author: NESBITT, Judge.

text:
    Virgilio MEDINA and Digna Medina, his wife, Appellants, v. 187TH STREET APARTMENTS, LTD., Max Cogen and Carib Management, Appellees.
    No. 80-1450.
    District Court of Appeal of Florida, Third District.
    Nov. 3, 1981.
    DeMeo & Sherman and Thomas G. Sherman, Miami, for appellants.
    Marlow, Shofi, Ortmayer, Smith, Connell & Valerius and Joseph H. Lowe, Miami, for appellees.
    Before BARKDULL, NESBITT and BASKIN, JJ.
   NESBITT, Judge.

This is an appeal from the entry of a directed verdict in favor of the defendants who owned and operated an apartment complex wherein the plaintiff was criminally assaulted in the parking lot. We find that there was a triable issue of fact as to the defendants’ duty to protect the plaintiff from criminal acts. Accordingly, we reverse.

Plaintiff, Virgilio Medina, was mugged in the defendants’ parking lot. When the assault occurred, he was returning to his car after escorting two young ladies who lived in the apartment complex home from church services. Plaintiff commenced the action against the defendants alleging that they were negligent by their failure to: (1) warn persons lawfully on the premises of the danger of criminal assaults; (2) take reasonable measures to provide safe ingress and egress; (S) limit access to the parking lot; and (4) provide security protection to invitees within the complex. At trial, the apartment complex manager indicated that he had actual knowledge that persons had been mugged in the complex. A police officer testified that due to domestic disputes, juvenile disturbances, and breaking and entering of apartments, he would classify the apartment as a high crime area. At the close of the plaintiff’s case, a motion for directed verdict was granted.

In reviewing the propriety of a directed verdict, all conflicts are to be resolved in the plaintiff’s favor and all reasonable inferences from the evidence are to be taken in the light most favorable to the plaintiff. Balart v. Michel’s Kartway, Inc., 364 So.2d 90 (Fla.3d D.C.A. 1978); Homan v. County of Dade, 248 So.2d 235 (Fla.3d DCA 1971). Where there is any evidence to justify a possible verdict for the non-moving party, even if a preponderance of the evidence favors the movant, a directed verdict is an encroachment on the province of the jury. Hernandez v. Motrico, Inc., 370 So.2d 836 (Fla.3d DCA 1979). Our review of the record in light of these standards reveals that a directed verdict was improper.

In an extensive analysis of the duty of a landowner to one on his property, the court, in Wood v. Camp, 284 So.2d 691 (Fla.1973) stated:

It may be that on the facts in a particular case the determination of the category of the plaintiff must be determined as a matter of law by the trial judge, as in other cases in this respect; other causes will present a factual issue for the jury as to whether plaintiff is invitee, licensee or trespasser under appropriate instructions.

284 So.2d at 696.

When it is a question for the judge or the jury depends on whether the facts of the particular issue are in dispute. Where, as here, the facts relevant to the plaintiff’s status are undisputed (he entered the premises to escort two tenants back to their apartment), it was within the judge’s province to make such a determination.

In that regard, we find that the trial judge’s conclusion that the plaintiff was an invitee was correct in light of the guidelines set out in Wood's, supra. See also, Manassa v. New Hampshire Insurance Company, 332 So.2d 34 (Fla. 1st DCA 1976), cert. denied, 348 So.2d 951 (Fla.1977).

The duty of care owed by a landowner to an invitee with respect to protection from criminal acts of a third person is dependent upon the foreseeability of that third party’s activity. Relyea v. State, 385 So.2d 1378 (Fla.4th DCA 1980). In Relyea, the court stated:

In order to impose a duty upon a landowner to protect an invitee from criminal acts of a third person a plaintiff, invitee, must allege and prove that the landowner had actual or constructive knowledge of prior, similar criminal acts committed upon invitees.

385 So.2d at 1383.

In Fernandez v. Miami Jai-Alai, Inc., 386 So.2d 4 (Fla.3d DCA 1980), we recognized that the violent acts of a third person may not be foreseeable. However, in this case, where the facts are in dispute as to the previous criminal activities in the complex and the knowledge of these activities on the part of the defendant, foreseeability is a question for the jury to determine. See, Holley v. Mt. Zion Terrace Apartments, Inc., 382 So.2d 98 (Fla.3d DCA 1980).

Since we find that there is a triable issue of fact with respect to the duty of the landowner, the judgment appealed from is reversed with directions to grant the plaintiff a new trial.

      . Nothing we have said in this opinion should be construed as contradicting Winn-Dixie Stores, Inc. v. Johstoneaux, 395 So.2d 599 (Fla.3d DCA 1981) at n. 4 where this court stated that foreseeability is not invariably a jury question. While there may be instances in which as a matter of law the duty of care has been discharged, this case does not fall within that category. The facts necessary to determine foreseeability are in dispute and must be resolved by a jury.


source: Caselaw Access Project

author:
DANIEL S. PEARSON, Judge.
      FERGUSON, Judge

license: Public Domain

text:
    Michael SCHACHEL and I. C. O. Corporation, Appellants, v. CLOSET CONCEPTS, INC., Appellee.
    No. 80-1989.
    District Court of Appeal of Florida, Third District.
    Nov. 3, 1981.
    No appearance for appellants.
    No appearance for appellee.
    Before NESBITT and DANIEL S. PEARSON and FERGUSON, JJ.
   DANIEL S. PEARSON, Judge.

In 1979, Schachel, the owner of a United States design patent on a modular closet-organizing system, and his exclusive licensee in the State of Florida, I. C. 0. Corporation, Inc., sued Closet Concepts, Inc. in the United States District Court for the Southern District of Florida, alleging that Closet Concepts, Inc. was an infringer of the patent. The parties settled that litigation by entering into an agreement under which, in pertinent part, Closet Concepts (a) would refrain from directly or indirectly infringing on the mentioned patent; (b) would refrain from the manufacturer, sale, and offering or advertising for sale the modular closet-organizing system depicted in the patent; and (c) would be permitted to manufacture, sell, and offer or advertise for sale a differently described closet system. Pursuant to that agreement, the suit was dismissed.

In 1980, Schachel and I. C. 0. sued Closet Concepts in the Circuit Court in and for Dade County, Florida. This time they alleged that Closet Concepts had breached the settlement agreement by engaging in precisely the conduct it had agreed to refrain from in respect to Schachel’s patent. Upon Closet Concepts’ motion, the trial court dismissed the cause on the ground that the court lacked subject matter jurisdiction over the controversy. Schachel and I. C. 0. appeal. We affirm.

Title 28, United States Code, Section 1338(a), provides that the Federal Courts shall have exclusive jurisdiction over actions arising under Acts of Congress relating to patents. Schachel and I. C. 0. contend that Section 1338(a) does not apply, since their action against Closet Concepts is an action for breach of the settlement agreement, not an action for patent infringement. Which of these it is does not depend on the label given the suit, or the fact that the parties have reduced rights and obligations arising under patent laws to an agreement. Instead, the test is: if the suit is founded on a breach of a right created by the patent laws, even if that right is confirmed by separate agreement, the case arises under the patent laws, and a state court is without subject matter jurisdiction. On the other hand, if the suit is founded on some right falling outside the ambit of the patent laws, then the state court has jurisdiction, even if during the course of the suit the court is called upon to determine questions involving the patent laws. Bert Lane Company v. International Industries, 84 So.2d 5 (Fla.1955); Key Pharmaceuticals, Inc. v. Robinson, 334 So.2d 137 (Fla. 3d DCA 1976).

In the present case, the only possible way for Closet Concepts to breach the agreement would be to infringe the patent. The settlement agreement neither modifies nor adds to any right which did not already exist in the patent holder or licensee by virtue of the patent laws. The complaint in turn alleges nothing other than a breach of the agreement. In substance, then, the complaint alleges nothing other than an action against Closet Concepts for infringement of patent rights. Unlike Bert Lane Company v. International Industries, supra, in which the gist of the complaint was that the defendants, former employees of the plaintiff, breached a confidential relationship and appropriated to their own use a patented device, and Key Pharmaceuticals, Inc. v. Robinson, supra, in which the gist of the complaint was the plaintiff’s effort to recover past due royalties under a patent, the present case poses the patent’s validity and infringement as the central and sole issue. That being so, the exclusive jurisdiction of this suit was in the Federal Court, and the trial court correctly dismissed the complaint.

Affirmed.

FERGUSON, Judge

(specially concurring).

Though I agree with the majority result, I would rephrase the majority’s test for determining whether there is exclusive federal jurisdiction in cases involving patents. In this case, the plaintiff sued for breach of the settlement agreement stating as the sole cause of action, breach of contract. Only by looking to the settlement agreement which was attached to the complaint as exhibit one, does it become clear that by the terms of the agreement, a breach could have occurred only if the actions of appel-lees constituted a patent infringement. In that agreement, the parties did not confirm any federal patent right, but expressly reserved the question of patent validity. Technically, the suit was founded and pled on the theory of breach of contract, a cause of action arising from rights created by state law. See, e. g., Key Pharmaceuticals, Inc. v. Robinson, supra. Because, however, the issue of patent validity involves a right which arises under federal law, determination of which was necessary for resolution of the breach of contract issue, jurisdiction lies exclusively in the federal court. 28 U.S.C.A. § 1338(a). Accordingly, I would rephrase the test as stated by the majority to read, “If the suit is founded on the grounds of breach of contract or other right created by state law, but resolution of that suit necessarily requires determination of a right arising under the patent laws, jurisdiction lies exclusively in the federal court.” See, e. g., Tart v. Walker, 38 N.C.App. 500, 248 S.E.2d 736 (1978). Compare Geni-Chlor International, Inc. v. Multisonics Development Corp., 580 F.2d 981 (9th Cir. 1978) (patent case arises under federal patent laws when resolution of patent validity is necessary to ultimate success in suit) with Riker Laboratories Inc. v. Gist-Brocades N. V., 636 F.2d 772, 779-80 (D.C.1980) (no jurisdiction under patent laws where action affects patent but is not action for infringement or invalidity as statutory grounds).

