author: BOARDMAN, Judge.

text:
    STATE of Florida, Appellant, v. Ronald COPHER, Richard Copher, and Robert Copher, Appellees.
    No. 80-959.
    District Court of Appeal of Florida, Second District.
    March 25, 1981.
    Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellant.
    Richard G. Pippinger of Barry A. Cohen, Tampa, for appellees.
   BOARDMAN, Judge.

The State of Florida appeals the dismissal of the informations against appellees Ronald, Richard, and Robert Copher. We affirm in part and reverse in part.

The first point raised by the state is that the trial court erred in dismissing the charge of sale of a motor vehicle with an altered or destroyed motor number, in violation of section 319.33(l)(d), Florida Statutes (1977). Section 319.33(l)(d) provides:

(1) It is unlawful:
(d) To sell or offer for sale in this state a motor vehicle on which the motor number or manufacturer’s serial number has been destroyed, removed, covered, altered, or defaced with knowledge of such destruction, removal, covering, alteration, or defacement of said motor number or manufacturer’s serial number.... (Emphasis added.)

The charging language in the informations filed against appellees tracked the language of the statute alleging that they

did sell or offer for sale a motor vehicle, to-wit: [sic] a 1974 Pontiac Grand Prix motor vehicle, Identification number 2K57T4A149810, on which the motor vehicle or manufacturer’s serial number has been destroyed, removed, covered, altered, or defaced with knowledge of such destruction, removal, covering, alteration, or defacement of said motor number or manufacturer’s serial number

Appellees moved to dismiss this charge on the ground that the informations failed to allege the essential element of intent to defraud, which, appellees urged, was implicitly required in order to distinguish a violation of section 319.33(l)(d), a felony, from the misdemeanor of a violation of section 320.33, which provides:

It is unlawful for any person to knowingly buy, sell, receive, dispose of, conceal or have in his possession any motor vehicle from which the manufacturer’s serial number or any other distinguishing number or identification mark has been removed, defaced, covered, altered, or destroyed for the purpose of concealment or misrepresenting the identity of the said motor vehicle. (Emphasis added.)

The trial court rejected this contention, and we agree. As we read section 319.33(l)(d), this statute requires only knowledge of the alteration or destruction of the motor number. No specific intent to defraud is required, and there are reasons other than the deterrence of fraud which may have impelled the legislature to enact this statute. One such reason is illustrated by section 320.33, which requires the specific intent to conceal or misrepresent the identity of the motor vehicle. It is ironic that section 320.33, which proscribes, inter alia, the same conduct proscribed in section 319.33(l)(d), requires a specific intent not required under section 319.33(l)(d), yet imposes a less harsh penalty than section 319.-33(l)(d); however, it is not our function to question the wisdom of our legislature. Austin v. Wainwright, 305 So.2d 845 (Fla. 4th DCA 1975), and Caves v. State, 302 So.2d 171 (Fla. 2d DCA 1974), cert denied, 314 So.2d 585 (Fla.1975), both of which involved the felony automobile theft statute versus the misdemeanor temporary unauthorized use statute, and upon which appel-lees rely, are not on point.

Having concluded that section 319.-33(l)(d) does not require a specific intent to defraud, the trial court nevertheless granted appellees’ motions to dismiss on the ground that where a defendant’s conduct constitutes a violation of two separate statutes which proscribe the same conduct, the defendant is entitled to be charged with a violation of the statute carrying the lesser penalty. Not so. The law in this state is to the contrary.

The rule has always been that where two statutes proscribe the same conduct, the decision as to which statute to prosecute under is left to the prosecutor’s discretion. Soverino v. State, 356 So.2d 269 (Fla.1978); Fayerweather v. State, 332 So.2d 21 (Fla.1976); Crews v. State, 366 So.2d 117 (Fla. 1st DCA), cert. denied, 376 So.2d 70 (Fla.1979); State v. Harris, 334 So.2d 674 (Fla. 2d DCA 1976). In Hutcherson v. United States, 345 F.2d 964, 967 (D.C.Cir.), cert. denied, 382 U.S. 894, 86 S.Ct. 188, 15 L.Ed.2d 151 (1965), the court stated:

Hutcherson’s next contention is that he was denied due process because he was indicted and convicted under federal statutes instead of under the D.C. Code. His point is that the offenses denounced by the federal and local statutes are identical and that he was entitled to be prose-euted under the latter because the penalty for violating it is less severe than that provided by the federal statute. The theory is untenable. A defendant has no constitutional right to elect which of two applicable statutes shall be the basis of his indictment and prosecution. That choice is to be made by the United States Attorney. This was aptly stated by the Fifth Circuit in Deutsch v. Aderhold, Warden, 80 F.2d 677, 678 (1935):
“The United States attorney of the district where a violation of a federal statute occurs is charged with the duty of prosecution and vested with complete control over the proceedings, in the exercise of sound discretion. If the facts show a violation of two or more statutes, he may elect under which he will prosecute, in the absence of a prohibitory statute. * * * ”

There being no prohibitory statute here, the prosecutor acted within his discretion in charging appellees under section 319.33(1).

The second issue before us is whether the trial court erred in dismissing a second count that charged appellee Robert Copher with making a false statement in a bill of sale on a motor vehicle, in violation of section 319.33(l)(e), Florida Statutes (1977), in that he “did make a false statement in a bill of sale for a motor vehicle, to-wit: [sic] did state a 1974 Pontiac Grand Prix motor vehicle, Identification number 2K57T4A149810, was a 1977 Pontiac motor vehicle, Identification number ID2J57Y7AB5140.” Section 319.33 provides:

(1)It is unlawful:
(a) To alter or forge any certificate of title to a motor vehicle or any assignment thereof or any cancellation of any liens on a motor vehicle;
(b) To hold or use such certificate, assignment, or cancellation knowing the same to have been altered or forged;
(c) To procure or attempt to procure a certificate of title to a motor vehicle, or pass or attempt to pass a certificate of title or any assignment thereof to a motor vehicle, knowing or having reason to believe that, such motor vehicle has been stolen.
(d) To sell or offer for sale in this state a motor vehicle on which the motor number or manufacturer’s serial number has been destroyed, removed, covered, altered, or defaced with knowledge of such destruction, removal, covering, alteration, or defacement of said motor number or manufacturer’s serial number;
(e) To use a false or fictitious name, give a false or fictitious address, or make any false statement in any application or affidavit required under the provisions of this law or in a bill of sale or sworn statement of ownership or otherwise commit a fraud in any application.
(2) It is unlawful for any person knowingly to obtain goods, services, credit, or money by means of an invalid, duplicate, fictitious, forged, counterfeit, stolen, or unlawfully obtained certificate of title, registration, bill of sale, or other indicia of ownership of a motor vehicle.
(3) It is unlawful for any person knowingly to obtain goods, services, credit, or money by means of a certificate of title to a motor vehicle, which certificate is required by law to be surrendered to the Department of Highway Safety and Motor Vehicles.
(4) It is unlawful for any person knowingly and with intent to defraud to have in his possession, sell, offer to sell, counterfeit, or supply a blank, forged, fictitious, counterfeit, stolen, or fraudulently or unlawfully obtained certificate of title, registration, bill of sale, or other indicia of ownership of a motor vehicle, or to conspire to do any of the foregoing.
(5) Any person who violates any provision of this section shall be guilty of a felony of the third degree... . (Emphasis added.)

Robert urged dismissal of this count on the ground that the information did not allege intent to defraud, which, on the face of the applicable statute, is an essential element of the offense. The trial court agreed, pointing out that to construe the statute otherwise would mean that anyone who accidentally included incorrect information in a bill of sale would be guilty of violating the statute.

We agree with the trial court’s reasoning and with its conclusion on this issue. As the trial court noted, an unintentional typographical error in a motor vehicle identification number or the street number of the seller’s address would result in a factually false statement, and under the state’s interpretation of section 319.33(l)(e), subject the seller to criminal felony liability. We are extremely reluctant to presume that our legislature intended to impose such a harsh penalty for an honest mistake.

Furthermore, a careful reading of the entire statute discloses a contrary intent. Although the itemization of specific falsities proscribed does not include the requirement that they be perpetrated with fraudulent intent, the catchall provision, “or otherwise commit a fraud,” (emphasis added) implies that the specifically proscribed false statements must also be made with intent to defraud; there is no other explanation for the inclusion of the word “otherwise” in this phrase. Our conclusion is bolstered by the fact that all but one other subsection of this statute includes knowledge or knowledge and intent to defraud as an element of the proscribed offense. The single exception is subsection (l)(a), which prohibits alteration or forgery of a certificate of title or a lien cancellation. Inclusion of a knowledge requirement in this subsection would have been superfluous, since forgery and alteration cannot be done unintentionally. We therefore construe section 319.33(l)(e) to include intent to defraud as an element of the offense proscribed.

Since an information must allege each of the essential elements of a crime to be valid, State v. Dye, 346 So.2d 538 (Fla.1977), the trial court correctly dismissed the second count against Robert Copher.

Accordingly, the trial court’s orders granting the motions to dismiss of appellees Richard and Ronald Copher are reversed; the order granting appellee Robert Copher’s motion to dismiss is affirmed in part and reversed in part; and the cause is remanded for further proceedings consistent with this opinion.

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

      . Section 319.33(5) provides in pertinent part: “Any person who violates any provision of this section shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.”

