author: BARRY, Judge.

text:
    Mrs. Vivian KINCHEN v. David GILWORTH, Margaret Johnson, and Jim Woods, a/k/a Burl Mahl, d/b/a Carousel Construction Company, and Dixie Savings Association.
    No. CA-1715.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 3, 1984.
    Writ Denied Oct. 26, 1984.

      Plauche F. Villere, Jr., New Orleans, for plaintiff-appellant.
    Harry A. Burglass, Metairie, for defendants-appellees.
    Before REDMANN, C.J., and GARRISON and BARRY, JJ.
   BARRY, Judge.

Plaintiff appeals the dismissal of her suit for breach of a contract to repair and add on to her home. The defendant/contractor reconvened for sums allegedly due. The trial court found plaintiff cancelled the contract without cause and also dismissed defendant’s reconventional demand for lack of proof.

Plaintiff argues the defendant abandoned the job and she is entitled to the money spent to complete the work and damages. Defendant claims reasonable profits.

On December 3, 1977 Vivian Kinchen signed a contract with Carousel Construction Company for home improvements. The $17,950 contract contained 44 specifications with stage payments. It is undisputed that work began in mid-January, 1978 and apparently continued uninterrupted through the middle of April when work ceased.

The record convinces us that Carousel made several attempts to complete the job but was ejected from the premises by plaintiff. John Pastrano, Carousel’s foreman, stated Kinchen constantly caused problems. On one occasion, after sheetrock work was complete, the workers called Pas-trano to the job because Kinchen had torn out all sheetrock in the original part of the house. Kinchen initially denied this, but added: “I guess he must be talking about the old sheetrock, the existing sheetrock that was in the house.” She admitted complaining about the sheetrock in the front room and wanted it paneled. The contract did not provide for new sheetrock or paneling in the old house.

The contract specified Carousel would use Kinchen’s kitchen appliances, except the stove and cooktop. Kinchen admitted she decided to modernize the kitchen and not use the old appliances. In particular, under the contract the original sink was to be taken out and reinstalled later. Testimony shows that Kinchen would not allow the sink to be used and she threw it away. Kinchen denied this, but said “That sink wasn’t any good anyway.”

From these and other incidents it is apparent Kinchen interfered with Carousel’s workers and they predictably refused to work. Carousel sent other workers to the job but Kinchen literally ran them off.

There is no evidence to support Kin-chen’s allegation that Carousel stopped work because the company ran out of money. We therefore agree that Kinchen’s actions effectively cancelled the contract without legal cause.

The case is controlled by LSA-C.C. art. 2765:

The proprietor has a right to cancel at pleasure the bargain he has made, even in case the work has already been commenced, by paying the undertaker for the expense and labor already incurred, and such damages as the nature of the case may require.

Our courts have consistently held this rule sufficiently broad to cover loss of profits. Dugue v. Levy, 114 La. 21, 37 So. 995 (1904) said:

“the proprietor, on the one hand, shall have the legal right to put an end to the contract, and the contractor, on the other hand, shall be placed in as good a position as he would have been if he had been permitted to complete the contract.” Id. at 999.

The owner’s liability is limited to quantum meruit (for labor and materials) plus profits the contractor would have realized and is measured by the balance payable under the contract less the amount necessary for the contractor to complete the work. Roland v. American Casualty Company, 227 La. 727, 80 So.2d 387 (1955).

Kinchen’s testimony and exhibits relate to the work that was done, not what was necessary under the contract. There is no dispute that the completed job was not as contemplated. The burden of proving omissions or unfinished work is on the owner, Boydstun v. Johnson, 401 So.2d 629 (La.App. 3d Cir.) writ denied 404 So.2d 1262 (La.1981).

Kinchen paid Carousel $13,483.34, leaving a $4,466.66 balance. Mrs. Johnson testified it would cost at least $5,776.60 to finish the job. Therefore, Kinchen overpaid Carousel by $1,309.94 and is entitled to this amount since her liability is only in quantum meruit plus profits. This sum represents labor and materials to complete the work, hence Mrs. Johnson has already recovered her anticipated profits.

Kinchen cancelled the contract without cause and is not entitled to damages.

The judgment is amended to award plaintiff $1,309.94 and affirmed.

AMENDED; AFFIRMED.

APPENDIX

CONTRACT COST TO ITEM NO. COMPLETE TESTIMONY BY MRS. JOHNSON

1, 2. — Done by Carousel.

3. $550.00 Owed to the electrician for unfinished work. Everything was roughed in except the kitchen and the fixtures were not completely installed. This amount covers all unfinished electrical work under the contract. See items 8, 24, 31, 34, 37.

4. $500.00 Cost of unfinished plumbing work. Carousel dug a new sewer line and connected it to the existing line. The plumbing for the new baths and laundry room was done. Tubs and some of the toilets had been

CONTRACT COST TO ITEM NO. COMPLETE TESTIMONY BY MRS. JOHNSON installed. The lavatories were not installed and the kitchen was not connected.

5. — Completed, except for paneling. See item 12.

6, 7. $800.00 Nothing was done by Carousel. It would cost this amount to comply and also covers completion for items 30 and 35 which also concerned the garage.

8. — See item 3. This was included in the remainder of electrical contract ($550.00).

9, 10. — Done.

11. — Present sheetrock had been patched.

12. $ 60.00 See item 5. All done but paneling.

13. — Sheetrock for addition, item 5, was completed.

14. $578.60 Kitchen cabinets were not installed. Mrs. Johnson testified middle of the line cabinets, used on many of her jobs, would cost net $631.00 but only $378.60 with the discount. A price quote was entered into evidence (D-2). The labor was $200.00.

15. $358.00 Nothing was done. Cost of built-in oven $179, cook-top $119 and labor $60. Cost of the hood not counted because it was not in the original contract. See also item 28.

16. — Done.

17, 18. $625.00 Carousel was to install 10 interior doors per the sketch. 5 cost $30 each and $25 each to install. The other 5 were bi-fold doors at $40 each and $30 each to install.

19. — Done.

20. — Tile was not installed in kitchen and bathroom floor. However, Mrs. Johnson did not testify as to the cost to complete this work. Mrs. Kinchen quoted prices for installing ceramic tiles on the walls and linoleum on the floors, but this was not what was in the original contract.

21. $300.00 Not done. The rubber-backed carpeting would cost $3/yard for 80 yards or $240 plus $60 for labor.

22. $145.00 Everything was done except installation of the wall-hung lavatories at $145.00.

23. $160.00 Not done. Two solid wood exterior doors were to be installed. (See also item 44). The cost was $50 each and labor $30 each.

24. — Not done, but included in total amount owed to Carousel’s electrical contractor: see item 3.

— Done.

— The evidence was insufficient. This was not done by Carousel but it was unknown how many window panes were broken. Mrs. Kinchen replaced all windows with storm windows. This was not in the contract.

$ 65.00 Re-caulking was not done. The estimated cost for labor and materials was $65.00.

CONTRACT COST TO ITEM NO. COMPLETE TESTIMONY BY MRS. JOHNSON

See item 15.

No cost.

Not done. Included in cost of items 6 and 7. ($800 to complete.)

$1113.00 About half of this work was done. Carousel installed the ducts and furnace in the attic. The electric work was included in the balance due on the electric contract ($550, item 3). The compressor had not been installed. Mrs. Johnson stated she owed $1,113 for the remainder of the work on the air conditioning system, which included the compressor.

See items 17 and 18.

$130.00 All work completed except installation of paneling in closets. The estimated cost for labor and materials was $130.00.

$ 4.00 Not installed. Cost would be $1.00/eloset for 4 closets.

Included in amount to complete electric work ($550) see item 3. (See also 8, 24, 31 and 34).

$ 52.00 Relocated utility room but did not install tile. Estimated cost was $27 for materials and $25 for labor.

$336.00 Ceilings were painted. Paneling was not installed. Estimated cost was $96 (32 sheets at $3/sheet) and $240 for labor.

Not done but included in cost of items 6, 7 and 30 ($800.00) to complete garage area.

Completed.

Trash was hauled by Carousel as it accumulated.

No cost — no work involved.

Smoke detectors were not installed. There was no testimony as to what was the cost of installation.

Completed.

Not done. See item 23.

$5,776.60 Cost to complete work.

      . Other defendants were dismissed prior to trial.

      . The original contract was for $14,450.00 but changes were approved by both parties.

      . Had the owner cancelled for cause, Art. 2765 would not apply and the contractor would not be able to recover lost profits. Peterson v. Sutter, 4 La.App. 180 (Orl.1926).

      . Status of the contract's 44 specifications is detailed as an appendix,


source: Caselaw Access Project

author: WILLIAMS, Judge.

license: Public Domain

text:
    CITY OF NEW ORLEANS v. CIVIL SERVICE COMMISSION, et al.
    No. CA-1608.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 3, 1984.
    Rehearing Denied Sept. 27, 1984.
    Writ Denied Nov. 16, 1984.

      Ralph D. Dwyer, Jr., New Orleans, for def endants-appellants.
    Okla Jones, II, New Orleans, for plaintiff-appellee.
    Before GULOTTA, BARRY and WILLIAMS, JJ.
   WILLIAMS, Judge.

This is an appeal from a decision by the trial court awarding plaintiff, The City of New Orleans [“City”] injunctive relief.

The City sued The Civil Service Commission [“Commission”] and its director, John Belsom, alleging that the Commission had effected a change in the Civil Service program that required approval by the City Council of New Orleans [“Council”], and that this approval had not been obtained. The City petitioned for injunctive relief to prevent the Commission from enforcing these changes. The Commission argued that the changes were in nomenclature only and did not affect any type of pay plan nor had a budget purpose.

The Commission is empowered with broad and general rule-making powers. La. Const. Art. X, 10 (1974); La.R.S. 33:2400, et seq. If, however, a rule affects wages or hours it must be approved by the Council. See Civil Service Commission Rules, Rule IV, Section 1.2; Home Rule Charter of City of New Orleans, Article 3, Section 3-118.

The change complained of by the City was the re-classification of employees in what had been the Administrative Analyst Series to a newly created series, the Management Analyst Series. A new job specification was created for the Management Analyst Series, which was different from the Administrative Analyst Series. In four instances, there was a change in salary for employees who were changed from the Administrative Analyst Series to the Management Analyst Series.

The City has argued that based on the testimony presented at the trial below, it is clear that the decision to re-classify the employees was caused by concern that federal funding for the positions might disappear, and these employees would be terminated. This is disputed by the Commission. Although only four of the positions that were re-classified received a different pay plan, the Constitution clearly mandates that approval by the council was required for the change.