      . Schachel and 1. C. O. contend that since the agreement prevents Closet Concepts from “advertising for sale” the patented system, the agreement creates an obligation which does not arise under the patent law. In light of the fact that the patent law provides that infringement includes exposing for sale, see 35 U.S.C. § 289, which obviously includes advertising, see, e. g., International Biotical Corporation v. Associated Mills, Inc., 239 F.Supp. 511 (N.D.Ill.964), the argument is frivolous. Equally frivolous is the argument that since Closet Concepts was permitted to manufacture and sell a non-infringing closet system, the breach lies in Closet Concepts’ failure to do that rather than in Closet Concepts’ infringing the patent.

      . Schachel and I. C. O. argue that they are caught in a Catch-22. If so, it is one of their own making, which by definition makes it not a Catch-22. After Schachel and I. C. O. took this appeal, they filed an action in the Federal Court for the breach of the agreement. In that action they alleged, inconsistent with their position here, that the Federal Court had exclusive jurisdiction under 28 U.S.C. § 1338(a). Their problem there was one of pleading — in the absence of some reservation of jurisdiction over their original patent infringement action, the Federal Court had no jurisdiction over their “breach of agreement” action. Apparently, they recognized this and joined the Closet Concepts in moving to dismiss. This resulted in the Federal Court dismissing the action in February 1981. While Schachel and I. C. O. accuse Closet Concepts of whipsawing them, in reality their procedural problems have arisen only because their complaint against Closet Concepts is one for patent infringement; such a complaint is cognizable only in Federal Court; but such a complaint will not be entertained when, ostensibly, it is brought as an action for breach of contract in Federal Court. The catch is that in determining state court jurisdiction we look at the essence of the action, not the label; while the Federal Court in determining its jurisdiction has looked at the label.


author: PER CURIAM. JORGENSON, Judge

text:
    MODELO CAFETERIA, INC., d/b/a El Modelo Restaurant and Kent Insurance Company, Appellants, v. Evelia JOFFRE, Appellee.
    No. 80-2249.
    District Court of Appeal of Florida, Third District.
    Nov. 3, 1981.
    Walton, Lantaff, Schroeder & Carson and George W. Chesrow, Miami, for appellants.
    Magill, Reid, Kuvin & Lewis and R. Fred Lewis, Miami, for appellee.
    Before HENDRY, NESBITT and JOR-GENSON, JJ.
   PER CURIAM.

The judgment appealed from is reversed and remanded for a new trial on authority of Binger v. King Pest Control, 401 So.2d 1310 (Fla.1981).

Reversed and remanded.

JORGENSON, Judge

(concurring specially)-

I cannot agree that the trial Judge abused his discretion by enforcing the terms of a pre-trial order with strict compliance provisions. Williamson Truck Lines, Inc. v. Kellar, 301 So.2d 818 (Fla.3d DCA 1974); Duran v. Neff, 366 So.2d 169 (Fla.3d DCA 1979).

I do, however, agree that the appellant must carry the day on the other issue raised by this appeal. At the charge conference, appellant’s counsel stated that only standard charges were being requested. Thereafter, counsel and the court reviewed each of the standard charges which were to be given. The record below is clear, that Standard Jury Instruction 6.2(b) concerning aggravation of an existing condition was not discussed at the charge conference. The record is also clear that there was no evi-dentiary basis for the giving of the 6.2(b) charge. Winn-Dixie Stores, Inc. v. Nall, 302 So.2d 781 (Fla.3d DCA 1974); Gardner v. Terminal Transport Co., 189 So.2d 405 (Fla.2d DCA 1966).

Since I would reach the same result for different reasons, I concur in the decision to reverse.


author: PER CURIAM.

text:
    Larry W. SWERDLOFF, Appellant, v. Teresa M. SWERDLOFF, Appellee.
    No. 80-2311.
    District Court of Appeal of Florida, Third District.
    Nov. 3, 1981.
    Gary S. Gostel, Miami, for appellant.
    Gary N. Holthus, Miami, for appellee.
    Before BASKIN, DANIEL S. PEÁRSON, and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Herzog v. Herzog, 346 So.2d 56 (Fla. 1977); Bennett v. Bennett, 73 So.2d 274 (Fla. 1954). Compare Adams v. Adams, 385 So.2d 688 (Fla. 3d DCA 1980).


text:
    Peggy HARRIS, Appellant, v. The STATE of Florida, Appellee.
    No. 80-2339.
    District Court of Appeal of Florida, Third District.
    Nov. 3, 1981.
    Bennett H. Brummer, Public Defender and Michael B. Chavies, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and SCHWARTZ and JORGENSON, JJ.
   PER CURIAM.

Affirmed. Dykes v. State, 264 So.2d 65 (Fla.3d DCA 1972); Lowman v. State, 353 So.2d 652 (Fla.3d DCA 1977); White v. State, 324 So.2d 115 (Fla.3d DCA 1975), cert. dismissed, 339 So.2d 1173 (Fla.1976).


text:
    Joseph BETSEY and Dorothy Betsey, his wife, Appellants, v. Richard L. LITT, M. D., Appellee.
    No. 80-2477.
    District Court of Appeal of Florida, Third District.
    Nov. 3, 1981.
    Cohen, Kokus & Ostrow and Linda Koe-nigsberg and Arthur N. Cohen, Miami, for appellants.
    Preddy, Kutner & Hardy and Howard K. Cherna, Miami, for appellee.
    Before HUBBART, C. J., and HENDRY and NESBITT, JJ.
   PER CURIAM.

Affirmed. Carter v. DeCarion, 400 So.2d 521 (Fla. 3d DCA 1981); Tosar v. Sladek, 393 So.2d 61 (Fla. 3d DCA 1981); F. M. C. Corp. v. Chatman, 368 So.2d 1307 (Fla. 4th DCA), cert. denied, 379 So.2d 203 (Fla.1979); Industrial Trucks of Florida, Inc. v. Gonzalez, 351 So.2d 744 (Fla. 3d DCA 1977); Fla. R.Civ.P. 1.420(e).


text:
    The STATE of Florida, Appellant, v. Leon NELSON, Appellee.
    No. 80-2488.
    District Court of Appeal of Florida, Third District.
    Nov. 3, 1981.
    Jim Smith, Atty. Gen. and Calianne P. Lantz, Asst. Atty. Gen., for appellant.
    Julio Jimenez, Miami, for appellee.
    Before BARKDULL, HENDRY and BASKIN, JJ.
   PER CURIAM.

A trial court should not order disclosure of the name of a confidential informant without conducting an in camera hearing. See: Fla.R.Cr.P. 8.220(e)(2) 3.220(i) .

If a trial court orders disclosure and same is not made, the trial court should then be governed by the provisions of Fla.R.Cr.P. 3.220(j).

Therefore, the order under review dismissing an information be and the same is hereby reversed and the matter returned to the trial court for further proceedings not inconsistent with this opinion.

Reversed and remanded with directions.

      . “Matters Not Subject to Disclosure.

      (2) Informants. Disclosure of a confidential informant shall not be required unless the confidential informant is to be produced at a hearing or trial, or a failure to disclose his identity will infringe the constitutional rights of the accused.”

      . “In Camera Proceedings. Upon request of any person, the court may permit any showing of cause for denial or regulation of disclosures, or any portion of such showing to be made in camera. A record shall be made of such proceedings. If the court enters an order granting the relief following a showing in camera, the entire record of such showing shall be sealed and preserved in the records of the court, to be made available to the appellate court in the event of an appeal.”

      .“Sanctions.
      (1) If, at any time during the course of the proceedings, it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule or with an order issued pursuant to an applicable discovery rule, the court may order such party to comply with the discovery or inspection of materials not previously disclosed or produced, grant a continuance, grant a mistrial, prohibit the party from calling a witness not disclosed or introducing in evidence the material not disclosed, or enter such other order as it deems just under the circumstances.
      (2) Willful violation by counsel of an applicable discovery rule, or an order issued pursuant thereto, may subject counsel to appropriate sanctions by the court.”


text:
    GULFSTAR, INC., and Steven B. Lazzara, Appellants, v. ADVANCE MORTGAGE CORPORATION, Appellee.
    Nos. 81-96, 81-97.
    District Court of Appeal of Florida, Third District.
    Nov. 3, 1981.
    Robert F. Nunez and James E. Deakyne, Jr., St. Petersburg, for appellants.
    William A. Ingraham, Jr., and Bertram A. Sapurstein, Miami, for appellee.
    Before HUBBART, C. J., and HENDRY and FERGUSON, JJ.
   PER CURIAM.

