text:
    STATE of Louisiana v. Eugene BUTLER, Jr.
    No. 83-KA-789.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 14, 1984.

      Joseph L. Montgomery, Staff Appeals Counsel, Indigent Defender Board, Gretna, for appellant.
    John M. Mamoulides, James Maxwell, William C. Credo, III, Gretna, for appellee.
    Before KLIEBERT, GAUDIN and MARCEL, JJ.
   GAUDIN, Judge.

Eugene Butler, Jr. was convicted of armed robbery in the 24th Judicial District Court and sentenced to 25 years at hard labor without benefit of parole, probation or suspension of sentence.

On appeal, he assigns two errors:

(1) The trial judge erred in not granting his motion for post-verdict judgment of acquittal inasmuch as the evidence, viewed in a light most favorable to the state, did not reasonably permit a finding of guilty by the 12-person jury; and
(2) The trial judge did not follow LSA-C. Cr.P. art. 894.1 but instead imposed a constitutionally excessive sentence.

We find no merit in either assignment of error, and we affirm Butler’s conviction and sentence.

THE ROBBERY

On January 10, 1982, at approximately 9:45 p.m., a man and a woman entered the Pizza Hut in Harvey, Louisiana whereupon the man pulled out a pistol and demanded money.

During the course of the robbery, the man and woman confiscated funds from a safe and a cash register and took a ring from a waitress after threatening to shoot her finger off when she had trouble removing the ring. Finally, the man made the four employees lie on the floor, saying: “If you move, I’ll blow your heads off.” The robbers then made good their escape.

In February of 1982, a female was arrested after committing a similar robbery in the area. This was Eugene Butler’s sister, Mary, also known as Sue Brooks. Miss Butler named her brother, Eugene, as her accomplice in the January 10, 1982 Pizza Hut robbery, and Eugene was subsequently arrested.

ASSIGNMENT NO. 1

In his first assignment of error, Butler cites LSA-C.Cr.P. art. 821:

“A. The defendant may move for a post verdict judgment of acquittal following the verdict. A motion for a post verdict judgment of acquittal must be made and disposed of before sentence.
“B. A post verdict judgment of acquittal shall be granted only if the court finds that the evidence, viewed in a light most favorable to the state, does not reasonably permit a finding of guilty.
“C. If the court finds that the evidence, viewed in a light most favorable to the state, supports only a conviction of a lesser included responsive offense, the court, in lieu of granting a post verdict judgment of acquittal, may modify the verdict and render a judgment of conviction on the lesser included responsive offense.
“D. If a post verdict judgment of acquittal is granted or if a verdict is modified, the state may seek review by invoking the supervisory jurisdiction of or by appealing to the appropriate appellate court.
“E. If the appellate court finds that the evidence, viewed in a light most favorable to the state, supports only a conviction of a lesser included responsive offense, the court, in lieu of granting a post verdict judgment of acquittal, may modify the verdict and render a judgment of conviction on the lesser included responsive offense.”

In urging the applicability of this article, particularly section (B), Butler contends (1) that he was named by his sister because she thought he was in Detroit, Michigan and couldn’t be caught and also because she was protecting a friend, Clarence Joseph, who actually committed the crime with her; (2) that he was not properly identified by Pizza Hut employees; and (3) that his alibi defense should have' been accepted by the jury.

Butler’s sister pleaded guilty to the Pizza Hut armed robbery and is presently serving time in the state penitentiary for women at St. Gabriel.

She testified that she had at first told police officers that her brother was involved in the Pizza Hut robbery, but that she had lied because she was promised leniency if she named her accomplice and also gave them other information concerning drug transactions. Further, she did think her brother was out-of-state and couldn’t be found.

Following Miss Butler’s original disclosure, two Pizza Hut employees were asked to view pictures of Butler and four others in a photographic lineup. Both employees quickly and with certainty identified Butler. The district judge found that the lineups, which were conducted at different times, were handled by detective Mike Guil-lory fairly and with no hint of suggestiveness.

At the trial, both employees were shown photographs of Joseph, and both employees failed to recognize him.

Regarding the alibi defense, Butler called several witnesses who stated that they were with him the evening of January 10, 1982. The jury disregarded this testimony.

When there is conflicting testimony, the credibility of witnesses is a matter within the sound discretion of the trier of facts, in this case the 12-person jury. Factual determinations will not be disturbed on review unless clearly contrary to the evidence. State v. Richardson, 425 So.2d 1228 (La.1983) and State v. Klar, 400 So.2d 610 (La.1981).

Here, the jury chose to believe the Pizza Hut employees in their positive identification of Butler. Both employees said that they had clear views of Butler, and both employees were certain that it was Butler, not Joseph or anyone else, who committed the armed robbery.

The test on appeal, in determining sufficiency of evidence, is whether the evidence, considered in the light most favorable to the prosecution, indicates that all elements of the crime were proven beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), which was cited favorably in State v. Byrd, 385 So.2d 248 (La.1980).

Armed robbery is the theft of anything of value by use of force or intimidation while the perpetrator is armed with a dangerous weapon. With the apparently believable testimony of the two victims and Detective Guillory, the state proved all elements of the crime beyond a reasonable doubt.

ASSIGNMENT NO. 2

Defendant contends that Art. 894.1 was not followed; and, further, that his 25-year sentence violated Art. 1, Sec. 20 of the Constitution of the State of Louisiana, which prohibits “... cruel, excessive or unusual punishment.”

The purpose of Art. 894.1 is twofold: (1) to guide and assist the trial judge in the exercise of his or her broad discretion in imposing sentence and (2) to afford the reviewing court with insight so that the propriety of the sentence can be evaluated.

Before passing sentence, the trial judge said:

“All right. The Court has taken into consideration the fact that this was an armed robbery, that human lives were endangered, and that the jury convicted this defendant after a fair trial, in my estimation...”