We point out that simply changing the name of the positions does not appear to have been enough to require Council approval; neither would the changing of the job classification requirements. Because, however, some employees would receive different compensation under the new plan, the decision of the trial court enjoining the Commission from promulgating these rules was correct.

For the foregoing reasons, the decision of the trial court is AFFIRMED.

AFFIRMED.


author: L. JULIAN SAMUEL, Judge Pro Tem.

text:
    Deborah Ann Hebert, Wife of Donald Edward SMITH v. Donald Edward SMITH.
    No. CA-1618.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 3, 1984.
    Writ Denied Oct. 26, 1984.
    Rudman, Howard, Laudumiey & Mann, Laurence D. Rudman, New Orleans, for plaintiff-appellant.
    Melanie Kleinpeter Cooper, New Orleans, for defendant-appellee.
    Before BYRNES and CIACCIO, JJ., and L. JULIAN SAMUEL, J. Pro Tem.
   L. JULIAN SAMUEL, Judge Pro Tem.

Deborah Ann Hebert appeals from a district court judgment terminating permanent alimony payments from her former husband, Dr. Donald Edward Smith.

Ms. Hebert married Dr. Smith in 1974. Subsequently, Dr. Smith adopted Ms. Hebert’s two minor children from a previous marriage. The couple were divorced on September 14, 1982. The divorce judgment decreed Ms. Hebert to be free from fault and awarded her alimony and child support in a lump sum of $1,666.60 a month. By a consent judgment dated December 20, 1982 the original judgment was amended to specify that one-half ($833.30) of the $1,666.60 alimony and child support award, would be allocated to child support and one-half ($833.30) to alimony.

In January, 1983 Ms. Hebert filed a rule for an increase in both child support and permanent alimony. In March, 1983 Dr. Smith filed a rule seeking termination of permanent alimony. The two rules were consolidated and, after a hearing, judgment was rendered on April 14, 1983. In pertinent part, that judgment terminated permanent alimony. Ms. Hebert has appealed.

In this court Ms. Hebert raises only one issue: whether the trial court was correct in terminating the award of $833.30 in permanent alimony. She contends the evidence was insufficient to show a change of circumstances which would support such a termination.

We do not have the benefit of the reasons for judgment regarding the original award of permanent alimony in September, 1982, or the termination of that award in April, 1983. However it has long been our settled law that alimony after divorce is awarded to a spouse only if that spouse proves that he or she has insufficient means for support. LSA-C.C. art. 160, Silas v. Silas, 399 So.2d 779 (La.App. 3rd Cir.1981), writ denied, 404 So.2d 278 (La. 1981). Therefore, we must conclude that the original award of permanent alimony was made upon a finding that Ms. Hebert lacked sufficient means for her support. It follows that to terminate the award of permanent alimony the trial court must have found that Ms. Hebert was capable of supporting herself. We agree with that finding.

There was ample evidence presented at the hearing to support the conclusion that Ms. Hebert’s circumstances had changed and that she is now capable of supporting herself. The testimony and evidence is conclusive in that, in contrast to her situation at the time of the original judgment when she was working sporadically for a nursing pool, at the time of the hearing, Ms. Hebert was employed at two part-time nursing positions, cumulatively working forty hours per week and earning an average hourly wage of $10.71.

In determining whether a spouse has sufficient means for her support the court must consider the needs of the claimant spouse in relationship to his or her income. Among those expenses which should be considered in determining those needs are food, clothing, shelter, automobile expenses, utilities, household expenses, and income tax liability caused by alimony. Oddo v. Oddo, 416 So.2d 241 (La.App. 1st Cir.1982). Ms. Hebert’s own statement of monthly income and pertinent expenses shows the following:

INCOME EXPENSES
(Net Salaries) 1,161 Food 125
Rent 373
Utilities 75
Clothes 100
Gas 50
Car Note 115
Car Insurance 39
TOTAL ”877

These calculations clearly indicate that Ms. Hebert was quite capable of supporting herself.

In addition, at the hearing Ms. Hebert unequivocally testified she could support herself as follows:

“Q. Mrs. Smith, isn’t it a valid statement you are capable of supporting yourself only without the two children?
A. It is valid that I’m capable of supporting myself.
Mr. Rudman:
Objection. The Court has to decide— The Court:
Do you understand the question?
The Witness:
I understand the question, but I mean I think there is more than one answer to that. It depends on the life to which you are accustomed to, yes, I can certainly earn a living as a nurse if that is what she is asking.”

As the last statement above indicates, Ms. Hebert is apparently confusing her needs and sufficient income for her support with her accustomed standard of living prior to her divorce. This confusion is understandable, but it is not the law. To the contrary, “there is no obligation to support the former wife in the manner to which she was accustomed during marriage.” Peraino v. Peraino, 414 So.2d 858 (La.App. 4th Cir.1982).

Appellees demand for damages for frivolous appeal is denied.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.

      . Appellant has again remarried. However, she is now seeking only accumulated alimony to the date of her third marriage.


author: L. JULIAN SAMUEL, Judge Pro Tern.

text:
    Barbara WILLIAMS v. BANK OF LOUISIANA IN NEW ORLEANS.
    No. CA-1695.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 3, 1984.
    Rehearing Denied Sept. 27, 1984.
    Writ Denied Nov. 16, 1984.
    Wayne E. Garrett, Charbonnet & Char-bonnet, New Orleans, for plaintiff-appellee-appellant.
    A.J. Capritto, New Orleans, for defend- . ant-third party plaintiff-appellant.
    Before BYRNES, CIACCIO and SAMUEL, JJ.
   L. JULIAN SAMUEL, Judge Pro Tern.

This suit is based on the alleged conversion of a savings account. On January 9, 1963 Mrs. Barbara Williams, appellee, opened savings account No. 3795 at the Bank of Louisiana in New Orleans (“BOL”). She continued to use that account making periodic deposits and withdrawals well into 1980.

Late in 1979 Albert Lord, vice president of BOL, was informed by Warren Ballet that his mother, Barbara Mae Ballet Williams had died in 1968 leaving a savings account at BOL. Ballet wanted to obtain the money from the account. Lord advised Ballet to retain an attorney to settle his mother’s succession. Ballet did so.

On April 21, 1980, armed with information regarding the account, which information was provided by the bank, Ballet and his four co-heirs obtained a judgment in the succession of Barbara Mae Ballet aka Barbara Mae Williams. That judgment decreed that her five children were her sole heirs, each entitled to one fifth of her property, which was specified as follows:

“SAVINGS ACCOUNT ON DEPOSIT, WITH THE BANK OF LOUISIANA AND TRUST COMPANY, IN THE NAME OF BARBARA WILLIAMS, BEARING ACCOUNT NUMBER 3795, HAVING AN APPROXIMATE AMOUNT ON ACCOUNT OF $8,451.04.”

A certified copy of that judgment was subsequently presented to BOL. BOL then transferred the money to the heirs named in the judgment.

Sometime thereafter Mrs. Barbara Williams (the plaintiff herein) went to BOL and attempted to withdraw some money from her savings account. A BOL employee informed her that her account had been closed. After some investigation plaintiff discovered that the account money had been transferred to the heirs of Barbara Mae Ballet.

When BOL failed to rectify the error plaintiff filed this suit against BOL for conversion of her money. BOL joined the heirs of Barbara Mae Ballet as third party defendants.

The judgment appealed from awarded plaintiff $8,128.83, (the amount in the savings account) with 9% annual interest thereon from July 21, 1980 (the date on which she last deposited money into the account) through the date of judgment and $5,500 in general damages with legal interest on that amount and the $8,128.83 from the date of judicial demand. The judgment appealed from also dismissed the third party demand. BOL appeals.

BOL raises three issues. First BOL claims that the trial court erred in finding it liable. Second, it claims the amount of general damages is excessive and the trial court erred in awarding both contractual interest and legal interest on the amount in the savings account. Third, BOL also claims the trial court erred in dismissing BOL’s third party claim against the heirs of Barbara Mae Ballet for repayment of the money.

Regarding the first issue, BOL claims that it is not liable because pursuant to LSA-R.S. 6:66 it could deliver possession of the funds on an ex parte order (i.e. the succession judgment) without incurring liability. However, as appellee correctly points out in brief that statute requires that the money must belong to the deceased person for the protection afforded by LSA-R.S. 6:66 to attach. Such was not the case; the money in the savings account belonged to the appellee, Mrs. Barbara Williams. All of the evidence and testimony support her claim that the bank was negligent in paying the money in her account to the heirs of Barbara Mae Ballet. Accordingly, we conclude appellant’s first assignment of error is without merit.

As for the award of $5,000 in general damages, it is well settled that “[b]efore a court of appeal can disturb an award made by a trial court the record must clearly reveal that the trier of fact abused his discretion in making the award.” Perniciaro v. Brinch, 384 So.2d 392, 395 (La.1980). We cannot say that the trial court abused its discretion in awarding $5,500 in this case. Mrs. Williams testified not only that she did not have the use of her money for two and one half years but that she was forced to borrow money for her support from friends and family. She also testified that lack of money forced her to defer making necessary repairs to her home. The trial court took all of these things into consideration in assessing the mental anguish and aggravation which Mrs. Williams suffered. Although this court might have awarded a lesser amount, and even though the plaintiff failed to offer corroborating evidence regarding damages, we recognize that “[A] reviewing court might well disagree with the amount of the award fixed by the jury, but it is not entitled to substitute its opinion for that of the trier of fact.” Spillers v. Montgomery Ward & Company, Inc., 294 So.2d 803, 809 (La.1974). This assignment is also without merit.

However, we do agree with the appellant regarding the award of interest on the savings account. The trial court’s award of legal interest in addition to contractual interest on the $8,128.83 from the date of judicial demand is erroneous. Accordingly, the judgment appealed from will be amended so as to award interest on the $8,128.83 award at 9% (contractual interest) from July 21, 1980 to the date of judicial demand, and legal interest thereafter from the date of judicial demand.

Finally, we consider appellant’s claim that the trial court erred in dismissing its third-party demand for repayment of the money negligently paid to the heirs of Barbara Ballet. In its reasons for judgment the trial court stated unequivocally “The Court realizes it was a windfall to them, that they were not entitled to it, bur is of the opinion that they did nothing wrong in getting this money and that the bank should not be rewarded through their negligence of (sic) recovering the money from them.” The trial court also stated that it thought the dismissal was equitable because the heirs were not negligent in making their demand on the bank and that it would be unfair to require the heirs to borrow money to repay the bank.