Affirmed. T. I. E. Communications, Inc. v. Toyota Motors Center, Inc., 391 So.2d 697 (Fla. 3d DCA 1981); Love v. Jacobson, 390 So.2d 782 (Fla. 3d DCA 1980).


text:
    William L. HORNER, Appellant, v. HOMESTEAD SOUTH DADE BOARD OF REALTORS, INC., Appellee.
    No. 81-252.
    District Court of Appeal of Florida, Third District.
    Nov. 3, 1981.

      Robert K. Estes, Coral Gables, for appellant.
    Lepidus & Stettin and Richard L. Lapi-dus, Miami, for appellee.
    Before HUBBART, C.J., and HENDRY and NESBITT, JJ.
   NESBITT, Judge.

Homer was a member of the South Dade Board of Realtors. After a grievance was lodged against him with its board of directors, he was summarily suspended without notice and opportunity to be heard. This action was allegedly in violation of the by-laws of the voluntary association. Subsequently, however, Horner did receive a plenary hearing on the charges which culminated in an order entered on July 3, 1979 suspending his membership for a period of one year.

On April 3, 1980, he commenced the instant action for compensatory and exemplary damages. Ultimately, his second amended complaint was dismissed for failure to state a cause of action.

Horner’s complaint is directed solely to the underlying and preliminary suspension order which allegedly resulted in loss of his earning capacity as a real estate broker through his loss of business and business contracts. The action is based on the alleged failure of the Board to provide notice and a hearing as required by the contract. Horner readily agrees that the final order of July 3, 1979 afforded him a complete panoply of the rights assured to him under the by-laws of the organization. He does not challenge those findings.

A review of the cases in Florida which deal with wrongful expulsion of a member from a voluntary association reveals that Florida has not previously recognized the cause of action presented in this case. We decline to do so now.

In McCune v. Wilson, 237 So.2d 169 (Fla. 1970), our Supreme Court held:

a private organization, particularly if tinged with public stature or purpose, may not expel or discipline a member adversely affecting substantial property, contract or other economic rights, except as a result of fair proceedings which may be provided for in organization by-laws, carried forward in an atmosphere of good faith and fair play.

237 So.2d at 173. In that case, an injunction was issued against continuation by the defendant organization of proceedings against the plaintiff, where there was a failure to give fair and adequate notice and failure to provide a fair and impartial hearing. Where procedural safeguards are not afforded, the courts will intervene. La Gorce Country Club v. Cerami, 74 So.2d 95 (Fla.1954) [mandamus issued for failure to provide an opportunity to be heard].

In Needelman v. Dade County Medical Association, 205 So.2d 17 (Fla.3d DCA), cert. denied, 211 So.2d 211 (Fla.1968), a plaintiff filed for a declaratory judgment that the association wrongfully excluded him from membership for failure to give notice and hearing prior to termination as required by Section 617.10, Florida Statutes (1965). The court directed the defendant association to reinstate the plaintiff’s membership.

In light of these decisions, it is clear that while the Florida courts recognize a remedy for the failure to provide a fair hearing that remedy typically has been an injunction or declaratory judgment.

The Second District Court of Appeal, in Weinberg v. East Lake Woodlands, Ltd., 362 So.2d 375 (Fla.2d DCA 1978), held that a complaint seeking an injunction as well as money damages for the wrongful termination of membership in a country club stated a cause of action. However, Weinberg, supra, is distinguishable because there it was alleged that:

the club had terminated his membership contrary to [the] rules and regulations and that it failed to provide him with notice and a hearing concerning its proposed expulsion of him. [emphasis supplied]

362 So.2d at 376. Unlike Weinberg, supra, the plaintiff’s complaint is based solely on the failure to provide a hearing and notice of the grievance prior to the initial termination. Plaintiff does not allege that the termination was wrongful on any ground other than procedure.

Furthermore, in Weinberg, supra, the plaintiff sought both an injunction, which was the traditional remedy in Florida, as well as money damages. In this case, no injunction was sought and the plaintiff admitted that a fair and impartial hearing was held prior to the institution of this lawsuit. Any procedural defect which might originally have existed was remedied by this hearing. See, Kaufman v. Atlanta Lawn Tennis Association, Inc., 150 Ga.App. 318, 257 S.E.2d 383 (1979). Under these facts, no injury has occurred. The courts are reluctant to intervene in the affairs of private organizations, see, McCune, supra; Grand Lodge, K.P. of Florida v. Taylor, 79 Fla. 441, 84 So. 609 (1920), but have done so to insure that a fair proceeding is held. There being no issue as to that point, there is no reason for this court to intervene. Consequently, we find that, in the absence of a suit for reinstatement, the ancillary claim for damages failed to state a cause of action.

For the foregoing reasons, the order appealed from is affirmed.


text:
    CITY DISCOUNT COSMETICS & APPLIANCES, INC. and Parliament Insurance Company, Appellants, v. Ana ASPURU, Appellee.
    No. 81-316.
    District Court of Appeal of Florida, Third District.
    Nov. 3, 1981.
    Jesse W. Miller, Hialeah, for appellants.
    Lopez & Saldise, Ann Mason Parker, Miami, for appellee.
    Before DANIEL S. PEARSON, FERGUSON and JORGENSON, JJ.
   PER CURIAM.

Affirmed. Winn-Dixie Stores, Inc. v. Guenther, 395 So.2d 244 (Fla.3d DCA 1981) (evidence viewed most favorably for appel-lee shows appellant had constructive notice and establishes prima facie case); Food Fair Stores of Florida v. Vallarelli, 101 So.2d 161 (Fla.3d DCA 1958), cert. denied, 104 So.2d 595 (Fla.1958) (sufficient evidence to submit question of knowledge of dangerous condition to jury; appellate court will not substitute its judgment for that of jury)-


text:
    E. H. K., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 81-440.
    District Court of Appeal of Florida, Third District.
    Nov. 3, 1981.
    Bennett H. Brummer, Public Defender and Deborah Whisnant, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before DANIEL S. PEARSON, FERGUSON and JORGENSON, JJ.
   PER CURIAM.

E. K. appeals from an adjudication of delinquency based upon a finding that he was guilty of burglary of an auto and petty theft.

Appellant challenges the sufficiency of the evidence to sustain the adjudication. We find the point well taken and reverse. The requisite elements to establish an adjudication for aiding and abetting are not present. Perez v. State, 390 So.2d 85 (Fla. 3d DCA 1980); J. O. v. State, 384 So.2d 966 (Fla. 3d DCA 1980); Pack v. State, 381 So.2d 1199 (Fla. 2d DCA 1980); Lockett v. State, 262 So.2d 253 (Fla. 4th DCA 1972); Douglas v. State, 214 So.2d 653 (Fla. 3d DCA 1968); J. L. B. v. State, 396 So.2d 761 (Fla. 3d DCA 1981); J. H. v. State, 370 So.2d 1219 (Fla. 3d DCA 1979); S. S. v. State, 405 So.2d 247 (Fla. 3d DCA 1981).

Reversed and remanded with directions to discharge the defendant.


author: DANIEL S. PEARSON, Judge.

text:
    SEABOARD COAST LINE RAILROAD COMPANY, Petitioner, v. Honorable Dick C. P. LANTZ, James Corbett Keene, Robert V. Stephenson, Clyde Collins and E. J. May, Respondents.
    No. 81-1837.
    District Court of Appeal of Florida, Third District.
    Nov. 3, 1981.

      Smathers & Thompson and Earl Waldin, Miami, for petitioner.
    Beckham & McAliley and George E. Schulz, Jr., Miami, for respondents.
    Before DANIEL S. PEARSON, FERGUSON and JORGENSON, JJ.
   DANIEL S. PEARSON, Judge.

Keene, Stephenson, Collins and May, employees of Seaboard Coast Line Railroad Company, after bringing a freight train to Hialeah, Florida, were laid over at the Runway Inn. The next morning, while being transported to the Hialeah yard in a van operated by Runway’s employee, they were injured when the van collided with a Randle Eastern Ambulance.

The crew members sued Seaboard under the Federal Employers’ Liability Act, 45 United States Code, Section 51, et seq., which by its terms makes Seaboard, a common carrier, liable in damages to its employees injured during their employment by a carrier engaged in interstate commerce. Seaboard filed a third-party complaint seeking indemnity against the principals and owners of Runway Inn and Miami Airliner Corporation, the lessee of the van. In a trial to determine only liability of the primary defendants, a jury found Randle Eastern eighty-five per cent and Seaboard fifteen per cent responsible for the injuries to the crew members. Thereafter, in a separate nonjury trial on Seaboard’s third-party indemnity claim, the court entered judgment for the third-party defendants, finding that Seaboard was not entitled to indemnification.

Seaboard appealed this judgment. While that appeal was pending, the trial court entered orders setting trials on the remaining issue of the plaintiff-crew members’ damages. Seaboard, contending that the pendency of its appeal divested the trial court of jurisdiction to proceed with the damage trials, seeks to prohibit the trial court from doing so.

