author: BIENVENU, Judge.

text:
    Wilbert LeBLANC, Jr., Plaintiff-Appellant, v. CONSOLIDATED ALUMINUM COMPANY et al., Defendants-Appellees.
    No. 8336.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1981.
    Rehearing Denied Aug. 13, 1981.

      Otha Curtis Nelson, Baton Rouge, for plaintiff-appellant.
    Plauche, Smith, Hebert & Nieset, Reid K. Hebert, Lake Charles, for defendants-appel-lees.
    Before CUTRER, STOKER and BIEN-VENU, JJ.

       Judge C. Thomas Bienvenu, Jr., Sixteenth Judicial District Court, Parish of St. Martin, presided as Judge Ad Hoc in this decision.

   BIENVENU, Judge.

This is a workman’s compensation case in which plaintiff alleges that he was totally and permanently disabled as a result of a work-related accident on October 13, 1977, although he also offers testimony about a prior accident within the course and scope of his employment with this same defendant in June of 1977 which, to some extent, may have combined to produce the problems he complains of. He also claims penalties and attorney’s fees.

On October 13, 1977, plaintiff contends that he was in the process of mixing concrete when he slipped while lifting a bag of cement and fell between the pallet and the mixer. There is no real dispute as to the occurrence of this accident; what is at question is whether plaintiff was injured and, if so, to what extent.

Plaintiff complained of low back pain, reported the accident, and was seen by Dr. M. H. Gold, the self-insured defendant’s company physician, and was sent back to work on light duty as he continued to be treated by Dr. Gold. Because of plaintiff’s persistent complaints, Dr. Gold in time referred him to Dr. William G. Akins, an orthopedic surgeon, on October 31, 1977, who found no objective symptoms for plaintiff’s complaints. Plaintiff was again seen by Dr. Akins, on November 11, 1977 and December 30,1977, at which time, although Dr. Akins felt plaintiff could return to his regular duties, he gave plaintiff the “benefit of the doubt” because of plaintiff’s persistent complaints and apparent hostility toward defendant employer, and placed him on a light duty status to return for an additional appointment on January 23,1978, which plaintiff failed to keep.

Plaintiff remained at work until February 9,1978, when he left the job because he felt unable to perform the duties to which he was assigned, and was paid weekly compensation benefits of $130.00, the rate to which he was entitled, until June 27, 1978, when his benefits were terminated as a result of a letter defendant’s witnesses say they received from Dr. Thomas C. LaBorde, a physician in Lafayette that plaintiff had begun seeing, to the effect that plaintiff was no longer disabled.

In addition to Dr. LaBorde, plaintiff consulted a great many doctors, and various other health care providers, beginning on February 9, 1978 and continuing through the dates of trial. He was hospitalized on two occasions and apparently a myelogram was performed on him, but the details of all of his evaluations, treatment, testing, etc. are for the most part sketchy, because very little medical evidence was presented at the trial. The evidence is, however, that defendant paid bills for such services and expenses totalling $5,619.99.

The case came up for trial on November 30, 1979, and at the conclusion of the day plaintiff rested his case. No resumption date was at that time decided upon, but apparently the trial was later scheduled to resume on January 17, 1980, but refixed instead for February 15, 1980, on which date plaintiff attempted to reopen his case. The motion was objected to and denied. Defendant then put on its case in chief, which consisted solely of Dr. Akins’ deposition. The only rebuttal attempted by plaintiff was the testimony of Dr. David B. Regan, which was objected to as improper and sustained. The testimony is included in the record by way of an offer of proof, however. The trial judge rendered judgment for defendant. Plaintiff then applied for a new trial, which was denied following a brief hearing.

Plaintiff brings this appeal presenting the following issues for review:

(1) Did the trial judge commit manifest error in concluding that plaintiff failed to prove that his disability, if any, arose out of his employment-related accident?
(2) Did the trial judge commit manifest error in finding that defendant did not breach its duty to pay plaintiff’s medical bills timely?
(3) Did the trial judge commit error in not awarding plaintiff penalties and attorney’s fees?
(4) Did the trial judge commit error in not allowing plaintiff to reopen his case after he rested?
(5) Did the trial judge commit error in not requiring defendant to answer interrogatories propounded after plaintiff rested his case on November 30, 1979, but prior to resumption of the trial on February 15, 1980?
(6) Was error committed by not allowing plaintiff to use Dr. Regan as a rebuttal witness?
(7) Did the trial judge err in denying plaintiff a new trial?

We will treat these issues in the order in which they are listed.

(1)

Plaintiff had six physicians subpoenaed for November 30, 1979, five of whom were served with notice to appear. The only one of them called to the witness stand was Dr. C.C. LaBorde, whose testimony was of very limited value due to his extremely minimal involvement with plaintiff. It is not known whether the other four physicians responded to their subpoenas, but the record is silent as to any efforts to get them to Court if they did not respond. On that day, November 30, 1979, plaintiff’s counsel requested an instanter subpoena for Dr. Neil Rogers, a chiropractor who had treated plaintiff a number of times over a period of months, which fortunately for plaintiff the trial judge issued, and which fortunately for plaintiff was executed. Dr. Rogers’ testimony was the only evidence of a medical nature to corroborate the lay testimony of plaintiff and his wife relative to his complaints.

In any event, as stated earlier, there is no dispute that the accident complained of occurred on October 13, 1977 during the course and scope of plaintiff’s employment with defendant. The trial judge concluded that plaintiff was injured as a result of the accident, but was unable to conclude just what the extent of the injury was. Apparently the court was of the view that plaintiff suffered from some disability (to what extent is not known) at the time of trial, although he did not specifically come to that conclusion, but he did not feel that plaintiff met his burden of proving its con-nexity with the work-related accident. That plaintiff has this burden is academic. Soileau v. Bituminous Casualty Corporation, 348 So.2d 1313 (La.App. 3rd Cir. 1977); Aleman v. Lionel F. Favret Co., Inc., 338 So.2d 785 (La.App. 4th Cir.1976); appellate judgment set aside on facts, and trial court judgment reinstated, 349 So.2d 262 (La. 1977). Considering that the trial judge had to balance the testimony of plaintiff, his wife and a chiropractor, Dr. Rogers, on the one hand, against the testimony of an orthopedic surgeon, Dr. Akins, and another physician, Dr. Gold, whose report is in evidence, on the other hand, along with the adverse presumption which attaches to plaintiff’s failure to call the many medical witnesses who were in a position to know his condition (Mitchell v. Keyes Fibre Company, 281 So.2d 815 (La.App. 3rd Cir.1973); Stockstill v. Barge Thompson Corporation, 184 So.2d 98 (La.App. 4th Cir.1966), it would have been extremely reasonable for the trial court to have firmly concluded that plaintiff had not met its burden of showing any disability at all, much less connexity between a disability and the accident.

(2)

The resolution of the preceding issue tends to limit the medical expenses of plaintiff for which defendant is responsible. Nevertheless, the evidence is that defendant paid all of plaintiff’s medical bills which were submitted to it. Plaintiff complains in brief that defendant’s payment of bills totalling $5,619.99 was made only ten days prior to trial. That is not what the evidence shows. The evidence is to the effect that payments were made at varying times, but that the compilation of total bills and total payments was provided to defendant’s attorney approximately two weeks prior to trial. (T. p. 63). The only evidence of any other medical bills of plaintiff not paid by defendant were bills not submitted to defendant, not proven to have been submitted to defendant (Dr. C. C. LaBorde’s bill for $50.00), and Dr. Rogers’ bill for supplemental services submitted on November 30, 1979 (the date of trial; the very date on which he was testifying about it). Mr. Nathan Douget, a representative of Aetna Life and Casualty Company which handled these claims for defendant, called by plaintiff, specifically testified that all bills had been paid, as far as he knew.

There was no error in the trial judge’s finding that no proof was offered to show that defendant failed to timely pay medical expenses which it had a duty to pay.

(3)

Considering the preceding discussion, and considering further the uncontra-dicted testimony of John C. Rhoden, defendant’s Employee Relations Manager, that compensation payments were terminated on June 27, 1978 on the basis of a report from Dr. Thomas C. LaBorde, plaintiff’s physician, to the effect that plaintiff could return to work, it cannot be said that defendant was arbitrary, capricious, or without probable cause in terminating benefits. The trial judge was correct in refusing to award penalties and attorney’s fees.

(4)

Plaintiff’s attorney knew or should have known of the available medical evidence well in advance of trial. The record reflects that plaintiff had some psychiatric and/or psychological testing as a result of physician referral well in advance of trial. Yet plaintiff waited until after his case was rested to see Dr. Regan, a psychiatrist, for the first time. Then when it became apparent that Dr. Regan’s testimony might be helpful to him, he apparently filed a written motion shortly in advance of the trial resumption date for the purpose of reopening his case, which was fixed for hearing on the resumption date. It was a proper exercise of the trial court’s discretion to deny the motion. To do otherwise would have had the effect of depriving defendant of pre-trial discovery and time to develop possible contradictory evidence or have plaintiff examined by a psychiatrist of its own choice; or else result in a continuance to allow for these things, thereby wasting a day on what is probably a very busy court docket and further delaying the disposition of the matter. It should also be noted that plaintiff announced readiness for trial on November 30, 1979. Actually, the Court below was generous toward plaintiff in its exercise of discretion, as in the granting of plaintiff’s requests for instanter subpoenas on November 30, 1979.

(5)

Although it is alluded to in both briefs, we cannot find a refusal on the part of the trial court to require defendant to answer plaintiff’s interrogatories. We cannot find that this issue was taken up in the courtroom at all. If we are correct, then nothing is presented to us by way of review of a ruling of the trial court. To dispose of the matter, however, we will assume that the trial court affirmatively ruled that defendant did not have to answer interrogatories propounded by plaintiff to defendant after plaintiff rested his case on November 30, 1979, but prior to resumption of trial on February 15, 1980. Specifically, these interrogatories were filed on December 5, 1979. Defendant filed a response timely on December 19, 1979, objecting to all of the interrogatories on the basis that they were filed after plaintiff rested his case (LSA-C. C.P. art. 1458). The record reflects that a copy of the response was forwarded to plaintiff’s counsel. Plaintiff did not apply, with due notice, for an order compelling discovery or fix the objections for hearing as he is procedurally required to do. (LSA-C.C.P. art. 1469). To complain on the trial date, if in fact he did, is too late. Of what benefit could even a favorable ruling have been to him on that date? Interrogatories are a discovery device designed for use in preparation for trial; and discovery should be complete sufficiently in advance of trial. No error is presented in connection with these interrogatories.

