1) motion for a new trial and (2)supplemental motion for a new trial. The defendant based these motions on a number of grounds in the trial court. However, on appeal, he now alleges only two as the basis upon which he argues that the trial court erred in failing to grant these motions.

First, defendant argues that the prosecution against him should have been instituted upon indictment by the grand jury. Second, defendant argues that it was prejudicial error for the trial court to refuse to compel one of his witnesses to answer questions propounded to him by defense counsel.

I.

LSA-C.Cr.Proc. Article 851 provides that:

“Art. 851. Grounds for new trial
The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.
The court, on motion of the defendant, shall grant a new trial whenever:
(1) The verdict is contrary to the law and the evidence;
(2) The court’s ruling on a written motion, or an objection made during the proceedings, shows prejudicial error;
(3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty;
(4) The defendant has discovered, since the verdict or judgment of guilty, a prejudicial error or defect in the proceedings that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before the verdict or judgment; or
(5) The court is of the opinion that the ends of justice would be served by the granting of a new trial, although the defendant may not be entitled to a new trial as a matter of strict legal right.” (Emphasis ours.)

Further, LSA-C.Cr.Proc. Article 858 provides that:

“Neither the appellate nor supervisory jurisdiction of the supreme court may be invoked to review the granting or the refusal to grant a new trial, except for error of law.”

We find no merit in defendant’s first argument that it was error to allow the prosecution to proceed on the basis of a bill of information, in light of Article 1, § 15 of the Constitution of Louisiana (1974), which provides:

Defendant was charged with a violation of LSA-R.S. 40:966(A) which carries a mandatory life sentence. Accordingly, defendant argues, the Constitution of Louisiana requires that the charge be brought by grand jury indictment.

“Section 15. Prosecution of a felony shall be initiated by indictment or information, but no person shall be held to answer for a capital crime or a crime punishable by life imprisonment except on indictment by a grand jury. No person shall be twice placed in jeopardy for the same offense, except on his application for a new trial, when a mistrial is declared, or when a motion in arrest of judgment is sustained.”

Prosecution of defendant was instituted by bill of information on August 14, 1974. Applicable at that time were LSA-Const. (1921), Article 1, § 9 and LSA-C.Cr. Proc. Article 382 making institution of prosecution by indictment a requirement in prosecutions for capital offenses only. Hence, prosecution of defendant was validly initiated according to the law then in force. State v. Smith, 329 So.2d 725 (La.1976).

Moreover, the State could properly try Wilson on this charge, even after the effective date of the 1974 Constitution because Article 14, § 23 of that Constitution provides that:

“all ... suits, proceedings, civil or criminal liabilities, prosecutions ... and rights existing on the effective date of this Constitution shall continue unaffected”.

The criminal prosecution which had been properly instituted against Wilson and which was pending on the effective date of the 1974 Constitution remained a valid prosecution on which he could be tried and convicted.

Therefore, this argument of defendant provides no basis upon which a motion for a new trial should have been granted by the trial court.

II.

Defendant’s second argument is that the trial court committed prejudicial error when it ruled against him and failed to compel Thomas Frank (a witness called by defendant) to testify in response to defense counsel’s questions.

Defendant’s direct examination of Thomas Frank was interrupted as soon as it started by the prosecutor and the court who proceeded to inform the witness of his privilege against self-incrimination. The end result was that Thomas Frank refused to testify, and the trial court allowed him to leave the stand with no chance for defense counsel to continue his examination.

The Fifth Amendment to the U.S. Constitution reads, in pertinent part:

“No person ... shall be compelled in any criminal case to be a witness against himself.”

This Fifth Amendment privilege against self-incrimination in the Federal Constitution is embodied in the Louisiana Constitution in the clause, “No person shall be compelled to give evidence against himself”. LSA-Const. (1974), Article 1, § 16. The principle expressed in the Federal Constitution was made applicable to the states in Malloy v. Hogan, 378 U.S. 1, 11, 84 S.Ct. 1489, 1495, 12 L.Ed.2d 653 (1964), where the Supreme Court declared:

“What is accorded is a privilege of refusing to incriminate one’s self, and the feared prosecution may be by either federal or state authorities ... It would be incongruous to have different standards determine the validity of a claim of privilege based on the same feared prosecution, depending on whether the claim was asserted in a state or federal court. Therefore, the same standards must determine whether an accused’s silence in either a federal or state proceeding is justified.”

In Hoffman v. United States, 341 U.S. 479, 486, 487, 71 S.Ct. 814, 818, 95 L.Ed. 1118 (1951), the Supreme Court elaborated on the content of the Federal standard, particularly noting its application to the protection of witnesses as well as criminal defendants:

“The privilege afforded not only extends to answers that would in themselves support a conviction under a federal criminal statute but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant for a federal crime. (Patricia) Blau v. United States, 340 U.S. 159 [71 S.Ct. 223, 95 L.Ed. 170 (1950). But this protection must be confined to instances where the witness has reasonable cause to apprehend danger from a direct answer. Mason v. United States, 244 U.S. 362, 365 [37 S.Ct. 621, 622, 61 L.Ed. 1198] (1917), and cases cited. The witness is not exonerated from answering merely because he declares that in so doing he would incriminate himself — his say-so does not of itself establish the hazard of incrimination. It is for the court to say whether his silence is justified, Rogers v. United States, 340 U.S. 367 [71 S.Ct. 438, 95 L.Ed. 344] (1951), and to require him to answer if 'it clearly appears to the court that he is mistaken.’ Temple v. Commonwealth, 75 Va. 892, 899 (1881). However, if the witness, upon interposing his claim, were required to prove the hazard in the sense in which a claim is usually required to be established in court, he would be compelled to surrender the very protection which the privilege is designed to guarantee. To sustain the privilege it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result. The trial judge in appraising the claim ‘must be governed as much by his personal perception of the peculiarities of the case as by the facts actually in evidence.’ See Taft, J., in Ex parte Irvine, 74 F. 954, 960 (C.C.S.D. Ohio, 1896).”

The privilege against self-incrimination must be liberally construed in favor of the accused or witness. Hoffman v. United States, supra. However, while the accused may assert the privilege as an excuse for refusing to take the stand, a witness may assert the privilege only with respect to particular questions. In Re Parker, 357 So.2d 508 (La.1978); State v. Hoover, 54 So.2d 130 (La.1951).

Accordingly, the proper exercise of the privilege requires that the witness take the stand and answer the questions put to him, save for those instances where it is “evident from the implication of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result”. Hoffman v. United States, supra. By failing to comply with this standard for the legitimate exercise of the privilege, the trial court erred in restricting the defendant’s constitutional right to present a defense, in violation of LSA-Const. (1974), Article 1, § 16; United States Constitution, Amendment 6.

“The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present the defendant’s version of the facts as well as the prosecutor’s to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.”
Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967).

The State argues, in its brief, the defendant failed to make a contemporaneous objection to this ruling of the trial court as required by LSA-C.Cr.Proc. Article 841 . However, we find from the record that defendant made known to the trial court the action which he desired it to take and his objection to the action which the court did in fact take. We also find that the grounds for defendant’s objection were obvious to all concerned.

We hold that the trial court’s action in refusing to order Thomas Frank to answer defense counsel’s questions and to assert his privilege only to those questions, the answer to which may have incriminated him, constituted an error of law and violated the defendant’s right to compel the attendance of witnesses and to present a defense as guaranteed by LSA-Const. (1974), Article 1, § 16 and Amendment 6 to the United States Constitution.

Further, this ruling by the trial court shows prejudicial error upon which the trial court should have granted defendant’s motion for a new trial under the mandatory provision of LSA-C.Cr.Proc. Article 851, supra.

For the foregoing reasons, the conviction and sentence are reversed and the defendant is granted a new trial.

REVERSED, NEW TRIAL ORDERED.

LEMMON, J., concurs and assigns reasons.

MARCUS, J., dissents and assigns reasons.

LEMMON, Justice,

concurring.

One solution for this complex problem is the grant of defense witness immunity. See my concurring opinion in State v. Bice, 390 So.2d 1270 (La.1980). When the issue is fairly presented in a future case, this court should determine the question of judicial authority to grant immunity to defense witnesses upon adequate showing of appropriate circumstances.

MARCUS, Justice

(dissenting).

The trial judge was aware that Palmas Frank, a witness called by defendant, was a participant in the transaction defendant was on trial for. He was originally a code-fendant, but the state’s case against Frank was nolle prossed and the United States Attorney’s Office obtained an indictment against him from the Federal Grand Jury. Thus, the trial judge realized that any answer to any relevant question directed to Frank would incriminate him and could be used against him during his trial on the federal charge. Under these circumstances, I am unable to say that the trial judge committed reversible error when he informed the witness of his privilege against self-incrimination and allowed him to leave the stand without testifying. Accordingly, I respectfully dissent.

       Judges Edmond L. Guidry, Jr., J. Burton Foret, and P. J. Laborde, Jr. of the Court of Appeal, Third Circuit, participated in this decision as Associate Justices ad hoc, joined by Chief Justice John A. Dixon, Jr., and Associate Justices Walter F. Marcus, Jr., Fred A. Blanche, Jr., and Harry T. Lemmon.

      . “An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. A bill of exceptions to rulings or orders is unnecessary. It is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take, or of his objections to the action of the court, and the grounds therefor.
      The requirement of an objection shall not apply to the court’s ruling on any written motion.”


source: Caselaw Access Project

author: DIXON, Chief Justice. DENNIS, Justice, MARCUS, Justice,

license: Public Domain

text:
    STATE of Louisiana v. Dennis TEMPLE.
    No. 80-KA-1700.
    Supreme Court of Louisiana.
    Jan. 26, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Terry McAdams, Asst. Dist. Atty., for plaintiff-appellee.
    M. Michele Fournet, Jeffery Calmes, Baton Rouge, for defendant-appellant.
   DIXON, Chief Justice.

Defendant was convicted of two counts of attempted manslaughter and was sentenced to two concurrent terms of nine years’ imprisonment. He had been indicted on two counts of attempted first degree murder. The indictment recites that defendant’s intended victims were two deputies, Callahan and LeBlanc. C.Cr.P. 473.