The consequences of failure to strictly comply with Art. 894.1 are discussed in State v. Wimberly, 414 So.2d 666 (La.1982), as follows:

“We have not as of yet acted under our supervisory, administrative or rule making powers to require that sentencing judges state basic facts and reasons in every case. In those cases in which we have vacated the sentence and remanded the case for resentencing in full, recorded compliance with Article 894.1, our action was not prompted simply by the sentencing judge’s failure to give his reasons for the penalty imposed. Rather, it was because, based on the inadequate record presented to us, there appeared to be a substantial possibility that the defendant’s complaints of an excessive sentence had merit. In each case pursuant to our duty to uphold the constitution, which expressly prohibits the imposition by law of excessive punishment, we vacated the sentence and remanded the case for resentencing on an adequate record, including strict compliance with Article 894.1.
“Our decision in such a case represents a finding of a substantial possibility that the sentence is excessive and not a final judgment that it is invalid.”

The failure to strictly comply, therefore, does not automatically result in the finding of an excessive sentence. See also State v. Smith, 430 So.2d 31 (La.1983); State v. Lanclos, 419 So.2d 475 (La.1982); State v. McElveen, 439 So.2d 601 (La.App. 1st Cir.1983); and State v. Vallare, 430 So.2d 1336 (La.App. 3rd Cir.1983).

In the instant case, the trial judge said that he had taken into consideration Butler’s age (22 years) and his background, but that, in view of the nature of the crime, he believed the sentence to be lenient.

The facts and circumstances presented in this record sufficiently demonstrate that the trial judge was not arbitrary and that there was an adequate factual basis for the sentence imposed. In addition to the threats of violence which accompanied the armed robbery, the record contains Butler’s testimony about a prior plea of guilty to an attempted armed robbery in 1979, for which he served several months in parish prison. ■

Lastly, Butler argues that the trial judge did not order a presentence investigation. However, such an investigation is but an aid to the court and is not a right of a defendant. Howard v. Maggio, 540 F.2d 1280 (5th Cir.1976).

CONCLUSION

Butler’s conviction and his 25-year sentence without benefit of parole, probation or suspension of sentence are affirmed.

AFFIRMED.

      . LSA-R.S. 14:64.


source: Caselaw Access Project

author: DUFRESNE, Judge.

license: Public Domain

text:
    ALLIANCE FEDERAL SAVINGS AND LOAN ASSOC. v. Deborah Bentert, Wife of and Matt ESKAN.
    No. 83-CA-805.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 14, 1984.

      Robin W. Poirier, Baton Rouge, for defendant-appellant.
    Anthony J. Milazzo, Jr., Kenner, for plaintiff-appellee.
    Before BOUTALL, CHEHARDY and DUFRESNE, JJ.
   DUFRESNE, Judge.

This is an appeal by Matt Eskan, defendant-appellant from that portion of a default judgment awarding 25% attorney fees in a suit to collect on a note to Alliance Federal Savings and Loan Association, plaintiff-appellee.

The record before us contains no transcript of any of the proceedings in the trial court since all proceedings were either ex parte or by default. Because we are unable to determine whether or not the trial court made an inquiry into the reasonableness of the attorney fees, we remand the case for further proceedings.

The facts are as follows:

Matt Eskan and his wife, Deborah Ben-tert, executed a promissory note secured by a mortgage in favor of Alliance on January 29, 1982. The note provided that if it became necessary for Alliance to sue for collection, attorney fees of 25% of the outstanding balance would be owing. When the borrowers failed to make a number of payments, Alliance filed a petition for exec-utory process, and had the property seized and sold. However, the sale netted only. $69,000 of the $89,000 indebtedness. Alliance then obtained a deficiency judgment by default in the amount of $89,000 plus 25% attorney fees, or some $23,000, less a $69,000 credit from the proceeds of the sale of the property. Eskan now suspensively appeals and has posted a $70,000 cash bond.

Eskan’s basic argument here is that Alliance failed to present evidence to the trial judge which would have substantiated that this attorney’s fee of $23,000 was reasonable and that the court awarded it solely on the basis of the note provision. We agree.

In Leenert’s Farms, Inc. v. Rogers, 421 So.2d 216 (La.1982) our Supreme Court stated that courts have a duty to enforce the Code of Professional Responsibility as substantive law.

The Code of Professional Responsibility, DR 2-106, Fees for Legal Services, provides in pertinent part:
(A) A lawyer shall not enter into an agreement for, charge, or collect an illegal or clearly excessive fee.
(B) A fee is clearly excessive when, after a review of the facts, a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee is in excess of a reasonable fee. Factors to be considered as guides in determining the reasonableness of a fee include the following:
(1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly.
(2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer.
(3) The fee customarily charged in the locality for similar legal services.
(4) The amount involved and the results obtained.
(5) The time limitations imposed by the client or by the circumstances.
(6) The nature and length of the professional relationship with the client.
(7) The experience, reputation, and ability of the lawyer or lawyers performing the services.
(8) Whether the fee is fixed or contingent.

In the present case, the trial court apparently made no inquiry into the reasonableness of the fee. Moreover, on the scant record before us, the fee appears excessive in view of the routine nature of the proceedings. However, because the record contains insufficient evidence to show what a proper fee might be or indeed whether the fee awarded is reasonable, this court cannot fix the fee. We therefore remand the case so that Alliance may present evidence of what a reasonable fee would be.

Alliance urges to the contrary that because it cannot establish the fee until the debt is actually collected, that this appeal is premature. While we appreciate the thrust of this argument, we nonetheless reject it.

This court is empowered to review all final judgments, La.Code Civ.Pro. Art. 2083. In the present case, the award of attorney fees is indisputably a part of a final judgment, and is therefore appealable. While we recognize that additional legal proceedings, and consequent fees, are often necessary after rendition of a judgment, we perceive no problem in seeking and being awarded these additional fees by whatever court has jurisdiction in these subsequent matters.

Alliance’s final contention is apparently that because Deborah Bentert, appellant’s wife, has not appealed, she is not before this court. In this regard, we need only cite La.Code Civ.Pro. Art. 735, which states that either husband or wife is the proper party defendant in a suit to enforce a community obligation. It is clear, therefore, that because a judgment obtained against the community is binding on the community, that either husband or wife may appeal from such a judgment in the interest of the community.

Alliance is entitled to reasonable attorney’s fees. Although appellate courts can so set fees when the record reflects a basis; the trial court is in the best position to make a determination what is a reasonable fee based upon the factors contained in DR 2-106 of the Code of Professional Responsibility.

Accordingly, it is ordered that this matter is remanded to the District Court for a hearing to determine the amount of attorney’s fees to be awarded plaintiff.