Seaboard argues that our power and authority to decide the issue on the pending appeal will be affected by allowing the damage trials to proceed. It says that if it prevails in its appeal against the third-party defendants after the damage trials have concluded, it will be put to the otherwise unnecessary task of proving damages against the third-party defendants in a separate trial. But even if such a possibility, even probability, existed, the prospect of a future trial between Seaboard and the alleged third-party indemnitors, instead of a single trial which includes all the parties, certainly does not affect our power and authority to make our jurisdiction effective as to the judgment appealed. The subject matter of Seaboard’s pending appeal is whether it is entitled to be indemnified by the third-party defendants. Our power and authority to decide that issue on appeal will not be affected by the upcoming damage trials between the crew members and Seaboard, and, therefore, there is no impediment to the trial court’s jurisdiction to conduct those trials. Bailey v. Bailey, 392 So.2d 49 (Fla. 3d DCA 1981). See also Carberry v. Foley, 206 So.2d 425 (Fla. 3d DCA 1968).

Writ of prohibition denied.

      . The crew members also sued Randle Eastern Ambulance, its driver and insurer. The joinder of and later settlement with these defendants are not pertinent to the issues before us. Seaboard’s employees did not sue Runway Inn or its driver, which they viewed as agents of Seaboard under Seaboard’s agreement with Runway to provide lodging and transportation to Seaboard’s laid over employees.

      . Apparently no judgment in favor of the plaintiffs against Randle Eastern and Seaboard has yet been entered on this jury verdict.

      . Seaboard’s imagined need for a separate trial is doubtful. The third-party defendants were clearly on notice of the pendency of the suit between the plaintiffs and Seaboard and will be bound by its outcome if not precluded from defending, Hoskins v. Midland Insurance Company, 395 So.2d 1159 (Fla. 3d DCA 1981); Atlantic Coast Development Corporation v. Napoleon Steel Contractors, Inc., 385 So.2d 676 (Fla. 3d DCA 1980); MacArthur v. Gaines, 286 So.2d 608 (Fla. 3d DCA 1973); Olin’s Rent-A-Car System, Inc. v. Royal Continental Hotels, Inc., 187 So.2d 349 (Fla. 4th DCA 1966); Westinghouse Electric Corporation v. J. C. Penney Company, Inc., 166 So.2d 211 (Fla. 1st DCA 1964); see Allstate Insurance Co. v. A.D.H., Inc., 397 So.2d 928 n. 1 (Fla. 3d DCA 1981). The fact that the third-party defendants are presently favored with a judgment will not prevent the operation of this estoppel if that judgment is later overturned. See Christiani v. Popovich, 363 So.2d 2 (Fla. 1st DCA 1978), affirmed sub nom. Pensacola Interstate Fair, Inc. v. Popovich, 389 So.2d 1179 (Fla.1981).

      . Even when the trial court’s action involves the subject matter of the appeal, which it does not in the present case, but is not such as to interfere with the appellate court’s power to make its jurisdiction effective as to the order on appeal, the trial court may still proceed in the absence of a supersedeas. FMS Management Systems, Inc. v. IDS Mortgage Corporation, 402 So.2d 474 (Fla. 4th DCA 1981); Waltham A. Condominium Association v. Village Management, Inc., 330 So.2d 227 (Fla. 4th DCA 1976).


author: ANSTEAD, Judge.

text:
    In the Interest of J. P., a child.
    No. 79-487.
    District Court of Appeal of Florida, Fourth District.
    Nov. 4, 1981.
    Richard L. Jorandby, Public Defender, and Cherry Grant, Asst. Public Defender, West Palm Beach, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   ANSTEAD, Judge.

The appellant, a juvenile, claims that the trial court erred and violated his constitutional right to equal protection of the law by placing him on probation for a period of time exceeding the maximum amount of time that appellant could have been incarcerated for the same offense had he been tried as an adult. We affirm.

An adult may not be placed on probation for a period of time exceeding the maximum period that he could be incarcerated. State v. Holmes, 360 So.2d 380 (Fla. 1978). However, under the statutes in effect when appellant was placed on probation, a juvenile could be committed or placed on probation for an indeterminate period not to exceed his 21st birthday, regardless of the statutory maximum penalty provided for the offense charged. Section 39.11(2)(a), Florida Statutes (1977). We do not believe these provisions as applied in the instant case violated appellant’s rights to equal protection.

First, we note that the Florida Constitution and the juvenile offender statutes contain a provision authorizing the juvenile to opt out of the juvenile system and to have the charges against him prosecuted in the criminal division of the circuit court in the same manner as an adult would be tried. Art. I, § 15(b), Fla.Const.; § 39.02(5)(b)(2), Fla.Stat. (1977). The appellant has never attempted to opt out the juvenile system under these provisions.

Secondly, because the underlying purposes and effects of the juvenile justice scheme as compared to the adult criminal justice system are substantially different, we believe the state has the authority to treat juvenile violators differently, insofar as the length of a term of probation, than adult offenders. Although we are not faced with the issue of whether or not a longer term of incarceration could be imposed, an issue much more troublesome than the one at hand, we do agree with the reasoning used by the California Supreme Court to approve such a result in the case of In re Eric J., 25 Cal.3d 522, 159 Cal.Rptr. 317, 601 P.2d 549 (1979):

The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner. (See, e. g., In re Roger S. (1977) 19 Cal.3d 921, 934, 141 Cal.Rptr. 298, 569 P.2d 1286.) Adults convicted in the criminal courts and sentenced to prison and youths adjudged words of the juvenile courts and committed to the Youth Authority are not “similarly situated.”
For purposes of this discussion, the most significant difference between minors and adults is that “[t]he liberty interest of a minor is qualitatively different than that of an adult, being subject both to reasonable regulation by the state to an extent not permissible with adults (Planned Parenthood of Cent. Mo. v. Danforth, supra [1976] 428 U.S. 52, [74], 96 S.Ct. 2831, 2843, 49 L.Ed.2d 788, [808]; Ginsberg v. New York, supra [1968] 390 U.S. 629, 638, 88 S.Ct. 1274, [1279], 20 L.Ed.2d 195, [203]; Prince v. Massachusetts, supra [1944] 321 U.S. 158, 170, 64 S.Ct. 438, [444], 88 L.Ed. 645, [654-655]), and to an even greater extent to the control of the minor’s parents unless ‘it appears that the parental decisions will jeopardize the health or safety of the child or have a potential for significant social burdens.’ (Wisconsin v. Yoder [supra, 1972] 406 U.S. 205, 234, 92 S.Ct. 1526, 1542, 32 L.Ed.2d 15, [35].)” (In re Roger S., supra, 19 Cal.3d at p. 934, 141 Cal. Rptr. at p. 306, 569 P.2d at p. 1294.) When the minor must be removed from the custody of his parents for his own welfare or for the safety and protection of the public (Welf. & Inst. Code, § 202), the state assuming the parents’ role the state also assumes the parents’ authority to limit the minor’s freedom of action.
“ ‘The concept of the equal protection of the laws compels recognition of the proposition that persons similarly situated with respect to the legitimate purpose of the law receive like treatment.’ ” (In re Gary W. (1971) 5 Cal.3d 296, 303, 96 Cal.Rptr. 1, 7, 486 P.2d 1201, 1207, quoting Purdy & Fitzpatrick v. State of California (1969) 71 Cal.2d 566, 578, 79 Cal.Rptr. 77, 85 [456 P.2d 645, 653].) The state does not have the same purpose in sentencing adults to prison that it has in committing minors to the Youth Authority. Adults convicted in the criminal courts are sentenced to prison as punishment (Pen. Code, § 1170, subd. (a)(1) while minors adjudged wards of the juvenile courts are committed to the Youth Authority for the purposes of treatment and rehabilitation (In re Aline D. (1975) 14 Cal.3d 557, 567, 121 Cal.Rptr. 816, 536 P.2d 65).

159 Cal.Rptr. 320-321, 601 P.2d 552-553. We believe that under the circumstances of this ease, this reasoning is sufficient to support the different treatment afforded the appellant herein.

The entire purpose behind having a separate scheme for juveniles is to prevent the juvenile from becoming an adult offender by providing him rehabilitative and habili-tative, as opposed to punitive, treatment at the earliest possible opportunity so as to maximize his chances of becoming a happy and well adjusted member of society. In Re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); § 39.001, Fla.Stat. (1977). For the most part, the differences in treatment are far more favorable to the offender treated in the juvenile system than in the adult system. However, the variant purposes of the two systems may sometimes require different treatment which appears to disfavor the juvenile. In the Interest of C. J. W., 377 So.2d 22 (Fla. 1979); State v. Boatman, 329 So.2d 309 (Fla. 1976); State v. D. H., 340 So.2d 1163 (Fla. 1976). For instance, while most constitutional protections have been afforded to juveniles, it has been held that juveniles are not entitled to a right to trial by jury. McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971). Likewise, we believe the state has the authority to adopt a flexible system of rehabilitative treatment for juveniles who do not elect to apt out of the system which treatment may include a term of probation longer than that provided for adults.

In the case at hand it appears that the trial judge was eminently reasonable in concluding that appellant’s drug related problems required much more time and attention than would be afforded if treatment were limited to the maximum period of time statutorily prescribed for the offense actually alleged in the petition for adjudication.

Accordingly, for the reasons set out above the decision of the trial court is affirmed.

LETTS, C. J., and HURLEY, J., concur.

      . The juvenile statutes have now been amended to provide that a juvenile may not be committed for a term beyond the maximum term for which an adult could be sentenced for the same offense. Section 39.11(3), Florida Statutes (1979). Another amendment provides that any term of probation shall not extend beyond the juvenile’s 19th birthday. Section 39.-ll(l)(a). We have interpreted the effects of these provisions in G.W.M. v. State, 391 So.2d 738 (Fla. 4th DCA 1980).