The only error assigned by the defense involves the prosecution’s use of a recorded statement of one of the occupants of the house. The prior statement was inconsistent with the testimony given by the witness on the stand, and was thus admissible. R.S. 15:493. However, the statement was not introduced until the state’s rebuttal. The defense claims that this worked a substantial prejudice upon his case, since “the defendant is without right to rebut the prosecution’s rebuttal.” R.S. 15:282. By waiting until the rebuttal to introduce the statement, rather than introducing it after the cross-examination of the defense witness had been completed, defendant argues that the prosecution effectively denied him the opportunity to rehabilitate the witness’ credibility. This argument lacks merit. Defense counsel attempted to rehabilitate the witness on redirect; at that point, the witness’ account was more consistent with her prior recorded statement than it was with her direct testimony. In addition, defense counsel could have asked the court for an opportunity to examine the witness once again, prior to argument. C.Cr.P. 765(5). By failing to do so, the error could be considered waived.

Although not raised by a motion for a new trial (see C.Cr.P. 851(1)), and not preserved for review by assignment, and not briefed or argued, the question of sufficiency of evidence has been raised.

When an issue is not designated in the assignment of errors, the scope of this court’s review is limited to those errors that are “discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.” C.Cr.P. 920. (Emphasis added). By the terms of this limitation, the insufficiency of evidence is not an error that can be reviewed in the absence of an assignment.

In State v. Peoples, 383 So.2d 1006 (La.1980), this court abandoned the rule that a defendant must file a motion for new trial in order to preserve the issue of sufficiency of evidence for appellate review. As a matter of due process, the court concluded that the issue could be considered when raised “upon formal assignment of error,” notwithstanding the defendant’s failure to move for new trial. 383 So.2d at 1007. To reach the issue in the present case, then, the court would be required to expand the rule of State v. Peoples to allow review even when the error has not been assigned, briefed or argued. And, if the issue is to be reached in an effort to do substantial justice, or as a matter of judicial efficiency, it would be necessary to disregard the explicit provision contained in C.Cr.P. 920(2).

Even if we could reach the question of the sufficiency of the evidence, a review should result in the affirmance of defendant’s convictions. The events upon which the convictions are based present a bizarre and ultimately tragic story.

Two deputies of the East Baton Rouge Parish Sheriff’s Office were investigating the theft of several six packs of beer from a convenience store. The manager of the store, who had followed the thieves as they drove away on a motorcycle, could describe the residence at which they later stopped. The two deputies located the residence, discovered a motorcycle in a ditch, and stopped to investigate. When they approached the house to pursue their questioning, Ms. Mickey Priester, the owner of the home, ordered them off the premises. Ms. Priester was said to have been extremely agitated, and screamed profanely at the officers. The two deputies left, and were later joined by another patrol unit of two deputies.

While parked in a nearby parking lot, the officers observed a motorcycle being driven at a high rate of speed. Believing that the motorcycle was the same one that they had seen earlier, the four officers gave chase, and once again arrived at Ms. Priester’s residence. The two deputies who made the initial investigation, Deputies Callahan and LeBlanc, emerged from their vehicle to question the driver and passenger on the motorcycle. At this point, Ms. Priester stepped out from behind a van parked in her front yard. She was armed with a .410 shotgun and a small caliber pistol.

Defendant also stepped into the officers’ view. He was armed with a .12 gauge shotgun. According to the two officers’ testimony, Ms. Priester and defendant began to scream profanely, threatening to kill the officers if they did not get off the property.

The officers’ testimony is not entirely consistent. Deputy Callahan, who was immediately in front of Ms. Priester, stated that both she and defendant had their guns pointed at him. Both of them, he said, made threats to kill them. Deputy Callahan began backing away, and testified:

“She said, ‘If you don’t think I’m going to kill you, I’ll prove it to you’; and she fired a shot ... which went right over the top of my head.”

Deputy Callahan scrambled back to the safety of his vehicle. He reported that he heard another shot from a “larger shotgun” as he was driving away.

Deputy LeBlanc was standing a short distance away from Deputy Callahan. He also reported that both Ms. Priester and defendant threatened to kill them, although it appears from his testimony that Ms. Priester was the more vociferous of the two. Deputy LeBlanc, however, stated that defendant’s shotgun was “aiming somewhere in this vicinity on me,” not on Deputy Callahan. As the officers were retreating from the premises, Deputy LeBlanc recalled this series of events:

“... she screamed, ‘you mother-fuckers don’t think I’ll shoot, I’ll prove it.’ She came charging, and she tripped; and right when she tripped, the gun discharged. She tripped, and it pulled up, uh, right over our heads, the shot did.”

It was Deputy LeBlanc’s opinion that Ms. Priester’s aim was thrown off when she stumbled; otherwise, he speculated, they might have been hit. Deputy LeBlanc safely made it to the patrol unit, and the two officers began to race away. As they drove off, he testified that he heard a “large report from a shotgun”; he reported seeing a muzzle flash in the vicinity where defendant had last been standing. At the time, Deputy LeBlanc believed that the shot had been fired in the other officers’ direction. Deputy LeBlanc, an unpaid reserve officer when these events took place, stated that he had never been so scared in all his life; he believed that Ms. Priester was trying to kill him and Deputy Callahan.

The two other deputies who were in the immediate vicinity, Deputies Montgomery and Cockerham, also gave somewhat conflicting accounts of the events of that night. Deputy Montgomery remembered that Ms. Priester had threatened to shoot, but he stated, “She wasn’t aiming straight at them. She was shooting at an angle like over their heads like a warning shot.” He did not mention whether Ms. Priester had stumbled, but did report that defendant simply stood passively, acting like a guard. Additionally, Deputy Montgomery recalled that Ms. Priester fired only with the pistol, not the shotgun; that one to three shots were fired; and that the pistol was fired into the air. Significantly, he did not recall any other shots being fired:

I can’t remember the white male firing a shotgun. It might have went off. I don’t remember hearing it ‘cause everything was going just split seconds.”

Deputy Montgomery testified, however, that he would have heard the report of the shotgun if defendant had fired it.

Deputy Cockerham stated that he was close enough to the other officers to be able to see a great deal. He testified that Ms. Priester fired some shots, although he could not remember whether she used the shotgun or the pistol; he stated, however, that she did not fire up into the air. Deputy Cockerham did not see defendant fire any shots; if he had, he stated, “I would have seen him.”

A radio call was immediately made, reporting that the officers had been fired upon. Within minutes, approximately fifty law enforcement officers converged upon the scene. They surrounded the house and ordered the occupants to come out. Four persons emerged from the home; defendant and Ms. Priester remained inside. Defendant was clearly visible at the front of the house; Ms. Priester walked to the rear. When neither would obey the officers’ orders to come out of the house, two canisters of tear gas were fired into the home. Ms. Priester, fleeing into the back yard, fired several shots at this time. A state trooper fired a total of fifteen rounds at Ms. Pries-ter, who was killed. Defendant came out of the front of the house unarmed and with his hands in the air. The .12 gauge single shot shotgun was found to have one live shell in the chamber. The record does not disclose whether a ballistics test was made on the weapon, or whether any of the officers examined the gun to see if it had been recently fired. Apparently a spent shell was never recovered, although a search was made.

In reviewing claims of insufficient evidence, this court has adopted the standard established in Jackson v. Virginia, 443 U.S. 307, 322, 99 S.Ct. 2781, 2791, 61 L.Ed.2d 560, 575-76 (1979):

“... A challenge to a state conviction brought on the ground that the evidence cannot fairly be deemed sufficient to have established guilt beyond a reasonable doubt states a federal constitutional claim....”

A review of the evidence clearly indicates that there was not sufficient evidence to prove, beyond a reasonable doubt, that defendant ever fired his shotgun. The two deputies who were involved in the encounter merely reported hearing a shotgun blast as they raced away in their vehicle; one stated that he saw a muzzle flash in the vicinity where defendant had been standing. Nothing in the record indicates that, under these highly charged circumstances, the two officers would have been able to distinguish accurately the sound of a shot fired from a .410 shotgun as opposed to a .12 gauge shotgun. The two other deputies, who were in a position to observe the events but who were not in a zone of immediate danger, could not recall any shots being fired after Ms. Priester’s gun discharged. Both testified that they would have seen or heard the firing of defendant’s shotgun if he in fact had fired it. Moreover, a spent shell was never recovered, even though a search for it was made; defendant’s single shot gun had a live round in the chamber when it was recovered; and there was no other testimony or evidence to indicate that the gun had been fired that night. These circumstances are sufficient to create a reasonable doubt that defendant ever fired a shot.

It must be noted, however, that the jury was given instructions concerning the law of principals, R.S. 14:24. A person who aids, abets or counsels another in the commission of an offense is equally responsible for the crime. Although the state failed to prove that defendant pulled the trigger of his shotgun, defendant can be held criminally responsible for the actions of Ms. Pries-ter. There can be no doubt that defendant was “concerned in the commission of the crime” perpetrated by Ms. Priester. Armed by her, he stood by while she excoriated the officers, and echoed her threats; he was a participant in a course of conduct pursued by Ms. Priester that involved homicidal risk. Should the evidence support a finding that Ms. Priester was guilty of attempted manslaughter, defendant’s conviction for that crime must stand.

Attempted manslaughter is a responsive verdict to the charge of attempted first degree murder. C.Cr.P. 814(A)(2). In cases where a defendant is indicted for murder and convicted of manslaughter, yet the evidence would have supported a finding of guilt on the greater offense, it is not necessary to determine whether the evidence adduced at trial was tailored to the lesser included charge. The general rule, which has undergone some modifications, was established in State v. Cooley, 260 La. 768, 773, 257 So.2d 400, 402 (1972):

“If there is sufficient evidence in the record to support a conviction for a greater offense (which includes the one for which the defendant is convicted), the evidence necessarily and automatically will support a conviction of the lesser offense which has been made responsive by legislative action.”