REMANDED.


text:
    Rose Castjohn ACOSTA, et al. v. HEPPLEWHITE HOME, INC., et al.
    No. 83-CA-774.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 14, 1984.
    Joseph S. Russo, Jefferson, for plaintiff-appellant.
    Gerald R. Alonzo, Gretna, for defendant-appellee.
    BOUTALL, KLIEBERT and DU-FRESNE, JJ.
   DUFRESNE, Judge.

This is an appeal of a judgment of the District Court in favor of the defendants, Hepplewhite Homes, Inc., Albert J. Ward, Jr., Cheryl Grabert Cordes, and Anthony Joseph Cordes against the plaintiffs, Rose Castjohn Acosta and Bernard R. Acosta, dismissing plaintiffs’ suit for want of prosecution.

The actions taken in this lawsuit, as they appear in the record up to judgment on the Motion and Order of Dismissal For Want of Prosecution were as follows:

a.) May 11, 1977, plaintiffs filed their Petition For Redhibition and Damages and written interrogatories.
b.) May 25, 1977, defendants filed a Motion For Extension of Time.
c.) July 26, 1977, defendant, Albert J. Ward, Jr. filed his Answer to plaintiffs’ interrogatories and a Motion for Summary Judgment.
d.) August 31, 1977, defendant Hepplewhite Homes, Inc. filed its answers to plaintiffs’ interrogatories and answer to plaintiffs’ petition.
e.) September 6, 1977, judgment granting the Motion for Summary Judgment filed on behalf of the defendant, Albert J. Ward, Jr. and dismissing the plaintiffs’ demand against him.
f.) September 9, 1982, plaintiffs filed a Motion and Affidavits to proceed in Forma Pauperis — denied by the trial court.
g.) September 16, 1982, plaintiffs filed a motion to fix the Motion for Summary Judgment filed on behalf of the defendant, Albert J. Ward, Jr. for trial.
h.) November 2, 1982, plaintiffs filed a Motion To Set For Trial On the Merits.
i.) January 24, 1983, plaintiffs filed a Notice of Deposition to be taken of Robert Anderson and Albert J. Ward, Jr.
j.) February 3, 1983, counsel for defendant, Hepplewhite Homes, Inc. filed a Motion to Substitute Counsel of Record and a Motion to Continue Trial on the Merits.
k.) March 10, 1983, defendant, Hepplewhite Homes, Inc. filed a Motion and Order of Dismissal For Want of Prosecution; motion was signed and granted dismissing plaintiffs’ lawsuit at their cost.
l.) March 18, 1983, plaintiffs filed a Motion to Set Dismissal for Abandonment Aside with supporting memorandum.
m.) April 22, 1983, defendant, Hepplewhite Homes Inc. filed Memorandum In Opposition Of Motion To Set Dismissal For Abandonment Aside.
n.) June 15, 1983, judgment by the district judge denying the Motion to Set Dismissal For Abandonment Aside.

Plaintiffs appeal from this judgment of the District Court, dismissing their lawsuit on the grounds of abandonment. Accordingly, the plaintiffs contend that the district court committed manifest error and error of law in holding that plaintiffs did not take “definitive and formal action to prosecute their lawsuit for more than five years.”

The plaintiffs assert that on July 15, 1982, a motion to fix the ease for trial was filed and is noted by a letter marked Plaintiffs’ Exhibit P-1. Furthermore, the plaintiff argues that a Motion to Proceed in Forma Pauperis was originally mailed in on August 18, 1982; however, the Clerk of Court for the Parish of Jefferson returned it with a notation that a specific form should be used instead and all pleadings were returned unfiled by the Clerk. In accordance with the Clerk of Court’s instruction, plaintiffs assert that the new form was mailed back to the Clerk on September 3, 1982.

The plaintiffs contend that the court should have received the documents on September 6, 1982, but September 6th was Labor Day, so the Clerk’s office should have definitely received them on September 7, 1983. All of these documents were placed into the trial record in globo and marked for identification as Plaintiffs’ Exhibit P-I.

The District Court denied the forma pau-peris request on September 9, 1982. An employee of the Clerk of Court, Rosalinda Toups, testified that the handwriting on the cover letter from Joseph S. Russo, attorney of record for the plaintiffs dated August 18, 1982, “Please use our form", was her handwriting. She testified to returning the letter, the motion for forma pauperis, and supporting affidavits back to Mr. Russo’s office. The stamp on the second motion for forma pauperis does not indicate when it was received by the Clerk’s Office.

The plaintiffs contend that the documents could have been received by the Clerk of Court several days before it was given to the trial judge, however, no proof was produced.

Louisiana’s Code of Civil Procedure, Article 561 reads in pertinent part as follows:

“An action is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of five years. This provision shall be operative without formal order, but on ■ ex parte motion of any party or other interested person, the trial court shall enter a formal order of dismissal as of the date of its abandonment .... ”

We follow and hold that a step in the prosecution or defense of an action within the meaning of the above cited article is a formal action before the trial court intended to hasten judgment. Melancon v. Continental Casualty Company, 307 So.2d 308 (La.1975). Plaintiffs maintain their action in causing the mailing, although on the incorrect form, to the Clerk of Court’s office of a motion to proceed in forma pauperis on August 18, 1982, as a step in prosecution which prevents application of the abandonment statute herein. This contention has merit. We conclude that a motion to proceed in forma pauperis constitutes a “step” in the prosecution of the plaintiffs’ action, such as would preclude the application of abandonment under LSA-C.C.P. Art. 561. However, should the documents be “filed” in the clerk’s office so as to interrupt the liberative prescriptive period?

In Kanuk v. Pohlmann, 338 So.2d 757 (La.App. 4th Cir.1976) the court stated:

“ ‘The purpose of the C.C.P. art. 561 is to dismiss actions which have been abandoned and the article provides for dismissal of those cases in which a plaintiff’s inaction during a legislatively ordained period had clearly demonstrated his abandonment of the case. The article was not intended, however, to dismiss those cases in which a plaintiff has clearly demonstrated before the court during the prescribed period that he does not intend to abandon the action. The filing of the technically defective motion in this case was a step toward moving the suit to judgment and militated against any intention to abandon the action.’ ”

Abandonment proceedings in accordance with Article 561 should be given a liberal interpretation and any action or step taken by plaintiff to move his case toward judgment should be considered.