      . Justice Fortas, in writing the opinion which assured numerous procedural due process rights to juveniles, noted: “If Gerald had been over 18, he would not have been subject to Juvenile Court proceedings. For the particular offense immediately involved, the maximum punishment would have been a fine of $5 to $50, or imprisonment in jail for not more than two months. Instead, he was committed to custody for a maximum of six years.


author: GRIMES, Judge.

text:
    Steven Michael REID, Appellant, v. STATE of Florida, Appellee.
    No. 81-436.
    District Court of Appeal of Florida, Second District.
    Nov. 6, 1981.
    Jerry Hill, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James S. Purdy, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

This case involves the construction of section 790.162, Florida Statutes (1979).

Appellant entered a bank and handed a customer service employee a note which said, “I have a grenade. Don’t press a button; first cop I see, I will toss it in your lap. I want to see you put $3,000 in one stack on the counter.” The bank employee handed the note to a coworker who alerted a security guard. The security guard called the police, and they arrested appellant before he left the bank. Throughout this event, no one ever saw a bomb or grenade, and appellant had none in his possession when the police frisked him.

The state charged appellant with threatening to throw, place or discharge a destructive device and with attempted robbery. At the trial, the state attorney conceded that appellant had not possessed a destructive device. The jury found appellant guilty of both charges, and he received consecutive sentences for the crimes. He appeals only his conviction for threatening to throw a destructive device.

Section 790.162 reads:

790.162 Threat to throw, place or discharge any destructive device, felony; penalty. It is unlawful for any person to threaten to throw, place, or discharge any destructive device with intent to do bodily harm to any person or with intent to do damage to any property of any person, and any person convicted thereof shall be guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Appellant contends that since there was no evidence that he had any intent to do bodily harm or damage to property, the court should have granted his motion for judgment of acquittal. A literal reading of the statute lends some credence to appellant’s position, but as so interpreted, it would not make much sense. Accordingly, we reject this interpretation since courts will not ascribe to the legislature an intent to create an absurd result. Thomas v. State, 317 So.2d 450 (Fla. 3d DCA 1975), cert. denied, 333 So.2d 465 (Fla.1976).

Section 790.161 provides that it is unlawful for any person to throw, place or discharge a destructive device with intent to do bodily harm or damage to property. Section 790.162, which essentially tracks the same language, was obviously intended to cover a threat to carry out the conduct proscribed by section 790.161. Viewed in this context, we think that section 790.162 requires only that the threat must convey an intent to do bodily harm or damage to property. Here, appellant’s threat obviously conveyed this intent. Therefore, under our construction of the statute, whether appellant intended to follow through with his threat was irrelevant.

AFFIRMED.

HOBSON, A. C. J., and DANAHY, J., concur.


text:
    Torin D. THOMPSON, Appellant, v. STATE of Florida, Appellee.
    No. 81-464.
    District Court of Appeal of Florida, Second District.
    Nov. 6, 1981.
    Jerry Hill, Public Defender, and Kathe Kates Davis, Asst. Public Defender, Bar-tow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

Appellant was convicted of possession of cocaine following a plea of nolo contendere in which he reserved his right to appeal the denial of a motion to suppress.

The evidence presented at the hearing on the motion to suppress was in conflict. However, because the court denied the motion, we shall present the facts in the light most favorable to the state. Officer Robert Bacon of the Fort Myers Police Department testified that on the evening of September 13,1980, he was called to the Crown Lounge by its bouncer, Robert Coghill. Coghill told Bacon that two nights before, appellant had been involved in an altercation at the lounge and that a customer had reported to him that appellant was carrying a gun in a small shaving case. Coghill was concerned because appellant had returned to the bar and again had a small shaving case with him. While Coghill and Bacon were talking, appellant left the bar, and the officer followed him outside.

Officer Bacon approached appellant in the parking lot and asked him for identification. Appellant replied that it was in his case which he had placed on the hood of an automobile. The officer felt the outside of the case, and when he did not detect the presence of a weapon allowed appellant to put his hand inside to produce the identification. As appellant pulled his billfold from the case, a small brown manila envelope fell onto the hood, and appellant brushed it onto the ground. Officer Bacon picked it up, opened it, and found marijuana inside. He then arrested appellant and searched the shaving case in which he found cocaine.

There are two questions to be decided in this case, and both of them are close. The first is whether the officer had a well founded suspicion sufficient to permit him to detain appellant for inquiry. The second is whether, in any event, he had a right to look into the manila envelope which fell out of the shaving case.

The detention issue is complicated by the fact that the bouncer testified that the customer who had complained to him about appellant two nights before only said that she feared that appellant had a gun in his shaving case rather than that she had actually seen one. Moreover, the altercation was not a fight but was only a loud argument between appellant and the customer’s boyfriend. Had the officer testified that he had received this report from the bouncer, it would be hard for us to sustain appellant’s detention in the parking lot. However, we must base our decision upon what was reasonably known to the officer at the time he made his stop. Particularly where the person imparting the information to him is not anonymous, an officer is entitled to accept what he is told unless there is reason to doubt its veracity. If, as here, the facts may have been embellished in the retelling, there was no reason for Officer Bacon to have known it.

Under the circumstances recounted by Officer Bacon, we believe that he had a well founded suspicion of criminal activity which was sufficient to justify temporarily detaining appellant for an interrogation pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and section 901.151(1), Florida Statutes (1979). See State v. Payton, 344 So.2d 648 (Fla. 2d DCA 1977). The officer understood that appellant had recently been in an altercation at the lounge and was reported as carrying a gun in his shaving case at that time. Appellant was again at the lounge, and he again had his shaving case with him. While it is not illegal for a person to carry a shaving case around with him, Officer Bacon had a right to conclude that it was out of the ordinary for appellant to continue to bring it to the lounge. To have ignored the report that appellant carried a gun in it would have been naive in today’s violent society. See State v. Hetland, 366 So.2d 831 (Fla. 2d DCA 1979), approved, 387 So.2d 963 (Fla.1980).

There are different legal principles involved in the search of the envelope. When Officer Bacon stopped appellant in the parking lot, he had no grounds upon which to arrest him. Moreover, there was no suggestion that the envelope contained a weapon. Therefore, Bacon could not legally look into the envelope unless he had probable cause to believe that it contained contraband. Two recent decisions of this court bear on this question. In Carr v. State, 353 So.2d 958 (Fla. 2d DCA 1978), we held that a policeman did not have the right to seize a hand rolled cigarette without a warrant merely because he suspected that it contained marijuana. On the other hand, we sustained the warrantless seizure of small tinfoil packets subsequently found to contain a controlled substance in State v. Redding, 362 So.2d 170 (Fla. 2d DCA 1978). We reasoned that the defendant’s bizarre conduct prior to the seizure coupled with the officer’s knowledge that cocaine and heroin are usually carried in such packets provided probable cause for the seizure.

The facts of the instant case fall somewhere in between. The only testimony concerning Officer Bacon’s experience with respect to brown manila envelopes was as follows:

Q After the envelope fell on the ground, what did you do?
A I asked Mr. Thompson to step back a couple of feet while I reached up and picked up the envelope. I then asked him to pick up his change and keys which were there.
Q What did you then do?
A I then just closed the side of the envelope and opened it, and inside I observed a green vegetable substance which I believe was marijuana.
Q Based on your experience as a law enforcement officer, is that how you came to that conclusion that it’s marijuana?
A It is normally carried in that envelope when sold or used, and the substance inside appeared to be from my recognition. (Emphasis added.)

Even though Bacon made the foregoing comment in the course of explaining why he recognized the leafy substance to be marijuana, we shall assume that it could also be used as a reason why he opened the envelope. We shall also assume that he meant that brown manila envelopes are used to carry small quantities of marijuana, thereby distinguishing them from the customary baggie used to carry larger amounts. The problem, however, is that, unlike the small tinfoil packets in Redding, it cannot be said that most brown manila envelopes contain marijuana. There could have been any number of items in the envelope other than marijuana which appellant would wish to keep private. Legally, the conduct of appellant in trying to hide the envelope was no different that if he had simply told the officer that he did not want him to look into it without a search warrant. The issue is still probable cause. Officer Bacon did not say that before he opened the envelope he believed that it contained marijuana, nor did he articulate any facts upon which he could have predicated such a belief. He may have had the best of intentions, but he did not have probable cause. The court should have granted the motion to suppress.

We reverse the judgment of guilt and remand the case for further proceedings.

HOBSON, A. C. J., and RYDER, J., concur.


text:
    Russell WARD, Appellant, v. STATE of Florida, Appellee.
    No. 81-848.
    District Court of Appeal of Florida, Second District.
    Nov. 6, 1981.

      Jerry Hill, Public Defender, and William H. Pasch, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James S. Purdy, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. However, we remand to the trial court to vacate the amended judgment and sentence as the trial court was without jurisdiction. The trial court amended the judgment and sentence after appellant had filed a notice of appeal, thereby vesting exclusive jurisdiction in this appellate court. Gonzalez v. State, 384 So.2d 57 (Fla. 4th DCA 1980). Although the mitigated sentence is now vacated, the trial judge may now impose an amended judgment and sentence within sixty days of receipt of this court’s mandate. Fla.R.Crim.P. 3.800.