(6)

Apparently plaintiff intended to use Dr. Regan to set up a disability claim based on some sort of a traumatic neurosis theory. He did not do so in his case in chief and defendant did not defend against it. There was no basis, therefore, to use it in rebuttal. The use of Dr. Akins by the defendant was to contradict plaintiff’s evidence with regard to physical injury and disability. Dr. Regan’s testimony as reflected by the offer of proof was not in proper rebuttal of Dr. Akins’ testimony. It was not made necessary by evidence presented in defendant’s case in chief. The trial judge properly excluded it. The record reflects that plaintiff was or should have been alerted to the prospect of psychiatric evidence well in advance of trial. He chose not to develop it in his trial preparation and accordingly he presented no evidence in that area. It was only after plaintiff rested his case on November 30, 1979, that he first saw Dr. Re-gan, on January 8, 1980. The evidence was available prior to trial with the use of due diligence and was not availed of. Moreover, it would have been grossly unfair to defendant to allow such evidence on rebuttal when defendant would have had no opportunity to challenge or contradict it afterward.

(7)

The foregoing discussion makes it clear that there was no basis for granting a new trial herein. Plaintiff’s argument focuses on the peremptory ground outlined in LSA-C.C.P. art. 1972(2):

“Where the party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have attained before or during trial; ...”

There must be a clear showing, not only that the evidence was discovered after trial, but that every reasonable and diligent effort was made to procure it before trial. Campbell v. Libersat, 203 So.2d 730 (La. App. 3rd Cir.1967); Deville v. Allstate Insurance Company, 242 So.2d 909 (La.App. 3rd Cir.1971). Such was not the case here.

There being no reversible error with respect to any of the questions complained of, the judgment of the trial court is affirmed, plaintiff-appellant to bear the costs in connection with this appeal.

AFFIRMED.

      . We are unable to find such a pleading in the record, but since both counsel acknowledged it at the time of their oral arguments before us, we will assume it to have been filed.


source: Caselaw Access Project

author: CULPEPPER, Judge. PER CURIAM.

license: Public Domain

text:
    Brenda Coco DUCOTE, Plaintiff and Appellee, v. LOUISIANA OFFICE OF EMPLOYMENT SECURITY, DEPARTMENT OF LABOR and Louisiana State University A & M College, Defendant and Appellant.
    No. 8337.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1981.
    On Rehearing Aug. 13, 1981.
    James D. Caldwell, Baton Rouge, for defendant and appellant.
    Darrel D. Ryland, Marksville, for plaintiff and appellee.

      Before CULPEPPER, FORET and LA-BORDE, JJ.
   CULPEPPER, Judge.

The claimant filed this suit for judicial review of a decision of the Board of Review, Office of Employment Security, finding claimant disqualified for unemployment compensation benefits because she voluntarily resigned without good cause connected with her employment. The district judge reversed the decision of the Board of Review and found that the claimant is entitled to benefits. Claimant’s employer, Louisiana State University A & M College, appealed.

The record shows the initial agency determination found the claimant entitled to benefits. The employer appealed, and the Appeals Referee found the plaintiff disqualified. Claimant appealed from that ruling, and the Board of Review affirmed the Appeals Referee.

The general facts are that plaintiff was employed as a stenographer II in the Marksville, Louisiana office of the Louisiana State University Extension Service. She resigned on January 11, 1980 for the stated reason that she was “unable to work with co-workers without being under stress and nervous tension.” After the hearing before the Appeals Referee on March 11, 1980, he found the following facts and rendered the following opinion which were affirmed by the Board of Review:

“FINDINGS OF FACT: The claimant had worked for the named employer for four years, four months as a Steno II, for the rate of $4.24 per hour. She was scheduled for work from 8:00 A.M. to 4:30 P.M., five days per week, Monday through Friday. The claimant last worked on January 9, 1980, when she resigned her job, telling Mr. Braud, County Agent, she was leaving because she was dissatisfied with conditions in the office. The claimant was not dissatisfied with her work or with whom she came directly in contact but was having personality conflicts with those working in the other Departments. The claimant stated she felt the other workers in the other Department were not being nice to her and including her in the things in the office and had discussed this with Mr. Braud, her Supervisor, prior to this and he had tried to resolve the situation at that time. The claimant was also having outside problems that could have had some effect on her work. At the time the claimant resigned her job, she was not told she had to resign and was not forced to leave by company policy. The claimant had been told, previously, that if she could not get along with other employees, that it might be best if she did go ahead and resign but she was not forced to leave. The claimant stated that when Mr. Braud left she felt she would go ahead and resign and submitted her resignation and left.
“OPINION: R.S. 23:1601(1) provides that an individual shall be disqualified for benefits if the Administrator finds that he has left work without good cause connected with his employment. Such disqualification shall continue until such time as the claimant can demonstrate that he has been paid wages for work subject to the Louisiana Employment Security Law or to the Unemployment Insurance Law of any other state or of the United States equivalent to at least ten times his weekly benefit amount following the week in which the disqualification act occurred and has not left his last work under disqualifying circumstances. “From the evidence and facts presented, it is concluded that the claimant was performing her job satisfactorily and was not actually dissatisfied with the work but was having personality conflicts with those in the other Departments where she worked. It is further concluded that she had not been warned about her work or cautioned about her work, in any way, but felt she would go ahead and leave as she felt she could not take the situation as it was, when her employer retired. It is further concluded she was possibly having other problems that was affecting her at work and when she resigned she resigned for personal reasons and without good cause connected with the employment and under disqualifying conditions.”

The opinion of the district judge states he found the claimant resigned “due to on-the-job harassment from her co-workers.” The judge then concluded:

“After reviewing the factual findings of the Appeals Referee and Board of Review and considering the testimony and the legal principles involved, this Court finds that the employer has failed to bear its burden of proving that claimant was disqualified from receiving unemployment benefits under the Act. Good cause did in fact exist for plaintiff’s resignation.”

On appeal, the employer contends the trial judge did not apply the proper standard of review, in that the district judge re-evaluated the evidence and substituted his judgment of the facts for that of the Board of Review, without indicating why the Board’s findings are wrong. We agree with the appellant.

The applicable statute, LSA-R.S. 23:1634, provides in pertinent part that on judicial review of these cases “the findings of the Board of Review as to the facts, if supported by sufficient evidence and in the absence of fraud, shall be conclusive and the jurisdiction of the court shall be confined to questions of law.” In Barber v. Lake Charles Pipe and Supply Co., 148 So.2d 326 (La.App. 3rd Cir. 1962) we construed this statute as follows:

“As stated at 81 C.J.S. Social Security and Public Welfare, § 232c:
“Thus, it is not a function of the court to weigh the evidence, resolve, conflicts in the testimony, determine the credibility of the witnesses, or to decide what inferences are to be drawn from the evidence. The court may not reevaluate the evidence or substitute its own judgment on the facts for that of the administrative agency * * *. [Administrative determinations of fact are conclusive unless wholly without evidential support, or wholly dependent on a question of law, or clearly arbitrary or capricious. * * * Thus, a finding of fact will not be disturbed where there is evidence reasonably tending to sustain such finding or where there is evidence from which an inference of the fact found could be fairly be drawn.”

We have carefully reviewed the transcript of the testimony taken at the hearing before the Appeals Referee, and we conclude his findings of fact are fully supported by the evidence. Essentially, the Referee found the claimant resigned for personal reasons, i. e., she was having personality conflicts with her co-employees and she was also having problems in her own family. The Referee did not accept the claimant’s contention that she had to resign because of unbearable harassment by her co-workers.

The applicable rule as to resignation due to working conditions was stated by us in McGinnis v. Moreau, 149 So.2d 188 (La.App. 3rd Cir. 1963) as follows:

“Under this statutory provision, mere dissatisfaction with working conditions does not constitute “good cause” for quitting the employment, unless the dissatisfaction is based upon discriminatory or unfair or arbitrary treatment or is based upon a substantial change in wages or working conditions from those in force at the time the claimant’s employment in his position commenced, so as to render the work unsuitable to the claimant, considering the worker’s physical fitness, qualifications, earning ability, and the like. Flournoy v. Brown, La.App. 3 Cir., 140 So.2d 729; Robertson v. Brown, La.App. 1 Cir., 130 So.2d 226; Gilbert v. Hub City Iron Works, La.App. 3 Cir., 137 So.2d 359; Sewell v. Sharp, La.App. 2 Cir., 102 So.2d 259; 48 Am.Jur. “Social Security”, § 35.”

Applying this rule to the facts of the present case, as found by the Appeals Referee and affirmed by the Board of Review, the claimant did not have good cause to resign her employment.

For the reasons assigned, the judgment appealed is reversed and set aside. It is now ordered, adjudged and decreed that the decision of the Board of Review be affirmed. All costs in the trial and appellate courts are assessed against the claimant.

REVERSED AND RENDERED.

ON REHEARING

PER CURIAM.

In our original decision in this case we assessed the claimant with all costs in the trial and appellate courts. Under LSA-R.S. 23:1692 an assessment of costs against the claimant for benefits under the Louisiana Employment Security Law is prohibited, unless it be found that the proceedings for judicial review were instituted or continued frivolously. We do not find the claimant was frivolous in instituting or continuing these proceedings. Therefore, our original decision is amended to omit therefrom the taxing of costs against the claimant and, as amended, it is affirmed.

ORIGINAL DECISION AMENDED ON REHEARING.


author: STOKER, Judge. BIENVENU, Judge ad hoe,

text:
    CAMERON STATE BANK, Plaintiff-Appellee, v. AMERICAN EMPLOYERS' INSURANCE COMPANY, Defendant-Appellant.
    No. 8283.
    Court of Appeal of Louisiana, Third Circuit.
    July 1, 1981.
    Rehearing Denied Aug. 13, 1981.

      Brame, Bergstedt & Brame, David A. Fraser, Lake Charles, for defendant-appellant.
    Jones, Jones & Alexander, Glenn W. Alexander, Cameron, for plaintiff-appellee.
    Before CUTRER, STOKER, and BIEN-VENU, JJ.