In Cooley, the defendant was indicted for murder and convicted of manslaughter. He argued on appeal that the record was devoid of any evidence tending to show that he had been provoked by the decedent, or that he committed the homicide in sudden passion or heat of blood. The court rejected this argument because both murder and manslaughter are deliberate homicides, involving the same degree of intent. The only difference between the two (at that time) was that the intent involved in manslaughter was the product of provocation, taking form in sudden passion.

The rule was further elaborated in State v. Peterson, 290 So.2d 307 (La.1974), which involved similar facts. There, the defendant argued that the definition of manslaughter involved elements that were not essential for a conviction of murder. Thus, the defendant argued that the murder indictment did not fully apprise her of the crime of which she could be convicted. The court rejected the argument, noting that the only difference between murder and manslaughter was that the latter crime involved provocation followed by sudden passion. As the court correctly observed, the presence of passion in such a case is not actually an element of the crime, but is in the nature of a defense: "... it is a factor which exhibits a degree of culpability less than that present when the homicide is committed without passion caused by provocation.” 290 So.2d at 310. The following rule was articulated:

“. .. a verdict of manslaughter may readily be seen as responsive to a charge of murder, and without resort to review of the evidence as is done by some other jurisdictions. In Louisiana, when there is evidence to prove the greater offense, it is the jury’s province to determine the existence vel non of lesser culpability and exercise the statutory right to return the manslaughter verdict. See State v. Cooley, 260 La. 768, 257 So.2d 400 (1972). This Court will not look to the evidence to make such a determination.”

When the state has adduced sufficient evidence to obtain a murder conviction, yet the defendant is convicted of manslaughter, the state’s failure to prove elements such as “passion” and “provocation” is of no moment. Such “elements” are essentially mitigatory factors, bearing on the character of intent, which the jury is free to infer from the evidence.

The general rule regarding the validity of responsive verdicts is not without its limitations. A legislatively authorized responsive verdict cannot stand if it offends a constitutional principle. For example, a defendant cannot be convicted of a responsive verdict involving criminal conduct that was not actually included within the charge named in the indictment. See State v. Booker, 385 So.2d 1186 (La.1980). No such constitutional problem exists in this case, because the criminal conduct of which manslaughter is comprised is the same as the conduct involved in first degree murder.

Moreover, a responsive verdict cannot stand if there is no proof of an essential element of the crime, even though there was full proof of all the elements of the greater offense. See State v. Dauzat, 392 So.2d 393 (La.1980). Again, such problem does not exist in the present case, where the defendant was indicted for first degree murder; the presence of passion or provocation is a mitigatory factor, in the nature of a defense that is within the jury’s sole province to determine.

Our inquiry must be focused, then, on whether Ms. Priester’s actions constituted attempted murder within the meaning of R.S. 14:30 and R.S. 14:27. At the time the offense was committed, in October 1978, the first degree murder statute provided:

“First degree murder is the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm.”

The statute defining attempt provides:

“A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.
B. Mere preparation to commit a crime shall not be sufficient to constitute an attempt; but lying in wait with a dangerous weapon with the intent to commit a crime, or searching for the intended victim with a dangerous weapon with the intent to commit a crime, shall be sufficient to constitute an attempt to commit the offense intended.”

It is undisputed that Ms. Priester armed herself with two weapons and waited in her front yard in anticipation of the arrival of the deputies. The critical inquiry is whether there was sufficient evidence to prove that she possessed the requisite intent, that is, that she actively desired the death of the two deputies. R.S. 14:10(1). If Ms. Pries-ter intended to hit one or both of the officers when she fired her gun, there can be no doubt that she could have been convicted of attempted first degree murder.

Deputy Callahan’s testimony, along with Deputy LeBlanc’s, is convincing proof that Ms. Priester and defendant threatened to kill them. Deputy Callahan reported that Ms. Priester made a homicidal threat immediately before she fired her gun. It was estimated that Ms. Priester was approximately six to eight feet away from Deputy Callahan when the gun went off. Deputy LeBlanc corroborated this testimony, stating that defendant and Ms. Priester screamed such things as “get off my land or I’m going to kill you” and “we’re going to blow y’all away.” It was Deputy LeBlanc’s opinion that Deputy Callahan might have been hit if Ms. Priester had not stumbled. Both deputies testified that Ms. Priester’s gun was trained on Deputy Callahan.

Deputy Montgomery, when asked to describe what defendant and Ms. Priester were saying, admitted that his memory was not perfect, but stated that it was “something about, ‘you pig, get off my property,’ uh; ‘if you don’t believe I’ll shoot, I’ll show you’ or ‘I’ll kill you.’ This is all mixed in there together.” However, Deputy Montgomery seemed certain that Ms. Priester was not aiming at the officers, but was shooting over their heads “like a warning shot.” He did not mention whether he had seen Ms. Priester stumbling. According to Deputy LeBlanc, the fact that Ms. Priester tripped accounted for her arm being thrown into the air. Deputy Cockerham, who was standing near Deputy Montgomery, testified that Ms. Priester did not fire up into the air: “She fired in a level direction.” He steadfastly maintained this position throughout cross-examination, noting that he could see “the direction the fire was flashing” and “the direction of her arm.”

The testimony of one other witness has bearing on the question of intent. Virginia Bankston, a visitor at Ms. Priester’s home, testified that she saw Ms. Priester fire two shots in the air. Before the confrontation with the officers, Ms. Priester is said to have told defendant, “let’s scare the pigs off of our land.” The prosecution attempted to discredit this account by playing a recorded statement of Ms. Bankston, in which she said that she was awakened from sleep when she heard shots fired. Ms. Bankston could not have seen what she testified to seeing, nor heard the remarks she testified to hearing, if she was asleep in bed up until the time the shots were fired.

Defendant also took the stand. He stated that Ms. Priester gave him a shotgun when she saw the police return, and told him “we’re going to go scare them, these, uh, cops off; they keep coming over here without no search warrant ...” However, he also testified that he heard two shots fired before he got in a position where he could see the two deputies; he did not see Ms. Priester shoot her weapon.

Based upon this testimony, the jury could have concluded, beyond a reasonable doubt, that Ms. Priester fired a gun with the intent to kill. Deputy Callahan, the officer standing nearest to Ms. Priester, testified that she fired a shot which narrowly missed him. Deputy LeBlanc, the other officer who was closest to Ms. Priester, stated that she kept her gun aimed at Deputy Callahan throughout the encounter, and that the barrel of the gun was pulled up only because she stumbled. Deputies Callahan and LeBlanc were standing close to one another, and Deputy LeBlanc admitted that he did not know whether Ms. Priester intended to shoot him or Deputy Callahan. This evidence, coupled with Ms. Priester’s repeated homicidal threats, is sufficient for the finding that she intended to kill or maim the two deputies, and sufficient to support defendant’s convictions of attempted manslaughter.

The convictions and sentences are affirmed.

BLANCHE, J., concurs in the result.

DENNIS, Justice,

concurring.'

I respectfully concur.

One who aids and abets in the commission of a crime may be charged and convicted with a higher or lower degree of the crime, depending upon the mental element proved at trial. Thus, an individual may only be convicted as a principal for those crimes for which he personally had the requisite mental state. State v. Holmes, 388 So.2d 722 (La.1980); State v. McAllister, 366 So.2d 1340 (La.1978). Although I find the question troublesome and extremely close, I believe the evidence is sufficient to support a finding beyond a reasonable doubt that Temple aided, abetted or counseled Priester in the commission of the offense and actively desired the death or great bodily harm of the two deputies.

MARCUS, Justice,

concurring.

Since La.Code Crim.P. Art. 920 (scope of appellate review provides: “[t]he following matters and no others shall be considered on appeal: (1) an error designated in an assignment of errors; and (2) an error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence,” I do not reach the question of sufficiency of evidence. Accordingly, I concur in the result only.

      . The record discloses that defendant only filed a notice of appeal, in proper person. His trial counsel withdrew, and the services of the Pub-lie Defender’s Office were retained for perfecting the appeal.

      . Both Deputies Callahan and LeBlanc testified that they were at the front of the house when these shots were fired. They therefore could not have been Ms. Priester’s intended targets.

      . The foregoing analysis is limited to the “heat of passion” manslaughter provision, R.S. 14:31(1). This was thought necessary because of the logical incongruity of juxtaposing the attempt statute with paragraph (2) of the manslaughter statute. R.S. 14:31(2) provides in part that manslaughter is a homicide committed “without any intent to cause death or great bodily harm.” The attempt statute, of course, requires that the would-be perpetrator of a crime have the specific intent to commit the offense. As observed in State v. Booker, supra, (Lemmon, J. concurring, joined by Dixon, C.J.): "... In a logical analysis one cannot specifically intend (attempt) to do something that one does not intend to do. One therefore cannot attempt to kill a human being ... without intending to kill the victim....” 385 So.2d at 1193. Thus, for the sake of logical consistency, it must be thought that the jury’s verdict relates to paragraph (A) of the statute, involving a heat of blood homicide. There is no reason to review the evidence to determine whether the deputies’ actions constituted a “provocation sufficient to deprive an average person of his self control and cool reflection.”


text:
    Isadore CARTER v. CHRYSLER MOTORS CORPORATION, Chrysler Corporation, Standard Motors, Inc. and Community Motors, Inc.
    No. 80-C-1789.
    Supreme Court of Louisiana.
    Oct. 6, 1980.
   In re Isadore Carter, applying for writ of certiorari or review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 384 So.2d 838.

Writ denied.


text:
    Edgar M. SHIPP et ux. v. CITY OF ALEXANDRIA et al.
    No. 80-C-1901.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   In re City of Alexandria, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Rapides. 392 So.2d 1078.

Granted.


text:
    In re Clyde MERRITT.
    No. 80-K-2580.
    Supreme Court of Louisiana.
    Nov. 5, 1980.
   In re Clyde Merritt, applying for emergency writs and stay order. Parish of Orleans.

Granted. The notice to appear is quashed.


text:
    Dorothy Hebert ARDOIN et al. v. HARTFORD ACCIDENT AND INDEMNITY COMPANY et al.
    No. 80-C-1494.
    Supreme Court of Louisiana.
    Nov. 6, 1980.
   In re Dr. James R. Bozeman, applying for protective order. Parish of Lafayette. No. 62532-D.