In support of this position, in Evergreen Plantation, Inc. v. Zunamon, 272 So.2d 414 (La.App. 2nd Cir.1973) the court held that an oral motion in open court to set a case for trial is a step in the prosecution which will preclude a dismissal for abandonment and reversed the trial court’s determination that the action had been abandoned.

Having concluded that a Motion to Proceed in Forma Pauperis is a “step” in the prosecution of an action, the issue for resolution is whether the Clerk of Court’s failure to endorse it filed in the suit record shall preclude it from being construed as a “step”.

LSA-C.C.P., Art. 253 provides:

“ ‘All pleadings or documents to be filed in an action or proceeding instituted or pending in a court, and all exhibits introduced in evidence, shall be delivered to the clerk of the court for such purpose. The clerk shall endorse thereon the fact and date of filing, and shall retain possession thereof for inclusion in the record, or in the files of his office, as required by law.”

We conclude that the depositing of the motion in question with the clerk or one of the deputy clerks and its return to sender is conclusive of filing whenever sufficient extrinsic evidence can be introduced to establish that the clerk’s office did receive the subject pleading. If it were otherwise, the Clerk of Court could defeat the rights of a litigate by not docketing or marking a pleading “filed” for several days after he had received same. Cupples v. Walden, 124 So.2d 613 (La.App. 3rd Cir.1960).

Marking the document or pleading “filed” and designating the date is evidence of the act of filing, it is not the act of filing itself. The act of depositing the document or pleading is the filing. Lambert v. Kelley, 270 So.2d 532 (La.1972).

It is our conclusion that there is proof of the mailing in and of receipt by the 'Clerk of Court of the- first motion to proceed in forma pauperis during the month of August 1982. This interrupted the running of the prescription of Article 561 and thus, the plaintiffs suit should not be considered abandoned.

Accordingly, for the above reasons, the judgment of the trial court is reversed and the case is remanded for further proceedings.

REVERSED AND REMANDED.


author: KLIEBERT, Judge.

text:
    STATE of Louisiana v. Samuel GENTRY.
    No. 84-K-162.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 15, 1984.
    Rehearing Denied June 18, 1984.

      James F. Quaid, Metairie, for defendant-relator.
    John M. Mamoulides, Dist. Atty., Eric Honig, Dorothy A. Pendergast, Asst. Dist. Attys., 24th Judicial District, Parish of Jefferson, Gretna, for respondent.
    Before KLIEBERT, GAUDIN and DU-FRESNE, JJ.
   ON APPLICATION FOR WRITS

KLIEBERT, Judge.

On June 29, 1983, a man later identified as Samuel Gentry entered the offices of Associated Forwarders, Inc., a shipping company located in the International Trade Mart Building in New Orleans. Gentry produced a package which he stated he wished to send to an address in France. At that time the shipping agent requested that Gentry complete a form, or airbill, indicating the name and address of the shipper and the consignee, which Gentry did, using a false name and address as his own. Gentry was charged $54.00 for shipping the package, and paid by a check with his name imprinted on it.

The package was accepted by the agent, Ernesto Lugo, who put it in an envelope for DHL Worldwide Courier Service for whom Associated is an agent. Lugo then placed the envelope in a mailbag, which was in turn transported for final packaging to the DHL offices located at the airport in Ken-ner.

When the envelope containing the package was received by DHL, its employee, Brian Manchester, noticed that the envelope did not conform to shipping specifications; it appeared to contain a hard, flat object other than the documents it supposedly held. In order to ensure that the package met customs restrictions, Manchester, in the presence of the station manager, Joseph Schoenbaechler, opened the envelope and the package, and discovered a plastic audio cassette holder which contained not a cassette tape, but a plastic bag with a white powdery substance inside. Presuming the substance to be narcotics, Schoenbaechler contacted the local Drug Enforcement Agency office. The DEA in turn notified Detective Henry Richardson of the Kenner Police Department, who confiscated the package. Analysis of the substance revealed it to be cocaine.

On August 3, 1983, a bill of information was filed by the Jefferson Parish District Attorney’s Office charging the defendant, Samuel Gentry, with distribution of cocaine, a violation of La.R.S. 40:967. The defendant was arraigned on September 21, 1983, and entered a plea of not guilty. Pre-trial motions for discovery, motion to suppress, and motion to quash were heard on January 16, February 27, March 14 and March 19, 1984. The trial court ultimately denied both the motion to suppress and the motion to quash.

On March 26, 1984, the defendant filed with this court an application for supervisory writs, requesting that this court review and annul the trial court’s denial of the motion to quash and motion to suppress the evidence and the identification. This court granted defendant’s writ of review.

MOTION TO QUASH IMPROPER VENUE

The defendant urged the indictment be quashed because the State is unable to prove he committed a crime in the Parish of Jefferson, therefore Jefferson is an improper venue. The essence of his contentions are: “[n]one of the elements of the alleged offense [violation of R.S. 40:967A] were committed by the defendant in the Parish of Jefferson nor were any of the acts of the defendant committed in the Parish of Jefferson,” and further because “[t]he defendant did not direct, order or control, even constructively any elements or acts or any other person, firm or corporation in the Parish of Jefferson.”

The State on the other hand contends the distribution of the drug should be viewed as a continuous crime, not complete until the delivery has been made.

The controlling statutory law as to venue is La.C.Cr.P. Article 611 which provides:

All trials shall take place in the parish where the offense has been committed, unless the venue is changed. If acts constituting an offense or if the elements of an offense occurred in more than one place, in or out of the parish or state, the offense is deemed to have been committed in any parish in this state in which any such act or element occurred.

The Official Revision Comment to Article 611 notes that the article does not specifically provide for continuing offenses, but explains: •

If an offense is continuing in the sense that part of the offense is committed in one parish and another part in another parish, it falls within the scope of this article. On the other hand, if the offense is continuing wholly within one parish alone there is no venue problem. If an offense is continuing in that it goes on in each parish, such as possession of the same narcotics in several parishes, there is no venue problem, since there is a complete offense in each parish.