      . Section 320.57 provides: “Any person convicted of violating any of the provisions of this chapter shall, unless otherwise provided herein, be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.”


source: Caselaw Access Project

author: DANAHY, Judge.

license: Public Domain

text:
    G. D. W., a child, Appellant, v. STATE of Florida, Appellee.
    Nos. 80-383 and 80-1131.
    District Court of Appeal of Florida, Second District.
    March 25, 1981.

      Jerry Hill, Public Defender, and Douglas A. Lockwood and Geoffrey Foster, Asst. Public Defenders, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and G. P. Waldbart and Michael A. Palecki, Asst. Attys. Gen., Tampa, for appellee.
   DANAHY, Judge.

Appellant is a juvenile who was charged with the commission of four armed robberies. After the delinquency petitions were filed, the state attorney moved to transfer the cases to the adult division of the circuit court. After conducting a hearing on the motion, the court entered an order transferring appellant for prosecution as an adult. Although the order stated that the judge had considered the criteria for transfer established by section 39.09(2)(c), Florida Statutes (1979), the order did not contain specific findings of fact concerning each of those criteria. The juvenile immediately appealed the transfer order contending that the court was required in its written order to address each of the factors enumerated in section 39.09(2)(c).

During the pendency of that appeal, appellant pled nolo contendere to the charges. The judge presiding in the adult division of the court sentenced appellant as an adult; however, he failed to execute written findings addressing the criteria for imposing adult sanctions enumerated in section 39.-lll(6)(c), Florida Statutes (1979). Appellant appealed the sentence alleging that the omission constituted reversible error.

Appellant’s motion to consolidate the appeals was granted. In both cases we agree that the trial court erred in failing to formally adhere to the safeguards mandated in chapter 39. However, because the improper transfer alone precluded appellant from being treated as an adult, we believe that further discussion of the sentencing order is unnecessary.

Section 39.09(2)(e) provides as follows:

Any decision to transfer for criminal prosecution shall be in writing and shall include consideration of, and findings of fact with respect to, each of the foregoing criteria. The court shall render an order including a specific finding of fact and the reasons for a decision to impose adult sanctions. The order shall be reviewable on appeal pursuant to s. 39.14 and the Florida Appellate Rules.

The criteria alluded to in that subsection of the statute obviously refers to the factors listed in subsections 1-8 of section 39.-09(2)(c). The statute clearly requires that a trial court judge make findings of fact concerning each of those criteria in the written order. This requirement reflects the stated legislative purpose in the Florida Juvenile Justice Act, that “all findings made under this chapter be based upon facts presented at a hearing that meets the constitutional standard of fundamental fairness.” § 39.-001(2Xe), Fla.Stat. (1979). The requirement unquestionably is meant to facilitate intelligent appellate review. Accord, Woods v. State, 369 So.2d 632 (Fla. 4th DCA 1979). The requirement coincides with the procedures mandated by the Florida Rules of Juvenile Procedure.

Because the trial court failed to make the required findings, we must conclude that the transfer order does not comply with the statute. Accordingly, we vacate appellant’s sentence and remand the case to the juvenile division for the entry of an appropriate order transferring the juvenile and, if the court deems necessary, for a further hearing on the motion to transfer.

HOBSON, Acting C. J., and OTT, J., concur.

      . We are aware that a conflict exists concerning the propriety of a direct appeal from an order transferring a juvenile. R.J.B. v. State, 394 So.2d 126 (Fla. 5th DCA 1980), and G.A. v. State, 391 So.2d 720 (Fla. 1st DCA 1980). While G.A. appears to represent the better approach, the instant case does not require that we align ourselves with either position. Rather, under the particular facts presented here, the appellant’s argument concerning transfer has been considered as a second point in his appeal from the final judgment and sentence.

      . In Johnson v. State, 371 So.2d 556 (Fla. 2d DCA 1979), we held that when a trial judge sentences a transferred juvenile after adult prosecution and conviction, the judge is required to consider and make written findings of fact on the specific criteria contained in section 39. Ill (6)(c) together with the reasons for the imposition of adult penalties. See also Stallins v. State, 385 So.2d 1171 (Fla. 2d DCA 1980); Murray v. State, 382 So.2d 765 (Fla. 2d DCA 1980); Proctor v. State, 373 So.2d 450 (Fla. 2d DCA 1979).

        .Rice v. State, 311 So.2d 193 (Fla. 2d DCA 1975), held that absent a proper transfer from the juvenile to the adult division, the court was without authority to impose adult sanctions.

      . Fla.R.Juv.P. 8.150(b) and 8.160(c).


author: SCHEB, Chief Judge.

text:
    Debra S. JOHNSON, Appellant, v. Danny P. JOHNSON, Appellee. Evelyn Aasen RIGGS, Appellant, v. Paul W. RIGGS, Appellee.
    Nos. 80-1779, 80-1778.
    District Court of Appeal of Florida, Second District.
    March 25, 1981.
    Geraldyne H. Carlton, of Carlton & Carlton, P. A., Lakeland, and Robert C. Miller, Bradenton, for appellants Johnson and Riggs.
    John D. Pettigrew, Palmetto, and Douglas A. Wallace, Bradenton, for appellees Johnson and Riggs.
   SCHEB, Chief Judge.

Petitioners each seek a writ of certiorari.

Prior to entry of the challenged orders, the trial court had entered final judgments of dissolution of marriages in each of these cases. It had dissolved the Johnson marriage on April 19,1977, and the Riggs marriage on February 23, 1976.

In the Johnson case the former husband signed a stipulation agreeing to support the minor child born during the marriage. In the Riggs case the former husband entered into a property settlement agreement with his former wife in which he agreed to pay child support for the minor child born during that marriage. The court approved both the stipulation and the property settlement agreement and awarded child support in each case. Neither judgment was appealed.

In 1979 each of the former wives filed a petition for enforcement of child support. Each husband responded by requesting the court to order his former wife and her child to submit to physical examinations to determine their blood types. The husbands were attempting to exclude themselves as the fathers of the children on the basis of the newly developed Human Leukocyte Antigen blood test. On August 28, 1980, the trial court, in each case, ordered the wife and child to submit to physical examinations.

Each of the wives now seeks a writ of certiorari on the ground that the court departed from the essential requirements of law in ordering her and her child to submit to physical examinations to determine paternity more than three years after the judgment of dissolution. We agree.

If a husband has doubts concerning the paternity of a child born during the marriage, he should raise and resolve that question during the dissolution proceedings. Here, the issue of each child’s paternity was resolved in the final judgments of dissolution. Those judgments are res judicata inasmuch as they involved an identity of causes of action and parties and involved the same issue as the husbands now attempt to relitigate. De Weese v. Unick, 102 Cal.App.3d 100, 162 Cal.Rptr. 259 (1980); see Matthews v. Matthews, 133 So.2d 91 (Fla.2d DCA 1961). Therefore, the final judgments bar any redetermination of the paternity of either child.

Recently, scientific advances have provided an additional method to assist courts in determining paternity. The husbands correctly state that Human Leukocyte Antigen blood tests are now admissible in paternity litigation. McQueen v. Stratton, 389 So.2d 1190 (Fla.2d DCA 1980); Carlyon v. Weeks, 387 So.2d 465 (Fla. 1st DCA 1980). Nevertheless, this does not authorize a court to reopen proceedings and relitigate matters previously resolved. To allow former husbands to come into court long after entry of final judgment and challenge the legitimacy of children born during their marriages would be chaotic at best. In addition, to require former wives and their children to submit to blood tests would, in many instances, be a humiliating experience for them.

Accordingly, we vacate the orders entered in these consolidated cases and remand to the trial court for further proceedings consistent with this opinion.

OTT and RYDER, JJ., concur.


author: PER CURIAM.

text:
    James WESTERMAN and Judy R. Westerman, his wife, d/b/a Classic Marble, Appellants, v. POLYGARD, INC., Appellee.
    No. 80-1638.
    District Court of Appeal of Florida, Second District.
    March 25, 1981.

      Robert F. Welker, Temple Terrace, for appellants.
    Michael Sierra of Michael Sierra, P. A., Tampa, for appellee.
   PER CURIAM.

Appellants, defendants below, appeal from a summary judgment entered for the plaintiff.

Plaintiff, Polygard, filed a two-count complaint alleging that appellants James and Judy Westerman, husband and wife, were indebted to plaintiff on an open account and an account stated. Appellants contend that their affidavits and depositions raise an issue of material fact relating to the capacity in which the defendants did business with plaintiff at the time of the transactions. We agree and reverse.

While not wishing to discourage the use of summary judgments in appropriate cases, we must, as always, however, begin our consideration with the rule that a court may grant summary judgment only when the pleadings, discovery and affidavits on file affirmatively demonstrate that there are no genuine issues of material fact left to be decided in the case. Hammond v. Bicknell, 379 So.2d 680 (Fla.2d DCA 1980).

Here, the affidavits and depositions of appellants indicate that they never did business with Polygard individually but only in a corporate capacity. The appellants’ assertions were not traversed by appellee.

Accordingly, we reverse the judgment of the court and remand the case for further proceedings consistent with this opinion.

BOARDMAN, Acting C. J., and GRIMES and CAMPBELL, JJ., concur.


text:
    HIGGENBOTHAM REALTY, INC., a Florida Corporation, and Martin E. Higgenbotham, Trustee, Appellants, v. Clifton BROCK, Appellee.
    No. 80-1654.
    District Court of Appeal of Florida, Second District.
    March 25, 1981.

      Victor J. Troiano of Troiano & Roberts, Lakeland, for appellants.
    Samuel G. Crosby of Miller & Sweat, Lakeland, for appellee.
   PER CURIAM.