Motion denied. Applicant has not sought relief in the trial court.


text:
    STATE of Louisiana v. Steven DEWEY.
    No. 80-K-2551.
    Supreme Court of Louisiana.
    Nov. 6, 1980.
   In re Steven Dewey, applying for supervisory writs of review, and stay order. Parish of East Baton Rouge.

Denied.


text:
    STATE of Louisiana v. Thomas Craig SAMPOGNARO.
    No. 80-K-2564.
    Supreme Court of Louisiana.
    Nov. 6, 1980.
   In re Thomas Craig Sampognaro, applying for writs of review. Parish of Ouachi-ta. Nos. M:44141 through M:44162.

Denied.


text:
    STATE of Louisiana ex rel., Larry Eugene SKELTON and Jimmy Dale Frye v. Warden Hayden J. DEES, Dixon Correctional Institute.
    No. 80-KH-1898.
    Supreme Court of Louisiana.
    Nov. 10, 1980.
   In re Larry Eugene Skelton and Jimmy Dale Frye, applying for writ of certiorari. Parish of Cameron. Nos. 18-739 and 18-741.

Granted. An evidentiary hearing is hereby ordered on relators’ petition for habeas corpus. It is further ordered that counsel be appointed to represent relators therein.


text:
    STATE of Louisiana v. Dobie Gillis WILLIAMS.
    No. 80-K-2345.
    Supreme Court of Louisiana.
    Nov. 10, 1980.
   In re Dobie Gillis Williams, applying for writs of certiorari and review. Parish of Sabine. No. 25734.

Granted.


text:
    STATE of Louisiana ex rel., Irvin NOIL v. Honorable Frank MARULLO, Judge, Sect. D.
    No. 80-KH-1778.
    Supreme Court of Louisiana.
    Nov. 10, 1980.
   In re Irvin Noil, applying for remedial writ. Parish of Orleans. No. 259 — 496.

Granted in part. Boykin transcript is to be furnished, otherwise, denied.


text:
    STATE of Louisiana ex rel., Norman J. SPENCER v. Honorable Frank J. SHEA, Judge, Section G, Orleans Criminal District Court.
    No. 80-K-1520.
    Supreme Court of Louisiana.
    Nov. 10, 1980.
   In re Norman J. Spencer, applying for writ of mandamus to the Orleans Parish Criminal District Court.

Granted. Transferred to District Court which is ordered to act on this application.


text:
    STATE of Louisiana ex rel., Daniel GORDON v. Honorable Frank MARULLO, Judge, Section D, Orleans Parish Criminal District Court, State of Louisiana.
    No. 80-KH-1541.
    Supreme Court of Louisiana.
    Nov. 10, 1980.
   In re Daniel Gordon, applying for writ of mandamus to the Orleans Parish Criminal District Court.

Granted. The District Court is ordered to act on relator’s pending writ of habeas corpus.


text:
    STATE of Louisiana ex rel., Thomas W. PICKENS v. Honorable L. P. HIGGINBOTHAM, Judge, 19th Judicial District, Victor Townsley, Deputy Probation and Paroles, Department of Corrections.
    No. 67644.
    Supreme Court of Louisiana.
    Nov. 10, 1980.
   In re Thomas W. Pickens, applying for reconsideration of denied writ. East Baton Rouge Parish. No. 3-80-168.

Denied.


text:
    CITY OF HAMMOND v. Melvin WASHINGTON, Reginald Wilson and Mark Washington.
    No. 80-K-1873.
    Supreme Court of Louisiana.
    Nov. 10, 1980.
   In re Melvin Washington, Reginald Wilson and Mark Washington, applying for reconsideration of writ not considered on October 20, 1980. Parish of Tangipahoa, City Court of Hammond. Nos. C-36428, C-36407 and 126416.

Denied. Extension granted after delay to apply for writs had expired.


text:
    STATE of Louisiana ex rel., Joseph FELDER, Jr. v. STATE of Louisiana.
    No. 80-KH-1877.
    Supreme Court of Louisiana.
    Nov. 10, 1980.
   In re Joseph Felder, Jr., applying for remedial writ. Parish of Orleans. No. 272-399.

Denied.


text:
    STATE of Louisiana ex rel., Robert HARRISON, Jr. v. STATE of Louisiana.
    No. 80-KH-1906.
    Supreme Court of Louisiana.
    Nov. 10, 1980.
   In re Robert Harrison, Jr., applying for writ of habeas corpus. Parish of Orleans. No. 273-803, Sect. B.

Denied.


text:
    STATE of Louisiana ex rel., Joseph J. BAILEY, Jr. v. Frank C. BLACKBURN.
    No. 80-KH-1911.
    Supreme Court of Louisiana.
    Nov. 10, 1980.
   In re Joseph J. Bailey, Jr., applying for remedial writ. Parish of St. Mary. No. 79182.

Denied.


text:
    STATE of Louisiana v. Charles BROOKS.
    No. 80-KH-1913.
    Supreme Court of Louisiana.
    Nov. 10, 1980.
   In re Charles Brooks, applying for remedial writs. Parish of Orleans. No. 257-067.

Denied.

DENNIS, J., would grant the writ.


text:
    STATE of Louisiana ex rel., Nathaniel GIBSON v. CRIMINAL DISTRICT COURT, PARISH OF ORLEANS.
    No. 80-KH-1923.
    Supreme Court of Louisiana.
    Nov. 10, 1980.
   In re Nathaniel Gibson, applying for writ of mandamus. Parish of Orleans. No. 258-302.

Denied.


text:
    STATE of Louisiana ex rel., Bruce STOVALL v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 80-KH-1936.
    Supreme Court of Louisiana.
    Nov. 10, 1980.
   In re Bruce Stovall, applying for writs of certiorari and habeas corpus. Parish of Orleans. No. 251-456.

Denied.


text:
    STATE of Louisiana ex rel., Danny GRAFFAGNINO v. Donald W. DOGA, Clerk, Criminal District Court.
    No. 80-KH-1948.
    Supreme Court of Louisiana.
    Nov. 10, 1980.
   In re Danny Graffagnino, applying for supervisory writs. Parish of St. Landry. No. 34140.

Denied.


text:
    STATE of Louisiana ex rel., Michael A. LEGGETT v. Frank BLACKBURN, Warden.
    No. 80-KH-1959.
    Supreme Court of Louisiana.
    Nov. 10, 1980.
   In re Michael Leggett, applying for writ of habeas corpus. Parish of Orleans.

Denied.


text:
    STATE of Louisiana ex rel., Clarence S. STRONG v. CLERK OF COURT, 25TH JUDICIAL DISTRICT.
    No. 80-KH-2002.
    Supreme Court of Louisiana.
    Nov. 10, 1980.
   In re Clarence S. Strong, applying for remedial writs. Parish of St. Bernard. No. 15-429.

Denied. Moot.


text:
    STATE of Louisiana ex rel., Jerry JACKSON v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 80-KH-2218.
    Supreme Court of Louisiana.
    Nov. 10, 1980.
   In re Jerry Jackson, applying for remedial writs. Parish of Orleans. No. 248-417.

Denied.


text:
    STATE of Louisiana v. Alex N. SIBLEY.
    No. 80-K-2623.
    Supreme Court of Louisiana.
    Nov. 12, 1980.
   In re Alex N. Sibley, applying for supervisory writs. Parish of East Baton Rouge. No. 238644.

Writ denied.


text:
    STATE of Louisiana v. Bruce Edward BEDFORD.
    No. 80-K-2637.
    Supreme Court of Louisiana.
    Nov. 17, 1980.
   In re State of Louisiana, applying for supervisory writs. Parish of Lincoln.

Denied.


text:
    STATE of Louisiana v. Edward WYNN.
    No. 80-K-2664.
    Supreme Court of Louisiana.
    Nov. 17, 1980.
   In re Edward Wynn, applying for writs of certiorari, and stay order. Parish of Orleans. No. 272-897.

Denied.


text:
    STATE of Louisiana v. Clyde THOMPSON, Charles Hubbs and Calvin L. Wines.
    No. 80-K-2521.
    Supreme Court of Louisiana.
    Nov. 20, 1980.
   In re State of Louisiana through the District Attorney, Harry F. Connick, applying for writ of certiorari, and a stay order. Parish of Orleans. No. 277-981.

Writ granted.


text:
    State of Louisianav. Willie WILSON.
    No. 80-K-2436.
    Supreme Court of Louisiana.
    Nov. 21, 1980.
   In re Willie Wilson, applying for writs of review and certiorari. Parish of East Baton Rouge. No. 7-80-347.

Denied.

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


text:
    CITY OF BATON ROUGE v. Douglas A. ALLEN.
    No. 80-K-2454.
    Supreme Court of Louisiana.
    Nov. 21, 1980.
   In re Douglas A. Allen, applying for writ of certiorari. Parish of East Baton Rouge. No. 8-80-144.

Denied.

DIXON, C. J., and CALOGERO, J., would grant the writ.


text:
    CITY OF BATON ROUGE v. Sarah BATTIESTE.
    No. 80-K-2465.
    Supreme Court of Louisiana.
    Nov. 21, 1980.
   In re Sarah Battieste, applying for writs of certiorari, mandamus, review and prohibition. Parish of East Baton Rouge. No. 5-80-082.

Denied.


text:
    STATE of Louisiana ex rel., George T. TEMPLE v. Honorable Walter E. KOLLIN, Judge, Twenty-Fourth Judicial District.
    No. 80-KH-2475.
    Supreme Court of Louisiana.
    Nov. 21, 1980.
   In re George Temple, applying for writ of mandamus. Parish of Jefferson. No. 75-36.

Denied. Moot.


text:
    STATE of Louisiana v. Joseph N. SHERER.
    No. 80-K-2528.
    Supreme Court of Louisiana.
    Nov. 21, 1980.
   In re Joseph N. Sherer, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Concordia. No. 76-1823.