We understand the trial court’s position. There is indeed a line of jurisprudence which holds there is a defense of negligence to the payment of a thing not due. See Palmer, Contractual Negligence in the Civil Law — The Evolution of a Defense to Actions of Error, 50 Tul.L.Rev. 1 and Equilease Corp. v. Smith Intern, Inc., 588 F.2d 919 (5th Cir.1979). However, La.C.C. art. 2301 states: “[h]e who receives what is not due to him, whether he receives it through error or knowingly, obliges himself to restore it to him from whom he has unduly received it.”

We adhere to what we believe to be the proper interpretation of the Code and the one which a majority of cases follow, namely that negligence per se is not a bar to recovery for the payment of a thing not due. Dynamic Exploration v. Sugar Bowl Gas Corp., 367 So.2d 18 (La.App. 1st Cir.1979). We therefore reverse the dismissal of the third party demand against the heirs of Barbara Ballet.

For the foregoing reasons, that part of the judgment which awards $8,128.83 to the plaintiff is amended only to the extent of awarding 9% interest thereon from July 21, 1980 to date of judicial demand and legal interest thereafter from date of judicial demand until paid. That part of the judgment which dismisses appellant’s third party demand is reversed and there is now judgment against the third party defendants, Herbert Alfred, Jr., Warren Ballet, Oneida Ballet, Ronald Ballet and Donald Ballet in solido, in the full sum of $8,128.83 with judicial interest thereon from the date of judicial demand until paid. In all other respects the judgment appealed from is affirmed.

AMENDED IN PART

REVERSED IN PART and AFFIRMED IN PART.

      . Transfer of deposit by bank to heirs or their representatives, executors, or administrators; authority
      Upon proper authority and upon obtaining a receipt therefor, any bank may transfer any money or other property in its possession, belonging to a deceased person, to the decedent’s succession representative, heirs, or the legal representatives of the heirs.
      The letters of the succession representative or the judgment recognizing and putting the heirs in possession, issued by a court of competent jurisdiction, and accompanied by letters of tutorship or curatorship of the heirs who are not sui juris, shall constitute proper authority for making the transfer, which when so made and receipted for shall be full protection to the bank.
      Conclusive proof to the bank of the letters or judgment and of the jurisdiction of the court rendering them shall result from copies thereof, duly certified when rendered by a court of this state, or certified according to the Acts of Congress when rendered by a court of any other state, or certified according to the law of the place when rendered by a court of any possession or dependency of the United States, or certified according to the law of the place with the genuineness of the certification attested by a consular agent of the United States when rendered by a court of any foreign country.

      . The testimony presented at trial showed that the bank provided the bulk of the information regarding the account to Barbara Ballet Williams' heirs. In addition when the Bank did attempt to verify whether Barbara Ballet Williams was the same person who maintained the account at BOL by verifying her signature they were presented with birth certificates signed by Barbara Alfred and Barbara Ballet. At no time was BOL presented with the signature of "Barbara Williams.”
      BOL never received any independent verification that the account was maintained by Barbara Ballet Williams. Furthermore the record reflects that there were 96 deposits and withdrawals made to the account in question subsequent to the date of Barbara Ballet Williams' death, which activity the bank failed to investigate properly.


author: CRAIN, Judge.

text:
    Burchman THIBODEAUX, Plaintiff, v. The AETNA CASUALTY AND SURETY COMPANY, et al., Defendants.
    No. 83 CA 0919.
    Court of Appeal of Louisiana, First Circuit.
    July 3, 1984.
    Rehearing Denied Aug. 24, 1984.

      Stephen E. Broyles, Baton Rouge, for plaintiff-appellant Burchman Thibodeaux.
    John W. Perry, Baton Rouge, for defendants-appellees Aetna Cas. and Sur. Co. and Comeaux Bros. Contractors, Inc.
    Before SHORTESS, LANIER and CRAIN, JJ.
   CRAIN, Judge.

This is an appeal from a judgment of the trial court which awarded Burchman Thibo-deaux (Thibodeaux) worker’s compensation benefits for 200 weeks for the specific loss of his arm and reserved him the right to recover under the partial disability provisions of the Worker’s Compensation Law in the event that such proved to be more favorable at a later date.

On March 20, 1981, Thibodeaux injured his right arm and shoulder when he fell off the edge of a truck while in the process of unloading some laminated beams.

Thibodeaux had been employed by Co-meaux Brothers Contractors, Inc. (Co-meaux), for the past twenty-six years. At the time of the injury, his position was that of supervisor. His average weekly wage was $534.00. Thibodeaux is presently employed in the same capacity and has received all normal wage increases.

Following the accident, Thibodeaux went to Doctors Memorial Hospital after which he was referred to Dr. William Laughlin. At that time, Dr. Laughlin diagnosed a dislocated right shoulder and felt that Thi-bodeaux had not suffered any permanent physical impairment or disability from the injury. Thibodeaux was allowed to return to work in his supervisory position.

Comeaux’s worker’s compensation insurer at the time of this accident was Aetna Casualty and Surety Company (Aetna). Aetna first received notice of Thibodeaux’s injury on March 27, 1981, when it received the injury report from Comeaux. The report indicated that Thibodeaux had returned to work on March 23, three days after the accident. The file was handled by Alva Lewis, claims superintendent at Aet-na, and was treated as a “medical only” file since the claim involved less than seven days lost time. All medical bills were paid when submitted. In April of 1981, Aetna received a medical report from Dr. Laugh-lin explaining his March 20, 1981 diagnosis of Thibodeaux.

On March 19, 1982, Thibodeaux was given an up-dated estimate of his disability by Dr. Laughlin. Dr. Laughlin estimated Thi-bodeaux’s functional disability was in the range of 25 to 50 percent. Thibodeaux’s physical impairment and disability of the right upper extremity due to the dislocation of the right shoulder and the rotator cuff tear was estimated at 35 percent.

On March 22, 1982, approximately one year after the accident, Thibodeaux visited Aetna’s office with a hand written note from Dr. Laughlin indicating the March 19, 1982 estimates of disability. This was Aet-na’s first notice of any type of disability. Mr. Lewis informed Thibodeaux that he had “some problems” with the hand written memo because there had been no previous indications of any disability. Thibo-deaux informed Mr. Lewis that he had not been able to perform all of the physical activities which he was doing prior to this injury. Aetna refused to pay Thibodeaux any compensation. Mr. Lewis then advised Thibodeaux to file suit in order to interrupt prescription due to the fact that no compensation benefits had been paid. Thibodeaux filed suit to recover all compensation benefits to which he was entitled on March 22, 1982.

On April 7, 1982, Aetna received a follow-up medical report from Dr. Laughlin dated March 19,1982. This report revealed the estimated disabilities and his recommendation not to reconstruct the rotator cuff tear because of Thibodeaux’s age.

On June 30, 1982, Aetna took Thibo-deaux’s deposition to ascertain the history and extent of Thibodeaux’s alleged disability-

On approximately July 13, 1982, Thibo-deaux received his first compensation benefits from Aetna. Thibodeaux received an initial payment of compensation of $8,944.50, the amount necessary to bring him up-to-date computing his compensation benefits based on 37x/2 percent disability to the arm under the Specific Member Section of the Worker’s Compensation Act, at a rate of $133.50 per week for sixty-seven weeks.

Thibodeaux amended his petition on May 5, 1983, alleging he was entitled to penalties and attorney’s fees due to Aetna’s arbitrary and capricious failure to pay any compensation benefits until approximately four months after suit was filed.

Trial on the merits was held on May 23, 1983. On that day the trial judge rendered the following judgment: .

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of the plaintiff, Burchman Thibodeaux, and against defendants, The Aetna Casualty & Surety Co. and Co-meaux Brothers Contractors, Inc., individually and solidarily, for 200 weeks of compensation benefits for specific loss of his arm at the rate of $133.50 per week (subject to a full credit for all previous benefits paid); reserving the plaintiff’s right to recover under the partial disability provisions of the workmen’s compensation law in the event that it proves to be more favorable at a later date.
The expert witness fee of Jay Hubbard is set at $400.00 and of William Joseph Laughlin, Jr., M.D. at $250.00, and together with the court reporter costs of $112.00 for the deposition of Dr. Laugh-lin, are taxed as costs, to be paid by defendants.
The claim for penalties and attorney’s fees sought by Burchman Thibodeaux is denied.

Thibodeaux appeals from this judgment alleging four specifications of error.

SPECIFICATIONS OF ERRORS

(1)The trial court erred in failing to find that Burchman Thibodeaux was totally and permanently disabled under the odd-lot doctrine.

(2) The trial court erred in not determining specifically that Burchman Thibo-deaux was partially disabled under the provisions of LSA-R.S. 23:1221(3) and thereby entitled to 250 weeks of partial disability compensation beyond the payments under the Specific Member Section.

(3) The trial court erred in failing to award penalties and attorney’s fees to the plaintiff.

(4) The trial court erred in failing to award legal interest in accordance with law.

TOTAL AND PERMANENT DISABILITY

Thibodeaux alleges the trial court erred in not finding him totally and permanently disabled under the odd-lot doctrine.

Under the odd-lot doctrine, a claimant is entitled to a total and permanent disability when he establishes a prima facie case that, because of the physical impairment and other factors such as mental capacity, education and training, he can perform no services other than those which are so limited in quality or dependability that a reasonably stable market for them does not exist. The odd-lot concept may also be applied in cases where the worker, because of his injury, is in such substantial pain that work becomes an overburdening task. Orgeron v. Tri-State Road Boring, Inc., 434 So.2d 65 (La.1983).

If the claimant is successful in showing a combination of factors indicating that the services which he is able to render are so limited in quality, quantity, or dependability that a market for his labor does not exist within which he can effectively compete, he has presented a prima facie case for classification in the odd-lot category. Oster v. Wetzel Printing, Inc., 390 So.2d 1318 (La.1980).

Thibodeaux does not fit the odd-lot classification of total and permanent disability. Thibodeaux testified at trial that he has held the same position and received his normal wage increases after the injury. He also testified that he has not missed any work following the accident and due to his injury. Clevins Comeaux, Thibodeaux’s employer for twenty-six years, testified that Thibodeaux’s supervisory position did not require him to do carpentry work even though Thibodeaux would customarily perform such labor. Mr. Comeaux also testified that Thibodeaux could work for Co-meaux Brothers for as along as he desires. The testimony of Dr. Laughlin indicates that Thibodeaux’s injury would not prevent him from performing his supervisory duties.