       Judge C. Thomas Bienvenu, Jr., Sixteenth Judicial District Court, Parish of St. Martin, participated as Judge Ad Hoc in this decision.

   STOKER, Judge.

Cameron State Bank sued American Employers’ Insurance Company under a “Monies and Securities Broad Form” insurance policy, seeking recovery of $10,000 to cover items lost through theft. From a judgment in favor of the plaintiff for $10,000 and penalties and attorney’s fees the defendant appeals. The plaintiff answers the appeal seeking an increase in attorney’s fees.

The issues in this case are:

1. Whether plaintiff’s loss is covered under the policy issued by defendant, and

2. Whether the defendant’s failure to pay was arbitrary, capricious or unreasonable so as to subject defendant to payment of penalties and attorney’s fees.

FACTS

The main bank of Cameron State Bank is in the town of Cameron in Cameron Parish. There is a branch bank in Grand Lake, a community approximately thirty-five miles distant from Cameron. Murray Hebert is employed by Cameron State Bank as a bank messenger to deliver the bank’s daily works and transactions from the Grand Lake branch to the main bank. On August 6, 1979, Murray Hebert picked up the bank pouch containing these transactions at approximately 5:30 P.M. and continued on to his home in Lake Charles. Once there he left the bank pouch on the floor of his unlocked van which he parked in the garage adjacent to his home. The next morning on the way to the main bank in Cameron Murray Hebert discovered that the bank pouch was missing. Upon reaching the bank he reported the theft to the bank officials who notified the authorities. The bank pouch was never recovered. The bank incurred a loss of $10,903.24.

Defendant issued to plaintiff a money and securities broad form policy with $10,-000 limits. In its policy under Coverage B, entitled “Loss Outside the Premises,” defendant agreed:

“... To pay for loss of money and securities by the actual destruction, disappearance or wrongful abstraction thereof outside the premises, while being conveyed by a messenger or any armored motor vehicle company, or while within the living quarters in the home of any messenger.
“To pay for loss of other property by robbery or attempt thereat outside the premises while being conveyed by a messenger or any armored motor vehicle company, or by theft while within the living quarters in the home of any messenger.”

COVERAGE UNDER THE POLICY

The defendant-appellant asserts that the policy provides coverage for losses occurring outside the premises in three circumstances:

1. While the money and securities are being conveyed by a messenger,

2. While the money and securities are being conveyed by any armored vehicle company, and

3. While the money and securities are within the living quarters in the home of any messenger.

Appellant argues that the bank’s loss is not covered under the policy because it does not fall into one of the three above categories. Appellant relies on Monteleone v. American Employers’ Insurance Company, 239 La. 773, 120 So.2d 70 (1960) and Sansone v. American Insurance Company, 245 La. 674, 160 So.2d 575 (1964) as support for its position.

The plaintiff-appellee argues that the loss occurred while the insured items were being conveyed by a messenger and distinguishes Monteleone, supra, and Sansone, supra. In addition, plaintiff relies on Allen & Allen, Inc. v. State Farm Fire and Casualty Company, 295 So.2d 894 (La.App. 2nd Cir. 1974), writ denied, 299 So.2d 794 (La.1974).

The specific language of the first paragraph of Coverage B with which we are concerned is “. . . while being conveyed by a messenger . .. ”.

This language was first interpreted by the Supreme Court in Monteleone, supra. In Monteleone plaintiff, a grocery store owner, stored two bags of money in a cedar chest in his home overnight. The next morning plaintiff took one bag to the bank and left the other one in the cedar chest. Later that day plaintiff’s home was burglarized and the bag of money stolen. The question presented to the court was whether the loss fell within the policy provision which provided coverage for loss of money and securities by the actual destruction, disappearance or wrongful abstraction outside the premises while being conveyed by a messenger.

The Supreme Court in its interpretation of the phrase “while being conveyed by a messenger” resorted to dictionary definitions of “messenger” and “convey”. The court also relied on a provision of the policy which provided that not more than one messenger was to have custody of the insured property outside the premises. In denying recovery the court said:

“. . . the clause in question, when viewed in the light of other provisions of the policy, clearly indicates that the conveying messenger must have the money in his personal custody at the time of the loss which was obviously not the case here.”

Had the policy involved in Monteleone contained a provision covering loss while within the living quarters in the home of the messenger (which it did not), perhaps coverage could have been found under such a provision.

In Sansone, supra, plaintiff, owner of a restaurant, gave $2,500 to the restaurant manager with instructions to deposit it in the bank the next morning. After leaving work, the manager went to a social club and once there transferred the money from his pants’ pocket to his coat pocket and instructed the porter to hang up his coat. After a period of time he became concerned about the money, located his coat on a coat rack in an adjoining room and discovered that the money was missing. The court said the sole issue presented was whether the money disappeared “while being conveyed by a messenger” within the terms of the policy. The court quoted the passages of the Monteleone opinion defining messenger and convey and found it significant that “the restaurant manager had turned aside from his function as a messenger to engage in an evening of social activities.” The court denied recovery concluding that the money was not being conveyed by a messenger at the time it disappeared.

In Allen the plaintiff operated a vending machine business. Plaintiff furnished an employee with a van equipped with a safe in which to store money collected by the employee from the vending machines. The employee returned to his home at the end of the day and parked the van allowing the coins to remain in the safe overnight. The next morning the employee discovered that the coins had been removed from the safe. The issue presented to the court was whether the money disappeared “while being conveyed by a messenger.” In interpreting this policy provision the court relied on two requirements under a heading designated as “Additional Declarations.” Item A3 of these additional declarations provided that the custody of the insured property be with only one messenger. Item A5 provided:

“The insured property while outside the premises in the custody of a messenger shall be conveyed in VARIOUS [vehicles] employed for the exclusive use of the messenger and his guard, if any, throughout the entire trip.”

The Court of Appeal in Allen affirmed the decision of the trial court which relied heavily on item A5 in interpreting the policy. The trial judge found that travel from the point of collection to the point of delivery of the coins at plaintiff’s place of business comprised one trip and that the policy required the coins to be conveyed in the van throughout the entire trip. The trial judge concluded the coins were being conveyed as contemplated by the terms of the policy.

We find that the loss in the present case occurred while the insured items were being conveyed by a messenger. Monteleone and Sansone are distinguishable from the ease before us. The policy which we are called upon to interpret is different from the policy in Monteleone. The terms of the policy in the instant case indicate to us that physical or personal custody of the insured item with the conveying messenger is not a prerequisite of coverage under this broad form policy. We think it is an unnecessarily narrow construction of the policy to require that the insured item must be within the immediate physical custody of the conveying messenger in order for there to be coverage under the policy. We are not concerned with the language of the policy which provides coverage for losses which occur while the insured property is located within the living quarters of the home of any messenger. The three circumstances under which coverage is provided are stated in the disjunctive. Facts fitting any one of the three circumstances bring coverage into play. Continuous personal or physical custody is not a prerequisite to coverage.

Sansone is distinguishable from the case before us on the facts. Within the meaning of the policy (as construed in Allen) we do not find that Murray Hebert had turned aside from his function as a messenger at the time the loss occurred.

We affirm that part of the trial court judgment which granted plaintiff a recovery of $10,000.

PENALTIES AND ATTORNEY’S FEES

The trial court found that the denial of coverage by the appellant-insurer entitled the appellee-insured to penalties and attorney’s fees under the provisions of LSA-R.S. 22:658. This statute provides that, if an insurer fails to pay a loss within sixty days after being furnished satisfactory proof of loss, and the failure to pay is found to be arbitrary, capricious or without probable cause, such failure shall subject the insurer to payment of a penalty (in addition to the amount of loss) of 25% of the loss and reasonable attorney’s fees for prosecution and collection of the loss. The trial court awarded penalties of $2,500 and attorney’s fees in the amount of $1,470.

A trial court’s conclusion with regard to assessment of penalties and attorney’s fees under LSA-R.S. 22:658 is in part a factual determination. It should not be disturbed in the absence of a finding that it is manifestly in error. Carter v. American Mutual Liability Insurance Company, 386 So.2d 1072 (La.App. 3rd Cir. 1980) and Cullivan v. Fish Engineering and Construction Company, Inc., 354 So.2d 597 (La.App. 3rd Cir. 1977).

We find no manifest error in the trial court’s decision to assess penalties and attorney’s fees. The appellee answered the appeal in this case. The sole prayer of appellee in its answer to the appeal is to request an increase in the attorney’s fees in the amount of $1,000 to cover the additional attorney’s fees incurred in defending this appeal. We think an additional award for services rendered on appeal is in order and we will modify the judgment to award an additional $500 for a total award of attorney’s fees of $1,970.

For the above and foregoing reasons the judgment appealed from is affirmed insofar as it awards plaintiff $10,000 to cover its loss under the policy and $2,500 in statutory penalties. The judgment is modified to increase the award of attorney’s fees to $1,970. We affirm the award of legal interest on the principal amount, statutory penalties and attorney’s fees from date of judicial demand until paid. Costs of this appeal are to be borne by appellant.

MODIFIED AND AFFIRMED AS MODIFIED.

BIENVENU, J. Ad Hoc, dissents and assigns written reasons.

BIENVENU, Judge ad hoe,

dissenting.

The question of coverage turns on two circumstances in which losses of this kind occurring outside the bank premises are covered according to the policy language. One is in situations where money and securities are “being conveyed by a messenger”, and the other is where the loss occurs while the money and securities are “within the living quarters in the home” of the messenger. Clearly there is no coverage herein under the second circumstance. The majority concludes that the loss herein occurred while the pouch was “being conveyed by a messenger.” In so concluding, they distinguish two of the apparently only three similar cases in the Louisiana jurisprudence, Monteleone and Sansone, supra (which are both Supreme Court cases and hold that coverage did not exist) and place reliance on the third, Allen, supra, which held coverage to exist. I distinguish Allen and would reverse the decision of the trial court in its entirety.

I suggest that had the Monteleone policy provided for coverage “while within the living quarters in the home” of the messenger, the result would have been different, for there is no requirement that the messenger be in the home at the time of the loss.