Denied.


text:
    STATE of Louisiana v. Frederick D. GRAY.
    No. 80-K-2565.
    Supreme Court of Louisiana.
    Nov. 21, 1980.
   In re Frederick D. Gray, applying for writ of certiorari or review. Parish of Caddo. No. 111677.

Denied.

DENNIS, J., would grant the writ.


text:
    STATE of Louisiana v. Floyd L. NEELY.
    No. 80-K-2435.
    Supreme Court of Louisiana.
    Nov. 21, 1980.
   In re Floyd L. Neely, applying for writs of certiorari, prohibition and mandamus. Parish of Jefferson. No. 80-2477.

Writ denied.

DIXON, C. J., and CALOGERO, J., would grant the writ.


text:
    Kay Dale MENYFIELD v. RYAN CHEVROLET, INC.
    No. 80-C-2428.
    Supreme Court of Louisiana.
    Nov. 21, 1980.
   In re Kay Dale Menyfield, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Ouachita. No. 14261.

Denied.


text:
    J. Randolph OGDEN v. Walter R. BANKSTON and Alice Folkes Bankston.
    No. 80-C-2281.
    Supreme Court of Louisiana.
    Nov. 21, 1980.
   In re Walter R. Bankston and Alice Folkes Bankston, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 387 So.2d 1355.

Granted.


text:
    Jessie S. CHATELAIN v. AMERICAN CAN COMPANY.
    No. 80-C-2408.
    Supreme Court of Louisiana.
    Nov. 21, 1980.
   In re Jessie S. Chatelain, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 387 So.2d 670.

Denied.

DIXON, C. J., and LEMMON, J., would grant the writ.


text:
    HOUSING AUTHORITY OF the CITY OF ABBEVILLE v. Raymond HEBERT.
    No. 80-C-2416.
    Supreme Court of Louisiana.
    Nov. 21, 1980.
   In re Raymond Hebert, applying for cer-tiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Vermillion. 387 So.2d 693.

Denied.


text:
    STATE of Louisiana v. Victor CUSHER.
    No. 80-K-2518.
    Supreme Court of Louisiana.
    Nov. 21, 1980.
   In re Victor Cusher, applying for writs of certiorari, prohibition, and mandamus. Parish of St. Bernard. No. 37-554.

Granted and consolidated with 80-K-2375, State ex rel. Warren v. Blackburn, La., 394 So.2d 276.


text:
    STATE of Louisiana ex rel., Randolph WARREN a/k/a Randolph Mason v. Warden Frank BLACKBURN.
    No. 80-K-2375.
    Supreme Court of Louisiana.
    Nov. 21, 1980.
   In re State of Louisiana through the District Attorney John F. Rowley, applying for writs of certiorari, prohibition and mandamus. Parish of St. Bernard. No. 36605.

Granted. Consolidated with 80-K-2518, State v. Cusher, La., 394 So.2d 275.


text:
    STATE of Louisiana v. Edward Michael LYNCH.
    No. 80-K-2714.
    Supreme Court of Louisiana.
    Nov. 24, 1980.
   In re Edward Michael Lynch, applying for remedial writs of certiorari, prohibition, mandamus and stay order. Parish of Cad-do. No. 114814.

On the showing made the application is denied.


text:
    NEW ORLEANS PUBLIC SERVICE, INC. v. Sidney J. BARTHELEMY, Councilman at Large et al.
    No. 80-C-2683.
    Supreme Court of Louisiana.
    Nov. 25, 1980.
   In re New Orleans Public Service, Inc., applying for writ of certiorari or review and mandamus. Parish of Orleans. No. 80-14740.

Denied.

CALOGERO and LEMMON, JJ., concur. Without reference to the merits, we would consider N.O.P.S.I.’s application to the court of appeal as a devolutive appeal entitled to preference.

MARCUS, J., would grant the writ.


text:
    STATE of Louisiana v. Amanda SMITH.
    No. 80-K-2546.
    Supreme Court of Louisiana.
    Nov. 25, 1980.
   In re Amanda Smith, applying for remedial writs, and stay order. Parish of Orleans. No. 274-385.

Writ granted.


text:
    STATE of Louisiana v. Anthony v. CALCAGNO.
    No. 80-K-2721.
    Supreme Court of Louisiana.
    Nov. 25, 1980.
   In re Anthony V. Calcagno, applying for writ of certiorari and remedial relief. Parish of Orleans. No. 278-951.

Writ granted. Trial judge ordered to fix bail.

LEMMON, J., dissents.


text:
    Elnora Tate PERRY et al. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY. Elnora Tate PERRY v. Randy J. LAW et al.
    No. 80-C-2535.
    Supreme Court of Louisiana.
    Nov. 26, 1980.
   In re State Farm Mutual Automobile Insurance Company, applying for certiorari or writ of review, to the Court of Appeal, First Circuit. Parish of Tangipahoa. 392 So.2d 97.

Denied.

MARCUS, BLANCHE, and LEMMON, JJ., would grant the writ.


text:
    VERSAILLES ARMS APARTMENTS v. Everett GRANDERSON, Jr.
    Nos. 80-C-1717, 80-C-2738.
    Supreme Court of Louisiana.
    Nov. 26, 1980.
   In re Everett Granderson, Jr., applying for stay order pending application to the Supreme Court of the United States. First City Court, No. 155-531 (Section B); Court of Appeal, Fourth Circuit. Parish of Orleans. 386 So.2d 1039.

Denied.

All proceedings in this matter are stayed for 30 days from date to permit relator to apply to the United States Supreme Court. No additional stay will be granted by this court.


text:
    STATE of Louisiana ex rel., Henry COOPER Jr. v. STATE of Louisiana.
    No. 80-KH-2671.
    Supreme Court of Louisiana.
    Nov. 26, 1980.
   In re Henry Cooper Jr., applying for remedial writ. Parish of Caddo. Nos. 67277, 111365.

Writ denied.


text:
    STATE of Louisiana v. Danny T. CAMPBELL.
    No. 80-K-2659.
    Supreme Court of Louisiana.
    Nov. 26, 1980.
   In re Danny T. Campbell, applying for writs of certiorari, prohibition, mandamus, and for a stay order. Parish of Caddo.

Writ denied. Adequate remedy by appeal.


text:
    STATE of Louisiana ex rel., Bobby Ray HALL v. STATE of Louisiana.
    No. 80-KH-2653.
    Supreme Court of Louisiana.
    Nov. 26, 1980.
   In re Bobby R. Hall, applying for remedial writs. Parish of Caddo. No. 110856.

Writ denied.


text:
    STATE of Louisiana ex rel., Robert MYLES v. Hon. Frank A. MARULLO, Criminal District Court, Sect. D, Parish of Orleans.
    No. 80-KH-2632.
    Supreme Court of Louisiana.
    Nov. 26, 1980.
   In re Robert Myles, applying for writs of certiorari, prohibition and mandamus. Parish of Orleans. No. 265-242.

Denied. Moot.


text:
    STATE of Louisiana v. Sammy HUFFMAN.
    No. 80-K-2630.
    Supreme Court of Louisiana.
    Nov. 26, 1980.
   In re Sammy Huffman, applying for writ of review. Parish of Terrebonne. No. 86636.

Denied.


text:
    STATE of Louisiana v. Samuel PROCTER.
    No. 80-KC-2605.
    Supreme Court of Louisiana.
    Nov. 26, 1980.
   In re Hon. Frank J. Shea, Judge, Criminal District Court, applying for request of certification. No. 173-247.

Denied. This Court has not in the past granted applications to certify questions where not provided by statute or rule, as there will ordinarily be an adequate remedy for the litigant; for example, if the trial court denies relator’s writ, the relator may apply here.


text:
    STATE of Louisiana ex rel., Willis Wilbert JONES, Jr. v. The THIRTEENTH JUDICIAL DISTRICT COURT, EVANGELINE PARISH, Louisiana.
    No. 80-KH-2553.
    Supreme Court of Louisiana.
    Nov. 26, 1980.
   In re Willis Wilbert Jones, Jr., applying for writ of mandamus. Parish of Evange-lihe. Nos. 15075, 15082.

Denied. Relator must first seek relief in the district court.


text:
    STATE of Louisiana ex rel., Demetrious SUMMERS v. STATE of Louisiana.
    No. 80-KH-2542.
    Supreme Court of Louisiana.
    Nov. 26, 1980.
   In re Demetrious Summers, applying for writ of habeas corpus. Parish of Orleans. No. 256-275.

Denied.


text:
    STATE of Louisiana ex rel., Glenn RICHARDSON v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 80-KH-2539.
    Supreme Court of Louisiana.
    Nov. 26, 1980.
   In re Glenn Richardson, applying for writ of habeas corpus. Parish of Calcasieu. No. 7838-73.

Denied.


text:
    Mrs. Johnnie LEE v. ARK-LA-TEX MOTOR EXCHANGE, INC.
    No. 80-C-2538.
    Supreme Court of Louisiana.
    Nov. 26, 1980.
   In re Ark-La-Tex Motor Exchange, Inc., applying for writ of certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Caddo. No. 14241.

Denied.


text:
    Vincent F. FRANZONE v. OCHSNER FOUNDATION HOSPITAL et al.
    No. 80-C-2531.
    Supreme Court of Louisiana.
    Nov. 26, 1980.
   In re Vincent F. Franzone, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. No. 11724.

Denied.


text:
    Hedwig Vinzenzia Kramert, Wife of Stephen T. PADALEWSKI v. Stephen T. PADALEWSKI.
    No. 80-C-2501.
    Supreme Court of Louisiana.
    Nov. 26, 1980.
   In re Stephen T. Padalewski, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. No. 11722. Parish of Orleans.

Writ denied.

LEMMON, J., would grant the writ.


text:
    Raymond KLUMPP v. COLONIAL PIPELINE COMPANY et al.
    No. 80-C-2499.
    Supreme Court of Louisiana.
    Nov. 26, 1980.
   In re Raymond Klumpp, applying for cer-tiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Acadia. No. 7622.

Writ denied.