Accordingly, we find the trial court did not commit error in refusing to classify Thibodeaux totally and permanently disabled under the odd-lot doctrine.

PARTIAL DISABILITY

A. TRIAL COURT’S DECREE

Thibodeaux argues that the trial judge has already made a determination of partial disability as evidenced by the following language in the judgment: “... reserving the plaintiff’s right to recover under the partial disability provisions of the workman’s compensation law in the event that it proves to be more favorable at a later date.”

Thibodeaux cites the cases Jacks v. Banister Pipelines America, 418 So.2d 524 (La.1982) and Stracener v. United States Fidelity & Guaranty Company, 420 So.2d 1101 (La.1982) for the proposition that this language represents a finding of partial disability. Aetna alleges the trial court merely preserved Thibodeaux the right to reopen the case in the event the partial disability provisions become applicable and more favorable.

We distinguish Jacks and Stracener from the present case. The decree in those cases did not reserve to the claimant the right to possibly recover partial disability benefits in the future, but specifically awarded partial disability benefits in addition to the specific loss benefits. Since both are not recoverable, the decree in both cases is limited by the Court’s prior finding the claimant suffered a specific loss and partial disability and was entitled to the most favorable benefit. Which was most favorable would depend, of course, on the employee’s wage earnings at the time. Stracener, 420 So.2d 1101; Jacks, 418 So.2d 524.

The trial court here must have concluded that Thibodeaux is not partially disabled because partial disability benefits were not decreed. The trial court merely reserved Thibodeaux the right to prove he is entitled to partial disability status if his circumstances should change at a later date.

B. FINDINGS AS TO PARTIAL DISABILITY

Thibodeaux alleges, alternatively, that if not totally and permanently disabled then he should be found partially disabled under La.R.S. 23:1221(3) and therefore entitled to 250 weeks of partial disability compensation.

An employee may be deemed partially disabled even if employed at his pre-injury job if he is unable to perform the same duties in which he was customarily engaged when injured. La.R.S. 23:1221(3); Orgeron v. Tri-State Road Boring, Inc., 434 So.2d at 67.

Thibodeaux testified that, as a result of the accident, he cannot nail much overhead; he cannot lift items overhead; he cannot saw or climb as he did in the past; and he cannot walk at heights. However, he stated he could still perform general carpentry tasks and that he spends approximately the same percentage (30%) of time subsequent to the injury as he did prior to the injury performing carpentry type labor.

As noted previously, Mr. Comeaux testified that Thibodeaux’s supervisory responsibilities do not require him to perform any carpentry work.

Disability is a question of fact. The trial court’s resolution of that fact should not be disturbed in the absence of manifest error. Scott v. Sears, Roebuck & Company, 406 So.2d 701 (La.App. 2d Cir.1981). The trial court was not manifestly erroneous in not finding Thibodeaux partially disabled.

STATUTORY PENALTIES

Thibodeaux alleges the trial court erred in not finding Aetna’s refusal to pay compensation benefits arbitrary, capricious or without probable cause. In the event that there exists a substantial issue as to whether the disabled workman is entitled to compensation benefits, penalties should be denied. Guillory v. Travelers Insurance Company, 294 So.2d 215 (La.1974). Here there existed no substantial issue as to Thibodeaux’s entitlement to some compensation benefits since April 7, 1982, the date when Aetna received the report from Dr. Laughlin stating that Thibodeaux had a 35% permanent physical impairment and disability. Upon receipt of this proof of loss, Aetna had 60 days under La.R.S. 22:658 to investigate and either pay or deny the claim. Although Aetna had some doubts as to whether the disability was related to the accident and to the amount owed, Mr. Lewis at trial acknowledged that Thibodeaux would have been entitled to the minimum of $49.00 per week for at least 100 weeks if the injury “checked out”.

When a medical report shows some disability, the insurer is bound to tender the minimum amount due. Johnson v. Guastella Construction and Realty Company, 338 So.2d 747 (La.App. 4th Cir. 1976), writ refused, 341 So.2d 403 (La. 1977). The record before us reflects no legitimate reason why compensation for the specific loss to Thibodeaux’s right arm could not have been paid within 60 days of receipt of Dr. Laughlin’s report. Aetna maintains that no mention was made in the report it received on April 7, 1982, that the disability was work related; however, it is clear to us that the letter references the earlier correspondence sent Aetna regarding Thibodeaux’s original shoulder injury. Accordingly, Aetná’s refusal to pay for some three months after being furnished sufficient proof of loss was arbitrary and capricious and subjects it to penalties and attorney’s fees. Johnson, 338 So.2d 747.

We award the 12% penalty provided for under La.R.S. 22:658, on the amount paid by Aetna on July 13, 1982. Dodd v. Nicolon Corporation, 409 So.2d 1236 (La.App. 1st 1982), reversed in part on other grounds, 422 So.2d 398 (La.1982). Additionally, we award Thibodeaux $3,000 for reasonable attorney’s fees for services apparent from the record. Coulton v. Levitz Furniture Corporation, 391 So.2d 80 (La.App. 4th Cir.1980).

LEGAL INTEREST

Thibodeaux alleges he is entitled to an award of legal interest on workman’s compensation benefits from the date each payment is due. Crockett v. St. Paul Insurance Company, 413 So.2d 949 (La.App. 1st Cir.1982), writ denied, 420 So.2d 447 (La.1982). We agree that interest is owed from the due date on the weekly benefits that accumulated prior to the first payment dated July 8, 1982. Chisholm v. L.S. Womack, Inc., 424 So.2d 1138 (La.App. 1st Cir.1982). Since that time payments have been made in accordance with what we have found to be owed. No interest is due on these payments.

Thibodeaux is also entitled to legal interest from the date of judicial demand on the penalties and attorney’s fees. Parnell v. Reed & Sims, Inc., 428 So.2d 899 (La.App. 1st Cir.1983), writ denied, 435 So.2d 428 (La.1983).

Accordingly, the judgment is reversed in part to provide penalties and $3,000 in attorney’s fees. Legal interest will run from date of judicial demand on the penalties and on the attorney’s fees. The award of penalties and attorney fees is assessed only against Aetna. The judgment is amended in part to provide for legal interest from the due date of the weekly compensation benefits due before July 8, 1982. In all other respects, the judgment is affirmed. Costs of this appeal are to be divided equally between Thibodeaux and Aetna.

AMENDED AND AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

      . La.R.S. 23:1221 provides, in pertinent part, as follows:
      Sec. 1221. Temporary, permanent or partial disability; schedule of payments

        Compensation shall be paid under this Chapter in accordance with the following schedule of payments:
      (4) In the following cases the compensation shall be as follows:

      (f) For the loss of an arm, sixty-six and two-thirds per centum of wages during two hundred weeks.

      . We are not called upon to decide the legal effect of this reservation at this time.

      . The sixty day delay provided by La.R.S. 22:658 had passed. Defendant knew no later than April 7, 1982, of the plaintiffs disability but did not begin compensation payments until July 13, more than 90 days later.

      . Prior to the amendment to La.R.S. 23:1201.2, effective July 1, 1983, only the insurer could be cast for statutory penalties under La.R.S. 22:658.


author: REDMANN, Chief Judge.

text:
    STATE of Louisiana v. Robert A. GARLEPIED.
    No. KA 1612.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 6, 1984.
    Rehearing Denied Sept. 27, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William R. Campbell, Jr., Asst. Dist. Atty., New Orleans, for the State.
    C. Michael Winters, New Orleans, for defendant.
    Before REDMANN, C.J., and GARRISON and BARRY, JJ.
   REDMANN, Chief Judge.

This appeal from a conviction of carrying by a felon of a concealed weapon, La.R.S. 14:95.1, argues unconstitutional search; issues arising from the wording of the statute and the bill of information; and prejudicial evidence of the nature of his prior conviction. We conclude the search was lawful, that the statute is not vague in our context, that the information is not defective because of surplus words, and that no undue prejudice occurred from the evidence of the nature of the prior conviction.

A New Orleans police officer, working in uniform on a privately-paid assignment in a nightclub, observed the outline of a large knife-like object in defendant’s left front pants pocket, and therefore asked defendant if he was carrying a weapon. When defendant answered yes, the officer patted him down and found two switchblade knives (the second in defendant’s sock). Defendant was charged under R.S. 14:95.1 because previously convicted of attempted second degree murder.

At a suppression hearing, defendant and three witnesses testified that the officer patted defendant’s pocket prior to speaking with defendant. Defendant further testified that when asked if he was carrying a weapon he answered no.

Defendant’s first assignment of error is the trial judge’s refusal to suppress the two switchblade knives as evidence, arguing that (on the basis of defendant’s evidence) they were obtained by an unlawful search.

Evidently the trial judge did not believe defendant and his witnesses, but believed the police officer instead. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for the factual conclusion notwithstanding that other witnesses testify to the contrary; and an appellate court is not in a position in such a case to say that the trier of fact erred in believing the one witness rather than the several. We therefore must accept the trial judge’s credibility evaluation in this case. See State v. Dunbar, 356 So.2d 956 (La.1978); State v. Robinson, 386 So.2d 1374 (La.1980).

On the basis of that credibility evaluation and the sufficiency of the police officer’s testimony, the trial judge correctly refused to suppress the two switchblade knives as evidence.

Defendant’s assignment two contends that the trial court erred in refusing to quash the bill of information because the statute is vague in failing to provide a definition of “weapon,” thereby requiring importation of wording from some other statute, and the information is vague because it contains wording from another statute.

We respond that the statute does not contain a definition of “carry” or of “concealed,” either. It does not have to, to make sense. One who speaks English with any competence knows what those words mean, and also knows what the word weapon means. There might be dispute over whether a particular item is a weapon— that is, over whether it fits the ordinary meaning of the word. For example, the ordinary pocket knife (suggested as a problem for this statute by defense counsel) might well be held not a weapon in the ordinary sense. (It is not a “dangerous weapon,” State v. Pye, 225 La. 365, 72 So.2d 879 (La.1954), because not “customarily used” as such, R.S. 14:95.) But there can be no dispute over whether a switchblade knife is a weapon, because its switchblade character is designed for no other purpose than instant opening for readiness for use in offensive or defensive combat. Indeed, the switchblade is so exclusively a weapon — and one that lends itself to the evils that condemn concealed weapons in general — that “manufacture, ownership, possession, custody or use” of one is made a crime by R.S. 14:95 A(4). In ordinary English, weapon includes a switchblade knife and a statutory prohibition of carrying a concealed weapon includes, to the person of ordinary understanding of the English language, carrying a concealed switchblade knife. R.S. 14:95.1 is not vague in our context, and does not require any grafting upon itself of wording from another statute to be understandable.