The policy in Allen contained the identical language as in the instant case, but with the following additional language:

“The insured property while outside the premises in the custody of a messenger shall be conveyed in various vehicles employed for the exclusive use of the messenger . . . throughout the entire trip.’’ (Emphasis mine)

Coverage was held to exist in Allen and the Court relied on the above language in so holding. That holding is correct, because the additional language plainly requires that the money shall be conveyed in a vehicle furnished by the employer throughout the entire trip and during the time when it is outside the premises. But I distinguish Allen from the instant case because that additional language is not included in the instant policy. The messenger in Allen was supposed to keep the money in the vehicle safe; the messenger in the instant case was supposed to take the pouch overnight into the living quarters in his home. I think that is what the policy contemplates; why else have the language about the living quarters? And note that the requirement is not only to have the insured property in the home, but “within the living quarters in the home.”

To me, the intent was to provide coverage in the two situations in which Mr. Hebert would find himself: while the pouch was in transit in his personal custody (“being conveyed by a messenger”), and while he was responsible for it overnight; and to direct the proper manner for its overnight care. It seems that the bank would have instructed Mr. Hebert about the policy language, if from none other than a common sense standpoint. It would have been no trouble to carry the pouch into the much safer confines of his living quarters, than leave it on the floor of his unlocked van. Justifying coverage herein under the “being conveyed by a messenger” theory will compel too liberal a precedent for the future, because we are holding that that theory does not require responsible safekeeping. The policy obviously contemplates that the conveyance is to be made in the personal custody of the messenger. Under a construction which does not require physical or personal custody and will afford coverage when the messenger does not even bother to remove the insured property from the floor of his unlocked van and take it into his home overnight, we will likewise have to hold coverage to exist in instances (analogizing to the facts of this case) where Mr. Hebert leaves the pouch in his mailbox at the street, or on his front steps, or anywhere else he pleases. I know of no formula that could be used to keep the theory within boundaries. Such a construction indeed encourages irresponsibility. I think the better view is that the conveyance by the messenger is interrupted when he stops conveying: when he parks the van for the night. At that point, the other theory comes into effect. It would seem that prudence would dictate that Mr. Hebert not leave the pouch in the van, and had he been prudent there would be no question about coverage.

Allen discusses two Georgia cases involving the same policy language. The earlier case gave recovery where the valuables were stolen from the locked glove compartment of the messenger’s locked car while it was parked for ten minutes during which he was purchasing a sandwich to be eaten later. While I have not been able to review the decision, it seems apparent that recovery was based on the “being conveyed by the messenger” theory. I find no fault with that; the loss occurred in transit while the messenger exercised reasonable personal physical custody over the insured property. The other case is the closest of all to the instant one, but with stronger facts: The money was stolen while stored overnight in the locked glove compartment of the locked truck of the insured’s president, parked on the driveway of his residence. The court denied recovery, finding that the money was not in the relative safety of the president’s living quarters, nor was it “being conveyed by a messenger.” While we are not bound by the Georgia decisions, they are to me well reasoned and offer guidance. Actually, I feel that all five of the decisions mentioned above make good law on their facts; but I do not believe that the majority view herein will have that same effect.

I respectfully dissent.

      . Murray Hebert testified that this was his usual routine — to pick up the pouch, continue on to his home in Lake Charles and leave the pouch in his van overnight. Apparently the only time Mr. Hebert took the pouch into his home was when he knew it contained cash or valuables. The bank officials knew of Murray Hebert’s procedures.

      .The policy in Monteleone differs from that in the instant case in that the policy made no provision for a loss while being conveyed by an armored motor vehicle company or for a loss while within the living quarters in the home of any messenger.

      . This provision is found in the instant policy.

      . The policy in the instant case contains the exact language as the policy interpreted in San-sone.

      . This provision is found in the instant policy and is the same provision relied upon by the Supreme Court in Monteleone in finding that personal custody is essential to coverage under the phrase “while being conveyed by a messenger.” See footnote 3 and text at that note.

      . This provision is present in the instant policy but the blank specifying the vehicle is not completed.


author: LEE, Justice, for the Court:

text:
    Gayle J. EVANS and Barbara Evans v. Jewell DAVIS.
    No. 52320.
    Supreme Court of Mississippi.
    Jan. 28, 1981.
    As Modified April 1, 1981.
    Robert O. Allen, Allen & Allen, Brookha-ven, for appellant.
    Breed O. Mounger, Sr., Breed 0. Moun-ger, Jr., Mounger & Mounger, Tylertown, for appellee.
    Before SMITH, P. J., and LEE and BOWLING, JJ.
   LEE, Justice, for the Court:

Jewell Davis filed suit in the Chancery Court of Lincoln County against Gayle J. Evans and Barbara Evans seeking fifty percent (50%) of their profits derived from the operation and sale of a nursing home in Brookhaven, Mississippi. The chancellor granted the relief prayed for and entered judgment in favor of Davis in the sum of forty-seven thousand one hundred sixty-one dollars thirty-one cents ($47,161.31) and the Evans have appealed, assigning two (2) errors in the trial below.

Although the evidence is contradictory in many respects, Gayle J. Evans and Jewell Davis admitted they entered into a joint adventure for the purpose of building a nursing home and both performed certain work toward construction of same. Appel-lee Barbara Evans testified that she had no knowledge of Jewell Davis’ connection with the venture and that her one-fourth (Vi) interest should not be subjected to appel-lee’s claim. She and Gayle J. Evans are husband and wife and jointly owned a fifty percent (50%) interest in the nursing home.

A corporation was organized under the name of Cartwheel Lodges of Brookhaven, and, at some point during the construction of the nursing home and its subsequent operation, the business was carried on in the corporate name. Later, the corporation was dissolved and the interest became vested fifty percent (50%) in the appellants and fifty percent (50%) in an individual who arranged for the financing of the business. Appellants sold their interest in the nursing home and appellee brought this suit for one-half (V2) of their interest or a twenty-five percent (25%) interest in the profits.

I.

Was the lower court manifestly wrong in holding that a joint venture was entered into by appellant Gayle J. Evans and appel-lee Jewell Davis and in entering judgment for appellee?

As stated, it was admitted by appellant Gayle J. Evans that he and appellee entered into a joint venture for the construction and operation of the nursing home, and that appellee performed work pursuant to the joint venture agreement, but he contends that they abandoned the original venture agreement and that the nursing home was an entirely different operation and business. The evidence for appellee is to the contrary. The chancellor found the following:

“Inasmuch as there is the admission of a joint venture by Jewell Davis and Gayle Evans at the beginning of this project, the primary question left to this Court for its decision is whether or not there was ever an abandonment by Jewell Davis of the project commenced by him and Gayle Evans, so as to enable Gayle Evans and Barbara Evans to enter into another arrangement with the McDonnells, without Jewell Davis being entitled to assert claim to any interest therein.
Based upon the pleadings and the oral testimony adduced at the hearing of this cause, this Court finds as a fact that there was a joint venture undertaken by Davis and Gayle Evans. The defendants, Gayle and Barbara Evans, have alleged in their Answer that there was an abandonment by Jewell Davis of this joint venture. The burden of proving such an abandonment is upon them, and they must do so by clear, unequivocal, and decisive evidence. This Court is of the opinion that the defendants, Gayle and Barbara Evans, have failed to prove by clear, unequivocal, and decisive evidence that Jewell Davis abandoned the joint venture, which he and Gayle Evans entered into. The most that can be said of the evidence is that it is highly contradictory. This Court, therefore, finds as a fact that such a joint venture was [not] abandoned. The joint enterprise was launched, and unique and substantial contributions were made thereto by Davis, all of which enured to the benefit of the Evans in their finally completed venture, and to deprive Davis of his right to share in the profits of the venture would be unjust and inequitable. This Court feels that if the Evans ever made a determination that Davis was not contributing to or was no longer to be considered a part of the venture, that they should have taken active, positive, and determinative steps to terminate the undertaking and should have made known their intentions to exclude his further participation in any efforts of their own. The relationship between joint venturers is in a sense fiduciary in character and imposes upon all persons engaging therein the utmost in good faith, fairness, openness, and honesty in all their dealings with each other, insofar as the undertaking is concerned.”

Sample v. Romine, 193 Miss. 706, 8 So.2d 257 (1942) establishes the law on joint venture in Mississippi. There, three parties entered-into an agreement to procure oil, gas and mineral leases in Yazoo County. Two of the parties, Falvey and Sample, advanced the purchase money for the instruments and Romine did the actual work of obtaining and buying the leases. The leases were in the names of Falvey and Sample, but Romine kept the papers. A well was drilled in 1929, without success, and no further activity occurred until 1939 when oil activity was renewed in Yazoo County. Romine learned of same, notified Sample and Falvey, (his widow) and sent the lease instruments to Sample. Subsequently, a producing well was drilled, the partners declined to share profits with Ro-mine and he sued for his share. The trial court entered judgment in Romine’s favor for one-third (Vi) of the royalties from the well, upholding the joint venture. On appeal, the judgment was affirmed, and the Court had the following to say about joint venture:

“While perhaps no exact definition of a joint adventure can be given, nor can a general rule be laid down by which the question as to what amounts to a joint adventure can be answered, the answer in each case depending on the terms of the agreement, the acts of the parties, the nature of the undertaking and other facts (30 Am.Jur., page 680, Sec. 7; State ex rel Ratliffe v. Superior Court, 108 Wash. 443, 184 P. 348), some definitions have been attempted. In 30 Am.Jur., page 677, Sec. 3, it is said: ‘A joint adventure has been broadly defined as an enterprise undertaken by several persons jointly, and, more particularly, as an association of two or more persons to carry out a single business enterprise for profit . . . an association of persons to carry out a single business enterprise for profit, for which purpose they combine their property, money, effects, skill and knowledge.’ In Simpson v. Richmond Worsted Spinning Co., 128 Me. 22, 145 A. 250, 253, the Court said a ‘ “joint adventure” has been defined as “an association of two or more persons to carry out a single business enterprise for profit.” . . . ’ A federal court said ‘ “Joint adventure” exists when two or more persons combine in joint business enterprise for their mutual benefit with understanding that they are to share in profits or losses and that each is to have voice in its management.’ Chisholm v. Gilmer, 4 Cir., 81 F.2d 120, 121, affirmed 299 U.S. 99, 57 S.Ct. 65, 81 L.Ed. 63, rehearing denied, 299 U.S. 623, 57 S.Ct. 229, 81 L.Ed. 458. Other definitions will be found in the notes in 48 A.L.R., beginning at page 1055, and in 63 A.L.R., beginning at page 910.” 193 Miss. at 726, 8 So.2d at 260-261.