WATSON, J., would grant the writ.


text:
    Succession of Clifton Anthony DONOHUE.
    No. 80-C-2497.
    Supreme Court of Louisiana.
    Nov. 26, 1980.
   In re Irene Keller, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 389 So.2d 879.

Application is denied.

DENNIS, J., concurs since the relator is not precluded from bringing an independent action contesting ownership of the property.


text:
    Paul WALDROP v. VISTRON CORPORATION.
    No. 80-C-2502.
    Supreme Court of Louisiana.
    Nov. 26, 1980.
   In re Paul Waldrop, applying for certiora-ri, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 391 So.2d 1274.

Writ denied.

LEMMON, J., would grant the writ.


text:
    Sandra Duren Maxwell, wife of/and James F. MAXWELL v. STATE of Louisiana, Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 80-C-2537.
    Supreme Court of Louisiana.
    Nov. 26, 1980.
   In re Louisiana Department of Transportation and Development (Office of Highways), applying for writ of certiorari, or review, to the Court of Appeal, First Circuit. Parish of Livingston. 391 So.2d 1230.

Writ denied.

MARCUS and LEMMON, JJ., would grant the writ.


text:
    STATE of Louisiana ex rel., Graylan BELL v. Hayden J. DEES, Warden, Dixon Correctional Institute.
    No. 80-KH-2635.
    Supreme Court of Louisiana.
    Nov. 26, 1980.
   In re Graylan Bell, applying for writ of certiorari. Parish of Orleans. No. 63875.

Granted. New trial ordered. See Brown v. Louisiana, 447 U.S. 323, 100 S.Ct. 2214, 65 L.Ed.2d 159 (1980).


author: COLE, Judge.

text:
    FIRST MUNICIPAL LEASING CORPORATION v. STATE of Louisiana.
    No. 12957.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1979.
    Rehearing Denied Feb. 20, 1980.
    Writs Denied April 8, 1980.
    R. King Milling, New Orleans, for plaintiff-appellant First Municipal Leasing Corp.
    Louis M. Jones, Asst. Atty. Gen., Louisiana Dept, of Justice, New Orleans, George Kim Johnson, Asst. Atty. Gen., Louisiana Dept, of Justice, Baton Rouge, for defendant-appellee State of Louisiana.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   COLE, Judge.

This is a suit for specific performance of a contract of lease (alternatively, for a declaratory judgment) entered into on August 1, 1975, by the defendant, as Lessee, and Public Systems, Inc., as Lessor. The thrust of the demand is for $1,412,286.39, alleged to be the balance due for the lease of certain computer equipment. Plaintiff is the assignee of Public Systems, Inc.

Defendant filed the peremptory exception against the cause of action asserted. It raises the objection of no right of action. The trial court sustained the exception and dismissed the suit. Plaintiff appeals. We reverse.

The issue raised is whether the plaintiff has a legal interest in the subject matter of the litigation. La.C.C.P. arts. 681, 927. See also, Bamber Contractors, Inc. v. Henderson Bros., Inc., 345 So.2d 1212 (La.App. 1st Cir. 1977), and Bielkiewicz v. Rudisill, 201 So.2d 136 (La.App. 3d Cir. 1967).

The contract of lease entered into by defendant and Public Systems, in part, provides:

7. Assignment. Lessee understands and acknowledges that Lessor has entered into this Lease in anticipation of its being able to assign, transfer or mortgage or otherwise convey its interests under this Lease or any portion thereof and in the Equipment to one or more banks or other lending institutions, lenders or purchasers (hereinafter collectively referred to as ‘the Assignee’) and that the Assignee will, in entering into such transaction with Lessor, be acting in reliance upon and entitled to the benefits of, this paragraph. Accordingly, Lessee agrees with Lessor and with the Assignee (for whose benefit this covenant is expressly made) that (i) Lessor may assign, pledge, mortgage, transfer or otherwise dispose of, either in whole or in part, all of its rights and interests in and to this Lease or to the Equipment as Lessor hereunder, without consent of, Lessee; (ii) and in the event of any such assignment, Lessee will, after due notice thereof, promptly pay to the Assignee when due installments and any other payments that thereafter become due to the Lessor hereunder ....
In the event of a default by the Lessee hereunder, any Assignee of the Lessor shall have all of the rights of the Lessor pursuant to this Lease.
11. Successors. Subject to the foregoing, the Lease and all documents attached hereto shall inure to the benefit of and shall be binding upon Lessor and Lessee, their heirs, legal representatives, successors and assigns ....
20. Default. If Lessee shall fail to make any lease payment ..., or if Lessee shall fail to make any other payment or perform or observe any other covenant, condition or agreement to be performed or observed by it hereunder ... then, upon the occurrence of any such event, Lessor may at its option declare this Lease to be in default and may do one or more of the following ...
a. Cause Lessee to (and Lessee agrees that it will) upon written demand of Lessor ... promptly return any and all equipment to Lessor ....
b. By written notice to Lessee, cause Lessee to (and Lessee agrees that it will) pay to Lessor (as liquidated damages for loss of a bargain and not as a penalty) on a date specified in such notice an amount ... equal to all unpaid lease payments which absent a default would have been payable hereunder for the full term hereof; and/or
c. Lessor may exercise any other right or remedy which may be available to it under the laws of the State of Louisiana to recover damages for the breach hereof or to rescind this Lease.
EXHIBIT B
LESSEE’S OPTIONS
2. At any time during the Original Term or any renewal thereof, on ninety (90) days written notice to Lessor, Lessee may terminate the lease as to any unit of equipment by paying the Termination Value applicable as of the Termination Date to Lessor or the last known assignee of Lessor, if any. This Termination Value will be computed by multiplying the applicable Termination Percentage, as established in Exhibit C, by the Original Cost of the Terminated Unit.

On the same day the lease was entered into by Public Systems and defendant, Public Systems, pursuant to Section 7 of the agreement, gave notice to defendant that it had assigned all rights to payments under the lease to plaintiff and requested that defendant make the payments to plaintiff or its designee. Also, on that same day, plaintiff, pursuant to Section 7 of the agreement, gave notice to defendant that it was the assignee of the payments and instructed defendant to sent the payments to The First National Bank of Denver. Defendant acknowledged receipt of the notices sent by Public Systems and plaintiff, admits that the bank is merely plaintiff’s irrevocable escrow agent, and agreed to deliver its payments to the bank.

The agreement between plaintiff and Public Systems, wherein plaintiff purchased the right to receive all payments due under the lease (in effect, becoming assignee of the payments), provided for numerous other rights and obligations as regards its signatories. Some of these rights and obligations were contingent upon the defendant terminating the lease prior to the end of its initial term. They included disposition of the computer equipment by the parties with a residual right to share equally any monies derived in addition to that needed to pay other assignees and the expenses of disposition.

It is contended by defendant that after acquiring the right to the lease payments, plaintiff sold or assigned the payments to Smith, Barney & Company or, through that firm, to various investors. Plaintiff alleges the payments were conveyed to various financial institutions. While we find exhibits in the record indicating the involvement of Smith, Barney & Company, as well as ultimate investors, no evidence has been offered detailing the exact contractual posture that may exist between plaintiff and these third parties. At most, it appears that “Certificates of Ownership” were sold by plaintiff, through Smith, Barney & Company, to twelve investors, mostly banks. It does not appear that plaintiff sold or assigned its right to receive the lease payments or its right to share equally with Public Systems other monies that might be derived from disposition of the computer equipment following termination of the lease by defendant.

On August 28, 1978, the defendant, through its Office of the Treasurer, forwarded to The First National Bank of Denver, a warrant in the sum of $4,527,618.19 “to retire in full” its indebtedness under the lease. The bank refused to negotiate the warrant, advising defendant that the amount did not satisfy the termination provisions of the lease agreement. Failing to amicably resolve the matter, plaintiff filed this suit alleging defendant breached the lease agreement. Specifically, plaintiff alleges defendant is in default by not giving written notice of its desire to terminate the lease ninety days prior thereto and by tendering a sum substantially less than that required by the lease. Plaintiff prays for judgment adjudicating defendant to be in default and requiring defendant to specifically perform its obligation by paying the balance due under the lease. Alternatively, plaintiff seeks judgment declaring the respective rights of plaintiff and defendant as regards possession of the computer equipment and the payment of monetary sums.

In sustaining the peremptory exception the trial court held plaintiff was assigned only the right to receive payments, and since plaintiff, in turn, assigned this right to The First National Bank of Denver, it was without the legal right to bring this action. The trial court further held other rights would accrue to plaintiff under the agreement between it and Public Systems only in the event the lease between defendant and Public Systems was terminated. The court rejected the contention the lease was terminated by defendant’s tender of the warrant on August 28, 1978, finding this amounted only to a prepayment of the balance due on the defendant’s indebtedness.

The trial court erred in finding that plaintiff reassigned to The First National Bank of Denver its right to receive the lease payments from defendant. It is clear the bank was simply appointed as an agent to receive, escrow, and disburse the funds, the ownership of which plaintiff acquired by purchase and assignment. Nor does the evidence, as presently constituted, disclose a reassignment of the right to receive the payments to any third party.

La.C.C.P. art. 698 provides:

An incorporeal right which has been assigned, whether unconditionally or conditionally for purposes of collection or security, shall be enforced judicially by:
(1) The assignor and the assignee, when the assignment is partial; or
(2) The assignee, when the entire right is assigned.

The incorporeal right which was assigned in this case for purposes of collection or security was the right to the lease payments made by defendant. It was assigned in its entirety and, therefore, the plaintiff, as assignee, is the proper party to seek its judicial enforcement. Even if we were to assume that the assignment of the right was only partial, plaintiff, along with Public Systems, would have a legal interest in the subject matter of enforcing payment of the full sum contended to be due. The fact that Public Systems is not a party to this litigation would be of no consequence. We believe that La.C.C.P. art. 698 is intended only to clarify the procedural law as to necessary or indispensable parties. In this case, if the assignment of the right were only partial, defendant’s remedy would be to assert the peremptory exception, raising the objection of nonjoinder of an indispensable party. La.C.C.P. art. 927.