The bill of information’s charge is that defendant carried “concealed on his person instrumentalities intended for the probable use as a dangerous weapon, to wit: Two switchblade knives, ... having been previously convicted of a felony” etc. We have added emphasis to the language defendant contends is based on R.S. 14:95 A(l) rather than 95.1 (the language he contended was necessary to make 95.1 understandable). Both the description of the information on its obverse and the response to a request for particulars described the offense as a violation of R.S. 14:95.1; defendant cannot have been misled into supposing that he was charged with simple carrying of switchblades rather than carrying of them by a felon. C.Cr.P. 486 declares that unnecessary allegations in an indictment or information “may be disregarded as surplusage.” The emphasized language is unnecessary and is disregarded as surplusage.

The trial judge did not err in refusing to quash the information.

Defendant’s third assignment is related to the second in that it assumes that “intended for probable use as a dangerous weapon” (the language based on R.S. 14:95 A(l)) is an element of the crime charged under § 95.1. (Assignment three argues that that element was proven by no other evidence than the proof of his prior conviction — which defendant argues should not have been allowed because he offered to stipulate his status as subject to R.S. 14:95.1 — and therefore defendant’s motion for post-verdict acquittal should have been granted.) Our answer is that the element argued unproven is not an element: § 95.1 proscribes the carrying by a felon of a weapon, whether or not intended for probable use as a dangerous weapon. We add that the trial judge may have charged the jury incorrectly by including (as did defendant’s requested charge) “intended for probable use as a dangerous weapon,” but that error cannot have harmed defendant, for it would have made the state’s burden greater than the statute requires.

Defendant last assigns as error the refusal of new trial. This assignment merely restates the others, raising no new issue. New trial was correctly refused.

Affirmed.

      . "A. Illegal carrying of weapon is:
      (1) The intentional concealment of any firearm, or other instrumentality customarily used or intended for probable use as a dangerous weapon, on one’s person_”

      . The prior conviction is one of the "essential facts constituting the offense charged" and therefore must be stated in the information, C.Cr.P. 462; by ”alleg[ing] the name or nature of the offense and the fact, date and court of the conviction” in the information, art. 483. The normal order of trial’s first step after selecting the jury is the "reading of the indictment," art. 765(2), to the jury. ("Indictment” includes information, art. 461.) Thus, in the normal order the jury would be informed of the nature of the prior offense.


author: L. JULIAN SAMUEL, Judge pro tern.

text:
    STATE of Louisiana v. James FELO.
    No. KA 1433.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 16, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Susan Scott Hunt, Asst. Dist. Atty., New Orleans, for plaintiff.
    John M. Lawrence, Orleans Indigent Defender Program, New Orleans, for defendant.
    Before BYRNES, CIACCIO and L. JULIAN SAMUEL, JJ.
   L. JULIAN SAMUEL, Judge pro tern.

Shortly before Thanksgiving Day of 1982, Cathy Beasley sent her four-year-old daughter, Lakita, to stay with Rachel Knox, a neighbor who was at that time living with James Felo in a trailer house in Algiers. It was understood that Lakita would remain with them for only a few weeks.

On December 9, Knox informed Beasley that Lakita had disappeared while walking in the neighborhood with Felo. Upon being notified of the incident, New Orleans police conducted a series of fruitful interviews with Felo and Knox, and in the early morning of December 10, Felo led investigators to a wooded area near the west bank of the Mississippi River and there showed them the young girl’s discarded remains. Felo and Knox were arrested and transported to police headquarters where they were held for further questioning.

An autopsy performed the same day revealed that Lakita’s death had been caused by a subdural hematoma resulting from a dull blow to the head. The examining physician, Dr. Richard Tracy, concluded that the fatal injury had been sustained within the past three to five days. He also noted several fresh bruises and marks on the child’s buttocks, arms, legs, chest, and face, and that one of the girl’s arms and a wrist had been broken.

With this information, police continued their interrogation of the two arrestees. In a written statement, Felo admitted that he had disciplined Lakita on four or five occasions, at least once by whipping her with an electric wire. Felo also admitted that on the night of December 9, he twice struck Lakita in the head in a fit of anger, and that she died a short time later.

On the foregoing evidence, an Orleans Parish Grand Jury charged James Felo with the second degree murder of Lakita Beasley, a violation of La.R.S. 14:30.1. After a trial by jury, the defendant was found guilty as charged and was sentenced to serve the remainder of his life at hard labor, without benefit of parole, probation, or suspension of sentence. Pelo now brings this appeal, urging reversal on the basis of ten assignments of error.

FIRST ASSIGNMENT OF ERROR

By his first assignment of error, the defendant contends that the trial court erred by refusing to appoint a sanity commission to determine whether Felo was competent to stand trial.

At the outset, we note that the question whether to appoint a sanity commission to inquire into the mental condition of the accused is a matter committed to the sound discretion of the trial judge, and absent a clear abuse of that discretion, his findings will not be disturbed. State v. Wilkerson, 403 So.2d 652 (La.1981); State v. Nix, 327 So.2d 301 (La.1975).

La.C.Cr.Pro. Art. 643 provides, in part, that “[t]he court shall order a mental examination of the defendant when it has reasonable ground to doubt the defendant’s capacity to proceed.” Mental incapacity to proceed exists when, as a result of mental disease or defect, a defendant presently lacks the capacity to understand the proceedings against him or to assist in his defense. La.C.Cr.Pro. Art. 641.

The accused bears the burden of proving by a preponderance of the evidence that there exists reasonable ground to doubt his capacity to proceed. State v. Wilkerson, supra; State v. Vincent, 338 So.2d 1376 (La.1976).

In State v. Bennett, 345 So.2d 1129 (La.1977), the court addressed several considerations that bear upon the defendant’s capacity to proceed, among them:

“whether he understands the nature of the charge and can appreciate its seriousness; whether he understands what defenses are available; whether he can distinguish a guilty plea from a not guilty plea and understand the consequences of each; whether he has an awareness of his legal rights; and whether he understands the range of possible verdicts and the consequences of conviction. Facts to consider in determining an accused’s ability to assist in his defense include: whether he is able to recall and relate facts pertaining to his actions and whereabouts at certain times; whether he is able to assist counsel in locating and examining relevant witnesses; whether he is able to maintain a consistent defense; whether he is able to listen to the testimony of witnesses and inform his lawyer of any distortions or misstatements; whether he has the ability to make simple decisions in response to well-explained alternatives; whether, if necessary to defense strategy, he is capable of testifying in his own defense; and to what extent, if any, his mental condition is apt to deteriorate under the stress of trial. See, State v. Augustine, supra [252 La. 983, 215 So.2d 634 (1968) ]; Robey, Criteria for Competency to Stand Trial. A Checklist for Psychiatrists, 122 Am.J. of Psychiatry, at 616; Note, 6 Loyola Univ.L.J. at 684-85; Note, 4 Columb. Hum.Rights L.Rev. at 245.” Id. at 1138.

In support of his motion for the appointment of a sanity commission, the defendant presented a letter from the Louisiana Department of Health and Human Resources, co-authored by Julius M. Collum, M.D. and Barbara W. Murphy, a social worker. In sum, the document states that a psychiatric evaluation of the defendant conducted in 1976 revealed him to be “aggressive, moody, withdrawn” and unable to effectively participate in group therapy. The defendant offered a second document containing his own school records, wherein it was noted that in 1974, a psychiatrist recommended that he undergo individual psychotherapy.

The defendant also presented the testimony of Rev. Roy Humphrey, who stated that during the many years he had known Felo, he had observed the defendant to be a withdrawn, slow learner. The Reverend also described Felo as plagued by a paralyzing fear of authority figures, such that when a superior commanded him to carry out even simple tasks, Felo was unable to maintain the concentration necessary to perform them.

On motion of defense counsel, the court also interrogated the defendant himself. Felo testified that he had discussed the case with his attorney and understood the charges against him; that he knew that if convicted, he would serve a life term; that he had given his attorney the names of his witnesses; that he had no memory difficulties; and that there was no reason why he could not assist counsel in the defense of his case.

We find no basis upon which to hold that the trial court clearly abused its discretion in refusing to appoint a sanity commission. None of the evidence adduced at the hearing pertained to the defendant’s present mental state. The most recent psychiatric evaluation was that which was obtained in 1976, seven years earlier.

Moreover, even if it were assumed that Felo’s earlier psychiatric evaluation remained valid as of the time of the hearing, the trial court did not clearly abuse its discretion in denying defendant’s motion. Even when viewed in a light most favorable to the defendant, the evidence and testimony demonstrated merely that Felo was a slower than average learner who sometimes responded inappropriately to authority figures. These facts alone do not establish reasonable grounds to doubt the defendant’s capacity to proceed. Through direct interrogation of the defendant, the trial judge determined that despite Felo’s reported deficiencies, he was well aware of the charges facing him and was capable of assisting his attorney in a meaningful .way. We find no clear error in that determination.

Accordingly, we hold that the defendant’s first assignment lacks merit.

SECOND ASSIGNMENT OF ERROR

By this assignment, the defendant contends that the trial court erred by refusing to grant his motion to suppress a written inculpatory statement.

The statement to which Felo refers is that given to Det. Cyril Davillier and witnessed by Det. Ronald Doucette at the New Orleans Police Department Homicide Office on the morning of December 10, 1982. In the preface to this typewritten colloquy with' Det. Davillier, Felo affirms that he had been advised of his constitutional rights and that his statement is the product of his own free will. There follows the defendant’s narration of the events which immediately preceded the child’s death. Most notable are Felo’s admissions that only a few hours before Lakita died, he lost his temper and struck her in the head, and that he beat the child on four or five previous occasions.

Det. Davillier testified that he himself typed the statement while Felo spoke, and that the document is a verbatim account of the defendant’s conversation from beginning to end. Felo insists, however, that the only authentic part of the document is his own signature, and that every word of the statement was fabricated by Davillier. At the motion to suppress and at trial, Felo testified that during the interrogation, Detectives Davillier and Doucette repeatedly knocked him out of his chair with punches and kicks to the abdomen. The defendant also stated that the detectives promised to continue this treatment until he cooperated by signing the statement, and that but for the abuse he received, he would not have signed.