The appellees attempt to distinguish the case sub judice from Sample on the basis that the joint venture was completed in Sample, while there was an abandonment of the venture here. In McCartney v. McKendrick, 226 Miss. 562, 85 So.2d 164 (1956), the Court set out what is required to constitute abandonment of a joint venture:

“It is said in 30 Am.Jur., Joint Adventurers, Sec. 45, p. 701: ‘ * * * Generally, where the purposes of the enterprise have not been fulfilled, no party has the right to withdraw from or abandon it without the consent of his coadventurers. If he does so, he is liable to his associates for the damages caused by his .act, or, if he thereafter pursues the enterprise alone, he may be compelled to share the benefits with his former associates.’
In 11 A.L.R. 432, the annotator states: ‘The rule seems to be that failure of a party to a joint adventure to contribute his share of the expenses is ground for abandonment of the enterprise by his co-adventurers, and his exclusion from further operations by them, provided they take definite steps to effect that result. They cannot, however, continue the enterprise, using what he has contributed, or failing to notify him of the dissolution, and then exclude him for a share of the resulting profits. * * * Under ordinary circumstances, however, where the enterprise has been launched and some contribution has been made by the parties who subsequently become delinquent, the rule is that active steps must be taken by those not in default to terminate the undertaking and exclude the delinquent from further participation, if they intend to deny his right to share in the profits.’

To the same effect are the cases of McDonough v. Saunders, 201 Ala. 321, 78 So. 160; Sime v. Malouf, 95 Cal.App.2d 82, 212 P.2d 946; Kagle v. Johnson, 3 N.J.Misc.R. 84, 127 A. 664 and McIver v. Norman, 187 Or. 516, 213 P.2d 144, 13 A.L.R.2d 749; see also 30 Am.Jur., Joint Adventurers, Sec. 35, p. 706.” 226 Miss. at 578-579, 85 So.2d at 169.

The burden of establishing an abandonment of the joint venture rested upon appellants. The chancellor found that they had not met that burden of proof. He upheld the joint venture and we cannot say that he was manifestly wrong in so doing. McHann v. McHann, 383 So.2d 823 (Miss. 1980); Richardson v. Riley, 355 So.2d 667 (Miss.1978).

II.

Was the lower court manifestly wrong in sustaining appellee’s objection to testimony relating to the allowance of a reasonable contractor’s fee and in declining to permit a reasonable contractor’s fee to be deducted from the profits of the adventure?

At the conclusion of the evidence, the chancellor entered an interlocutory decree appointing an accountant as a Special Master to examine the records of the business and to determine the profits realized from the joint venture. The Special Master found appellant’s profits from the sale of the home to be one hundred ninety-seven thousand eight hundred five dollars twenty-four cents ($197,805.24). He further found appellant Gayle Evans entitled to a fifteen percent (15%) contractor’s fee. Judgment was entered for appellee in the sum of forty-nine thousand four hundred fifty-one dollars thirty-one cents ($49,451.31), less the share of the Special Master’s fee, for a net judgment of forty-seven thousand one hundred sixty-one dollars thirty-one cents ($47,-161.31). The chancellor, however, declined to admit testimony concerning the deduction from the profits of a contractor’s fee for appellant and disallowed the fee to appellant. In so doing, he declined to accept the Special Master’s finding of fact as to the contractor’s fee. In Broadhead v. Stack, 244 So.2d 382 (Miss.1971), the law was stated with reference to the position and worth of a Special Master’s finding of fact as follows:

“ ‘The law of this State, through the years, has uniformly been that the report of a master in chancery has the effect of the verdict of a jury in the circuit court, and the chancellor could not vacate or set it aside, unless manifestly wrong as against the overwhelming weight of the evidence. Hines v. Imperial Naval Store Company, 101 Miss. 802, 58 So. 650; Daniel v. Klein, 149 Miss. 135, 115 So. 193; Sadler v. Glenn, 190 Miss. 112, 119, 199 So. 305; Goodyear Yellow Pine Company et al. v. Anderson, 171 Miss. 530, 536, 157 So. 700. (199 Miss. 201 at 207, 23 So.2d 906 at 907).
See also State Highway Commission v. Wunderlich, 10 So.2d 453 (Miss.1942).
We held in Hines v. Imperial Naval Store Co., 101 Miss. 802, 58 So. 650 (1911), that the finding of a master in chancery on conflicting evidence is entitled to the same weight as the verdict of a jury. There is, however, much authority to the contrary (see 30A C.J.S. Equity § 543 b(2) [1965]; nevertheless, the report of the master is required to be submitted to the chancery court for confirmation. The chancellor may confirm, modify, reject, reverse or recommit all or a portion of the master’s report, just as a trial judge may set aside the verdict of a jury and enter a judgment notwithstanding the jury verdict.
The report of the master in chancery has no efficacy until it is confirmed by the chancery court. The very purpose of appointing a master in chancery is to aid the court and, although many reasons given by the courts for the need of masters in chancery have been corrected or have vanished, the need for masters in chancery is still essential in determining the facts in a complicated account. Griffith, Mississippi Chancery Practice, 2nd Ed. § 598 (1950).
The report of the master on facts revealed from evidence taken before him is given great weight by the chancellor in determining the case presented for his decision. The master’s decision is necessarily based upon involved accounts, credits, adjustments, values and interest, all of which must be added or subtracted, as the case may be, in order to strike a balance.” 244 So.2d at 384.

We are the opinion that the chancellor was manifestly wrong in declining to follow the Special Master’s finding with respect to the contractor’s fee. From the record made, the contractor’s fee should be allowed in the amount of fifteen percent (15%), of the total construction cost, less any personal draws by the appellant. So computed, the contractor’s fee of $54,648.10 is subtracted from the net profit total, producing a total net profit of one hundred thirty-eight thousand six hundred fifty-seven dollars fourteen cents ($138,657.14). Ap-pellee’s one-quarter (VR share of these net profits, reduced by his one-half (Vfe) share of the Special Master’s fee leaves a net award to appellee of thirty-two thousand three hundred eighty-four dollars twenty-eight cents ($32,384.28).

AFFIRMED IN PART, REVERSED AND RENDERED IN PART.

SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, BOWLING and HAWKINS, JJ., concur.

PATTERSON, C. J., took no part.

      . The final decree recited a net profit of $197,-805.24 from sale of the Cartwheel Lodges nursing home and that such figure was determined by accepting the Special Master’s report. However, the Special Master’s report stated profits of $193,305.24 and the decree reciting a different amount is an obvious error. Contractor’s fee and judgment are calculated by this Court on the profits stated in the Special Master’s report.


author: SUGG, Justice.

text:
    David Lee HUGHES v. STATE of Mississippi.
    No. 52363.
    Supreme Court of Mississippi.
    March 11, 1981.

      Robert B. Prather, Columbus, for appellant.
    Bill Allain, Atty. Gen. by Robert D. Find-ley, Sp. Asst. Atty. Gen., Jackson, for appel-lee.
    Before PATTERSON, SUGG and WALKER, JJ.
   SUGG, Justice.

The principal issue in this case is whether the constitutional guarantees against double jeopardy bar prosecution of a defendant for the separate crimes of rape and kidnapping when the defendant rapes his kidnapped victim.

Defendant was convicted of kidnapping and sentenced to imprisonment for ten years. He was previously convicted of raping his kidnapped victim and sentenced to thirty years imprisonment. Defendant’s assignments of error are:

I. The Trial Court erred in overruling the Motion to Quash and Plea in Bar of the Appellant.
II. The Trial Court erred in allowing evidence of other crimes to be admitted into evidence.
III. The Trial Court erred in admitting into evidence irrelevant photographs of the victim’s arms.

I

In his first assignment of error, defendant asserts his plea in bar and motion to quash the indictment should have been sustained because the issues in the present case were previously litigated in the rape case. His argument is based on double jeopardy and the collateral estoppel rule, a part of the Fifth Amendment’s guarantee against double jeopardy. Defendant’s two arguments present a single question. Was he subjected to double jeopardy in his prosecution for kidnapping after he had been convicted of raping his victim?

We briefly summarize the evidence in both cases in order to state the factual background of defendant’s claim of double jeopardy and collateral estoppel. In the rape case the prosecutrix, a cab driver, testified she picked up defendant as a fare on April 30, 1979. At the direction of defendant she drove to a rural area in Lowndes County. After stopping at several homes eleven or twelve miles outside the City of Columbus and driving towards another place in accord with defendant’s instruction, defendant, who was seated in the backseat of the cab, placed a knife at her throat, forced her to stop the cab, bound her hands behind her back with wire, and locked her in the trunk of the cab. The cab traveled five to fifteen minutes and became stuck after which defendant opened the trunk and the prosecutrix fled but was overtaken by the defendant. Defendant cut her clothes off, raped her, and upon their return to the cab raped her a second time. After unsuccessfully attempting to move the car defendant promised to let her go free if she would not tell what had happened, but if she did tell he had a brother who was a detective who would kill her. After she promised she would not tell, defendant untied her hands and they walked out of the forest. Prosecutrix walked ahead of defendant and when they reached a public road, they came upon a crew working on the road. The prosecutrix was carried to town by her uncle, one of the crew members. Defendant admitted in the rape trial that he had sexual relations with the prose-cutrix but claimed no force was used because the sexual relations were with the consent of the prosecutrix.

Defendant states the same evidence relied on in the rape trial was introduced in the kidnapping trial; however, the prosecu-trix was not asked and did not testify that defendant raped her in the kidnapping case. Neither did defendant testify about having sexual relations with the prosecutrix. Otherwise the evidence in the two cases was essentially the same except for evidence corroborating her testimony that she was raped by defendant.

Mr. Justice Rehnquist succinctly stated the three primary purposes of the Double Jeopardy Clause in his dissent in Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980) as follows. (1) It protects against a second prosecution for the same offense after an acquittal. (2) It protects against a second prosecution for the same offense after a conviction. (3) It protects against multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969); Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977).

In this case, we must determine whether defendant was prosecuted for the same offense after a conviction or received multiple punishment for the same offense.