We find it unnecessary to consider whether the trial court was correct in holding that the lease was not terminated by defendant’s tender of the warrant for the stated purpose of retiring in full its indebtedness under the lease. A reading of the contractural provisions quoted in this opinion makes it abundantly clear that plaintiff may be regarded as a third-party beneficiary in whose favor a stipulation pour au-trui was made. La.C.C. art. 1890. The lease together with the documents executed simultaneously therewith, is explicit in affording to plaintiff all the rights possessed by the lessor, Public Systems, pursuant to the lease. Among these are the right to have the defendant promptly pay rental installments when due and any other payments that thereafter become due; the right to declare the lease to be in default upon defendant’s failure to make such payments and as a result of the default have defendant return the computer equipment and pay an amount equal to all unpaid lease payments which absent a default would have been payable for the full term of the lease; and the right to receive a ninety day written notice if, during the original term of the lease, defendant terminated the lease as to any unit of equipment by paying the termination value specified.

The contract of lease was entered into with the intention that an assignee, here the plaintiff, would be the ultimate lessor. The objective of the contract was to provide financing for defendant through intermediary agencies to acquire computer equipment. Defendant expressly consented to the arrangement. As ultimate lessor, plaintiff has stated a cause of action which it may seek to enforce. Plaintiff has an interest in enforcing it under the facts stated above. It should be noted that plaintiff’s interest in the subject matter of this litigation, as to the defendant, does not flow from the terms of the agreement between plaintiff and Public Systems. It is premised upon the contract of lease entered into by defendant and Public Systems, and the rights acquired thereunder are triggered in favor of plaintiff simply by plaintiff becoming an assignee. Cf. State ex rel. Guste v. Simoni, Heck & Associates, 331 So.2d 478 (La.1976).

For the foregoing reasons, the decision of the trial court is reversed and this case is remanded for further proceedings in accordance with law. Costs of this appeal, which may properly be assessed under the law against defendant, are to be paid by defendant.

REVERSED and REMANDED.


author: COVINGTON, Judge.

text:
    Darryl J. TSCHIRN et ux v. Katherine Hadley MORSE et al. and City of Covington.
    No. 13709.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 10, 1980.
    Ronald G. Hand, Jack A. Blossman, Cov-ington, for plaintiffs.
    Darryl J. Tschirn, Covington, pro se.
    A. Wayne Buras, Covington, for K. Morse et al. defendants-appellees.
    Rykert O. Toledano, Jr., Covington, for city of Covington, defendant-appellee.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   COVINGTON, Judge.

This is an appeal in consolidated actions bearing docket numbers 52,787, 52,788 and 52,832 in the trial court (13,709, 13,710 and 13,711, respectively, in this court) in which the primary relief sought was to have a described" strip of land declared a public roadway by virtue of three years’ maintenance by the City of Covington. In the actions, Darryl J. Tschirn was enjoined from interfering with the use by “the Morse group” of a described property belonging to said group, consisting of three persons, Katherine Hadley Morse wife of/and Charles T. Morse and Ella Cook Hadley, and the Morse group was enjoined from interfering with Tschirn’s use of a described portion of the roadway. The judgment primarily declared a described strip of land as subject to “a servitude in favor of the public” pursuant to LSA-R.S. 48:491 due to the City’s three-year maintenance thereof. The judgment also denied all claims for damages.

Darryl J. Tschirn appealed the judgment and the Morse group answered the appeal. The City of Covington also answered; it supports the decision of the trial judge. Tschirn’s position is that the judge erred in not finding the portion of the shell drive from East Guidry Street to Riverbend Lane to be public. The Morse group’s contention is that the judge erred in finding that portion of the shell drive from the end of Guidry Street (Guidry Street extension as dedicated) to the chain situated on Lot “O” a public roadway by virtue of a tacit dedication pursuant to LSA-R.S. 48:491; further, said group contends that the trial judge erred in not awarding the Morses damages to property caused by Tschirn’s trespassing, and in not casting all court costs against Tschirn.

In applying LSA-R.S. 48:491, the courts have consistently held that reasonable maintenance of a roadway by a public authority for three years gives rise to a tacit dedication thereof to public use by the owner. It is the mere maintenance of the roadway by the public authority for the requisite period, without adequate protest by the landowner, which results in the applicability of tacit dedication as set forth in the statute. Trahan v. Fontenot, 380 So.2d 1240 (La.App. 3 Cir. 1980); Vaughn v. Williams, 345 So.2d 1195 (La.App. 2 Cir. 1977), writ denied, 350 So.2d 896 (La.1977); Strickland v. Stafford, 322 So.2d 893 (La. App. 1 Cir. 1975); Town of Sorrento v. Templet, 255 So.2d 246 (La.App. 1 Cir. 1971).

We have carefully read the record, and find the written reasons of the trial judge, a copy of which is attached as Appendix A, correctly disposes of the factual and legal issues presented by this case. Having found that all the requisites were met for a tacit dedication pursuant to LSA-R.S. 48:491, we hold that the parcel of land described hereinbelow is subject to a servitude in favor of the public by virtue of continuous maintenance for a period of three years in accordance with LSA-R.S. .48:491, which parcel is described as follows, to-wit:

“BEING PART OF Section 44, Township 7 South, Range 11 East, St. Tammany Parish, Louisiana.
“From the North Corner of Square 13 of the Wayside Addition to Town of Coving-ton, Covington, Louisiana, formed by the intersection of South Louisiana (formerly Yates Street) and East 10th Avenue (formerly Hardy Street); run South 59 degrees 20 minutes East, 530 feet to a point; thence South 30 degrees 45 minutes West, 555 feet to the Point of Beginning.
“From the point of beginning run South 57 degrees 19 minutes East, 141.6 feet to a point; thence South 58 degrees 06 minutes East, 80.8 feet to a point; thence South 31 degrees 54 minutes West, 15 feet to a point; thence North 58 degrees 06 minutes West, 80.8 feet to a point; thence North 57 degrees 14 minutes West, 141.6 feet to a point; thence North 30 degrees 45 minutes East, 15 feet back to the point of beginning.
“This tract is to include a Shell Drive.”

For the reasons expressed by the trial judge, which we adopt as our own, the judgment appealed is affirmed. The costs of this appeal are to be shared by Darryl J. Tschirn and the Morse group, one-half to appellant Tschirn and one-half to appellees, the Morse group.

AFFIRMED.

APPENDIX A

KATHERINE HADLEY, et al

VERSUS

DARRYL J. TSCHIRN

DARRYL J. TSCHIRN, et ux

VERSUS

CITY OF COVINGTON, et al

22ND JUDICIAL DISTRICT COURT

STATE OF LOUISIANA

PARISH OF ST. TAMMANY

DOCKET NUMBER 52832_

CONSOLIDATED WITH:

22ND JUDICIAL DISTRICT COURT

STATE OF LOUISIANA

PARISH OF ST. TAMMANY

DOCKET NUMBER 52788

AND

DARRYL J. TSCHIRN, et ux

VERSUS

CHARLES T. MORSE, et al

22ND JUDICIAL DISTRICT COURT

STATE OF LOUISIANA

PARISH OF ST. TAMMANY

DOCKET NUMBER 52787_

REASONS FOR JUDGMENT

These are consolidated suits the primary purpose of which is to have a roadway declared public because of three years maintenance by the City of Covington. The disputed portion is that roadway designated on the map marked as joint exhibit # 1. It includes the shaded portions designated as East Guidry Street in addition to an extension from the shaded area which goes through the lot designated as Lot 0, belonging to the Morse’s, plaintiffs herein, to River Bend Lane.

The testimony is overwhelming to the effect that some twelve years ago the City constructed this portion of East Guidry Street which includes the shaded area on the map in addition to a strip of roadway which extended from the shaded area down to a canal. Subsequently, the Morse’s constructed the roadway which extends from River Bend into East Guidry. The evidence also indicates that the City maintained the roadway depicted by the shaded area to where the Morses subsequently put a drive which connected Guidry Street to River Bend. The City apparently never did maintain that portion of the road they constructed from the shaded area down to the canal.

That portion of East Guidry north of the chain is clearly public having been maintained by the City on a continuous basis for more than three years. LSA-R.S. 48:491. The Court so holds. The apparent revocation of any dedication of this area does not affect its public nature since the maintenance occurred after the revocation. That portion which crosses Lot 0 and connects East Guidry with River Bend Road is clearly not public. Although there might have been occasional maintenance by the City of this area it was generally done only on

request and was not done at all when the chain was up. Consequently, the necessary three years maintenance is not present. Strickland v. Stafford, 322 So.2d 893 (La. App. 1st Cir. 1975).

The facts indicate that prior to the chain being placed across the roadway the road was maintained down to the point where it turns. Afterwards, the roadway was consistently maintained only to the chain. The road was constructed approximately 12 years ago. The chain was probably placed there in the latter part of 1969. Consequently, the evidence is insufficient to show any portion inside the chain was maintained continuously for a three year period prior to the chain being installed.

The Court will sign a judgment holding the above described roadway public. The extent of the public roadway is that part shaded on the joint exhibit # 1 back to the chain, which is the extent of the area maintained by the City. Kansas City Southern Railroad Company v. City of DeRidder, 206 So.2d 562, (La.App. 3rd Cir. 1968). The evidence does show that culverts were placed on the east side of East Guidry by the City, but they were apparently paid for by Mr. Morse and put there by the City to alleviate a City problem of sewerage being dumped onto private property from a City sewerage main. There is no indication that the City actually maintained the area over the culverts.

The Court will issue a declaratory judgment in suit number 52788 in accordance with the above. Based upon the Court’s findings the suits for injunctive relief bearing docket numbers 52832, and 52787 will be granted or dismissed, as the case may be only insofar as either action would conform with the Court’s judgment in Number 52788. The Court finds an off-set in all claims for damages and will consequently dismiss these claims. Each party will bear its own court costs including its own expert witness fees.

Judgments in accordance with the above will be signed when presented.