In support of this contention, Felo offered the testimony of Rachel Knox, who was also detained at the homicide office only a few feet from the cubicle where the defendant was interviewed by Det. Davillier but out of sight of the participants in that interview. According to Knox, a considerable clamor arose from the cubicle during the defendant’s interrogation, the distinct sound of Felo being beaten and falling out of his chair. Knox also stated that she could hear policemen yelling at Felo to “get up”, and that the officers told Felo that unless he admitted to having murdered Lakita, they would take him somewhere and beat him until he confessed.

In weighing the merits of this second assignment, we are guided by the principle that a trial court’s ruling on the admissibility of statements is entitled to considerable deference and will not be disturbed “unless not supported by the evidence”. State v. Harper, 430 So.2d 627, 633 (La.1983); State v. Burkhalter, 428 So.2d 449 (La.1983); State v. Dewey, 408 So.2d 1255 (La.1982).

We find no error in the present case. Detectives Davillier and Doucette testified that the interrogation took place in the major offense bureau at police headquarters, a large office occupied not only by the homicide division, but also the rape squad and the armed robbery division. In this office are many open cubicles typical of those that might be found in a college library. It was in these cubicles that Felo and Knox were questioned. Davillier and Doucette testified, without contradiction, that during normal working hours, the office is open to many visitors, including laymen, prosecutors, defense attorneys, and occasionally, the press. The officers stated, moreover, that at the time of Felo’s interrogation (11:25 a.m.), the office was quite busy with the coming and going of such visitors as well as regular police personnel.

These circumstances lend credibility to Davillier’s and Doucette’s specific denial that they or anyone else had beaten or intimidated Felo in order to secure his statement. Moreover, Deputy Herbert Craig, the booking officer at Central Lockup, testified that at the time of Felo’s booking, he asked Felo whether he was injured, and the defendant’s response was “No”. Davillier stated that Felo was booked almost immediately after giving his statement.

Finally, Knox’s testimony was in significant conflict with Felo’s — whereas the defendant insisted that Det. Davillier alone meted out the abuse, Knox testified that it was someone other than Davillier who committed those acts.

In finding the defendant’s statement to have been voluntarily given, the trial court expressed its belief that Felo’s and Knox’s testimony concerning police abuse was “incredible and completely uncorroborated”. The record contains ample support for that determination, and we therefore find the defendant’s second assignment to be without merit.

THIRD ASSIGNMENT OF ERROR

The defendant contends that 'the trial court erred in permitting the State to introduce evidence of the defendant’s' prior crimes, in particular, Felo’s physically abusive treatment of the child over the course of two weeks prior to her death.

Prior to trial, the State formally notified the defense of its intent to introduce evidence of Felo’s brutality towards Lakita to prove “system and intent”. The appellant’s motion to prohibit the use of such evidence was denied.

At trial, Dr. Richard Tracy (the pathologist who performed the autopsy) testified that much of Lakita’s body was covered by swollen striations suggestive of the marks that would be caused by beating with a switch. The doctor also testified that Laki-ta’s left forehead was swollen, as were her right eye and right ear. Her upper right arm had a distinctive switch mark which passed across the chest and onto the arm in one continuous line; the right arm was broken. The left wrist was swollen and slightly bent; x-rays confirmed that, in fact, it too had been broken.

Rachel Knox testified that Felo had whipped Lakita, once with an electrical wire and twice with a narrow belt. Knox also testified that on one occasion, she told Felo to stop spanking the child, and that he responded, “Shut up”.

The State’s evidence included Felo’s own written statement that he had beaten Laki-ta “about four or five” times, and that shortly before Lakita’s death, he struck her twice on the top of the head.

The defendant contends that the State’s presentation of such prior crimes evidence was a subterfuge whose only purpose was to depict him as a bad character.

La.R.S. 15:445 provides that:

“In order to show intent, evidence is admissible of similar acts, independent of the act charged as a crime in the indictment, for though intent is a question of fact, it need not be proven as a fact, it may be inferred from the circumstances of the transaction.”
La.R.S. 15:446 provides that:
“When knowledge or intent forms an essential part of the inquiry, testimony may be offered of such acts, conduct or declarations of the accused as tend to establish such knowledge or intent and where the offense is one of a system, evidence is admissible to prove the continuity of the offense, and the commission of similar offenses for the purpose of showing guilty knowledge and intent, but not to prove the offense charged.”

Under the above provisions, evidence of the defendant’s prior similar acts is relevant to prove that the act for which the defendant is charged was not committed accidentally, unintentionally, or inadvertently. State v. Kahey, 436 So.2d 475, 489 (La.1983); See also McCormick, Evidence § 190 at 450 (Cleary ed. 1972). Being relevant, such evidence is admissible, provided that there is a real and genuinely contested issue of intent at trial, State v. Monroe, 364 So.2d 570 (La.1978); State v. Nelson, 357 So.2d 1100 (La.1978); State v. Kahey, supra; and further, that the prejudicial effect of such evidence is outweighed by its probative value. State v. Harris, 383 So.2d 1 (La.1980); State v. Prieur, 277 So.2d 126 (La.1973).

In the present case, the defendant’s intent was squarely placed in issue when defense counsel, prior to trial, requested special jury charges relating to the crime of manslaughter, La.R.S. 14:31, which provides, in pertinent part:

Manslaughter is:

(1) A homicide which would be murder under ... Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed; or
(2) A homicide committed, without any intent to cause death or great bodily harm.
(a) When the offender is engaged in the perpetration or attempted perpetration of any felony not enumerated in Articles 30 or 30.1, or of any intentional misdemeanor directly affecting the person; ...

The jury was instructed according to the above statute and defense counsel couched his argument to them in those (among other) terms. Now on appeal, Felo again argues that the State had not proved his possession of the requisite intent for second degree murder. (See Assignments of Error Numbers Eight and Nine). Thus, it cannot be seriously urged that intent was not a genuine issue at trial.

Moreover, the prior acts of brutality committed by Felo against young Lakita were unquestionably similar to that for which the defendant was charged — each was an act of brutality calculated to inflict great bodily harm. See State v. Germain, 433 So.2d 110 (La.1983), State v. Kahey, supra; State v. Davis, 411 So.2d 2 (La.1982).

Finally, the probative value of the evidence presented by the State was substantial, and clearly outweighed any prejudicial effect which its introduction may have produced. The defendant maintained throughout that the victim’s mortal injury was suffered when she slipped and fell in the bathroom, striking her head against the toilet. A similar claim was asserted in State v. Davis, supra, where the defendant charged in a beating death (there, too, a fatal subdural hematoma) insisted that the victim’s head injury was caused by a fall. There, evidence of the defendant’s prior brutalities toward the victim was held to be substantially probative, i.e., useful in reducing the possibility that the death was an accident, or that the act in question was done with innocent intent. See also State v. Kahey, supra, at 489; State v. Germain, supra. The evidence of prior acts offered by the State in this case proved an unmistakably malicious intent on the part of the defendant to do serious harm to the victim. As in Davis, supra, we hold that the evidence did not unfairly prejudice the defendant, and that its use by the State was legitimate in proving the intent of the accused.

Recent jurisprudence has also sanctioned the use of a parent’s prior acts of brutality towards a child as admissible to prove the identity of the parent as the wrongdoer in a prosecution for child abuse or murder, provided that identity is a genuinely contested issue at trial and that the prior brutalities are “so nearly identical in method as to weigh substantially on the proof of identity in the charged crime.” State v. Humphrey, 412 So.2d 507 (La.1982) (on rehearing). It is noteworthy that the prior abuses need not be so distinctive as to constitute “signature crimes”; it is enough that the prior acts bear such substantial similarity to the crime charged that their relevancy to the issue of identity clearly outweighs their prejudicial effect. Humphrey, supra, at 521; State v. Germain, supra; State v. Kahey, supra.

In the present case, the prosecution offered in evidence the defendant’s own statement that he had struck the victim twice on the top of the head on the night she died. Defendant also admitted having beaten the child on several previous occasions, and the coroner’s examination proved that indeed the victim had been terribly abused. These acts possessed such substantial similarity to the act for which Felo was charged — -the infliction of the fatal subdural hematoma — that their relevance and probity on the issue of identity clearly outweighed their prejudicial effect. Accordingly, we hold that the trial court did not err in allowing the State to introduce evidence of the beating inflicted upon the victim on the night she died and on previous occasions.

The appellant’s third assignment of error is without merit.

FOURTH ASSIGNMENT OF ERROR

By this assignment, appellant contends that the trial court erred in permitting the State to offer evidence concerning scientific tests, x-rays of the murder victim, the results of which were not furnished to the defendant as requested in pre-trial discovery.

In his Prayer for Oyer, the appellant requested the results of “any and all scientific tests made in the investigation of this case...” The prosecutor responded that the State would make all such tests available, and orally advised defense counsel that the State would seek to introduce at trial the x-rays showing fractures in the victim’s left wrist and upper right arm. The prosecutor also advised the defense, however, that these x-rays had been misplaced and were not immediately available for inspection, but that when the films were located, the defense would be notified.

As of the second day of trial, the defense still had not seen the films, despite the fact that the prosecution had located them several days earlier. Consequently, the defense filed a motion to prohibit the State’s use of the x-rays and all testimony and evidence related to them. The trial court denied the motion, whereupon the State offered the expert testimony of Dr. John Lee Moss, who interpreted the x-rays to the jury in the form of oral testimony and written findings. These findings were later introduced into evidence.

Pursuant to La.C.Cr.Pro. Art. 719, a defendant may inspect, copy, etc. any results or reports of scientific tests “made in connection with or material to” his case within the custody, possession, or control of the State and which are intended for use at trial. Additionally, the State has a continuing duty under La.C.Cr.Pro. Art. 729.3 to disclose such evidence when it comes within the State’s control. State v. Sweeney, 443 So.2d 522, 527 (La.1983); State v. Strickland, 398 So.2d 1062 (La.1981).

The Supreme Court has long held that the purpose of discovery rules as set forth by the Code of Criminal Procedure is to “eliminate unwarranted prejudice which could arise from surprise testimony”, State v. Mitchell, 412 So.2d 1042, 1044 (La.1982); State v. Toomer, 395 So.2d 1320 (La.1981); especially where the defendant may be lulled into a misapprehension of the strength of the State’s case. State v. Sweeney, supra. However, failure by the State to disclose will not automatically require reversal of a conviction. The defendant must prove that he was prejudiced by the State’s failure to disclose before a reversal is warranted. State v. Rault, 445 So.2d 1203 (La.1984); State v. Sweeney, supra; State v. Arnaud, 412 So.2d 1013 (La.1982); State v. Mitchell, supra; State v. Strickland, supra.