In a nonjury trial the court awarded Clifton Brock, a registered real estate broker, $67,500 as a commission in connectiqn with sale of a ranch for $675,000. Although Brock did not conclude the sale, the trial court found that he was the procuring cause and that the equitable owners of the property had agreed to pay him a ten percent commission if he effected a sale. See Fearick v. Smugglers Cove, Inc., 379 So.2d 400 (Fla.2d DCA 1980). Higgenbotham Realty, Inc., and Martin Higgenbotham contend the trial court erred in entering judgment for Brock. There was conflicting evidence; however, substantial competent evidence supports the trial court’s finding that Brock was the procuring cause of the sale. Appellants’ other contentions are without merit.

Brock cross-appeals the court’s failure to include prejudgment interest in its award. Since this was a contract action involving a liquidated sum, that is, ten percent of the sale price, the court should have awarded Brock prejudgment interest. Kennedy v. George Cully Real Estate, Inc., 336 So.2d 484 (Fla.3d DCA 1976). See Town of Longboat Key v. Carl E. Widell & Son, 362 So.2d 719 (Fla.2d DCA 1978).

Affirmed in part, reversed in part and remanded for entry of an amended judgment to include prejudgment interest.

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


author: BERANEK, Judge.

text:
    Audrey Jones GRADY, Appellant/Cross-Appellee, v. Joseph Robert GRADY, Husband, Appellee/Cross-Appellant, v. MANUFACTURERS HANOVER TRUST COMPANY, Appellee.
    No. 80-81.
    District Court of Appeals of Florida, Fourth District.
    Feb. 25, 1981.
    Rehearing Denied April 7, 1981.

      Foy B. Fleming and John P. Kelly of Fleming, O’Bryan & Fleming, Fort Lauder-dale, for appellant/cross-appellee.
    William H. Lefkowitz of Ruden, Barnett, McClosky, Schuster & Russell, Fort Lauder-dale, for appellee/cross-appellant.
    Wirth H. Koenig of Greenbaum, Wolff & Ernst, Miami, for appellee.
   BERANEK, Judge.

This is an appeal from a declaratory decree action growing out of a dissolution of marriage proceeding. The parties, Mr. and Mrs. Grady, were married in 1952. On April 30,1963, Audrey’s mother executed a will. At the time the will was signed, Mr. and Mrs. Grady were married with minor children. The will executed by the mother of the wife provided in relevant part as follows:

SIXTH: All the rest, residue and remainder of my estate, wheresoever situate and whatsoever the same may consist of, including real, personal and mixed property, including stocks and bonds which shall be in my name or to which I may be entitled at the time of my death or thereafter, I do hereby give, devise, and bequeath unto MANUFACTURERS HANOVER TRUST COMPANY at 350 Park Avenue, New York 22, N. Y., IN TRUST, for the following uses and purposes:
To hold, manage, control, invest and reinvest the same with the authority hereinafter conferred upon it, and to pay the net income therefrom in quarter-annual payments to my daughter, 'AUDREY JONES GRADY, and her husband, ROBERT GRADY, during the lifetime of AUDREY JONES GRADY. At the death of my daughter, AUDREY JONES GRADY, this trust shall terminate and the corpus remaining in said trust at the date of the death of AUDREY JONES GRADY, together with the increment accrued thereon, shall be distributed and paid to the living issue of my daughter, AUDREY JONES GRADY, share and share alike. SEVENTH: For the purpose of executing the provisions of this, my Last Will and Testament, I hereby grant to my said trustee the following powers:
To encraoch on the principal of said trust and pay such sums as it may deem advisable, in its discretion to AUDREY JONES GRADY and ROBERT GRADY for the purposes of their support, health and general welfare, taking into consideration the standard of living to which my daughter, AUDREY JONES GRADY is accustomed at the time of my death.
NINTH: I hereby name, constitute and appoint my daughter, AUDREY JONES GRADY, to be the executrix of this, my Last Will and Testament, and I do hereby direct that my said executrix shall have full power and authority to sell, mortgage, and dispose of or deal in any way with my estate and the property contained therein in a manner which may seem to my said executrix to be to the best interests of said estate, it being my intention to vest full power and authority in said executrix and the right to exercise such power without any direction or authority of Court, and I do hereby expressly direct that my said executrix shall not be required to give bond.

Nothing is said in the will concerning the effect of a dissolution of the marriage between Mr. and Mrs. Grady upon the provisions of the trust. After the death of the mother-in-law, the income from the trust was paid to the husband and wife by the trustee for a number of years. Eventually, the parties sought dissolution of their mar-, riage and a declaratory decree regarding the effect of the dissolution on the trust. At the request of the parties the trial court considered the matter solely as a question of law and recited in the final judgment that the decision would be made as a question of law without the receipt of any parol evidence. The court concluded that the trust set forth in the last will and testament was clear and unambiguous and not subject to judicial interpretation or construction. The trial court then, in our opinion, proceeded to interpret the trust instrument by holding that upon dissolution of the marriage the former husband and wife would share equally in the income of the trust and that the trustee should pay the income of the trust in quarterly installments to be divided equally between the parties. Despite contrary statements, the court considered and apparently heavily relied upon parol evidence.

We conclude that the court erred in so ruling. Initially, the trust document discloses an obvious intention and overall purpose to benefit the daughter. Reading the instrument as a whole shows the structure of the trust was keyed to the daughter of the testatrix and that the husband was included only as an incident of the marriage. The income clause provided for a joint payment in the nature of a family unit payment. The trust instrument did not provide for a split payment as has now been ordered by the trial court. The trust terminated upon death of the daughter and the corpus was to be distributed to the children of the daughter. The husband received absolutely nothing under the will upon death of the daughter. The invasion of the principal clause provides that the guide for encroachment was the “standard of living to which my daughter, AUDREY JONES GRADY, is accustomed at the time of my death.” This encroachment provision, if construed in accord with the ruling below, would require the trustee to pay equal sums to former husband and daughter to maintain the daughter’s standard of living though the payments to husband would obviously have no effect on the daughter’s standard of living. The trust provides such payments are to be for “their support, health and general welfare.” This is consistent with a payment to the family unit rather than treatment as individual and separate beneficiaries. The daughter was also appointed the sole executrix of the mother’s estate in the same instrument which created the trust. We conclude that the intent of the settlor was contrary to that found by the trial court. See In Re Estate of Wood, 226 So.2d 46 (Fla. 2d DCA 1969), cert. denied, 232 So.2d 181 (Fla.1969). Also see Roberts v. Mosely, 100 Fla. 267, 129 So. 835 (1930).

The husband/appellee states his former mother-in-law had given large individual stock gifts to each of them and that she also gave him a 46-foot yacht, an extravagant present. Husband contends these gifts support the inference that decedent intended to benefit him in establishing the trust. He argues his mother-in-law had always been generous with him and urges this was reasonable because the wife was not the natural child of the decedent. Certainly the individual rather than joint stock gifts strongly support this position. We do not, however, choose to rely upon these gifts made before the settlor’s death. The relevance of these arguments by husband escapes us in light of his strong position at trial that parol evidence was not to be considered. The answer filed by husband and his position before the trial court are diametrically opposed to his present appellate argument that “since she gave me stock and a yacht she obviously intended to make me an individual beneficiary of the trust.” At trial it was asserted parol evidence should not be considered.

The trial court should not have relied upon this evidence as bearing on the set-tlor’s intent while at the same time disavowing the need to consider anything outside the four corners of the document.

Appellee relies on State ex rel. Kuehmsted v. Hewitt, 103 Fla. 1177, 138 So. 778 (1932). Although relevant, we do not consider it controlling on the issues here presented. The Kuehmsted case held that where a wife dies leaving a will devising property to her husband who is both named and described as “the husband” then he takes as a named beneficiary and the word “husband” is merely descriptive. Under the Kuehmsted rationale a divorce subsequent to a will does not affect a devise to a specifically named spouse. This rule has been effectively done away with by statute. Section 732.507, Florida Statutes (1979), formerly Section 731.101, Florida Statutes (1973), provides that dissolution of marriage voids a prior will as to the divorced spouse. We recognize that the statute is not technically applicable here since the devise in not between husband and wife, however; Kuehmsted can not be viewed as a binding precedent in view of this legislative change. Our review of the trust in question convinces us that the intent was to benefit the family unit rather than to make appellee a specifically named beneficiary.

We thus find error in the interpretation of the trust as indicated above. We also conclude the court erred in reserving jurisdiction regarding partition of certain jointly held real estate between the parties because there was no basis in the pleadings for this reservation of jurisdiction. The judgment below is reversed and the cause remanded for further proceedings which may include amendments to the pleading and a further hearing including the presentation of evidence.

REVERSED AND REMANDED.

MOORE and GLICKSTEIN, JJ., concur.

      . Florida Air Conditioners Inc. v. Colonial Supply Co., 390 So.2d 174 (Fla. 5th DCA 1980).


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

text:
    STATE of Louisiana v. Jay Dennis GOULD.
    No. 67286.
    Supreme Court of Louisiana.
    Oct. 6, 1980.
    On Rehearing Feb. 4, 1981.
    Rehearing Denied March 20, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Judith Lom-bardino, Asst. Dist. Attys., for plaintiff-ap-pellee.
    J. Michael Johnson, Thomas P. Anzelmo, Sr., McGlinchey, Stafford & Mintz, New Orleans, for defendant-appellant.
   MARCUS, Justice.