Thus, if any element of the crime occurred in Jefferson Parish, then the court of that parish is a court of proper venue. Therefore, we must examine the elements of the crime with which the defendant was charged.

Here the defendant was charged with the distribution of cocaine. Thus, the applicable charge is a violation of the statutory provision “it shall be unlawful for any person knowingly or intentionally: (1) To produce, manufacture, distribute or dispense ... a controlled dangerous substance classified in Schedule II; ... ” La.R.S. 40:967(A).

By “Distribute" is meant “to deliver a controlled dangerous substance whether by physical delivery, administering, subterfuge, furnishing a prescription, or by filling, packaging, labeling or compounding the substance pursuant to the lawful order of a practitioner.” R.S. 40:961(13). “Delivery,” in turn, means “the transfer of a controlled dangerous substance whether or not there exists an agency relationship.” R.S. 40:961(9). The jurisprudence has further defined “deliver” as meaning “transferring possession or control.” State v. Martin, 310 So.2d 544, 546 (La.1975).

This transfer of possession or control has not been limited to actual physical transfer between the parties. In State v. Lewis, 328 So.2d 75 (La.1976), in which an agent (Francisco) was used to transfer drugs to undercover agent Rogers, the court concluded:

“[1] However, as our summary of the evidence indicates, the delivery and distribution La.R.S. 40:961(9), (15), was between the defendant Lewis to the agent Rogers, even though Francisco himself may have been a principal in the transaction or may himself have been guilty of a distribution or a delivery.”

Conspiciously, the operative term “transfer” contained in the definition of delivery, R.S. 40:961(13) is nowhere qualified or limited, by the phrase “of possession” or otherwise. This rationale is consistent with the Louisiana Supreme Court holding in State v. Lewis, supra that “distribution” does not require actual physical transfer. Rather, it may be accomplished by the imposition of a third party.

In the instant case the trial court could reasonably conclude that the defendant “delivered” a controlled dangerous substance within Jefferson Parish via the imposition of the third party Associated Forwarders, Inc. who in turn transferred it to DHL Worldwide Courier Service in Jefferson Parish in furtherance of his attempt to have the drugs reach France. The presence of the cocaine in Jefferson Parish was a “continuing crime”, thus proper venue lies in any parish along its way. LSA-C. Cr.P. Article 611. Much like possession in several parishes would constitute a complete offense in each parish, distribution which initiates in one parish through a third party for delivery in some other parish constitutes a complete offense of distribution in each parish through which it passes.

Therefore, the trial judge properly dismissed the motion to quash.

MOTION TO SUPPRESS EVIDENCE

Defendant argues that the trial court erred in failing to suppress the cocaine which was unlawfully removed from the package deposited with Associated Forwarders. He contends the search is per se illegal because it does not fall under any of the jurisprudentially established exceptions justifying a warrantless search.

The Fourth Amendment of the United States Constitution which protects against unreasonable searches provides:

AMENDMENT IV — SEARCHES AND SEIZURES
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

This amendment has long been interpreted to protect individuals from unreasonable governmental actions. Its primary purpose is to restrain government authorities. It was not intended to protect against private trespasses. Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1921); U.S. v. DeLaFuente, 548 F.2d 528 (5th Cir.1977); U.S. v. Jacobsen, — U.S. -, 104 S.Ct. 1652, 80 L.Ed.2d 85. Hence, the “search” conducted by the employees of D.H.L. was not subject to the limitations of the Fourth Amendment because they were not governmental employees.

We must next determine if the subsequent “search” by Kenner Police officers violated the provision of the Fourth Amendment. Governmental searches which follow a private search must be examined on its facts to determine if it violates the Fourth Amendment. Once the private search reveals the item the Fourth Amendment does not prohibit governmental use of the item as evidence. Walter v. United States, 447 U.S. 649, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980); U.S. v. Jacobsen, — U.S. -, 104 S.Ct. 1652, 80 L.Ed.2d 85.

One of the elements necessary to constitute an unreasonable search is the defendant’s expectation of privacy. Once the private search has revealed the item, the defendant’s expectation of privacy surrounding his package has greatly diminished, if not completely compromised. The employees of D.H.L. had already opened the cassette package and exposed the package of white powder, later found to be cocaine. The employees had already opened the cassette and exposed the package prior to contacting police officials. Once the private search had revealed a white powdery substance, believed to be cocaine, the officers did not violate any legitimate expectation of privacy that would trigger a violation of the Fourth Amendment. U.S. v. Jacobsen, supra.

CONCLUSION

The trial judge did not err in either, failing to grant the motion to quash or in refusing to suppress the evidence.

AFFIRMED.


author: CUTRER, Judge.

text:
    Venix J. DUPUY, Plaintiff-Appellee, v. STATE of Louisiana, OFFICE OF RISK MANAGEMENT, Defendant-Appellant.
    No. 83-627.
    Court of Appeal of Louisiana, Third Circuit.
    May 16, 1984.
    Boatner & Luke, Peter J. Lemoine, Bunk-ie, for defendant-appellant.
    Darrel D. Ryland, Marksville, for plaintiff-appellee.
    Before CUTRER, STOKER and KNOLL, JJ.
   CUTRER, Judge.

This is an appeal in a workmen’s compensation case from a lower court judgment awarding the plaintiff benefits on the basis of his total permanent disability. The plaintiff, Venix J. Dupuy, was injured during the scope of his employment with the Central Louisiana State Hospital. The defendant is the State of Louisiana, Office of Risk Management (State). Plaintiff filed suit for total permanent disability payments, penalties and attorney’s fees. The trial court awarded total permanent disability benefits, but denied penalties and attorney’s fees. The State appeals. The plaintiff has neither appealed nor answered the defendant’s appeal. We affirm.

The issue presented on appeal is whether the trial court erred in finding that plaintiff had suffered total permanent disability as a result of the job-related accident which caused a back injury.

FACTS

The plaintiff was employed as a psychiatric aide at the Central Louisiana State Hospital at the time of his injury on August 10, 1981. On that evening he was called upon to separate two fighting patients and, in the process, he was struck on the back and leg with a pipe being swung by one of the patients. Although he completed working the last four hours of his shift, on the next day plaintiff saw his family physician, Dr. Richard Michel. The plaintiff stated that the pain in his back at that time was so great that he could hardly move. According to plaintiff, Dr. Michel treated him with medication.