It should also be noted that appellant has abandoned all points on his appeal except the point concerning his mitigated sentence.

SCHEB, C. J., and HOBSON and CAMPBELL, JJ., concur.


author: CALOGERO, J., CALOGERO, Justice,

text:
    STATE of Louisiana ex rel. Gary TYLER v. C. Paul PHELPS, Director Department of Corrections.
    No. 61215.
    Supreme Court of Louisiana.
    Jan. 13, 1978.
    Jack Peebles, Metairie, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Melvin P. Barre, Dist. Atty., for plaintiff-respondent.
   CALOGERO, J.,

is of the opinion the writ should be granted and assigns reasons.

CALOGERO, Justice,

dissenting from denial of writ of habeas corpus.

When this Court reviewed defendant Tyler’s conviction on appeal, we considered the possible error in the jury charge concerning presumptions. I expressed my view in a concurring opinion that I was inclined to agree with defendant that the jury charge he complained of was erroneous, but I joined the majority in affirming the conviction on appeal because of our long standing contemporaneous objection rule. 342 So.2d 574, 589 (La. 1977). Defense counsel had not objected to the charge, a failure which denied the trial judge an opportunity to correct it. There was no constitutional issue involved on this point on appeal.

In the application for writ of habeas corpus now before us, defendant Tyler argues that federal and state constitutional due process was violated because of that same fundamentally unfair jury charge in contravention of the hallmark presumption of innocence. Considering this constitutional issue for the first time in this case, and noting that constitutional infirmities complained of on habeas application are reviewable without the prerequisite of a contemporaneous objection, I would find the application meritorious and grant the writ.

As I noted in my concurring opinion, because defendant was only sixteen years old at the time of the charged crime and therefore subject to being prosecuted in the district court rather than juvenile court only for capital crimes, he was charged with first rather than, more appropriately, second degree murder. The first degree murder charge required the state, in order to gain a conviction under the circumstances of the case, to prove beyond a reasonable doubt that Tyler had the specific intent to kill or to inflict great bodily harm upon more than one person, although only one shot had been fired from a fully loaded pistol. In order to attempt to meet its burden, the state repeatedly emphasized to the jury and successfully requested a special jury instruction that a person is presumed to intend the natural and probable consequences of his act.

Thus the jury which must presume innocence at the outset and throughout the proceedings was told in the context of the argument and charge that they were required and bound by a presumption relative to the central issue in the case, defendant’s intention when he fired the single pistol shot. In effect, then, the jury, whose function it was to determine beyond a reasonable doubt that defendant specifically intended to kill or do great bodily harm to more than one person, when he fired one shot, was being told that they should apply a presumption, obviating further proof of this element by the state and transferring the burden of going forward with contrary proof of the lack of specific intent to the defendant. This transfer of the burden of going forward was, I believe, a prejudicial and unconstitutional violation of defendant’s right to be presumed innocent, and of his right to be tried under the standard of due process. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); State v. Searle, 339 So.2d 1194 (La. 1976).

I believe, in fact, that this Court agrees that the judge’s charge to the jury on the subject of the presumption was erroneous. Only the dissenter, however, feels that defendant was thereby unduly prejudiced, and for that reason entitled to issuance of this writ.


text:
    In re Application of James E. SMITH, Jr.
    No. 80-0-2214.
    Supreme Court of Louisiana.
    July 2, 1981.
   ORDER

On considering the application of James E. Smith, Jr. for admission to the practice of law in the State of Louisiana and on considering the report of the Commissioner filed in this matter,

IT IS ORDERED that James E. Smith, Jr. be admitted to the practice of law in the State of Louisiana.

MARCUS and BLANCHE, JJ., would deny the application.


text:
    In re Application of Carole Shelby Carnes TUCKER.
    No. 81-0-0972.
    Supreme Court of Louisiana.
    Aug. 17, 1981.
   ORDER

On considering the application of Carole Shelby Carnes Tucker for admission to the practice of law in. the State of Louisiana and on considering the report of the Commissioner filed in this matter,

IT IS ORDERED that Carole Shelby Carnes Tucker be admitted to the practice of law in the State of Louisiana. Ruling on the issue of costs is reserved pending further orders of the Court.

MARCUS, J., dissents from the order.

WATSON, J., concurs in the order.

BLANCHE, J., absent.


author: DIXON, Chief Justice.

text:
    STATE of Louisiana v. Randy TUCKER.
    No. 81-KA-0138.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
    Rehearing Denied Nov. 16, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., James E. Stainback, Louise Korns, Asst. Dist. Attys., for plaintiff-appellee.
    John Lawrence and Robert deFrancesch, of Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
   DIXON, Chief Justice.

Randy Tucker was convicted of armed robbery, R.S. 14:64, following a trial by jury. Prior to sentencing, the state filed a habitual offender bill, to which defendant pleaded not guilty. On the date set for hearing the habitual offender bill, May 11, 1979, the state informed the court that it was unable at that time to proceed. Defendant subsequently waived all delays and was sentenced on the armed robbery conviction to sixty years imprisonment at hard labor. On May 31, 1979 the habitual offender hearing was conducted and defendant was found guilty; accordingly, the original sentence was vacated but a sentence for the same term was imposed on the habitual offender bill. We find no merit to defendant’s assignments of error.

On the evening of February 28, 1979 Richard Peltier made a deposit at a computerized bank terminal at the corner of Jefferson and Magazine Streets in New Orleans. As Peltier turned to leave the terminal, two strangers approached him. One of the men carried a gun and the unarmed man was later identified as defendant. The men instructed Peltier to “take it all out.” He withdrew $50.00 and gave it to them. The man with the gun ordered Peltier to get into his own car, entered it with him, and then told him to drive to Audubon Park. Not far from the scene of the robbery, however, the defendant pulled up behind them in another vehicle and blew its horn. The armed man riding with Peltier ordered him to pull over. He then left Peltier’s car, entered the one driven by defendant, and departed.

The victim subsequently stopped a passing state trooper and reported the incident. A radio broadcast was made describing the robbers. A short distance away, the defendant and his accomplice were located on foot by a second state trooper. As the officer closed in on the two, he saw them drop an object which investigation revealed to be a .38 pistol. While they were being detained, the victim was brought to their location where he positively identified them as the men who robbed him. At trial Peltier identified the pistol seized as the one used in the robbery.

Assignment of Error No. 2

By this assignment defendant contends that the trial judge erred in overruling his objection to hearsay testimony by the arresting officer, Trooper Farris, who related that he received a radio report of the armed robbery.

Hearsay testimony is a statement made out of court, offered to show the truth of the matter asserted therein, and thus rests for its value on the credibility of the out-of-court asserter. State v. Toomer, 395 So.2d 1320 (La.1981). Trooper Farris’ testimony was not offered to show the truth of the radio report but to show his reason for stopping defendant and his accomplice. His testimony was not hearsay and was properly admitted. See State v. Turner, 392 So.2d 436 (La.1980).

This assignment lacks merit.

Assignment of Error No. 4

By this assignment defendant argues that the habitual offender conviction must be set aside due to the state’s failure to prove Boykinization at the predicate plea conviction. The basis for the habitual offender bill was a guilty plea to simple burglary made in January of 1977.

At the habitual offender hearing New Orleans Police Officer William Sabel testified and identified defendant’s fingerprints on an arrest register indicating an arrest for simple burglary on December 22, 1976. In addition to the arrest register and the fingerprint card, the state filed into evidence a copy of the burglary bill of information with accompanying minutes and a copy of a plea form executed by the defendant. The plea form bears defendant’s initials next to recitations that he has been informed of his rights to trial by jury, to the privilege against self-incrimination, and to confrontation. The form is signed at the bottom by defendant, his counsel, and the trial judge.

To satisfy the requirements of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), there must be an affirmative showing in the record that the accused at the time he entered his guilty plea knowingly and voluntarily waived his constitutional privilege against self-incrimination, right to trial by jury, and right to confront his accusers.

Recently this court in State v. Dunn, 390 So.2d 525 (La. 1980), suggested that a “plea of guilty form” may be considered in determining whether the defendant was adequately informed of his rights. In Dunn, the trial judge failed to specifically refer to defendant’s privilege against self-incrimination, but the representations contained in a plea form initialed and signed by defendant were considered. The trial judge had questioned defendant about his understanding of the plea of guilty form, which contained an express waiver of his privilege against self-incrimination. We held that these facts supported a “sufficient affirmative showing in the record of an express and knowing waiver of defendant’s privilege against self-incrimination.” State v. Dunn, supra, at 527.

There is a potential for abuse of the accused’s constitutional rights in the continued use of printed “waiver of rights” forms, and for this reason their use is to be discouraged. The direct, three-right colloquy between the trial judge and defendant is preferable and should be encouraged.

In the instant case, however, the defendant was represented by counsel when he pleaded guilty to the predicate offense on January 26, 1977. At that time he executed a form in which he admitted his guilt, acknowledged the potential sentence, and indicated that he understood and waived his rights to trial, to confrontation, and to the privilege against self-incrimination. The form also contains a statement to the effect that the plea was uncoerced, and it is initialed seven times and signed once by defendant. The form is also signed by his attorney and the trial judge. The minutes of the guilty plea indicate that the trial judge “questioned the accused under oath regarding his plea of guilty.”