Jay Dennis Gould was charged by bill of information with armed robbery in violation La.R.S. 14:64. After trial by jury, defendant was found guilty as charged and sentenced to serve forty years at hard labor. A motion for appeal was filed but thereafter defendant escaped from the custody of the criminal sheriff. As a result, the trial judge refused to order an appeal. Nine years later, the trial court granted defendant an out-of-time appeal. He relies on fourteen assignments of error for reversal of his conviction and sentence.

ASSIGNMENTS OF ERROR NOS. 3, 7, 8, 10 AND 11

Defendant contends the trial judge erred in denying his motion to suppress physical evidence grounded on a claim that his arrest was made without probable cause (Assignment of Error No. 3) and that the money (Assignment of Error No. 7), raincoat (Assignment of Error No. 8), suitcase (Assignment of Error No. 10), and hold-up note (Assignment of Error No. 11) seized after his illegal arrest was improperly received in evidence at trial.

The record reflects the following facts. On March 17,1970, at approximately 1:28 p. m., Officers Donald Eskridge and John Graham were patrolling in their police vehicle when they received a radio report of an armed robbery at the Bank of Louisiana at 246 Loyola. They proceeded towards that location, but were instructed that another patrol car had arrived on the scene and that they were to cruise the vicinity. Shortly thereafter, the officers received a radio report providing a description of the suspect: a white male, approximately 5'9" tall and weighing about 150 pounds, fair complexion, brown hair, wearing a yellow rain slicker, and driving a blue automobile. A subsequent call provided the model, color, and license number of the automobile as well as the address of the registered owner (defendant). The officers were proceeding to that address when, a few blocks away, an unidentified black male flagged them down and asked if they were looking for a white male who had jumped out of a blue vehicle carrying a suitcase. When the officers replied affirmatively, the man told them that such a man had been running along Esplanade when he had seen another patrol car pass and had then run into a grocery store at 839 Esplanade.

The officers entered the store which was occupied by the cashier, a mailman who was leaving, and defendant who was hurriedly attempting to get out the rear door which was locked. Defendant then crouched behind a food rack as the officers proceeded to the rear of the store with their guns drawn. Officer Graham advised defendant to put up his hands and defendant complied and said, “Don’t shoot. I give up.” Defendant was then told that he fit the description of a subject wanted for armed robbery and he was placed under arrest and informed of his Miranda rights. The suitcase which was within six inches of defendant at the time of the arrest was then searched by Officer Eskridge and found to contain the yellow rain slicker, the note used in the robbery, and two thousand five hundred and fifty-four dollars including $750 in “bait money.”

This court recently held in State v. Tomasetti, 381 So.2d 420 (La.1980):

It is well settled that a search conducted without a warrant issued upon probable cause is per se unreasonable — subject only to a few specifically established and well-delineated exceptions. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). One of these exceptions is a search incident to a lawful arrest made of a person and the area in his immediate control. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). Such a search is justified in order to discover weapons that may threaten the safety of the arresting officer and to prevent the concealment and destruction of evidence. It has been recently confirmed that an arrest made in a public place without a warrant is valid if founded on probable cause, regardless of the presence or absence of exigent circumstances. United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976). But, in order to justify a search as incident to an arrest, an arrest must have already occurred and the arrest itself must have been lawful. State v. Marks, 337 So.2d 1177 (La.1976). Finally, when the constitutionality of a warrant-less search is at issue at a suppression hearing, the state must bear the burden of affirmatively showing that it was justified under one of the exceptions to the warrant requirement. State v. Adams, 355 So.2d 917 (La.1978); State v. Franklin, 353 So.2d 1315 (La.1977).

In order to ascertain the validity of the seizure of the suitcase and its subsequent search in this case, we must determine whether the arrest was based upon probable cause to believe that defendant had committed a crime.

A warrantless arrest, no less than an arrest pursuant to a validly-issued warrant, must be based on probable cause. State v. Tomasetti, supra; State v. Thomas, 349 So.2d 270 (La.1977). Probable cause exists when the facts and circumstances known to the arresting officer and of which he has reasonably trustworthy information are sufficient to justify a man of ordinary caution in believing that the person to be arrested has committed a crime. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); State v. Marks, supra. Probable cause must be judged by the probabilities and practical considerations of everyday life on which average men, and particularly average police officers, can be expected to act. State v. Tomasetti, supra; State v. Marks, supra. Compliance with these standards is in the first instance a substantive determination to be made by the trial judge from the facts and circumstances of the case. Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); State v. Marks, supra.

In the instant case, the officers had heard official radio reports that the Bank of Louisiana at 246 Loyola had been robbed, and they had been furnished with a detailed description of the robber and his automobile. Within a short time after the robbery and only a few blocks from the address of the registered owner of the getaway car, the officers heard from a citizen informer that a white male with a suitcase had abandoned a blue automobile, had begun to run up the street, and had run into a grocery store upon spotting a police car. The only white male in the grocery store fit the description they had received and was attempting to flee through a rear door. After attempting to hide behind a food rack, when confronted by the officers, defendant said, “Don’t shoot. I give up.” We conclude that ample probable cause existed pri- or to the arrest of defendant. Accordingly, since the arrest was constitutionally valid, the seizure of the suitcase from defendant and its subsequent search were permissible as incident to his lawful arrest. The suitcase was within defendant’s immediate possession and control at the time of his arrest.

Hence, the trial judge did not err in denying defendant’s motion to suppress and in admitting the money, raincoat, suitcase and hold-up note in evidence at trial.

Assignments of Error Nos. 3, 7, 8,10 and 11 are without merit.

ASSIGNMENT OF ERROR NO. 6

Defendant contends the trial judge erred in denying his motion to represent himself.

At trial, defendant was represented by retained counsel. Near the conclusion of the testimony of the first witness, counsel for defendant made an oral motion for the court to permit defendant to represent himself with counsel’s assistance. The trial judge denied the motion. No objection was made or a bill of exceptions reserved to the adverse ruling. Later, defendant announced in court, “I would like another attorney.” The trial judge denied the request.

Under the then applicable La.Code Crim.P. art. 841:

An irregularity or error in the proceedings cannot be availed of after verdict unless it is objected to at the time of its occurrence and a bill of exceptions is reserved to the adverse ruling of the court on such objection. Failure to reserve a bill of exceptions at the time of an adverse ruling of the court operates as a waiver of the objection and as,an acquiescence in the irregularity or ruling.

In view of the fact that no objection was made or a bill of exceptions reserved to the trial judge’s adverse ruling on defendant’s motion to represent himself, nothing is presented for our review.

In any event, pretermitting the question as to whether the trial judge erred in denying defendant’s right to represent himself without further inquiry into the circumstances, defendant’s motion was not timely made. A defendant who waits until after commencement of trial to assert for the first time his right to represent himself, after having acquiesced throughout pretrial procedures and the institution of trial, cannot thereafter successfully assert that right unless he makes a showing that the prejudice to his legitimate interest overbalances the potential disruption of the proceeding already in progress. State v. Hegwood, 345 So.2d 1179 (La.1977); State v. Nix, 327 So.2d 301 (La.1975). There was no showing of prejudice here. Likewise, the trial judge properly denied defendant’s request to be represented by another attorney after trial had commenced. See State v. Lee, 364 So.2d 1024 (La.1978); State v. Leggett, 363 So.2d 434 (La.1978); State v. Wiggins, 337 So.2d 1172 (La.1976).

Assignment of Error No. 6 is without merit.

ASSIGNMENT OF ERROR NO. 9

Defendant contends the trial judge erred in allowing in evidence, over his objection, six photographs without requiring introduction of the entire series of photographs from which the six were selected. He argues that the other photographs might have been favorable to him.

At trial, Gerald Penton, operation manager at Armored Central Alarm Systems, testified that the camera surveillance system at the Bank of Louisiana at 246 Loyola was activated on March 17, 1970. Penton later removed the film and processed it in the presence of the FBI and the New Orleans Police. Penton enlarged six of the 840 frames which depict a bulge in defendant’s pocket that could have been a gun. These photographs were introduced in evidence along with the film consisting of the 840 frames (S-12 through S-15). Defendant had no objection to the introduction of the film.

It is well settled that the prosecution may not suppress evidence, in the face of a defense production request, where the evidence is favorable to the accused and is material to either guilt or punishment. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); State v. Williams, 349 So.2d 286 (La.1977). At no time during trial did defendant request processing of the other 834 frames which were in fact introduced in evidence. Also, there was no showing that this evidence would have been favorable to the accused or that it constituted material evidence under Brady and Agurs. Hence, we do not find that the trial judge erred in allowing the six photographs from the sequence in evidence.

Assignment of Error No. 9 is without merit.

ASSIGNMENT OF ERROR NO. 12

Defendant contends the trial judge erred in denying his motion for a new trial grounded on a claim that there was no evidence that defendant was armed with a dangerous weapon, an essential element of the crime of armed robbery.

The record reflects that early in the afternoon of March 17,1970, defendant placed a note on the counter of a window at the bank where Mrs. Della Dunn worked as a teller. The note read as follows:

DON’T TALK! ACT NATURAL! PUT ALL THE BUNDLED MONEY IN THE SACK FIRST. NOW PUT THE REST OF THE MONEY IN. BE CALM & RELAXED AND YOU “WON’T GET “SHOT!” DON’T LET ANYONE FOLLOW ME.

After she read the note, defendant told Mrs. Dunn to pick up the bag that was in the window and said, “Hurry up. Fill it up.” Mrs. Dunn testified that she was very frightened and that she thought defendant had a gun and believed that he would shoot her. She stated that he kept his hands down and put his hand in his pocket.