For the next three months, plaintiff continued to see Dr. Michel at least once a week regarding his injuries. Throughout this time, the State paid plaintiff workmen’s compensation benefits. Upon Dr. Michel’s recommendation, plaintiff saw Dr. Douglas Gamburg, an orthopedic surgeon, on November 16, 1981.

Dr. Gamburg concluded that the job-related injury had aggravated a pre-existing arthritic condition involving plaintiff’s lumbar spine. Dr. Gamburg further observed some evidence of nerve root irritation. He prescribed medication for the plaintiff, gave him a back support and told him to return in two weeks if his back had not improved. Plaintiff was involved in an automobile accident before he could get back to Dr. Gamburg. Plaintiff testified that, around June 1982, he attempted to see Dr. Gamburg again for his back problem. Dr. Gamburg refused to see him as this physician preferred not to ⅜0 litigation examinations.

On November 28, 1981, plaintiff was involved in an automobile accident in which he suffered a fractured right knee, fractured ribs and contusions to his chest. As a result of these injuries plaintiff was hospitalized for twenty days. After leaving the hospital plaintiff was required to wear a cast on his right leg for approximately three months. The orthopedic surgeon who treated plaintiff’s auto injuries, Dr. Ray Buerlot, stated that the plaintiff’s limp is permanent. Dr. Buerlot last saw plaintiff on December 7, 1982, at which time the plaintiff walked with the assistance of a cane.

After the automobile accident the State asked Dr. Gamburg for a report on his evaluation of plaintiff as of the examination in November 1981. Dr. Gamburg, by letter of January 26, 1982, stated:

“Based on my findings on the examination of November 16 [1981], I would have thought that he would be able to return to work by this time.”

Apparently Dr. Gamburg was unaware of plaintiff’s car accident. The State, on the basis of this letter, discontinued paying workmen’s compensation benefits to the plaintiff on February 1, 1982.

The State contends that disability from the back injury incurred by plaintiff on August 10, 1981, had resolved itself by February 1, 1982. It is contended that disability beyond this time is attributable solely to injuries received in the car accident or the arthritic condition in plaintiffs back, or both. On the other hand, the plaintiff contends that the back condition persisted following the job-related accident and that his back condition was not worsened by the car accident. Plaintiff contends that the back condition rendered him totally and permanently disabled from performing his duties with the State.

The trial court, in its reasons for judgment, resolved the contention in favor of plaintiff, stating as follows:

“Petitioner has proven by a preponderance of the evidence that he is still disabled by having back pain at this time and that his physical problems are attributable to the work related accident in question. Procedural rules are construed liberally in favor of workmen’s compensation claimants; however the burden of proof by a preponderance of the evidence is not relaxed. In this case the testimony as a whole shows that more probably than not an employment accident occurred and that it had a causal relationship to the plaintiffs disability. The plaintiff has carried the burden of persuasion. Also, the plaintiffs evidence shows a causative accident in fact occurred.
“Plaintiff was and remains disabled and his disability is attributable to an accidental lumbosacral sprain suffered on the job.
“Plaintiff is 53 years old and went to the 7th grade in school. He has no special skills except experience from his duties as a Psychiatric Aide. Plaintiffs prior job experience has been as a construction or farm laborer.
“Due to Venix Dupuy’s physical disability, age, lack of education and training, plaintiff is temporarily totally disabled and he should recover benefits during the period of his disability."

This court recognizes the appropriate standard of review of the trial court’s finding of fact to be as follows:

“On appellate review, the trial court’s factual findings of work-connected disability are entitled to great weight. They should not be disturbed where there is evidence before the trier of fact which, upon the latter’s reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s findings, unless clearly wrong. The reviewing court should not disturb reasonable evaluations of credibility and reasonable inferences of fact by the trial court, even though the reviewing court is of the opinion that other evaluations and inferences are as reasonable."

Crump v. Hartford Acc. & Indem. Co., 367 So.2d 300, 301 (La.1979).

Under the Louisiana workmen’s compensation scheme, an employee is entitled to benefits only if he is disabled as a result of a personal injury received in an accident arising out of and in the course of his employment. LSA-R.S. 23:1031. In suits to recover these benefits, the plaintiff/employee bears the burden of establishing the causal relationship between the disability and the employment accident by a reasonable preponderance, of the evidence. Prim v. City of Shreveport, 297 So.2d 421 (La.1974); Field v. Winn Dixie Louisiana, Inc., 427 So.2d 616 (La.App. 5th Cir.1983); Antilley v. Sentry Ins. Co., 426 So.2d 1370 (La.App. 3rd Cir.1983).

With these principles in mind we review the record in this regard.

Plaintiff was examined by Dr. Willard Dowell, an orthopedic surgeon, on two occasions, October 12, 1982, and March 4, 1983. On the first visit this physician found a lumbosacral sprain of the low back causing disability from performing his duties which involved heavy lifting. He found that, on the visit of March 4, 1983, no change had taken place. He also stated that his findings were consistent with the occurrence of the job-related accident as being the most probable cause of the back injury and disability. It was this physician’s opinion that it was possible but not probable that the car accident contributed to the back syndrome. Dr. Dowell characterized the back sprain as moderate. He also was of the opinion that the small length disparity in plaintiffs legs, due to the car accident, was not enough to be a factor in plaintiff’s back problem.

Dr. Buerlot, the physician who treated plaintiff for his leg injury stated that, during the time that he treated plaintiff, he complained of back pain. His testimony in this regard was as follows:

“Q. During the course of your treatment of Mr. Dwpuy, did he ever complain to you ... about his back?
“A. Yes.
“Q. And, what were his complaints in that regard?
“A. Of back pain ...”

Dr. Dowell was impressed with plaintiff’s sincerity.

On approximately March 21, 1983, plaintiff was examined at the State’s request by Dr. Frazer Gaar, another orthopedic surgeon. Dr. Gaar diagnosed plaintiff’s injury as being a chronic lumbar sprain. He stated that plaintiff was totally disabled from returning to any work which required that he bend or stoop. Further, Dr. Gaar opined that the plaintiff, because of his back, could not perform even light duties, regardless of whether he was standing or sitting. However, Dr. Gaar was unable to distinguish whether the plaintiff’s back injury disability was caused by his job-related injury or by the subsequent car accident, but he did believe that the back injury had lingered because of the car accident.