The leading case on the question of whether a defendant was subjected to multiple punishment for the same offense is Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Block-burger was charged with violating the Harrison Narcotics Act in an indictment which contained five counts. The third count charged a sale of eight grains of morphine hydrochloride not in or from the original stamped package. The fifth count charged the same sale as having been made not in pursuance of a written order of the purchaser as required by the statute. One of the contentions of Blockburger was that the sale charged in the third count and the same sale charged in the fifth count constituted but one offense for which only a single penalty could be imposed. In holding that two sections of the Harrison Narcotic Act were violated by the one sale and two offenses were committed, the Court stated:

Each of the offenses created requires proof of a different element. The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not. Gaviares v. United States, 220 U.S. 338, 342, 31 S.Ct. 421, 422, 55 L.Ed. 489, and authorities cited. In that case this court quoted from and adopted the language of the Supreme Court of Massachusetts in Morey v. Commonwealth, 108 Mass. 433: “A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.” Compare Albrecht v. United States, 273 U.S. 1, 11, 12, 47 S.Ct. 250, 253, 254, 71 L.Ed. 505, and cases there cited. Applying the test, we must conclude that here, although both sections were violated by the one sale, two offenses were committed. (284 U.S. at 304, 52 S.Ct. at 182, 76 L.Ed. at 309)

In this case, the inquiry under the Block-burger test is to determine whether the rape and the kidnapping were two offenses, or only one, by comparing the statutes defining the crimes to ascertain if each statute requires proof of an additional fact which the other does not. Defendant was indicted for kidnapping under section 97-3-51 Mississippi Code Annotated (1972) which follows:

Every person who shall, without lawful authority, forcibly seize and confine any other, or shall inveigle or kidnap any other with intent to cause such person to be secretly confined or imprisoned in the state against his will, or to cause such other person to be sent out of this state against his will, or to cause such other person to be deprived of his liberty, or in any way held to service against his will, shall upon conviction, be punished by imprisonment in the penitentiary not exceeding ten years. Upon the trial of any such offense the consent of the person so kidnapped or confined shall not be a defense, unless it appear that such consent was not extorted by threats or duress.

The indictment against the defendant for rape was returned under section 97-3-65 Mississippi Code Annotated (Supp.1977) which provides in part as follows:

(2) Every person who shall forcibly ravish any female of the age of twelve (12) years or upward, or who shall have been convicted of having carnal knowledge of any female above the age of twelve (12) years without her consent, by administering to her any substance or liquid which shall produce such stupor or such imbecility of mind or weakness of body as to prevent effectual resistance, upon conviction shall be imprisoned for life in the state penitentiary if the jury by its verdict so prescribes; and in cases where the jury fails to fix the penalty at life imprisonment the court shall fix the penalty at imprisonment in the state penitentiary for any term as the court, in its discretion may determine.

It is evident from a comparison of the two statutes the elements of the crime of forcible rape and the elements of the crime of kidnapping are entirely different. Each requires proof of facts not required by the other.

Defendant stated in his brief:

It is equally clear that the prosecution chose, for whatever reason, to present evidence of a kidnap to the jury during the trial for rape. They placed in issue before the jury whether the victim was placed in the trunk of the car and secreted away against her will. The verdict undeniably shows that this issue was resolved against the Defendant.

Defendant then argues that he has been twice placed in jeopardy because evidence of kidnapping was presented in his previous trial for rape.

In United States v. Cowart, 595 F.2d 1023 (5th Cir. 1979) the court, after stating the holding in Bloekburger, addressed the “same evidence” test in the following language:

To determine whether defendant was subject to multiple punishment for the same offense, we look to the leading case of Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), where the Supreme Court of the United States formulated the applicable standard.
The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.
284 U.S. at 304, 52 S.Ct. at 182. See also Brown v. Ohio, 432 U.S. 161, 166, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977); Jeffers v. United States, 432 U.S. 137, 151, 97 S.Ct. 2207, 2216, 53 L.Ed.2d 168 (1977).
This standard frequently has been referred to as the “same evidence” test; however, the Bloekburger test looks not to the evidence adduced at trial but focuses on the elements of the offense charged. Brown v. Ohio, 432 U.S. at 166, 97 S.Ct. at 2225 (Blockburger test emphasizes the elements of the two crimes); Iannelli v. United States, 420 U.S. 770, 785 n. 17, 95 S.Ct. 1284, 1294 [n.17,] 43 L.Ed.2d 616 (1975) (If each [offense] requires proof of a fact that the other does not, the Bloekburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes.”); United States v. Dunbar, 591 F.2d 1190, 1193 (5th Cir. 1979) (“Application of the [Bloekburger] test focuses on the statutory elements of the offenses charged.") An examination of the elements of the respective offenses of “conspiracy” and “aiding and abetting” demonstrates that Cowart was convicted of two, separate and distinguishable offenses. (595 F.2d at 1029-30)

See also, United States v. Bankston, 603 F.2d 528 (5th Cir. 1979) and United States v. Brunk, 615 F.2d 210 (5th Cir. 1980).

The United States Supreme Court in Iannelli v. United States, 420 U.S. 770, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975) in footnote 17 stated:

In determining whether separate punishment might be imposed, Bloekburger requires that courts examine the offenses to ascertain “whether each provision requires proof of a fact which the other does not.” Id., 284 U.S. at 304, 52 S.Ct. at 182, 76 L.Ed. 306. As Bloekburger and other decisions applying its principle reveal, see, e. g., Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958); American Tobacco Co. v. United States, 328 U.S. 781, 788-789, 66 S.Ct. 1125, 1128-1129, 90 L.Ed. 1575 (1946), the Court’s application of the test focuses on the statutory elements of the offense. If each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes. (420 U.S. at 627, 95 S.Ct. at 1293-1294, 43 L.Ed.2d at 627)

It is true that much of the same evidence was presented at both of defendant’s trials. Overlap of evidence in the two trials was permissible. The fact that one has been in jeopardy for one act is no bar to a prosecution for a separate and distinct act though the acts are so closely connected in point of time that it is impossible to separate the evidence relating to either on the first trial. The guarantee against double jeopardy contained in the Federal Constitution and in Article 3, Section 22 Mississippi Constitution (1890) does not extend to different prosecutions for different offenses but for repeated prosecutions for the same offense.

Defendant also argues that if he had been tried on both charges in a single trial he would have been entitled to a lesser included offense instruction, which if denied would have resulted in a valid double jeopardy claim. He contends he lost these rights by separate trials. He relies on Jeffers v. United States, 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977) in support of this argument. Jeffers does not support this argument. Simply stated, rape is not a lesser included offense of the crime of kidnapping, neither is kidnapping a lesser included offense in the crime of rape.

Defendant further argues that every crime of forcible rape includes the crime of kidnapping because, in order to prove forcible rape, it is necessary to prove that the victim was seized and confined against her will. Seizure and confinement, are not elements necessary to be proved in forcible rape cases.

Earlier in this opinion we stated the elements of the crime of rape and kidnapping are entirely different. A detailed analysis of the kidnapping statute involved in this case will support this statement. Section 97-3-51 Mississippi Code Annotated (1972). The statute treats different elements of the crime of kidnapping which are disjunctive, not conjunctive. In order to clearly set forth the different elements which may constitute kidnapping under the state, we restate the statute as follows:

Every person who shall, without lawful authority,
(1) forcibly seize and confine any other,
(2) or shall inveigle or kidnap any other
(3) with intent
(a) to cause such person to be secretly confined or imprisoned in the state against his will,
(b) or to cause such other person to be sent out of this state against his will,
(c) or to cause such other person
(1) to be deprived of his liberty,
(2) or in any way held to service against his will .. .

Under the statute the state must prove that a person, without lawful authority, either (1) forcibly seized and confined another person, or (2) inveigled or kidnapped another person, intending to subject such other person to either (a), (b), or (c) above. In forcible rape cases, it is not necessary to prove any of the above elements, thus the elements of proof in forcible rape and kidnapping cases are different.

We hold the trial court did not err by overruling the plea in bar and motion to quash the indictment. The defendant was not tried for the same offense following a conviction, neither was multiple punishment inflicted for the same offense. Defendant committed two separate offenses when he raped his kidnapped victim; therefore, he was not subjected to double jeopardy in his trial for kidnapping following his conviction for rape, neither was the state barred from prosecuting him for kidnapping under the collateral estoppel rule.

II

Defendant also argues that it was error for the trial court to admit evidence and exhibits of the crime of rape on his trial for kidnapping. It was not error to admit the evidence because evidence of other crimes is admissible to prove motive and a connection between the act proposed to be proved and the crime charged. In Gray v. State, 351 So.2d 1342 (Miss.1977) we listed some exceptions to the rule prohibiting proof of a different crime from that which a defendant is charged with and being tried for, in the following language:

It is well settled in this state that proof of a crime distinct from that alleged in an indictment is not admissible against an accused. There are certain recognized exceptions to the rule. Proof of another crime is admissible where the offense charged and that offered to be proved are so connected as to constitute one transaction, where it is necessary to identify the defendant, where it is material to prove motive and there is an apparent relation or connection between the act proposed to be proved and that charged, where the accusation involves a series of criminal acts which must be proved to make out the offense, or where it is necessary to prove scienter or guilty knowledge. See, Smith v. State, 223 So.2d 657 (Miss.1969), cert. denied 397 U.S. 1030, 90 S.Ct. 1274, 25 L.Ed.2d 542 (1970); Cummings v. State, 219 So.2d 673 (Miss.1969); cert. den. 397 U.S. 942, 90 S.Ct. 954, 25 L.Ed.2d 122 (1970). (Emphasis added.) (351 So.2d at 1345).

The evidence and exhibits pertaining to rape were admissible in defendant’s trial for kidnapping to show the motive for the kidnapping.

Ill

Defendant also argues it was error to admit photographs of the arms of prose-cutrix taken fifteen days after the incident because the photographs were irrelevant and unduly prejudicial to the defendant. The photographs had evidentiary value in that they corroborated the testimony of the prosecutrix that defendant tied her arms together with wire. We have numerous decisions holding it is within the sound discretion of the trial judge to admit photographs in evidence if they supplement or add clarity to the testimony of a witness. The photographs in this case met the test.

AFFIRMED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and WALKER, BROOM, LEE, BOWLING and HAWKINS, JJ., concur.

      . His conviction and sentence were affirmed by this Court in an unpublished opinion, 390 So.2d 291 (Miss. 1980).