Gerald Penton testified that, while he did not actually see a gun in the photographs he processed, he did see what could have been a gun in the right-hand pocket of the coat bulging. Two of the six photographs (S-4 through S-9) introduced in evidence depict a bulge in the right-hand pocket of defendant’s raincoat (the other four photographs were lost or destroyed subsequent to the trial of the matter).

Officer Eskridge testified that after the arrest defendant volunteered that, “It was a cap gun. It should be in the suitcase. I don’t know where it’s at. I must have dropped it.” Also, FBI agent Paul Hinsel testified that defendant stated on questioning that he had a cap pistol with him which he intended to use to scare anyone who tried to stop him in the commission of the robbery. No one testified that they actually saw a gun during the robbery nor was a gun recovered from defendant at the time of the arrest or thereafter.

La.R.S. 14:64 provides that an armed robbery is the theft of anything of value from the person of another or which he is in the immediate control of another, by use of force or intimidation, “while armed with a dangerous weapon.” La.R.S. 14:2(3) defines “dangerous weapon” to include “any gas, liquid or other substance or instrumentality, which, in the manner used, is calculated or likely to produce death or great bodily harm.” This court has noted that by making robbery with a dangerous weapon an aggravated offense with severe penalties the apparent intent of the armed robbery statute is to deter the possibility of serious physical harm resulting to anyone present in such a highly charged atmosphere as the scene of a robbery in progress by the use of any substance or instrument likely to produce death or serious bodily harm. State v. Leak, 306 So.2d 737 (La.1975); State v. Levi, 259 La. 5 91, 250 So.2d 751 (1971).

In a case factually similar to the instant case, State v. Elam, 312 So.2d 318 (La.1975), the victim of a robbery was threatened with being shot if he failed to comply with the robber’s demands. Also, the perpetrator kept one hand inside his jacket pocket and motioned with his hand in a manner that indicated he had a weapon in the pocket. Neither the victim nor anyone else who viewed defendant at the time of the offense saw a gun or other weapon. Nor was a weapon recovered from defendant at the time of his arrest. We held in Elam that the “mere facts that no weapon was actually seen by the victim or any other witness and that no gun was recovered by the law enforcement officers who arrested the defendants after pursuing them for approximately four hundred yards does not preclude the defendants’ convictions for armed robbery, considering the victim’s testimony relating Wiggins’ [perpetrator’s] actions and his threats.” In our view, to hold otherwise in a situation such as this would create a “hidden gun” defense in a prosecution for armed robbery. Also, while not determinative of the issue, the subjective reaction of the victim may be some evidence of whether there was actual likelihood of danger. State v. Bonier, 367 So.2d 824 (La.1979).

In the instant case, defendant set forth in a note handed to the victim that she would be shot if she did not comply with his demands. After reading the threatening note and observing that he kept his hands down and put one of them in his pocket, she was convinced that he had a gun. Understandably, she was frightened and thought that he would shoot her. Also, the pictures depicting a bulge in his right-hand coat pocket suggested the presence of a weapon. Moreover, defendant had ample opportunity between the commission of the robbery and his arrest in which to dispose of the weapon. Accordingly; whether applying the traditional “no evidence” standard of review or the one set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), that is, 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 had been proved beyond a reasonable doubt, we conclude that there was ample evidence to support the jury’s conclusion that defendant was “armed with a dangerous weapon” at the time of the robbery.

Assignment of Error No. 12 is without merit.

ASSIGNMENT OF ERROR NO. 13

Defendant contends the trial judge erred in allowing the prosecutor to display a gun which had not been introduced at trial during his closing argument. He argues that the demonstration was beyond the scope of closing argument.

During closing argument, the district attorney displayed to the jury a photograph taken by the camera surveillance system at the bank during a robbery. The photograph depicted defendant standing in front of the teller’s window. There was a noticeable bulge in defendant’s raincoat pocket and there was testimony at trial that the bulge could have been a gun. No gun was introduced in evidence. The district attorney argued that the bulge was in fact a gun, and in support of this argument, produced a gun, placed it in the pocket of the raincoat seized from defendant, and urged the jury to compare the bulge in the photograph with the protrusion produced by the gun. No attempt was made to connect the gun used in the demonstration with defendant or to claim that the gun was the one used in the robbery. Defendant admitted in brief that no objection was made by defendant.

The then applicable La.Code Crim.P. art. 841 required an objection at the time of the occurrence of an alleged irregularity or error and reservation of a bill of exceptions in order to be availed of after verdict. Since no objection was made or a bill of exceptions reserved to the alleged irregularity in this instance, nothing is presented for our review.

We wish to observe that in a somewhat similar situation in State v. Davis, 336 So.2d 805 (La.1976), while not finding reversible error, we noted that the “practice here followed is discouraged, because of its inherent possibility of prejudice and in order to assure that an accused is convicted only on the basis of legally admissible evidence.” However, this case was tried some five years before the warning expressed in Davis.

Assignment of Error No. 13 is without . merit.

ASSIGNMENT OF ERROR NO. 14

Defendant contends his constitutional right of judicial review based upon a complete record of all evidence upon which the judgment is based (La.Const. art. 1, § 19) has been violated by the destruction of part of the physical evidence introduced at trial.

The record reveals that after trial, the physical evidence introduced was delivered to the United States District Court pursuant to a subpoena duces tecum for use in connection with the trial of a federal charge against defendant arising out of the instant armed robbery. Following that trial, the film showing the commission of the crime (S-12 through S-15), the raincoat (S-3), and four of the six photographs (S-4 through S-9) were either lost or destroyed by the federal authorities.

We find that defendant suffered no prejudice as a result of the destruction of this evidence. The only issue on appeal with relation to the film was the trial judge’s allowing in evidence the six photographs from the film sequence and not the actual content of the film itself. Also, the only question related to the raincoat is whether it was constitutionally seized at the time of the arrest. Further, we find no prejudice to defendant’s right of appellate review resulting from the absence of four of the six photographs introduced in evidence at trial. Moreover, the length of the delay between trial of this matter and appellate review (some ten years) may well have contributed to the loss or destruction of the evidence. In this connection, defendant’s original appeal in 1970 was dismissed because of his escape and was not reurged by him until 1979, at which time an out-of-time appeal was granted.

Assignment of Error No. 14 is without merit.

DECREE

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

DIXON, C. J., dissents with reasons.

DIXON, Chief Justice

(dissenting).

I respectfully dissent.

There can be drawn from this record only the possibility that defendant was armed with a gun.

ON REHEARING

CALOGERO, Justice.

In this case on original hearing we affirm defendant Jay Gould’s conviction of armed robbery and sentence to forty years at hard labor in the state penitentiary.

We granted a rehearing primarily to reconsider the merit of defendant’s assignment of error No. 12, complaining that the district court erred in not granting a motion for directed verdict premised on defendant’s allegation that the jury received insufficient evidence under the applicable Jackson v. Virginia standard to prove that in perpetrating the robbery of the bank defendant was armed with a dangerous weapon.

The entirety of the evidence in the record that defendant was armed with a dangerous weapon was the following:

Defendant, wearing a yellow rain slicker, entered the Bank of Louisiana in New Orleans on March 17,1970. He proceeded to the window of a teller, one Della Dunn, without at any time exhibiting a weapon. He presented a note to the teller (quoted at length in the original opinion) which among other things stated “[b]e calm and relaxed and you won’t get shot.” Mrs. Dunn surrendered the money. At no time did defendant exhibit a weapon or place his hand in his pocket or make any motion with hand in pocket except that after leaving the teller’s window he did place his hand in his pocket as he departed (the latter according to Mrs. Dunn). A number of witnesses with opportunity to observe defendant, including the bank manager who later gave chase and Mr. Joe Joseph who was in the teller’s line just behind defendant, all testified that they did not see or suspect that defendant was armed with any kind of weapon, did not observe him place a hand in his pocket, or even so much as observe a bulge in his pocket or other clothing. A hidden bank camera photographed the defendant during the robbery.

The photos of defendant in the bank, taken at a distance, seem to suggest that something may have been in defendant’s right coat pocket. It cannot be properly described as a bulge, but rather perhaps as a weight within the pocket causing the coat to dip on the right side.

Defendant made good his escape or departure from the bank without incident, but was captured shortly thereafter several miles away in a grocery in the Vieux Carre. When captured defendant was unarmed. The only contrary evidence concerning whether defendant was armed with anything was the testimony of a police officer who apprehended defendant, that at the time of his capture, defendant said that he had carried only a toy pistol with him which could be found in his brief case. When the officers examined the brief case it did not contain a toy pistol or any other weapon.

The state of course had the burden of proving beyond a reasonable doubt that the defendant was armed with a dangerous weapon. The only statutory definition of dangerous weapon appears in the criminal code at R.S. 14:2, under definitions, at Section 3: “[d]angerous weapon includes any gas, liquid or other substance or instrumentality, which, in the manner used, is calculated or likely to produce death or great bodily harm.”

A loaded pistol is undoubtedly a dangerous weapon irrespective of how used or exhibited. The R.S. 14:2(3) definition of dangerous weapon does not purport by its language to be exclusive. Rather, R.S. 14:2(3) merely states that the term dangerous weapon "... includes any gas, liquid, or other substance or instrumentality, which, in the manner used, is calculated or likely to produce death or great bodily harm.” A person robbing with a loaded pistol anywhere on his person, irrespective of whether used in a manner calculated or likely to produce death or great bodily harm, would surely qualify as one armed with a dangerous weapon. Other instrumentalities, not inherently dangerous, are dangerous weapons only, as defined, when in the manner used they are calculated or likely to produce death or great bodily harm.