Plaintiff testified that his back had not improved since his initial injury. He stated that his back hurt him continuously. Plaintiff testified that Dr. Michel, the first treating physician, prescribed medication for the back pain. Plaintiff was still taking this pain medicine at the time of trial.

Plaintiff admitted that he had received an earlier job-related injury to his back approximately one year prior to the incident in August 1981. He stated that the .earlier injury had left him with some residual pain but it had not prevented him from working.

As stated in the case of Kelly v. Violet Packing Co., 405 So.2d 542 (La.App. 4th Cir.1981), writ den., 409 So.2d 670 (La.1982):

“Aggravation of a claimant’s condition suffered in a subsequent accident is not, in itself, a reason to deny him compensation benefits to which he is otherwise entitled. Deville v. Townsend Bros. Construction Company, 28j So.2d 110 (3rd Cir.1973), writ denied 286 So.2d 367. To deny compensation benefits, the employer must show by a preponderance of the evidence that it was more probable than not that the subsequent accident was the cause in fact of the present injury."

The State has not presented sufficient evidence to establish that it was more probable than not that the plaintiff’s disability arose solely as a result of injuries received in the car accident. The evidence as a whole supports the lower court’s finding that the plaintiff met his burden of proof that his employment accident in August 1981 was causally linked to his total disability.

For these reasons, the judgment of the trial court is affirmed. Defendant-appellant is to pay costs of this appeal.

AFFIRMED.

      . In his reasons for judgment the trial judge stated that the plaintiff was "temporarily totally disabled" and that "he should recover benefits during the period of his disability.” In the judgment, benefits were ordered payable to plaintiff from the time of the job related accident "throughout the entire period of his disability -” We interpret this as a judgment for payments due for a total permanent disability.

      . The record indicates that two tapes of the trial proceedings were inaudible and not transcribed. The parties make no objections to proceeding without this portion of the proceedings. We find no need to remand as we have depositions of the doctors and the plaintiff. Also, we have written reasons by the trial court.

      . Dr. Michel did not testify in this case.


text:
    STATE of Louisiana v. Larry FORD.
    No. 16506-KW.
    Court of Appeal of Louisiana, Second Circuit.
    May 17, 1984.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, Paul J. Carmouche, Dist. Atty., Scott J. Crichton, Asst. Dist. Atty., Shreveport, for applicant.
    Richard C. Goorley, Asst. Indigent Defender, Shreveport, for respondent.
    Before MARVIN, FRED W. JONES and SEXTON, JJ.
   WRIT GRANTED AND MADE PEREMPTORY.

Where police, who are called to a public restaurant, see the body of the victim of a homicide and the person of defendant, who lies unconscious and wounded on the floor nearby, and the police are told by eye witnesses that defendant shot the victim and then shot himself, the unconscious defendant is effectively under “actual restraint” and, therefore, is under arrest when the police transport defendant to a hospital for medical treatment. C.Cr.P. Art. 201. Reasonable or probable cause for the arrest in such circumstances is patent. C.Cr.P. 213(2).

The seizure at the hospital from a search of the defendant’s wallet of a receipt for the purchase of the pistol found at the scene is not an unreasonable search and seizure violative of the constitutional right of the defendant, but is a search incident to the arrest. State v. Clift, 339 So.2d 755 (La.1976), U.S. v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973).

We reverse the trial court ruling suppressing the admissibility of the receipt found in the wallet and hereby overrule defendant’s motion to suppress and remand for further proceedings.


text:
    STATE of Louisiana v. Janet C. HARDEY.
    No. 16,565-KW.
    Court of Appeal of Louisiana, Second Circuit.
    May 25, 1984.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, Paul J. Carmouche, Dist. Atty., Terry L. Lindsey, Asst. Dist. Atty., Shreveport, for plaintiff-applicant.
    Burnett, Sutton, Walker & Calloway by Bobby D. Sutton, Shreveport, for defendant-respondent.
    Before PRICE, HALL and SEXTON, JJ.
   Writ denied.

On the showing made, the exercise of this court’s supervisory jurisdiction is not warranted.

The state’s application seeks review and reversal of a trial court ruling overruling the state’s objection to certain testimony being elicited from a defense witness in this criminal trial which is in progress.

It is not ordinarily the function of an appellate court to review and pass on questions of the admissibility of evidence in an ongoing trial. This is a function of the trial court. The appellate court is seldom in as good a position as the trial court, which has monitored the entire flow of evidence in a case, to make isolated eviden-tiary rulings during a trial in progress. The appellate court will exercise its supervisory jurisdiction in such matters only in extraordinary cases where there is a clear and positive showing of manifest error and prejudice. Such a showing has not been made in this case.


author: KNOLL, Judge.

text:
    Shelton DUBOIS, Plaintiff-Appellee, v. STATE of Louisiana, Through the DEPARTMENT OF PUBLIC SAFETY, OFFICE OF STATE POLICE; and Terry Henry, Defendant-Appellant.
    No. 84-319.
    Court of Appeal of Louisiana, Third Circuit.
    May 30, 1984.
    Rehearing Denied June 27, 1984.
    J.N. Prather, Lafayette, for plaintiff-ap-pellee.
    W. Thomas Angers, Lafayette, George W. McHugh, Jr., St. Martinville, for defendant-appellant.
    Before FORET, LABORDE and KNOLL, JJ.
   MOTION TO DISMISS

KNOLL, Judge.

The plaintiff-appellee, Shelton Dubois, moves to dismiss the suspensive appeal of the defendant-appellant, State of Louisiana, on the grounds that the trial court granted an extension of the return date in excess of that permitted under LSA-C.C.P. Article 2125. We deny the motion.

A final judgment was signed on November 8, 1983. On December 8, 1983, the State of Louisiana timely moved for and was granted a suspensive appeal returnable to this court on February 8, 1984.

On February 8, 1984, the clerk requested from the trial court a 60 day extension of the return day of February 8, 1984, and on the same day the trial court granted the request, extending the return date to April 8, 1984. The reason for the extension given by the clerk is as follows:

“Have not received transcript from court reporter. (Two months extension requested due to her appellate workload).”