      . In Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 1195, 25 L.Ed.2d 469, 475 (1970), the United States Supreme Court stated:
      “Collateral estoppel” is an awkward phrase, but it stands for an extremely important principle in our adversary system of justice. It means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.
      Mississippi follows the collateral estoppel rule. State v. Smith, 278 So.2d 411 (Miss.1973).

      . In Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980) the Court noted that Blockburger had been consistently relied on to determine whether Congress has, in a given situation, provided that two statutory offenses may be punished cumulatively.

      . In White v. State, 374 So.2d 225 (Miss.1979), we held a defendant convicted of kidnapping was improperly sentenced to life imprisonment under section 97-3-53 where it was impossible to ascertain from the indictment whether defendant had been indicted under section 97-3-53 or under section 97-3-51 which carried a maximum punishment of ten years imprisonment. We held that when the facts which constituted a criminal offense may fall under either of two statutes, or when there is a sufficient doubt as to which of the two is to be applied, the defendant should be sentenced under the statute which imposes the lesser punishment. Following our decision in White the legislature repealed section 97-3-51 Miss.Gen. Laws, Ch. 394 (1980), effective from and after April 28, 1980. This action of the legislature left section 97-3 -53 Mississippi Code Annotated (Supp. 1974) in effect.


author: OVERTON, Justice. BOYD, Justice,

text:
    Steven Fred ROSSLOW, Appellant, v. STATE of Florida, Appellee.
    No. 57835.
    Supreme Court of Florida.
    July 16, 1981.
    Selig I. Goldin of Goldin & Cates, Gaines-ville, for appellant.
    Jim Smith, Atty. Gen., Charles A. Stampelos and Lawrence A. Kaden, Asst. Attys. Gen., Tallahassee, for appellee.
   OVERTON, Justice.

This is a direct appeal from a trial court’s order expressly holding a state statute constitutional. We have jurisdiction under article v, section 3(b)(1), Florida Constitution (1972), and affirm.

Appellant was charged with transporting citrus fruit in fresh form without a “certificate of inspection and maturity” as required by section 601.46(1), Florida Statutes (1977). That section provides in pertinent part:

Condition precedent to sale of citrus fruit.—
(1)It is unlawful, except as provided in s. 601.50, for any person to sell or offer for sale, to transport, prepare, receive, or deliver for transportation or market any citrus fruit in fresh form unless such fruit has matured in accordance with the maturity standards and is accompanied by a certificate of inspection and maturity thereof issued by a duly authorized citrus fruit inspector of the Department of Agriculture and Consumer Services.

Section 601.50, Florida Statutes (1977), the exception provision enumerated in section 601.46, states:

Exemptions; sale or shipment of citrus or citrus products for certain purposes.—
Irrespective of the provisions of ss. 601.45, 601.46, 601.48, 601.49, 601.51, and 601.52, the Department of Citrus under such precautionary rules and regulations as it may deem expedient may permit sale or shipment of citrus fruit or the canned or concentrated products thereof without the issuance of and filing of inspection certificate and without the grade being shown on the container thereof, of:
(1) Intrastate shipments of fresh citrus fruit for consumption or use within the state;
(2) Shipments to be used for charitable or unemployment relief purposes;
(3) Shipments to the United States Government or any of its agencies and interstate shipments to any packinghouse, canning plant, or concentrate plant for commercial processing, as may be defined by the Department of Citrus; or to fresh fruit juice distributors outside the state;
(4) Shipments by any method of transportation by “gift fruit shippers,” as defined by the Department of Citrus, but such shipments shall not be for the purpose of resale by the consignee thereof; but, provided however that, no such rule or regulation issued hereunder shall permit or allow the sale or shipment of citrus fruit deemed by this section to be immature and unfit for human consumption nor of canned or concentrated products thereof prepared or made from citrus fruit deemed by this law to be immature and unfit for human consumption; but, provided further, that shipments under subsections (1) and (4) shall meet such minimum grade standards as may, from time to time, be established by the Department of Citrus; and, provided further that such rules and regulations shall provide for the due collection of any advertising taxes and inspection fees that may be due thereon.

Section 601.46 makes it unlawful to transport citrus without an inspection certificate, except as provided in section 601.-50. It is appellant’s contention that, because section 601.50 gives the Department of Citrus the authority to exempt certain categories of citrus from the certificate requirement, the department in effect chooses which acts are illegal under section 601.46 and which acts are not. This, appellant claims, is a constitutionally prohibited delegation of legislative authority. See art. Ill, § 1, Fla.Const. We reject this contention.

Appellant correctly states that the legislature may not, absent constitutional authority to the contrary, delegate its legislative powers to others. We have frequently so held. D'Alemberte v. Anderson, 349 So.2d 164 (Fla.1977); Conner v. Joe Hatton, Inc., 216 So.2d 209 (Fla.1968); Bailey v. Van Pelt, 78 Fla. 337, 82 So. 789 (1919); State ex rel. Young v. Duval County, 76 Fla. 180, 79 So. 692 (1918); State v. Atlantic Coast Line Railway, 56 Fla. 617, 47 So. 969 (1908).

We find, however, that the legislature’s enactment of section 601.46, even with the exception provision contained in section 601.50, does not constitute prohibited delegation. In State v. Atlantic Coast Line Railroad, we said:

The Legislature may not delegate the power to enact a law, or to declaré what the law shall be, or to exercise an unrestricted discretion in applying a law; but it may enact a law, complete in itself, designed to accomplish a general public purpose, and may expressly authorize designated officials within definite valid limitations to provide rules and regulations for the complete operation and enforcement of the law within its expressed general purpose.

56 Fla. at 636-37, 47 So. at 976 (emphasis ours). It is our conclusion that the questioned section meets the above criteria.

Section 601.46(1) explicitly sets forth what constitutes unlawful action under the section, transporting citrus without an inspection certificate. Moreover, section 601.-50 sufficiently defines and limits the authority of the Department of Citrus in creating exceptions to the certificate requirements to meet all constitutional mandates.

Accordingly, we affirm and hold section 601.46, Florida Statutes (1977), constitutional.

It is so ordered.

ADKINS, ALDERMAN and MCDONALD, JJ., concur.

BOYD, J., dissents with an opinion in which SUNDBERG, C. J., and ENGLAND, J., concur.

BOYD, Justice,

dissenting.

Section 601.46(1), Florida Statutes (1977), defines a criminal offense. The offense there defined is a misdemeanor of the first degree. § 601.72, Fla.Stat. (1977). The definition of the offense contains the clause, “except as provided in s. 601.50.... Section 601.50 creates several broadly defined categories of activity which are ex-eepted from the operation of section 601.46. Section 601.50 delegates to the Department of Citrus the power to define the exceptions. Therefore the definition of the criminal offense created by section 601.46 depends on the interpretation given by the department to the exceptions in section 601.50. The two sections together operate to give the department legislative power.

Article III, section 1, Florida Constitution, vests the legislative power of the state in the legislature. Article II, section 3 forbids the exercise of governmental power except by the branch in which it is vested. The doctrine against delegation of legislative power has been expressed in various ways:

Under the fundamental document adopted and several times ratified by the citizens of this State, the legislature is not free to redelegate to an administrative body so much of its lawmaking power as it may deem expedient.

Askew v. Cross Key Waterways, 372 So.2d 913, 924 (Fla.1978).

It is well settled that the legislature cannot clothe an administrative agency like the Commission in this case with legislative or judicial powers.

State ex rel. Watson v. Caldwell, 156 Fla. 618, 622, 23 So.2d 855, 857 (1945).

The Legislature may not delegate the power to enact a law, or to declare what the law shall be, or to exercise an unrestricted discretion in applying a law....

State v. Atlantic Coast Line Railroad, 56 Fla. 617, 636, 47 So. 969, 976 (1908).

Under section 601.46, it is a first-degree misdemeanor to sell, offer for sale, transport, prepare, receive, or deliver for transportation or market “any citrus fruit in fresh form unless such fruit has matured in accordance with the maturity standards and is accompanied by a certificate of inspection and maturity. . . . ”

Careful examination of the provisions of section 601.50 reveals that the legislature has attempted to delegate to the department the power to declare when the sale or shipment of immature and uncertified fruit is to be forbidden under section 601.46(1) and therefore punishable under section 601.-72.

Section 601.50 authorizes the department to permit, “under such precautionary rules and regulations as it may deem expedient,” the sale or shipment of fresh, canned, or concentrated citrus fruit without a certificate of inspection and without grading. Although the section lacks grammatical correctness and is therefore unclear as to its meaning, it then sets out four subsections which I presume are the categories of shipments to be so permitted. The department, then, may decide whether intrastate shipments of fresh fruit for intrastate use will be permitted without inspection and grading. The same authority is delegated with regard to shipments destined for use in charitable or unemployment relief. Subsection (3) introduces additional elements of unfettered departmental discretion. The department may permit shipments to agencies of the United States, and interstate shipments to packing, canning, and processing houses, as defined by the department, and to fresh fruit juice distributors. Under subsection (4), the department may allow uninspected, ungraded fruit to be shipped by “gift fruit shippers” as defined by the department.

Section 601.50 concludes with a general proviso prohibiting the adoption of any rule permitting “the sale or shipment of citrus fruit deemed by this section to be immature and unfit for human consumption nor of canned or concentrated products thereof prepared or made from citrus fruit deemed by this law to be immature and unfit for human consumption. . . . ” Id. (emphasis added). A further proviso requires shipments under subsections (1) and (4) to meet standards adopted by the department.

The legislature may not authorize an executive agency to make law. This is especially true, it would seem, when it comes to the business of defining criminal offenses. With its broad power to define the exceptions to section 601.46, the Department of Citrus has the power to define the criminal offense there proscribed. This is impermissible and I dissent.

SUNDBERG, C. J., and ENGLAND, J., concur.


author: PER CURIAM.

text:
    STATE of Florida, Appellant, v. Jerry JACKSON, Appellee.
    No. 57942.
    Supreme Court of Florida.
    July 16, 1981.
    Jim Smith, Atty. Gen., Miami, and Calvin L. Fox, Asst. Atty. Gen., Tallahassee, and Janet Reno, State Atty., and Arthur Joel Berger, Asst. State Atty., Miami, for appellant.
    Thomas G. Murray, Miami, for appellee.
   PER CURIAM.