We think that the minute entry concerning the abbreviated colloquy along with the well executed “waiver of rights” form signed by defendant, his attorney and the trial judge constitute a sufficient affirmative showing in the record that defendant knowingly and intelligently waived his constitutional privilege against self-incrimination, right to trial by jury, and right to confront his accusers.

This assignment lacks merit.

Assignment of Error No. 5

By this assignment defendant contends that the trial court erred in denying his motion for a new trial. The basis for this motion was that the verdict was contrary to the law and evidence.

The statute under which defendant was convicted provides in pertinent part:

“Armed robbery is the theft of anything of value from the person of another or which is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.” R.S. 14:64. (Emphasis added).

Defendant argues that the state failed to prove that anything of value was taken from the victim.

In consideration of the sufficiency of the evidence to support the conviction, the reviewing court must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Duncan, 390 So.2d 859 (La. 1980).

The victim sufficiently testified to the events surrounding the armed robbery — that he was ordered to hand over the $50.00 at gunpoint. He gave a sufficient description of the robbers to the state trooper who put the description over the radio. Defendant and his accomplice were arrested on foot shortly thereafter. Although the money was not recovered, a pistol was found near the scene of arrest. This pistol was identified at trial by the victim as the gun used in the robbery. Defendant’s accomplice testified that the robbery was defendant’s idea, that defendant drove them to the crime scene, that the victim did indeed give up his money, and that he, the accomplice, gave the money to defendant. A rational trier of fact could have found the essential elements of the crime of armed robbery beyond a reasonable doubt.

This assignment lacks merit.

Assignment of Error No. 6

By this assignment defendant contends that the trial court erred in denying his motion for a new trial based upon newly discovered evidence.

Defendant contends that after trial he discovered a plea bargain arrangement between the state and his accomplice, by which the accomplice would receive a lenient sentence in exchange for his plea and testimony at trial. He argues that had the jury been informed of this matter, a different verdict would have resulted. In any event, he claims he was deprived of an opportunity to effectively cross-examine a key state witness by the too late disclosure of the plea bargain.

At the hearing on the motion for a new trial conducted March 23, April 3 and April 13, 1981, defendant presented testimony indicating that his accomplice did in fact get a lenient sentence for a plea and an agreement to testify for the state. Defendant received a sentence of sixty years at hard labor; his accomplice was sentenced to five years probation.

An examination of the record reveals, however, that defendant or his counsel should have been aware of the accomplice’s plea arrangement at trial. This matter was first brought out on direct examination, at which time the accomplice admitted he pleaded guilty and received a sentence of five years probation. On cross-examination defense counsel merely asked defendant’s accomplice, “How did you get probation?” The accomplice replied that all he knew was “they gave me five years.”

We find that defendant has failed to show that the evidence was not discoverable before or during trial by the exercise of due diligence on his part.

This assignment lacks merit.

For these reasons, the conviction and sentence are affirmed.

       Judges Grover L. Covington, Luther F. Cole and J. Louis Watkins, Jr. of the First Circuit participated in this decision as Associate Justices Ad Hoc, joined by Chief Justice Dixon and Associate Justices Marcus, Blanche and Lemmon.

      . Defendant assigned five errors, but having f¿iled to brief or argue Assignments of Error Nos. 1 and 3 we consider them to be abandoned. Defendant also filed a pro se brief urging an additional error which we will treat as Assignment of Error No. 6.

      . C.Cr.P. 851 provides in pertinent part:
      “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:

      (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.”


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Robert HICKS.
    No. 80-KA-2953.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
    Rehearing Denied Nov. 16, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, Patrick Leitz, Asst. Dist. Attys., for plaintiff-appellee.
    Robert Garrity, New Orleans, of Indigent Defender Bd., Robert E. Lee, Gretna, for defendant-appellant.
   CALOGERO, Justice.

Defendant, Robert Hicks, was charged by grand jury indictment with the aggravated rape of his eleven year old stepdaughter, in violation of R.S. 14:42. A jury found him guilty as charged and the trial court sentenced him to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. The defendant moved for a new trial based essentially upon newly discovered evidence, alleging that he had not received an exculpatory medical report from the state prior to trial. The trial judge denied the motion, finding that the report was not so exculpatory as to warrant a new trial. In effect, the trial judge concluded that the evidence was not such that it would likely have prompted the jury to reach a different verdict.

On appeal, defendant urges four assignments of error, the second, third, and fourth of which were submitted by supplemental brief. The assignments are: (1) the trial court should have granted a new trial since the medical report was previously unavailable and was exculpatory in nature; (2) the state’s case worker consented to the victim’s medical examination in place of her parents or legal guardian, in contravention of R.S. 40:1299.40 and R.S. 40:1299.53; (3) the victim should have been allowed to visit with her mother alone away from the foster home, while defendant was in jail awaiting trial; and (4) defendant’s attorney, now deceased, should have objected to the victim’s being allowed to testify in open court. Upon review, we find none of these assignments have merit. Since the second, third and fourth assignments involve legal issues governed by clearly applicable principles of law, we have discussed and disposed of them in an appendix attached to this opinion which remains a public record of this Court but which is not to be published in the Southern Reporter.

Pertinent to the first assignment of error, La.C.Cr.P. art. 851 provides in part:

.. . [t]he court, on motion of the defendant, shall grant a new trial whenever . . . (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.. . .

In reviewing defendant’s assignment of error directed to denial of defendant’s motion for a new trial in this case, we first consider whether the defendant could have discovered the evidence with the exercise of reasonable diligence before or during trial. The state’s response to the relevant portion of defendant’s motion for discovery was “See attached reports.” Whether such reports were attached is disputed but the transcript of the sentencing hearing on March 19,1980 reveals that the judge was satisfied that the defendant had received all the material that he had requested prior to trial. Furthermore, even assuming that the state had not attached the medical report to their response to defendant’s discovery motion, counsel had ample opportunity to pursue the matter far in advance of trial either by communication with the district attorney’s office or by protesting at the court hearing on this matter scheduled for December 13, 1979.

Secondly, as to the nature of the material itself, the trial judge in denying the motion for a new trial found that the exculpatory material in the medical report would probably not have changed the verdict. With this opinion, we agree. The report would have been useful to the defense. The friend who reported the claim to the authorities maintained that the victim’s vagina and anus appeared swollen. The doctor who examined the victim the next day, apparently did not confirm that finding. And the doctor presumably discovered that the victim still possessed an unbroken hymen, a finding inconsistent with vaginal intercourse, although it did not preclude the possibility of slight penetration. R.S. 14:42. This evidence does not establish that there might not have been slight penetration. More importantly, however, it does not contradict the evidence of anal intercourse and, of course, anal intercourse fits the definition of aggravated rape. As we set forth in State v. Shannon, 388 So.2d 731, 734 (La.1980), it is well settled that “[t]he test for whether a new trial should be granted [under La.C.Cr.P. art. 851(3)] is not simply whether another jury might bring a different verdict, but whether the new evidence is so material that it ought to produce a different result than the verdict reached.” So, besides the defense deficiency on the exercise of reasonable diligence, we agree with the trial judge that even had the medical report been presented as evidence, it was not so material that it ought to produce or would have produced a different result.

Decree

For the foregoing reasons, we find that the trial judge ruled correctly when he denied the motion for a new trial. We affirm defendant’s conviction and sentence.

AFFIRMED.

      . As part of his oral reasons to deny defendant’s motion for a new trial, the trial judge said: “... this alleged crime allegedly occurred on September 5, 1979 and the victim was not examined until October 24, 1979, and in addition the alleged intercourse in this case was anal and there is no conclusive evidence in the report of an anal intercourse.”

      . V. Does the State have in its possession, custody, control or knowledge any results or reports or copies thereof of physical or mental examination and of scientific tests or experiments made in connection with or material to this case which the District Attorney intends for use at trial or which is exculpatory in nature? If so, defendant moves to require the state to allow defendant to inspect and copy, photograph or otherwise reproduce the results or reports of examinations and tests.

      . On this question, the trial judge said at the defendant’s sentencing hearing:
      On December 6, 1979, various discovery motions were filed by counsel for the defendant and they were taken up by the Court, and counsel for the defendant advised that he was satisfied with the District Attorney’s answer to the discovery motion except for number five, ... It states, the answer is: See attached reports. Then the Court stated, “Would you see that he gets the attached reports?” Mr. Grosz said, “Yes, Your Honor. There is reference in my file to certain medical reports, that certainly Mr. Loop is entitled to under the Criminal Procedure, and I will provide them to him as soon as the police bring them over. I called the police and asked them to get them over as soon as possible.” Now, Mr. Grosz testified that he delivered them to Mr. Loop, presumably after he received them from the police. Mr. Loop has denied receiving them. However, on December 6, 1979, there is a minute entry which says, “Motion for reduction of bond, matter heard and submitted, denied. The pending motions for discovery, Bill of Particulars and production are satisfied with the exception of number five after viewing the DA’s file. Hearing on number five of motion is continued to December 13, 1979 . . . . ”
      Now, the December 13, 1979 minute entry states, “The defendant Robert D. Hicks did not appear before the bar of the Court this date for hearing. He was unrepresented. The Court advised that motions for discovery, Bill of Particulars and production of number five is satisfied by phone call to Court by defense counsel. Trial is continued to January 14, 1980. Now, I know that I wouldn’t have said anything unless I did receive such a phone call . . . . ”

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


text:
    Succession of Felix Anthony RIGGIO.
    No. 81-C-0931.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
    Rehearing Denied Nov. 16, 1981.
    Iddo Pittman, Jr., Hammond, for plaintiff-applicant.
    Timothy R. Higgins, Hammond, for defendant-respondent.
   CALOGERO, Justice.