Troubling cases have arisen where a defendant is not clearly shown to have been armed with an inherently dangerous weapon and others where a defendant is shown to have been armed with an instrumentality not inherently dangerous but used in a manner likely to produce death or great bodily harm.

A review of the jurisprudence reveals that even an inherently harmless object can be classified as a dangerous weapon when used to replicate such a weapon because such a use is likely to produce death or great bodily harm. The rationale behind this holding was expressed in the case of State v. Johnston, 207 La. 161, 20 So.2d 741 (La.1944):

“Usually in a situation of that kind the person so assaulted attempts to escape, to wrest the gun from the assailant, or to deliver to him some death dealing blow; and, in making any of these attempts, serious injury often results. Moreover, under the circumstances that existed here, as the trial judge correctly points out, ‘the complainants, in order to repel their assailant, would have been justified if they had either inflicted great bodily harm upon him or slain him, because it was reasonable for them to believe that their lives were placed in danger by the conduct of the defendant.’ ”

The jurisprudence has also held that for defendant to have been found so armed he must have employed in the robbery some instrumentality of inanimate object. The mere use of defendant’s hand or finger in a manner to feign the presence of a gun when that alone is what is found to have occurred will not qualify as proof of the existence of a dangerous weapon, regardless of the havoc created. State v. Elam, 312 So.2d 318 (La.1975); State v. Calvin, 209 La. 257, 24 So.2d 467 (1949). On the other hand, we have held in State v. Elam, supra, that no weapon need ever be seen by the victim, or witnesses, or recovered by police for the trier of fact to be justified in finding that in fact defendant was armed with a dangerous weapon. The inanimate objects held to be dangerous weapons by the manner of their use include an unloaded pistol, State v. Johnston, 207 La. 161, 20 So.2d 741 (1945); an unloaded and unworkable pistol, State v. Levi, 259 La. 591, 250 So.2d 751 (La.1971); a bottle in the defendant’s pocket, State v. McMorris, 343 So.2d 1011 (La.1977); and a ratchet wrench coupled with a socket to resemble the shape of a pistol, State v. Leak, 306 So.2d 737 (La.1975). See also 32 La.Law Rev. 158 (1971).

The case at hand is perhaps even more difficult than some of those cited. If unarmed, defendant did not perpetrate an armed robbery. If armed with an instrumentality not inherently dangerous, he would not have qualified as having been armed with a dangerous weapon for he did not use the object in a manner likely to produce death or great bodily harm. Only if armed with an inherently dangerous weapon, whether displayed or not, would this defendant have been shown to be guilty of armed robbery. The question therefore in this case is, did defendant have a pistol in his pocket (i. e. an inherently dangerous weapon) as opposed to a toy pistol or some other non-inherently dangerous instrumentality.

The jury apparently concluded beyond a reasonable doubt that defendant did have on his person (perhaps in his coat pocket) an inherently dangerous object (a real pistol). And of course our appellate review on that finding is limited.

Each of the cases mentioned hereinabove and, in fact, all cases reviewing findings of dangerous weapons by this Court have taken place when the evidentiary standard was whether there was “some evidence”, however slight, to support the finding of the trier of fact, which standard was applicable prior to Jackson v. Virginia, supra. See State v. Davis, 371 So.2d 788 (La.1979); State v. Lecompte, 371 So.2d 239 (La.1978).

By that standard we would probably conclude that the note implying that defendant would shoot the teller if she lost her composure, coupled with photographic proof that something was probably in defendant’s pocket, constituted “some evidence” that defendant was armed with a real pistol.

This is the first occasion this Court has had to review with particularity a question regarding the sufficiency of evidence to support a finding of the existence of a dangerous weapon under the Jackson v. Virginia standard. That standard, as applied in this case is whether any rational trier of fact could conclude beyond a reasonable doubt that defendant had a pistol on his person at the time of the robbery.

The definition of “reasonable doubt” was discussed in a fairly old case, State v. Jefferson, 43 La.Ann. 995,10 So. 199 (La.1891), which expressly approved the following jury charge describing, or defining, reasonable doubt:

“It is incumbent on the state to prove the offense charged or legally included in the indictment to your satisfaction, beyond a reasonable doubt; and, before you can convict the accused, you must be satisfied from the evidence that he is guilty beyond a reasonable doubt. A reasonable doubt, gentlemen, is not a mere possible doubt; it should be an actual or substantial doubt. It is such a doubt as a reasonable man would seriously entertain. It is a serious, sensible doubt, such as you could give a good reason for. It is not sufficient you should believe his guilt only probable. In fact, no degree of probability merely will authorize a conviction; but the evidence must be of such a character and tendency as to produce a moral certainty of the prisoner’s guilt to the exclusion of reasonable doubt.”

In this case, all of what evidence exists is circumstantial; there is no direct evidence. To convict, circumstantial evidence must exclude every reasonable hypothesis of innocence, assuming every fact to be proved that the evidence tends to prove. R.S. 15:438. State v. Elzie, 343 So.2d 712 (La.1977); State v. Soukup, 275 So.2d 179 (La.1973). And of course there was other evidence suggesting, to the contrary, that defendant was not armed with a dangerous weapon: the policeman said defendant at the time of arrest claimed to have used a toy pistol, an inculpatory admission which the state introduced into evidence, and there was no witness testimony that defendant displayed or used any instrumentality much less an inherently dangerous one such as a pistol.

Under all of these circumstances we conclude that no rational trier of fact, presented no more than this circumstantial evidence which failed to rule out all other reasonable hypotheses of innocence, could have found beyond a reasonable doubt that in robbing the Bank of Louisiana defendant Gould was armed with a pistol.

In our original opinion, we observed that to hold other than we did at that time we would create a “hidden gun” defense in a prosecution for armed robbery, prompting robbers to avoid being charged with the armed offense merely by keeping their weapons concealed. While such an observation is a slight oversimplification (a robber who uses a dangerous weapon such as a pistol, hidden or not, has committed armed robbery), it does point up a proof problem. However, such a problem is one which the state faces in each and every case, burdened as the state is with the constitutional requirement of proving a defendant guilty beyond a reasonable doubt. Furthermore, the alternative would produce a situation where an unarmed robber who bullies a victim with empty threats of shooting could be convicted of armed robbery, allowing the robber no incentive to leave his pistol at home.

Particularly should we conscientiously apply these constitutionally mandated standards of appellate review where the penalty provision for armed robbery is a five year minimum and a ninety-nine year maximum prison term, without benefit of probation, parole or suspension of sentence.

In this case, the evidentiary insufficiency related only to proof that defendant in robbing the Bank of Louisiana was armed with a dangerous weapon. The evidence more than sufficed to prove him guilty of simple robbery, which according to R.S. 14:65 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, but not armed with a dangerous weapon.”

Accordingly, we are here faced with a situation identical to that of State v. Byrd, 385 So.2d 248 (La.1980), from which case we quote as applicable to the instant appeal:

“When the evidence does not support a conviction of the crime charged, the Court has generally remanded with instructions to discharge the defendant. See State v. Allien, 366 So.2d 1308 (La.1978). However, the discharge of the defendant is neither necessary or proper when the evidence does support a conviction on a lesser and included offense which was a legislatively authorized responsive verdict. See State v. Tillman, 356 So.2d 1376, n.2 at 1379 (La.1978).
“In this case all of the elements of the crime of attempted simple robbery necessarily have been proved beyond a reasonable doubt to the satisfaction of the trier of fact. The verdict of guilty of the greater offense explicitly reflects the finding that defendant attempted to commit the theft of something of value which was in within (sic) the immediate control of the victim. See R.S. 14:64, 65, and 67.
“Since all the elements of the lesser and included offense of attempted simple robbery have been proved beyond a reasonable doubt, this Court should not strike down all of those adequately supported findings merely because the evidence did not reasonably support the conclusion that an additional element also existed.
* * * * * *
“Accordingly, the conviction of armed robbery and the sentence are set aside, and the matter is remanded to the trial court with instructions to enter a judgment of guilty of attempted simple robbery and to sentence the defendant accordingly ...”

Decree

Por the reasons stated above, upon rehearing we recall our original opinion and reverse defendant Jay Gould’s conviction of armed robbery and sentence of forty years, but affirm as to a conviction of simple robbery. We remand defendant to the district court with instructions to enter a judgment of guilty of simple robbery and to impose sentence accordingly.

REVERSED AND REMANDED.

BLANCHE, J., dissents.

MARCUS, J., dissents and assigns reasons.

WATSON, J., dissents for reasons assigned by MARCUS, J.

MARCUS, Justice

(dissenting).

I dissent, adhering to the views expressed in the original opinion. After reviewing the evidence in the light most favorable to the prosecution, I consider that any rational trier of fact could have found that defendant was armed with a dangerous weapon, an essential element of the crime charged, beyond a reasonable doubt. I further consider that the majority opinion will create a “hidden gun” defense in a prosecution for armed robbery. Accordingly, I respectfully dissent.

      . In defendant’s brief to this court, it is stated that after defendant’s escape he was “apprehended and incarcerated in a Federal prison from 1970 to 1979. This term was served in connection with a plea bargain under Federal law for the robbery out of which this state prosecution also arose. Following the granting of his federal parole, in December, 1979, he was transferred and re-incarcerated in Orleans Parish Prison.”

      . Defendant has neither briefed nor argued Assignments of Error Nos. 1, 2, 4 and 5. Hence, we consider them to be abandoned. State v. Blanton, 325 So.2d 586 (La.1976); State v. Carlisle, 315 So.2d 675 (La.1975).