Jerry Jackson was charged by information with trafficking in cocaine in violation of section 893.135, Florida Statutes (1979). This appeal comes to us from an order of the trial court granting Jackson’s motion to dismiss one count of the information and declaring the statute unconstitutional. All of the issues presented by this appeal were resolved against Jackson in State v. Yu, 400 So.2d 762 (Fla. 1981). The order of the trial court is thus reversed, and the case is remanded for further proceedings.

It is so ordered.

SUNDBERG, C. J., and ADKINS, BOYD, OVERTON, ENGLAND, ALDERMAN and McDONALD, JJ., concur.

      . Art. V, § 3(b)(1), Fla. Const. (1972).


author: BOYD, Justice. ALDERMAN, Justice,

text:
    Peter WILKERSON, Appellant, v. STATE of Florida, Appellee.
    No. 58266.
    Supreme Court of Florida.
    July 16, 1981.

      Richard L. Jorandby, Public Defender and Cathleen Brady, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., and C. Michael Barnette, Asst. Atty. Gen., Daytona Beach, for appellee.
   BOYD, Justice.

This cause is before us to review a county court order upholding the constitutionality of section 828.12, Florida Statutes (1979). Since the notice of appeal was filed before the 1980 constitutional amendment, we have jurisdiction pursuant to article V, section 3(b)(1), Florida Constitution (1972).

Appellant was charged with violating Florida’s Cruelty to Animals statute by unnecessarily or cruelly beating, mutilating, or killing a raccoon. The statute provides:

Whoever unnecessarily overloads, overdrives, tortures, torments, deprives of necessary sustenance or shelter, or unnecessarily or cruelly beats, mutilates, or kills any animal, or causes the same to be done, or carries in or upon any vehicle, or otherwise, any animal in a cruel or inhuman manner, shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

§ 828.12, Fla.Stat. (1979). Appellant pled nolo contendere, specifically reserving his right to appeal the trial court’s order which denied his motion to dismiss and upheld the constitutionality of the statute. We affirm.

Appellant argues the statute is unconstitutionally vague and overbroad. His specific argument is that the statute fails to give reasonable guidance as to what animals are included and what acts are “unnecessary.” The standard to be applied in such cases is whether the statute conveys “sufficiently definite warnings of the proscribed conduct when measured by common understanding and practice. . . . ” Linville v. State, 359 So.2d 450, 452 (Fla.1978) (footnote omitted). “[D]ue process requires that a person of common intelligence must be able to discern the activity sought to be proscribed by statute.” Scullock v. State, 377 So.2d 682, 683 (Fla.1979).

We first note that the majority of state courts confronted with this issue have upheld the constitutionality of cruelty to animal statutes against claims of unconstitutional vagueness. See, e. g., State v. Kaneakua, 597 P.2d 590 (Haw.1979); Moore v. State, 183 Ind. 114, 107 N.E. 1 (1914); State ex rel. Miller v. Claiborne, 211 Kan. 264, 505 P.2d 732 (1973); State v. Hafle, 52 Ohio App.2d 9, 367 N.E.2d 1226 (1977); King v. State, 75 Okl.Cr. 210, 130 P.2d 105, 144 A.L.R. 1037 (1942); McCall v. State, 540 S.W.2d 717 (Tex.Cr.App.1976). In only one of these cases, State v. Kaneakua, was the definition of “animal” attacked as being vague. The Hawaii statute defined “animal” to include “every living creature.” Haw.Rev.Stat. § 711-1100(5) (1976). The Hawaii Supreme Court found no problem in holding that a gamecock fell within this definition. State v. Kaneakua, 597 P.2d at 592.

We find Florida’s statute to be even more specific than Hawaii’s. Animal is defined as “every living dumb creature.” § 828.02, Fla.Stat. (1979). This definition excludes human beings from the commonly understood definition of animals.. People of common intelligence are able to discern what are and are not animals. There can be no doubt that the legislature intended for raccoons to be included in this definition. Appellant was sufficiently apprised that it would be a violation of the statute to torture a raccoon. We therefore hold that the terms “animal” and “every living dumb creature” are not unconstitutionally vague.

Nor do we find the term “unnecessarily” to be unconstitutionally vague. In response to a similar challenge, we stated:

The particular words complained of, “unnecessarily or excessively” are not vague when considered in the context of the entire Statute and with a view to effectuating the purpose of the act. The fact that specific acts of chastisement are not enumerated, an impossible task at best, does not render the statutory standard void for vagueness. Criminal laws are not “vague” simply because the conduct prohibited is described in general language.

Campbell v. State, 240 So.2d 298, 299 (Fla.1970) (footnote omitted), appeal dismissed, 402 U.S. 936, 91 S.Ct. 1634, 29 L.Ed.2d 105 (1971); see also Cobb v. State, 376 So.2d 230 (Fla.1979); State v. Joyce, 361 So.2d 406 (Fla.1978).

With respect to appellant’s contention that the statute is overbroad, we concede that our literal interpretation of the definition of animal may include certain life forms not contemplated by the legislature. But since appellant’s conduct was clearly proscribed by the statute, appellant does not have standing to make an overbreadth attack. Street v. State, 383 So.2d 900 (Fla.1980); State v. Ashcraft, 378 So.2d 284 (Fla.1979). Appellant has raised some difficult questions concerning the applicability of this statute to hunters, fishermen, and pest exterminators. We believe that these hypothetical questions are more properly addressed to the legislature than to the courts.

Appellant also claims that the court erred by denying his motion to vacate the sentence. The motion was based on the ground that the judge erred in accepting appellant’s plea of nolo contendere without specifically inquiring whether the plea was entered voluntarily. Since the sentence had already been imposed, appellant had the burden of proving that the court’s acceptance of the plea amounted to a manifest injustice. Williams v. State, 316 So.2d 267 (Fla.1975). We find the appellant failed to carry this burden. Appellant failed to even allege that his plea was involuntarily given. The mere fact that the court neglected to specifically ask appellant if the plea was voluntary is insufficient to show a manifest injustice.

We therefore affirm.

It is so ordered.

SUNDBERG, C. J., and ADKINS, OVER-TON, ENGLAND and McDONALD, JJ., concur.

ALDERMAN, J., concurs specially with an opinion.

ALDERMAN, Justice,

concurring specialty-

Because Wilkerson’s conduct was clearly proscribed by section 828.12, Florida Statutes (1979), he was without standing to challenge this statute on the basis of over-breadth as applied to him. To maintain an overbreadth challenge, defendant is required to establish that his own admitted conduct was wholly innocent and that its proscription is not supported by any rational relationship to a proper governmental objective. State v. Ashcraft, 378 So.2d 284 (Fla.1979). The statute was legally applied to Wilkerson under the factual circumstances, and consequently he has no standing to complain that there are situations where the statute could not be constitutionally enforceable against others. State v. Hill, 372 So.2d 84 (Fla.1979). For this reason, I concur with the majority’s affirmance of Wilkerson’s conviction.

Putting the particular facts of this case aside, I believe that many instances may arise in which this statute could be successfully challenged on the basis of overbreadth because by the language of this statute the legislature has set a net large enough to catch all possible offenders and has left to the courts the power to say who should be detained and who should be set free. Schultz v. State, 361 So.2d 416 (Fla.1978); State v. Winters, 346 So.2d 991 (Fla.1977). Such a statute contravenes due process of law requirements.

Numerous situations may arise under the statute where purely innocent conduct is proscribed in view of the all-encompassing definition of animal as “every living dumb creature,” section 828.02. To avoid this statute being held unconstitutional as applied in future cases, the legislature should amend it to appropriately limit its breadth so as not to proscribe innocent conduct.


author: LETTS, Chief Judge.

text:
    Vino CATO, Appellant, v. STATE of Florida, Appellee.
    No. 80-445.
    District Court of Appeal of Florida, Fourth District.
    March 18, 1981.
    Richard L. Jorandby, Public Defender and John R. Cullom, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark Horn, Asst. Atty. Gen., West Palm Beach, for appellee.
   LETTS, Chief Judge.

We affirm the revocation of appellant’s probation, but remand the cause directing the trial court to reflect in the corrected sentence that the appellant was sentenced as a youthful offender.

ANSTEAD and MOORE, JJ., concur.


author: SHARP, Judge.

text:
    Robert Lewis BENTON, Appellant, v. STATE of Florida, Appellee.
    No. 81-135.
    District Court of Appeal of Florida, Fifth District.
    April 1, 1981.
    Robert Lewis Benton, pro se, Clermont.
    Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for appellee.
   SHARP, Judge.

Benton appeals a summary order denying him collateral relief which he sought pursuant to Florida Rule of Criminal Procedure 3.850. Rule 3.850 requires the trial judge to either hold an evidentiary hearing to determine if relief should be granted or if the case file and record conclusively show the petitioner is entitled to no relief, then to deny relief in an order specifically setting out the reasons for the denial and attaching the appropriate portions of the case file and record which show he is not entitled to any relief. Neither was done in this case. Because the record before us does not conclusively show that Benton is entitled to no relief, we relinquish jurisdiction for 30 days and remand for an evidentiary hearing or if appropriate, for the attachment of those portions of the record which show appellant is entitled to no relief. Fla.R.App.P. 9.140(g); Rice v. State, 400 So.2d 461 (Fla. 5th DCA 1980); Gunter v. State, 380 So.2d 1198 (Fla. 5th DCA 1980).

REVERSED and REMANDED for further proceedings.

ORFINGER and COBB, JJ., concur.

Appeal after remand, Fla.App., 401 So.2d 1114.


text:
    Robert Lewis BENTON, Appellant, v. STATE of Florida, Appellee.
    No. 81-135.
    District Court of Appeal of Florida, Fifth District.
    July 29, 1981.

      Robert Lewis Benton, pro se.
    Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

AFFIRMED.

ORFINGER, COBB and SHARP, JJ., concur.


text:
    Kenneth R. JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 80-746.
    District Court of Appeal of Florida, Fourth District.
    April 15, 1981.
    Rehearing Denied Aug. 26, 1981.
    Richard L. Jorandby, Public Defender, and Charles D. Peters, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Laura R. Morrison, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The sole issue on this appeal is the trial court’s failure to instruct the jury on the penalties for grand theft. The appellant was convicted as charged and contends he is entitled to a new trial. We are compelled to reverse and remand for a new trial in accordance with the Supreme Court’s decision in Tascano v. State, 393 So.2d 540 (Fla.1980).

REVERSED and REMANDED.

MOORE, HERSEY and HURLEY, JJ., concur.