      . For the purpose of clarity, we attach as Appendix B the map to which the trial judge refers in the first paragraph of his “Reasons for Judgment.”


text:
    Darryl J. TSCHIRN et ux. v.Katherine Hadley MORSE et al. and City of Covington
    No. 13710.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 10, 1980.
    Ronald G. Hand, Jack A. Blossman, Covington, for plaintiffs-appellants.
    Darryl J. Tschirn, pro se.
    A. Wayne Buras, Covington, for defendants-appellees, Katherine H. Morse, Charles T. Morse et al.
    Rykert O. Toledano, Jr., Covington, for defendant-appellee City of Covington.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   COVINGTON, Judge.

For the reasons assigned in the companion case, No. 13,709, bearing the same title as the instant case, 394 So.2d 286, the judgment is affirmed.

Costs are equally divided between Tschirn and the Morse group.

AFFIRMED.


text:
    Katherine HADLEY, wife of/and Charles T. Morse v. Darryl J. TSCHIRN.
    No. 13711.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 10, 1980.
    A. Wayne Buras, Covington, for plaintiffs-appellees.
    Ronald G. Hand and Jack A. Blossman, Covington, for defendant-appellant.
    Darryl J. Tschirn, pro se.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   COVINGTON, Judge.

For the reasons assigned in the companion case, No. 13,709, Darryl J. Tschirn, et ux v. Katherine Hadley Morse, et al. and City of Covington, 394 So.2d 286, the judgment is affirmed.

Costs are equally divided between Tschirn and the Morse group.

AFFIRMED.


author: LABORDE, Judge.

text:
    Laura L. BROWN et al., Plaintiffs-Appellants, v. AETNA LIFE & CASUALTY INS. CO. et al., Defendants-Appellees.
    No. 7973.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 17, 1980.

      Ralph Brewer, Baton Rouge, for plaintiffs-appellants.
    Woodley, Barnett, Cox, Williams & Fenet by Edgar F. Barnett, Raggio Cappel, Cho-zen & Berniard, Richard Cappel and James Morris, Lake Charles, for defendants-appel-lees.
    Before FORET, CUTRER and LA-BORDE, JJ.
   LABORDE, Judge.

This appeal involves the interpretation of LSA-R.S. 42:261E, a statute granting certain defendants, under specified conditions, the right to require the plaintiff to furnish a bond for attorney’s fees before proceeding with trial.

Plaintiff, Laura Brown, individually and on behalf of her four minor children, sued several defendants for the wrongful death of her husband. Pursuant to LSA-R.S. 42:261E, two of the defendants — State Trooper Joseph Valenti, and the Department of Public Safety of the State of Louisiana — filed a rule to require plaintiff to post a bond as security for their attorney’s fees. Interpreting LSA-R.S. 42:261E as granting to both public officials and political subdivisions the right to an attorney fee bond, the trial judge ordered plaintiff to post a $7,500 bond within thirty days under penalty of having her suit dismissed as to these two defendants. The trial judge allowed additional argument after which he again ordered plaintiff to post bond or suffer dismissal. Plaintiff was granted additional time within which to post this bond. After plaintiff failed to post the bond, the trial court dismissed, with prejudice, plaintiff’s demands against both Officer Valenti and the Department. Plaintiff appeals. We reverse in part and affirm in part.

We interpret LSA-R.S. 42:261E as limited in use and application by public officials only. Since the Department is not a public official, the trial court erred by allowing it to require plaintiff to post a bond. As regards Officer Valenti, we find no error in the trial court’s holding that he is a public official under LSA-R.S. 42:261E and is entitled to require plaintiff to post bond for attorney’s fees before proceeding to trial. Accordingly, the trial court had authority to dismiss plaintiff’s claims against Officer Valenti when plaintiff failed to post the bond. However, the trial court erred by dismissing those claims with prejudice as dismissal is limited to dismissal without prejudice only. Our reasons follow.

We begin with the trial court’s interpretation of LSA-R.S. 42:261E as granting to both public officials and political subdivisions the right to require an attorney’s fee bond of plaintiff prior to trial. Our review of the statute indicates that coverage was intended for public officials only.

LSA-R.S. 42:261E, which is fully reproduced in the footnote, provides that an unsuccessful plaintiff shall, under certain circumstances, be liable to a successful defendant public official for attorney’s fees. In addition, the defendant public official has the right, by rule, to require the plaintiff to furnish a bond to cover such attorney’s fees. The language in the statute favors public officials only. The statute’s reference to state agencies or political subdivisions is merely to point out that public officials of those institutions are included. The trial court erred when it interpreted that language as a grant to a political subdivision of the right, when sued, to require the plaintiff to post a bond for its attorney’s fees.

Next, we consider whether a state trooper is a public official under the statute and thus entitled to use and application of LSA-R.S. 42:261E. The trial court held that a state trooper is a public official. We affirm that portion of the trial court’s judgment.

At the time of the accident forming the basis of plaintiff’s wrongful death claim, Officer Valenti was employed as a state trooper by the State of Louisiana, Department of Public Safety. LSA-R.S. 40:1301 provides:

“The Department of Public Safety is created and consists of the position of Director of Public Safety, the Divisions of State Police and Fire Training, the Organized Crime Intelligence Division, and such other divisions as are established in accordance with this Part.”

We have little difficulty recognizing that the Department is a state agency or political subdivision. In addition, Louisiana courts have held that police officers are public officials under LSA-R.S. 42:261D (now E). Houston v. Brown, 292 So.2d 911 (La.App. 2nd Cir. 1974) and Jones v. Anderson, 277 So.2d 697 (La.App. 2nd Cir. 1973) application denied 279 So.2d 697 (La.1973). We conclude that a state trooper is a public official of a state agency or political subdivision and is entitled to use and application of LSA-R.S. 42:261E.

On appeal, plaintiff contends that even if the statute requires that she post bond for attorney’s fees, that requirement should be dispensed with when the defendant public official has liability insurance coverage. This contention is without merit. No where does LSA-R.S. 42:261E provide an exception for posting the bond for attorney’s fees when defendants have insurance coverage.

A final issue involves the manner in which a plaintiff’s demands may be dismissed upon his failure to post bond for attorney’s fees. Although not raised by either party on appeal, we note that the trial court dismissed plaintiff’s claims with prejudice. We address this issue in fulfillment of our duty to render any judgment which is just, legal, and proper upon the record on appeal. LSA-C.C.P. art. 2164.

LSA-R.S. 42:261E, as relevant here, provides:

“The defendant public official shall have the right, by rule, to require the plaintiff to furnish bond as in the case of bond for costs, to cover such attorney’s fees before proceeding with the trial of said cause.” (Emphasis supplied.)

From the emphasized language, Louisiana courts have held that all of the rules pertaining to and governing bonds for cost are applicable to the attorney’s fee bond. Gisclair v. Ripp, 378 So.2d 553 (La.App. 4th Cir. 1979) and Jones v. Anderson, cited supra.

The furnishing of bond for costs is set out in LSA-R.S. 13:4522, which provides:

“The defendant before pleading in all cases may by motion demand and require the plaintiff or intervenor to give security for the cost in such case, and on failure to do so within the time fixed by the court such suit or intervention, as the case may be, shall be dismissed without prejudice. This section shall not apply to the Parish of Orleans and to cases brought in forma pauperis, nor to the state or any political subdivision thereof.” (Emphasis supplied.)

The statute specifically provides that failure to post security within the time fixed by the court shall subject the case to be dismissed without prejudice. We interpret LSA-R.S. 42:261E to provide that the provisions of LSA-R.S. 13:4522 are applicable and available for use in connection with the bond for attorney's fees, and that a court may properly dismiss plaintiff’s suit for failure to post bond within the time fixed, but it may do so without prejudice only.

Accordingly, it is ordered that the trial court’s judgment dismissing plaintiff’s suit against defendant, Joseph Valenti, is amended to dismissal without prejudice, and as amended is affirmed.

It is further ordered that the trial court’s dismissal of plaintiff’s suit against defendant, State of Louisiana, Department of Public Safety, is reversed, set aside and vacated, and this case is remanded to the district court for further proceedings in accordance with law and the views expressed herein.

All costs of this appeal are assessed one-half to plaintiff and one-half to defendant, State of Louisiana, Department of Public Safety in the amount of $253.62, as provided by law. The costs on remand are to await the outcome of the litigation.

AFFIRMED IN PART, AS AMENDED; REVERSED IN PART, AND REMANDED.

      . LSA-R.S. 42:261E provides:
      “Any party who files suit against any duly elected or appointed public official of this state of or any of its agencies or political subdivisions for any matter arising out of the performance of the duties of his office other than matters pertaining to the collection and payment of taxes and those cases where the plaintiff is seeking to compel the defendant to comply with and apply the laws of this state relative to the registration of voters, and who is unsuccessful in his demands, shall be liable to said public official for all attorneys fees incurred by said public official in the defense of said lawsuit or lawsuits, which attorneys fees shall be fixed by the court.
      The defendant public official shall have the right, by rule, to require the plaintiff to furnish bond as in the case of bond for costs, to cover such attorneys fees before proceeding with the trial of said cause.”


author: BOUTALL, Judge.

text:
    COMBANK/SEMINOLE COUNTY v. Vincent and Barbara MATHERNE, d/b/a The Sportsman’s Cove.
    No. 12249.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 20, 1981.
    Linda S. A. Burke, New Orleans, for relator.
    Harry J. Morel, Jr., Boutte, for respondent.
    Before SAMUEL, BOUTALL and KLIE-BERT, JJ.
   BOUTALL, Judge.

The trial judge denied plaintiffs motion for summary judgment, finding there was an issue of fact and setting the case for trial on the merits. Plaintiff has applied to us for writs, averring it should not be forced to a trial on the merits because the record mandates summary judgment.

Applicant mis-states to us that Schlumbrecht v. Executive Offices, etc., 371 So.2d 389 (La.App. 4th Cir. 1979) involved summary judgment. That case involved an application for writs from the overruling of an exception of prescription. Because reversal by us would end the litigation, we treated the application as an appeal. However we cannot follow that procedure here. C.C.P. Art. 968 prohibits the taking of an appeal from the refusal to render a summary judgment.

The application for writs is denied.