      . We have numbered the assigned errors as designated in the Assignment of Errors filed in the record, not as numbered in brief to this court.

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

      . Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979), United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), and United States v. Johnson, 588 F.2d 147 (5th Cir. 1979), relied upon by defendant are distinguishable from the instant case in that the searches there involved automobiles (Sanders and Chadwick) and an airplane (Johnson) and that, at the time of the searches, the luggage searched was not within the immediate control of the defendants.

      . La.Code Crim.P. art. 841 was amended by Act 297 of 1974, making a bill of exceptions to rulings or orders unnecessary. However, where trials took place prior to the effective date of the 1974 amendment, defendants were required to comply with the former law requiring objections to alleged irregularities or errors at the time of occurrence and reservations of bills of exceptions in order to be considered on appeal. See State v. Calloway, 324 So.2d 801 (La.1976); State v. Shillow, 310 So.2d 103 (La.1975).

      .In Farretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), decided some five years after the trial of this matter, the United States Supreme Court established that, when a defendant asserts this right of self-representation, a trial judge must make two independent decisions: Whether defendant’s waiver of his right to be represented by counsel is intelligently and voluntarily made, and whether his assertion of his right to represent himself is clear and unequivocal.

      . In a prayer for oyer, defendant specifically requested copies of all pictures of whatever kind of the scene made by or for the New Orleans Police Department. The state responded that defendant was not entitled to this information. After a hearing, the trial judge ruled the state’s answers to be good and sufficient. This ruling was correct under the law at that time; however, defendant would now be entitled to the film under La.Code Crim.P. art. 718, as enacted by Acts 1977, No. 515, § 1.

      . At the close of the state’s evidence, defendant moved for a directed verdict of not guilty on the same ground. The trial judge properly denied the motion as, at the time of the trial in 1970, La.Code Crim.P. art. 778 had been declared unconstitutional by this court insofar as it permitted the judge in a jury trial to direct a verdict of not guilty. See State v. Hudson, 253 La. 992, 221 So.2d 484 (1969). Defendant also filed a motion for a new trial alleging the same issue. The motion was denied; defendant objected and properly reserved a bill of exceptions. In this assignment of error, defendant alleges only that the trial judge erred in denying the motion for a directed verdict of not guilty. We construe this contention as a claim that the trial judge improperly denied his motion for a new trial on the ground that there was no evidence that defendant was armed with a dangerous weapon, an essential element of the crime of armed robbery, in order that the issue may be properly before us for review. The state concedes in brief to this court that under these circumstances the issue is properly before us on appeal.

      . The record does not contain a transcript of the state’s closing argument. However, defendant in brief to this court quotes the pertinent portion of the state’s closing argument.

      .This was a 1970 conviction to which the trial judge granted an out of time appeal in 1979 following defendant’s return to the custody of state authorities. Defendant for this identical robbery of the Bank of Louisiana, on March 17, 1970 pled guilty in the United States District Court, Eastern District of Louisiana, to the ' crime of bank robbery (under a sub-part of the federal statute relative to unarmed robbery, defendant alleges in brief). He served nine years in the federal prison at Atlanta, was released and is on federal parole until sometime in the 1990’s.

      . That case is reported at 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

      . Film of 840 frames and six black and white photos of selected film frames were apparently entered into evidence, of which only two black and white photographs were available for our review — the remainder was apparently misplaced by the federal authorities, who used them to prosecute defendant on the federal bank robbery charge.

      . This penalty was in effect for armed robberies committed in 1970, just as it is applicable to those committed at the present time. Louisiana Acts 1966, Ex. Sess., No. 5, § 1.


author:
PER CURIAM.
     WATSON, Justice, DENNIS, Justice, FEDEROFF, Justice Ad Hoc.

text:
    Frances Radosta De FELICE, wife of and Stephen J. De Felice v. Herbert J. GARON and Rufus M. Carimi.
    No. 66993.
    Supreme Court of Louisiana.
    Oct. 10, 1980.
    On Rehearing March 2, 1981.

      Victoria L. Bartels, William F. Wessel, New Orleans, for plaintiff-applicant.
    Milton E. Brener, Garon, Brener & McNeely, New Orleans, for defendants-respondents.
    William F. Wessel Professional Law Corp., New Orleans, for plaintiff-applicant on rehearing only.
    Mack E. Barham, Barham & Churchill, New Orleans, A. N. Yiannopoulos, Saul V. Litvinoff, Louisiana State University, Baton Rouge, of counsel, for defendant-respondent on rehearing only.
   PER CURIAM.

In an excellent and well reasoned opinion, the Court of Appeal reversed the trial court judgment (upon motion for summary judgment) which had invalidated an agreement by which two of the five respondents, Gar-on and Carimi, had secured the right to control the management of the corporation, Pascal’s Manale, Inc.

That agreement (essentially contained in two contracts, a “Joint Venture Agreement”, and a “Voting Trust Agreement”), was entered into coincident with respondents’ assisting relator in borrowing $600,-000.00 by personally guaranteeing her loan and posting security valued in excess of $200,000.00.

The pertinent facts surrounding the agreement and its contractual provisions, as well as the Court of Appeal’s legal reasons, are set out in the Court of Appeal opinion which is reported at 380 So.2d 676. A portion of that opinion, principally that which recites the facts, is contained in an appendix to this opinion.

Essentially the Court of Appeal made the following determinations: that the contract did not contain an invalidating potestative condition; that although the provisions of R.S. 12:78, requiring two or more shareholders for the creation of a voting trust, did render the “Voting Trust Agreement” here invalid as a voting trust, it was of no particular moment in the context of the overall circumstances; that the contract, in which substance rather than title determines its nature, was such as to constitute defendants pledgees rather then trustees; that respondents were pledgees upon whom the owner of the stock had expressly conferred by contract the right to vote the shares, with the implicit right in the pledgee to obtain a transfer of the shares upon the books of the corporation, a transfer contemplated and statutorily authorized by R.S. 12:75(D); that such contract was not invalid as a contract which separates voting rights from ownership interests, but valid as a contract authorized by R.S. 12:75(D); and that the pledgee may enforce the contract by having the shares of stock transferred into his name on the books of the corporation during the existence of the pledge.

We now conclude that the judgment and reasons of the Court of Appeal are correct, and the writ improvidently granted by this Court.

Decree

Accordingly, the judgment of the Court of Appeal is affirmed and the case remanded to the district court for further proceedings.

AFFIRMED; REMANDED TO THE DISTRICT COURT.

WATSON, J., dissents and assigns reasons.

DENNIS, J., dissents with reasons.

APPENDIX

“Prior to the execution of the contract at issue, plaintiff was the owner of 50% of the shares of stock in Pascal-Manale, Inc., and defendants Garon and Carimi were the attorney and accountant respectively for the corporation. Plaintiff had contracted to purchase the other 50% of the stock from her sister for the price of $450,000.00, but had difficulty obtaining financing. Through defendants’ efforts a bank agreed to lend plaintiff $600,000.00 (which included the pay-out of an existing $150,000.00 loan), but required the pledge of the corporate stock and mortgages of other property owned by plaintiff, as well as personal guaranties by defendants and three other persons (in-tervenors in this suit) and additional security valued in excess of $200,000.00 to be furnished by defendants and interve-nors.

“As part of the agreement to guarantee the loan and furnish the necessary security defendants and intervenors required plaintiff to execute two contracts. In the first contract, entitled Joint Venture Agreement, the parties stated that it was in their best interest for the corporation to be managed and directed under a definite and fixed policy in order to properly develop the corporation’s business opportunities and to repay the loan, and they agreed that defendants and interve-nors would guarantee the loan and provide the additional security and that plaintiff would pay them $2,000.00 per month during the term of the loan (or a minimum of $120,000.00). Plaintiff further agreed that, in the event of her default on the note, she would assign all of her interest in the corporation to defendants and intervenors upon their demand, subject to plaintiff’s right to reacquire the stock within 60 days by paying all sums expended to remedy the default.

“In the second contract, entitled Voting Trust Agreement, plaintiff, as sole shareholder, and defendants, as trustees, reasserted that it was in plaintiff’s best interest for the corporation to be managed and directed during the next ten years under a definite and fixed policy, and for this purpose plaintiff ‘requested’ defendants to hold legal title to the stock in trust for ten years under the contract terms. Defendants were further given the unqualified right to vote the stock as shareholders, free from any interference by plaintiff, but without liability as shareholders, and were also given the following powers:

‘a) The right to vote for election of directors and in favor of or in opposition to any resolution or proposed action of any character whatsoever which may be presented in any meeting requiring the consent of shareholders of the corporation;
‘b) The right to set salaries, bonuses, and other compensation for all employees, agents, officers, and directors of the corporation;
‘c) The right to declare all dividends;
‘d) The right to hire and fire all per-' sonnel employed by the corporation;
‘e) The right to approve of any and all remodeling, alterations and repairs of any property owned or leased by the corporation;
‘f) The right to authorize and approve all capital expenditures for any purpose whatsoever; and
‘g) The right to dispose of the collateral securing the debt of shareholder in any manner deemed appropriate by the trustees and to pledge the stock to secure any corporate loan.’
The contract specified a term of ten years, but reserved to the trustees the right to terminate the agreement sooner by unanimous vote.”

WATSON, Justice,

dissenting.

For the reasons assigned by Justice Dennis and the following additional reasons, I respectfully dissent.