On appellate review, the court must examine the record to determine “whether any such prejudice which may have resulted from the non-compliance caused the trier of fact to reach the wrong conclusion.” Sweeney, supra; State v. Ray, 423 So.2d 1116, 1119 (La.1983).

Applying the above principles, we hold that it was error for the lower court to deny the defendant’s motion and to allow the case to immediately proceed with the State’s presentation of the questioned evidence. Under La.C.Cr.Pro. Art. 729.5, the defense was, at the very least, entitled to a recess to allow time to inspect the x-rays and the report of Dr. Moss.

Nevertheless, we fail to detect any real prejudice engendered by the error, and in fact the appellant alleges none here. The defense had been notified as to the substance of Dr. Moss’ testimony and was aware that the x-rays depicted the victim’s broken limbs. Moreover, the evidence was overwhelming that Lakita’s left wrist and right arm were indeed fractured. Even the most skillful cross-examination would not have changed that fact, nor is it conceivable that given adequate time to review the x-rays, the defense might have countered their effect upon the jury by presenting opposing medical testimony. In sum, we are convinced that even if the defense had been permitted to inspect the evidence pri- or to trial, the jury’s verdict would have been the same.

Accordingly, we find the defendant’s fourth assignment of error to be without merit.

FIFTH ASSIGNMENT OF ERROR

By this assignment of error, the appellant argues that the trial court erred in failing to grant a mistrial based upon allegedly prejudicial remarks by the prosecutor during voir dire.

In addressing prospective jurors on the subject of the defendant’s presumption of innocence, the assistant district attorney stated:
“When you are asked to determine what the facts are, one thing that you’re going to have to do, you’re going to have to consider all the testimony of everybody who testifies. As Mr. Felo sits here right now, he is considered to be innocent by law. No matter what he’s done in the past, as he sits here right now, he’s considered to be— added). Tr. 1. (Emphasis

Before the prosecutor finished his sentence, defense counsel objected to the remark as falling under La.C.Cr.Pro. Art. 770 and requested a mistrial. The motion was denied, but the court did admonish the jury to disregard the remark.

The trial court clearly did not err in refusing to grant a mistrial. Article 770(2) prohibits direct or indirect references to another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible. Taken in context, the prosecutor’s remark did not refer to any crime as to which evidence is inadmissible; indeed, it does not refer to any crime at all. It merely expressed (at worst, inartfully) that the defendant is presumed to be innocent until the State proves otherwise.

This assignment of error lacks merit.

SIXTH ASSIGNMENT OF ERROR

By this sixth assignment, the appellant contends that the trial court erred by failing to grant a mistrial following the prosecutor’s misconduct in addressing leading questions to a State’s witness on direct examination.

During the exchange between the assistant district attorney and witness Knox, she stated that on one occasion when Felo was whipping Lakita with a narrow belt, she (Knox) told him to stop, and that Felo shouted back, “Shut up”. When the prosecutor asked her what happened next, Knox replied that Felo left the room. Apparently this was not the expected response, for the prosecutor then asked: “You don’t remember what else he did?” Knox answered “No”. Again the prosecutor asked: “Do you remember that he told you he whipped her with the extension cord?” Tr. 39. The defense objected as to the leading nature of the question and requested a mistrial.

Although the prosecution was properly admonished to refrain from asking leading questions on direct examination, the trial court did not err in refusing to grant a mistrial. The witness had already testified (several moments earlier) that Felo had personally admitted having whipped the child with an electrical cord. Tr. 34. Moreover, the defendant himself later admitted (twice) the truth of the statement. Tr. 105, 120. The leading questions, therefore, were not so prejudicial as to require reversal.

This assignment of error lacks merit.

SEVENTH ASSIGNMENT OF ERROR

By this assignment, appellant contends that the trial court erred in admitting into evidence a hearsay document, namely, a copy of the defendant’s arrest register.

On direct examination, the defendant testified that he had been molested by police interrogators and forced to sign an inculpa-tory statement. On cross-examination, the prosecution sought to impeach Felo by questioning him about certain contradictory statements made to the booking officer at Central Lock-up. Specifically, Felo was asked whether he remembered telling the booking officer that he had not been injured. (It is a regular policy that booking officers question arrestees as to their physical condition). Felo answered that he did not remember having been asked about any injuries, and further, that he did not tell anyone that he was not injured. The prosecutor then showed Felo a copy of the police Arrest Register, wherein the following appears:

“If injured describe by whom and if treated; if intoxicated describe to what degree”
“No”.

Felo viewed the form and authenticated it as having been issued by the booking officer. (The defendant had received a copy from the booking officer.) Felo again denied having made any such statement. The prosecutor then introduced the document into evidence over the defendant’s hearsay objection.

We hold that the court did not err in admitting the arrest register into evidence. Although it is clear that the document would have been hearsay if offered to prove the truth of the matter asserted therein, nevertheless, there remained a legitimate, though limited, alternative purpose in offering the evidence, e.g. to impeach the defendant through the use of a prior inconsistent statement. La. R.S. 15:493. The evidence was therefore admissible over a hearsay objection.

The appellant also contends that the arrest register contained references to other crimes, evidence of which was inadmissible. He argues, further, that the deletion of those references did not cure the prejudice, because the jury could still infer such prior arrests from the face of the document.

We disagree. Entries in the arrest register have been deleted so effectively that this court cannot discern whether the defendant had ever been arrested prior to December 10, 1982, nor could the jury have inferred such arrests from the face of the document.

This assignment lacks merit.

EIGHT AND NINTH ASSIGNMENTS OF ERROR

By these assignments, the appellant contends that the trial court erred in denying defendant’s motion for a new trial and in denying his motion for post-verdict judgment of acquittal. Specifically, appellant argues that the evidence was insufficient to prove either identity, causation, or specific intent to kill or inflict great bodily harm.

“Whenever the credibility of a witness is to be impeached by proof of any statement made by him countradictory to his testimony, he must first be asked whether he has made such statement, and his attention must be called to the time, place and circumstances, and to the person to whom the alleged statement was made, in order that the witness may have an opportunity of explaining that which is prima facie contradictory. If the witness does not distinctly admit making such statement, evidence that he did make it is admissible."

Appellant’s claim arises under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). There it was held that in reviewing a defendant’s conviction for sufficiency of the evidence, the court must determine whether, viewing the evidence in a light most favorable to the prosecution, any rational juror could have found the defendant guilty beyond a reasonable doubt. The standard to be applied under Jackson, supra, is not altered by the fact that in the present case, the State’s evidence as to causation, identity, and specific intent was circumstantial, for although it is the statutory rule that such evidence, in order to convict, must remove every reasonable hypothesis of innocence, (La.R.S. 15:438), due process of law requires no greater burden than that the State prove each element of the offense beyond a reasonable doubt. Jackson v. Virginia, supra; Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954); State v. Wright, 445 So.2d 1198 (La.1984); State v. Camp, 446 So.2d 1207 (La.1984); State v. Chism, 436 So.2d 464 (La.1983). Ultimately, the difference is purely one of semantics, for when there exists a reasonable hypothesis of innocence, there is necessarily a reasonable doubt as to guilt. Holland, supra; Wright, supra; Camp, supra. Therefore, for the sake of Simplicity and uniformity of judicial expression, the test to be applied when reviewing the sufficiency of evidence in a circumstantial ease is that which was announced in Jackson.

Regarding causation and identity, the defendant maintains that the State’s evidence as to how the child received the fatal injury was purely circumstantial and did not remove the reasonable hypothesis that.Lakita died as the result of a fall, or that the killing blow could have been delivered by Rachel Knox or even by Cathy Beasley, the child’s mother.

The defendant calls this court’s attention to the testimony of Rachel Knox, who stated that when she first received Lakita from her mother shortly before Thanksgiving, the child showed signs of having been beaten: there were bruises on her legs, back, and buttocks and there was a large and noticeable area on the top of her head which was soft to the touch.

At trial, Felo denied having told the police that he had struck Lakita in the head on the night she died. According to Felo, death occurred as a result of the following incident: Lakita was in the bathroom alone while the defendant was in the kitchen washing the dishes; and Knox was in bed. A loud noise in the bathroom informed Knox that the baby had fallen, and so she told Felo to see what had happened. When he entered the bathroom, Lakita was lying on the floor in a pool of blood. Felo picked her up, washed her, then put her to bed. A short while later when Felo returned to Lakita’s bedroom, he found her sprawled across the fan, unconscious, but still breathing. He again put her in bed and left the room. Upon returning shortly afterward, Felo discovered that Lakita had died.

Rachel Knox’s testimony concerning the foregoing event was substantially the same. She added, however, that on the previous night, an almost identical incident took place — Felo was in the kitchen washing dishes, Lakita was in the bathroom alone, and Knox was in bed; there was a loud sound in the bathroom; Felo investigated and found that Lakita had fallen and hurt herself.

In contradiction to the defendant’s exculpatory account, the State presented the expert testimony of a pathologist, Dr. Richard Tracy, who stated that Lakita died as a result of a subdural hematoma, and that this injury occurred approximately three to five days prior to the autopsy performed on December 10, 1982. By all accounts, death occurred on December 9.

Viewing the foregoing evidence in a light most favorable to the State, any rational juror could have concluded that: 1) the hematoma was suffered too recently to have been caused by Cathy Beasley — she had not seen the child since before Thanksgiving; and 2) the hematoma was too old to have been caused by an accidental fall on the night the child died.

Any rational trier of fact could have also concluded that, beyond a reasonable doubt, the subdural hematoma had been inflicted by James Felo, the defendant. As we stated earlier, proof of a defendant parent’s prior abuse of a child is highly relevant to prove the identity of that parent as the offender who caused the child’s death. State v. Germain, supra; State v. Humphrey, 412 So.2d 507 (La.1982). In the present case, the State offered irrefutable evidence that Lakita had suffered the most extreme abuse while in Felo’s custody. In his own statement to homicide detectives, Felo admitted having beaten the child on four or five previous occasions, at least once with an electrical wire, and indeed switch marks were found over her entire body. He himself stated to police that he struck Lakita twice on the top of the head only a few hours before she died. Moreover, it was Felo who had concealed the child’s body underneath the Mississippi River Bridge. Thus, the jury could have rationally concluded that, beyond a reasonable doubt, it was Felo and not Knox who had inflicted the fatal subdural hematoma several days prior to death.