Relators in this Court, nine of the ten children of Felix Anthony Riggio, challenge the holding of the trial court, which was affirmed by the Court of Appeal, that their father possessed testamentary capacity on March 31, 1976, the date of execution of a statutory will.

Felix Anthony Riggio died in a nursing home in Tangipahoa Parish on May 29, 1978, at 89 years of age. Mr. Riggio had been married only once and his wife predeceased him. Ten children were born during the marriage and are the parties to the present litigation.

On April 6, 1979, Anna Riggio Cannizza-ro, one of the relators herein, petitioned to be appointed administratrix of her father’s estate, alleging that he had died intestate. She was appointed. On June 18, 1979, Mrs. Cannizzaro and the other relators filed suit against Peter Riggio, the remaining child. The suit alleged that Peter Riggio had already received his full share of the father’s estate as a donation inter vivos when the father sold an acre of land and gave the proceeds to the son. Plaintiffs thus sought collation.

Peter Riggio filed an answer and a recon-ventional demand in which he alleged that he had possession of a last will and testament of his father dated March 31, 1976. The plaintiffs (defendants in reeonvention) challenged the validity of the will, claiming that Mr. Riggio lacked testamentary capacity on the date of the will. The trial court found that the testator possessed the requisite mental capacity and ordered that a proper petition for the probate of the will be thereafter filed. Although it reversed one portion of the trial court judgment not pertinent to this opinion, the Court of Appeal affirmed the aforementioned holdings of the trial court and remanded the case. From that decision, plaintiffs applied to this Court and we granted a writ of certiorari to review the findings of the courts below. 399 So.2d 619 (La.1981).

Mr. Riggio suffered a stroke on October 10, 1975. As a result of the stroke he entered a nursing home and resided there until his death except for a brief interval when he was being treated by an orthopedic surgeon for a fractured hip. Dr. Thames, Mr. Riggio’s family physician of long standing, testified concerning the health of his patient. According to the doctor, Mr. Rig-gio had recurrent mild strokes and developed what the doctor termed “chronic brain syndrome” where “he was not really himself.” On cross-examination, the doctor stated that, although people with this condition do have a very few lucid intervals during which they may remember a person visiting, “five minutes later they don’t ever know that you have ever been there.”

Regarding depositions scheduled for March 31, 1976, during the succession proceeding for Mr. Riggio’s deceased wife, Dr. Thames had certified that Mr. Riggio was “totally unable to care for himself and [was] physically and mentally incapable of giving a deposition or testifying in Court in any legal matter.” The doctor signed this certificate on March 31, 1976, by coincidence the same date as the will being challenged in the instant suit.

In the trial court proceedings in the case before us, the doctor testified that he had no reason to change his mind concerning Mr. Riggio’s condition on March 31, 1976: that he was still of the opinion that Mr. Riggio had been incapable of giving a deposition or testifying on that date. The doctor said that he did not know whether in a legal sense Mr. Riggio had the capacity to make a will on that date, but that it was his opinion that medically Mr. Riggio lacked the mental capacity to do so.

Although Dr. Thames stated that he did not know exactly when he had seen Mr. Riggio before March 31, 1976, he emphasized that he saw all nursing home patients at least once a month. He also stated that it was usually the latter part of the month when he visited the patients in the nursing home where Mr. Riggio was confined.

Mr. Riggio’s daughter, Anna, testified that she had seen her father three times at the nursing home on March 31,1976, and he was unable to recognize her. She further testified that her father did not mention making a will that day or that he was going to do so that day or that he was interested in making a will. On cross-examination, she admitted that previously she had stated that her father retained his mental capacity, but explained that this statement was made while her father was still alive and that she did not wish to embarrass him by informing people of his deficient mentality. Additionally, Anna said that shortly before his death, over two years after the March 31, 1976, will in contest, her father expressed a desire to make a will and that she dissuaded him by explaining that a will was not needed because his property was clear of debt and his children would share his property anyway. To this recommendation, her father did not retort by advising that he had made an earlier will.

The will at issue left a two-thirds interest of the testator’s property (the legitime) to be divided equally among his ten children. A one-third interest was bequeathed to the “grandson who bears my name, Felix Anthony Riggio.” Opponents of the will introduced into evidence the suit of Mr. Riggio against a grandson, Felix Anthony Riggio, in which Mr. Riggio obtained a judgment voiding and cancelling a purported cash deed of his property to that grandson. The petition had alleged fraud and duress in the transaction. This grandson is the son of Peter Riggio who is the defendant in the instant suit. There is another grandson who is named Felix Anthony Riggio, son of one of Mr. Riggio’s children who is aligned with eight of his brothers and sisters as plaintiffs in this case.

The proponents of the will offered no live testimony at the hearing. They did introduce into evidence an affidavit by the notary and one witness before whom the will was executed. This affidavit, however, does not address the testamentary capacity of Mr. Riggio. The affiants only state that the document in evidence is the will executed and that they are respectively the notary and witness on the document. The proponents of the will also offered into evidence, in support of their contention that Mr. Riggio had acceptable mental capacity, a deposition given by Mr. Riggio on March 22,1978, almost two years after the date of the will under challenge. They point to the questions and Mr. Riggio’s answers in the transcript of the deposition as evidence of soundness of mind on that day in March 1978. While this may not be indisputable evidence regarding sound mental capacity in March 1978, and certainly is not directly pertinent to soundness of mind on March 31,1976, Mr. Riggio’s responses in that deposition were pertinent and indicated a memory of past events.

“To make a donation either inter vivos or mortis causa, one must be of sound mind.” LSA-C.C. art. 1475. Testamentary capacity is tested as of the moment at which the donation is made. LSA-C.C. art. 1472. Testamentary capacity is presumed and the burden of establishing the contrary is on the party attacking the will. Succession of Schmidt, 219 La. 675, 53 So.2d 834 (1951). It is settled law that this presumption continues until destroyed by cogent, satisfactory and convincing evidence. Succession of Mithoff, 168 La. 624, 122 So. 886 (1929); Succession of Schmidt, supra. Obviously, it is because proponents of any will have a presumption of sanity going in, that opponents, in order to have their evidence preponderate, must bear the burden of establishing lack of testamentary capacity with clear and convincing evidence.

On the record as presented to us, we would be inclined to find that opponents of the will have carried the burden of proving by clear and convincing evidence that Mr. Riggio was not of sound mind on March 31, 1976, when he made the will. Probably the deciding factor in that determination would be the absence of testimony by the notary public and the two witnesses of the statutory will, the persons most likely to have a direct, and perhaps impartial, assessment of the testator’s condition at the time of the confection of the will. Furthermore, it seems that proponents of the will should have presented the testimony of the notary and two witnesses on the will, if not because failure to call them raises a presumption that their testimony would be unfavorable (Fried et al. v. Bradley, et al., 219 La. 59, 52 So.2d 247 (1950), (on rehearing 1951); Succession of Yeates, 213 La. 541, 35 So.2d 210 (1948)), then at least to show that it was executed during a lucid interval.

We decline, however, to make a definitive ruling concerning the mental capacity of the testator because of the possible confusion as to what issues were being tried. The matter before the court was a rule to remove the administratrix. Counsel for plaintiffs and the trial judge discussed concurrence of the parties to try all issues in the lawsuit. And, while defendant’s attorney made somewhat conflicting responses, he did ultimately object to the proceedings.

Additionally, this case reaches us in an unorthodox posture. The will under contest was not and has not yet been probated. Article 2887 of the Code of Civil Procedure permits, in connection with the probate of a statutory will, proof by the testimony of the notary and one of the two witnesses in the form of an affidavit executed after the death of the testator and before a notary and two witnesses unless the court in its discretion requires the person to appear and testify orally. Furthermore, this provision does not apply to testimony with respect to the genuineness of the will that is judicially attacked. The import of that article applied to a case such as this is surely that the judge should require the testimony of the notary and witness or witnesses in open court before he determines to probate a will where the soundness of mind of the testator is at issue.

In this case, the Court of Appeal properly noted that the will had not been probated and therefore remanded for probate. Under these circumstances, it is certainly premature to have decided the issue as to the mental capacity of the testator. Additionally, an appellate court may render whatever judgment is just, legal and proper upon the record on appeal. LSA-C.C.P. art. 2164.

We believe, for all of these reasons, that justice is best served by remanding this case for probate of the purported statutory will of Mr. Riggio without prior final determination of his mental capacity on the occasion of the will’s confection. That testamentary capacity, or lack thereof, can be determined in contradictory proceedings in connection with probate of the will.

Decree

For the foregoing reasons, we vacate the holding of the Court of Appeal to the effect that Mr. Riggio was of sound mind at the time of the confection of the March 31, 1976, will and remand the case to the trial court for further proceedings consistent with the views expressed herein.

VACATED AND REMANDED.

WATSON, J., dissents.

      . Other issues in the suit in the lower courts are not before us.

      . 395 So.2d 361 (La.App. 1st Cir. 1981).

      . Once the doctor stated that Mr. Riggio was incompetent, while admitting the possibility of lucid intervals, defendant should have rebutted with testimony of witnesses who could show that he was lucid.