The majority ignores the well established legal principle that an attorney dealing with a client must exercise the utmost care to avoid taking advantage of his client and, accordingly, that any contract between them is strictly construed against the attorney. In the present case, the contract is being liberally interpreted in favor of the attorney and against the client.

The majority is allowing by indirection what cannot be done directly under the business corporation law. A proxy can be granted for a maximum of three years. LSA-R.S. 12:75 C(3). The only other devices for granting another the right to vote stock are (1) a voting trust, which was not validly established here, and (2) pledge with transfer of the stock to the pledgee. Finding the attempted “Voting Trust” invalid, the majority incorrectly concludes that it is actually a pledge about which the parties neither thought nor spoke. The purported contract between plaintiffs and defendants should be voided.

I dissent from the validating through strained construction of an invalid contract.

DENNIS, Justice,

dissenting.

I respectfully dissent. I am troubled by the majority’s decision to affirm the court of appeal decision without addressing the questions that provoked us to grant the writ initially. Specifically, these questions are: How can a written contract prepared by an attorney for the purpose of establishing a voting trust be held enforceable as a pledge of stock when the contract never expressly mentions pledge, when the substance of the agreement does not reflect that the parties intended a pledge, and when the requirements for a valid pledge were not met? How can an appellate court in reversing a summary judgment also determine before a trial on the merits the legal consequences of a contract that is pregnantly ambiguous as interpreted by the court of appeal?

Perhaps there is a sound legal basis for the result reached, or perhaps the case should be remanded for a trial on the issue upon which summary judgment was granted and now reversed. However, I am unable to agree with the court of appeal opinion as written or with the majority’s approval of it without dealing with the questions prompting this court’s review.

ON REHEARING

FEDEROFF, Justice Ad Hoc.

Defendants have moved to dismiss plaintiffs’ application for rehearing as moot. The issue and its resolution are best explained by an outline of the proceedings to date.

Plaintiffs sue to enjoin defendants from exercising authority purportedly conferred on them by a voting trust agreement. They also seek damages caused them by defendants acting under this authority.

At the hearing of a rule for preliminary injunction, held before another division of the district court during the Summer recess, the parties stipulated that if the voting trust agreement were invalid defendants should be enjoined from acting under it. The court nevertheless denied the injunction because there was no showing of irreparable injury. Thereafter plaintiffs in the regular term of court moved for a partial summary judgment “declaring the Voting Trust Agreement to be null and void”. The court held in reasons for judgment that the agreement was invalid and entered what was termed a preliminary injunction. Sus-pensive appeal was denied by the district and appellaffe courts because the appeal was not taken within fifteen days as required by C.C.P. art. 3612. This Court granted writs and ordered the suspensive appeal. The case was then appealed to the Court of Appeal which treated the appeal as one from a partial summary judgment.

The Court of Appeal agreed with the district court that the agreement was invalid as a voting trust since the trust was established by a single stockholder, and not at least two shareholders as required by R.S. 12:78. The court went on to hold however that the contract was valid as a pledge which expressly conferred on the pledgees the right to vote the stock, an arrangement authorized by R.S. 12:75(D). The case was thereupon remanded for further proceedings.

We granted review and in our original opinion approved the decision of the Court of Appeal. Rehearing has been granted.

While the case was pending on rehearing, defendants filed the motion to dismiss plaintiff’s application for rehearing as moot, to which they attach an affidavit declaring that the plaintiffs have recently refinanced their bank loan, that defendants have been released as guarantors and their collateral returned to them, and that they in turn have surrendered all right to control the business, thus making moot any need for injunctive relief. These facts of course are not part of the record before us. However the matter was considered at the oral argument on rehearing during which counsel for plaintiffs made no objection to the submission or the content of the affidavit. The case should therefore be treated as presumptively moot and remanded for confirmation of the facts suggested by the motion. Vacuum Oil Co. v. Cockrell, 174 La. 60, 139 So. 759 (1932); Succ. of Elrod, 371 So.2d 796 (La.1979).

The reason such a transaction would render the appeal moot requires further explanation. The Court of Appeal, apparently attempting to understand why this Court had ordered a suspensive appeal not taken within fifteen days from a preliminary injunction, treated the appeal as one from a partial summary judgment simply “declaring” the voting trust agreement invalid. While it is true that plaintiffs’ rule for a partial summary judgment simply asked for a declaration that the voting trust was invalid, their motion must be understood in light of the earlier stipulation that if the instrument were held invalid, an injunction should issue. Thus, having concluded the instrument was invalid, the trial court in response to plaintiffs’ motion issued an injunction.

The reason the suspensive appeal was ordered was not that the judgment was one simply declaring the voting trust invalid, but rather that it was a permanent injunction and not, as it was styled, a preliminary injunction. Having been rendered on a motion for summary judgment, the injunction was of necessity a final judgment and therefore appealable within the ordinary delays. C.C.P. art. 968.

It would have been improper to render partial summary judgment simply declaring the contract invalid. Summary judgment may not be employed to have a court pronounce judgment merely on some underlying issue in the case, since C.C.P. art. 966 provides that any party may move for summary judgment in his favor for all or part of the relief for which he has prayed. See Stevens v. State Mineral Board, 255 La. 857, 233 So.2d 542 (1970); Smith v. Hanover Insurance Company, 363 So.2d 719 (La.App. 2d Cir. 1978); Beckham v. Hartford Accident & Indemnity Company, 137 So.2d 99 (La.App. 3rd Cir. 1962).

This appeal therefore is one involving the plaintiffs’ prayer for injunctive relief and where the need for injunction is obviated before that issue is finally disposed of, the court should treat the case as moot and express no opinion on the merits thereof.

It should be noted that neither the judgment of the district court nor the opinion of the court of appeal, nor the original opinion of this court has ever become final and none of them should be treated as establishing the law of the case.

We would ordinarily grant the motion to dismiss and remand the case to the trial court for it to determine if the need for injunction is moot; but because our consideration of the merits of the appeal results also in a remand we will entertain the merits.

We agree with the Court of Appeal that the summary judgment ordering the injunction should , not have issued. The opinion of the Court of Appeal however went further than it should have. Plaintiff had moved for summary judgment seeking the injunction. The Court of Appeal disagreed, but in doing so concluded that the contract was a valid pledge. While the contract does not qualify as a valid voting trust, and while it may be subject to a construction or even reformation that would qualify it as an R.S. 12:75 D pledge, or some other innominate agreement binding on the parties, such a construction or reformation is not supported by the record compiled in support of the motion for summary judgment.

Because of the “law of the case” doctrine this opinion, if allowed to stand, more than likely would foreclose reconsideration of this issue by the trial court, and the Court of Appeal on any subsequent appeal. Justice Tate described the scope and effect of the doctrine in Petition of Sewerage & Water Board of New Orleans, 278 So.2d 81 (La.1973):

“The law of the case principle relates to (a) the binding force of trial court rulings during later stages of the trial (b) the conclusive effects of appellate rulings at the trial on remand, and (c) the rule that an appellate court will ordinarily not reconsider its own rulings of law on a subsequent appeal in the same case. Among reasons assigned for application of the policy are: the avoidance of indefinite relitigation of the same issue; the desirability of consistency of the result in the same litigation; and the efficiency, and the essential fairness to both sides, of affording a single opportunity of the argument and decision of the matter at issue.
Nevertheless, the law of the case principle is applied merely as a discretionary guide: Argument is barred where there is merely doubt as to the correctness of the former ruling, but not in cases of palpable former error or so mechanically as to accomplish manifest injustice.”

See also Coney v. Coney, 218 La. 218, 48 So.2d 902 (1950). In fact, had we denied the writ of review which brought this appeal to the court, absent “palpable error”, we could not have reconsidered the validity of the contract. In Huntington v. Westerfield, 119 La. 615, 44 So. 317 (1907) the court said:

“We are of opinion that the Judgment of the Court of Appeal, upon the first hearing, considered in connection with the refusal of this court to review that judgment, must be regarded, quoad this case, as conclusive of the right of the defendant, sued as surety to set up the plea of usury.”

The opinion of the Court of Appeal is tantamount to a judgment in favor of the defendant declaring the contract valid. An opinion reversing a summary judgment in favor of one party should not be written in terms that may result in a final determination (as the law of the case) granting in effect the benefit of an affirmative adjudication in favor of the opponent to the motion, unless the issues presented are purely legal and utterly devoid of factual considerations.

Such is not the case here. Though this contract may be found valid, it cannot be so held in the present posture of the case.

The judgment of the district court granting the summary judgment is therefore reversed, the opinion of the Court of Appeal is annulled and the original opinion of this court is recalled. The case is remanded to the Civil District Court for the Parish of Orleans for a determination as to whether the prayer for injunction is moot, for further proceedings as necessitated by that determination, and for trial of the plaintiffs’ claim for damages.

DENNIS, J., concurs with reasons.

       The Honorable Gerald P. Fedoroff participated in this decision as an Associate Justice Ad Hoc in place of Associate Justice Harry T. Lemmon, who was recused.

       Judge Gerald P. Federoff participated in this decision as an associate justice ad hoc for Justice Harry T. Lemmon who is recused.

      . R.S. 12:75(D):
      “A person whose shares are pledged shall be entitled to vote thereon unless and until such shares have been transferred on the books of the corporation to the pledgee; and thereafter the pledgee shall be entitled to vote thereon.”

      . C.C.P. art. 968 provides:
      “Judgments on the pleadings, and summary judgments, are final judgments and shall be rendered and signed in the same manner and with the same effect as if a trial had been had upon evidence regularly adduced.... ”