Alternatively, appellant contends that the State had not sufficiently proved the requisite specific intent to sustain a conviction for second degree murder. He argues that, at most, the State’s evidence is sufficient to prove the defendant’s commission of simple battery without specific intent to do great bodily harm, and therefore, that the most severe ■ offense of which he is guilty is misdemeanor manslaughter. La. R.S. 14:31(2)(a).

We do not agree. Wholly aside from the fatal subdural hematoma — which itself speaks rather clearly of the defendant’s intent to do great bodily harm — the defendant’s self-admitted pattern of abuse toward the child admits no reasonable doubt that it was Felo’s specific intent to inflict serious injury upon the victim.

Accordingly, we hold that the State presented sufficient evidence at trial to prove the elements of causation, identity, and specific intent. The defendant’s eighth and ninth assignments of-error are therefore without merit.

TENTH ASSIGNMENT OF ERROR

By this last assignment of error, the defendant contends that the trial court erred in refusing to give special requested jury charges, numbers one (last paragraph), three, four, five, six, and eight.

La.C.Cr.Pro.Art. 807 provides:

The state and the defendant shall have the right before argument to submit to the court special written charges for the jury. Such charges may be received by the court in its discretion after argument has begun. The party submitting the charges shall furnish a copy of the charges to the other party when the charges are submitted to the court.
A requested special charge shall be given by the court if it does not require qualification, limitation, or explanation, and if it is included in the general charge or in another special charge to be given.

The court must charge the jury, when properly requested, as to the law applicable to any theory of defense that the jury could reasonably infer from the evidence presented. State v. Johnson, 438 So.2d 1091 (La.1983); State v. Telford, 384 So.2d 347 (La.1980).

Appellant complains that the trial court erred in not charging the jury as specially requested in the last paragraph of charge number one. That charge concerns homicide that occurs when the offender had no specific intent to kill or inflict great bodily harm but was engaged in the commission of any intentional misdemeanor (such as simple battery) or aggravated battery at the time of the homicide. The trial judge sufficiently instructed the jury that specific intent to kill or to inflict great bodily harm was an absolute requisite for conviction on a charge of second degree murder. Moreover, the court gave an accurate and complete charge on misdemeanor manslaughter. We therefore find no error in the trial judge’s refusal to give the requested charge.

Requested charge number three concerned negligent homicide; requested charge number four concerned criminal negligence. The trial judge refused to give these instructions because there was no evidence or testimony to support a finding that the victim’s fatal injury was received as a result of negligence. As presented by the State, the case concerned a homicide rooted in specific intent; the defendant maintained that the child fell while in another room. Neither party put forth evidence of criminal negligence. The trial court was therefore correct in refusing to give the defendant's third and fourth charges. Johnson, supra; Telford, supra.

Defendant’s special charge number five concerned the concept of “reasonable doubt”, specifically, that reasonable doubt which arises from a lack of evidence against the accused as well as that which is created by incredible testimony on the part of the State’s witnesses. We conclude that the trial judge’s instruction on these matters sufficiently included the defendant’s requested charge, and therefore, that the court did not err in refusing to charge in the requested manner.

Special requested charge number six sought to instruct the jury that a defendant’s confession or inculpatory statement must be shown beyond a reasonable doubt to have been given voluntarily; that any reasonable doubt is to be resolved in favor of the defendant; and that unless the State carried its burden of proof on that issue, the jury is duty-bound to disregard the statement entirely.

To the extent that the foregoing instruction may have led a juror to conclude that the initial question of admissibility was his to decide, the instruction was erroneous and was properly rejected by the trial court. “Once the trial judge has determined that the confession is admissible, any evidence submitted to the jury regarding the circumstances surrounding the obtaining of the confession is solely for the purpose of determining the effect or weight to be given the statement. C.Cr.P. 703”. State v. Sears, 298 So.2d 814, at 821 (La. 1974) (emphasis ours); see also, State v. Glover, 343 So.2d 118 (La.1977). Those parts of the requested charge that were correctly stated were sufficiently addressed by the trial court.

Similarly, special requested charge number eight creates the impression that not only the weight and effect, but the admissibility of the defendant’s inculpatory statement are to be judged by the jury. The trial judge was, again, correct in refusing to give such a charge. The trial court’s charge was sufficient to address those parts of the requested charge that were correctly stated.

The defendant’s tenth assignment of error is without merit.

CONCLUSION

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

AFFIRMED.

      . We note, parenthetically, that by "prejudicial”, it cannot be meant simply "damaging”; if that were true, then any evidence which is probative would be "prejudicial”. But it is only unfairly prejudicial evidence that cannot be admitted, State v. Germain, supra, and as one court has noted, "unfair prejudice results from an aspect of the evidence other than its tendency to make the existence of a material fact more or less probable, e.g., that aspect of the evidence which makes conviction more likely because it provokes an emotional response in the jury or otherwise tends to affect adversely the jury’s attitude toward the defendant wholly apart from its judgment as to his guilt or innocence of the crime charged.” United States v. Bailleaux, 685 F.2d 1105 (9 Cir. 1982).

      . La.R.S. 15:493 provides:

      . Prior inconsistent statements are not admissible as substantive evidence, but only as impeachment. The burden is upon the defendant, however, to request a limiting instruction to that effect, and in the absence of such a request, the court’s failure to instruct is not reversible error. State v. Ray, 249 So.2d 540 (La.1971).

      . In Holland, supra, the Court criticized the practice of instructing juries that where the prosecution's evidence is circumstantial it must be such as to exclude every reasonable hypothesis other than guilt. "[T]he better rule”, the Court stated, "is that where the jury is properly instructed on the standards for reasonable doubt, such an additional instruction on circumstantial evidence is confusing and incorrect, [citing 1 Wigmore, Evidence (3d ed.), 25-26 and other federal court precedent] ... If the jury is convinced beyond a reasonable doubt, we can require no more.”
      We do not imply from the foregoing that a trial judge in this state may correctly refuse to charge the jury in accordance with La.R.S. 15:438 — indeed, where the case is circumstantial, it may be error to refuse such a charge. Our point is simply that which was stated in Wright, Camp, and Chism, infra — upon appellate review for sufficiency of evidence, R.S. 15:438 is at most a helpful tool for deciding whether there exists a reasonable doubt as to guilt.


text:
    Douglas ST. ROMAIN v. Jim KENNY, and Fireman’s Fund Insurance Company.
    No. CA-1718.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 16, 1984.
    Rehearing Denied Sept. 27, 1984.

      Douglas St. Romain, Metairie, for plaintiff-appellant.
    Dillon & Cambre, Gerard M. Dillon, New Orleans, for defendants-appellees.
    Before BYRNES, CIACCIO and SAMUEL, JJ.
   L. JULIAN SAMUEL, Judge Pro Tem.

Plaintiff Douglas St. Romain, an attorney, filed this action against Jim Kenny and Fireman’s Fund Insurance Company seeking damages for their alleged malicious interference with his business relations. The petition states that the defendants attempted to induce St. Romain’s client to breach the attorney-client contract by settling a claim and keeping the entire amount of the recovery, thus depriving St. Romain of his contingency fee. The plaintiff alleges that such conduct on the part of the defendants created a conflict of interest between himself and his client, and that as a result, he was forced to withdraw as legal counsel. St. Romain prays for damages in the amount he would have recovered had he not been forced to relinquish the case; in the alternative, he asks the trial court to award quantum meruit.

After answering the plaintiff’s suit, Kenny and Fireman’s Fund filed a motion for summary judgment. The trial court granted the motion and dismissed the claim. St. Romain now brings this appeal. We reverse.

Defendants’ motion for summary judgment was urged on the sole contention that St. Romain’s claim was premature, not in the sense in which that word is used in La.C.Civ.Pro. Art. 926, but in the sense that there was not, as yet, a viable cause of action. Defendant argued that St. Ro-main’s contract with his client was a contingency fee arrangement, and because the client’s suit was still pending, St. Romain was not yet entitled to his fee; thus, he cannot have been deprived of any fee by any act on the part of the defendants.

Reduced to its elements, defendants’ position is that the undisputed facts do not establish a cause of action for malicious interference with business relations. However persuasive that argument may be, defendants have chosen the wrong procedural vehicle by which to raise it. As it was stated in B-W Acceptance Corp. v. Clarkson, 154 So.2d 67, 69 (La.App. 4th Cir. 1963):

“A motion for summary judgment based on insufficiency of allegations cannot be used as a substitute for an exception of vagueness or of no cause of action.
Summary judgment is a more serious matter than a judgment sustaining either of the exceptions. In connection with those exceptions an amendment to the petition must be permitted when the grounds may be removed by amendment (LSA-C.C.P. Arts. 933 and 934) ... a judgment maintaining an exception of no cause of action based on an insufficiency of allegations cannot form the basis of a plea of res judicata (LSA-C.C.P. Art. 934; Federal Ins. Co. v. T.L. James & Co., La.App., 69 So.2d 636; Pannagl v. Stouder, La.App., 34 So.2d 344). On the other hand, in connection with the motion for summary judgment (LSA-C.C.P. Art. 966) there is no requirement that an amendment be permitted under any circumstances; and under LSA-C.C.P. Art. 968 a summary judgment is a final judgment, the effect of which is the same .. as if a trial had been had upon evidence regularly adduced.’ See also Sinclair Oil & Gas Co. v. Delacroix Corporation, 235 So.2d 187 (La.App. 4th Cir.1970).”

Applying the foregoing principle, we hold that the defendants’ motion for summary judgment, being an improper substitute for an exception of no cause of action, should not have been granted. Accordingly, the judgment of the trial court is reversed and the defendant’s motion for summary judgment is denied. The case is remanded to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

       This distinction was clearly stated in Halbert v. Klauer, Mfg. Co., 181 So. 75 (La.App. 2d Cir. 1938): "... prematurity must be pleaded in li-mine litis in those cases where the obligation sought to be enforced is existent and certain, and the term stipulated for its fulfillment or discharge has not matured. If, however, the obligation depends upon the happening of an uncertain event, and objection is urged to its enforcement or execution because of the nonoccurrence of that event, the resulting issue of prematurity properly belongs to the merits of the case.” Id. at 79. (Emphasis added).