The record was filed with this court on April 11, 1984.

On April 24, 1984, Dubois filed a motion to dismiss the appeal of the State of Louisiana on the grounds that the extension of the return day was in excess of thirty (30) days as expressed in LSA-C.C.P. Article 2125, which warrants dismissal of the appeal. We disagree.

Louisiana Code of Civil Procedure Article 2125 provides:

“The return day of the appeal shall be sixty days from the date the appeal is granted, unless the trial judge fixed a lesser period. The trial court may grant only one extension of the return day and such extension shall not be more than thirty days. A copy of the extension shall be filed with the appellate court. Subsequent extensions of the return day may be granted by the appellate court for sufficient cause.”

Under the above codal provision, the trial court can only extend the return date an additional thirty (30) days. Even so, the appeal should not be dismissed, as the error was that of the clerk and/or trial judge, and an appeal “shall not be dismissed because of any irregularity, error, or defect unless it is imputable to the appellant.” Mire v. Chevron Oil Co., 351 So.2d 871 (La.App. 3rd Cir.1977).

For the reasons assigned the motion of the plaintiff-appellee, Shelton Dubois, to dismiss the appeal of the defendant-appellant, State of Louisiana, is hereby denied.

MOTION DENIED.


author: ROY NOBLE LEE, Presiding Justice,

text:
    Aleine WARREN, Administratrix of Estate of William James Warren, Deceased v. Jeremy FOSTER.
    No. 54905.
    Supreme Court of Mississippi.
    May 23, 1984.
    G. Kenner Ellis, Jr., Greenville, for appellant.
    Thomas L. Segrest, Graham & Segrest, Columbus, for appellee.
    Before ROY NOBLE LEE, P.J., and BOWLING and PRATHER, JJ.
   ROY NOBLE LEE, Presiding Justice,

for the Court:

Aleine Warren, Administratrix of the Estate of William James Warren, deceased intestate, has appealed from a decree of the Chancery Court of Lowndes County, Honorable W.E. Bearden, presiding, holding that Jeremy Foster is the sole issue of William James Warren, deceased, and is entitled to inherit his estate under the law of descent and distribution of the State of Mississippi. The appellant has assigned the following errors in the decree of the lower court, which will be considered together:

(1) The lower court was manifestly in error in declaring a child adopted in the State of Tennessee to be the sole heir of her natural father where there was a Tennessee final decree of adoption and a Tennessee statute divesting such child of any right of inheritance from her natural father.
(2) The lower court was manifestly in error in failing to give full faith and credit to the public acts, records and judicial proceedings of the State of Tennessee pursuant to Article IV, Sec. 1 of the Constitution of the United States.

Jeremy Foster, age ten (10) years, was born to the marriage of William James Warren and Dee Warren. Subsequently, the Warrens were divorced and Dee Warren married Kenneth Wayne Foster. They resided in the State of Tennessee and Kenneth Wayne Foster and Dee Foster adopted Jeremy Warren, whose name was changed to Jeremy Foster. William James Warren died on June 19, 1981, while incarcerated at the Lowndes County, Mississippi, jail. He was survived by his mother, father and nine brothers and sisters, who claimed to be his sole heirs at law. Warren was unmarried and Jeremy Foster was his only issue. Mrs. Aleine Warren, mother of the deceased, qualified as administratrix of his estate, and after lengthy proceedings in the Federal courts, settlement of a doubtful claim was agreed upon, which settlement was approved by the Chancery Court of Lowndes County February 4, 1983. The administratrix’s final accounting was filed, preparatory to closing the estate, and Jeremy Foster was made a party to the proceeding and was served with process.

The final decree of adoption of the Chancery Court of Shelby County, Tennessee, provides the following:

IT IS THEREFORE, ORDERED, ADJUDGED AND DECREED by the Court that the adoption prayed for herein be and the same is hereby granted and the relationship of parent and child be and is hereby established between Kenneth Wayne Foster and Jeremy Dee Foster, a minor, as though said child had been born to him in lawful wedlock; and the inheritance rights of all interested parties are hereby adjudged in accordance with the laws of the state of Tennessee.

Tennessee Code Annotated § 36-126 (1955), as amended, states the rights of inheritance of an adopted child:

An adopted child shall not inherit real or personal property from a natural parent or relative thereof when the relationship between them has been terminated by adoption, nor shall such natural parent or relative inherit from the adopted child.

The facts of the case are uncontradicted. After considering the entire record, the chancellor held the following:

The court holds that Mississippi law allows an adopted child to inherit from its natural parent. The Tennessee law, Section 86-126, does not permit an adopted child to inherit from its natural parent.
The general rule is that the law of the place where the property is situated or the law of the decedent’s domicile controls the extent or the fact of the right of inheritance when in conflict with the law creating the status. The court holds that Mississippi will recognize the statutes of adoption by the Tennessee court. However, the Mississippi law will be followed as to whether Jeremy Foster can inherit from the father William James Warren, deceased.
The court holds that the respondent Jeremy Foster, as the sole issue of decedent William James Warren, is entitled to inherit his estate under the law of descent and distribution of the State of Mississippi.

The appellant contends that the lower court erred in failing to give full faith and credit to the public acts, records and judicial proceedings of the State of Tennessee in that the Tennessee statute and final decree of adoption rendered by the Chancery Court of Shelby County, Tennessee, divesting Jeremy Foster of any right of inheritance from her natural father, are binding upon the courts of Mississippi.

Appellant cites decisions from other jurisdictions in support of her contention. However, we are of the opinion that the statutes and decisions of the State of Mississippi control in this case and are disposi-tive of the question.

Mississippi Code Annotated § 11-7-13 (1972), entitled “Actions for Injuries Producing Death” and commonly referred to as the “Wrongful Death Statute” gives a cause of action and right of recovery to a child on account of the wrongful death of his parent. Mississippi Code Annotated § 93-17-13 (1972) entitled “Final Decree and Effect Thereof,” in adoption proceedings, states what the final decree must adjudicate, in addition to such other provisions as may be found by the court to be proper for the protection of the interest of an adopted child, the effect on the adopted child, his adoptive parents, and natural parents. While the statute provides that the child and his adoptive parents may inherit from each other and that the natural parents (other than adoptive mother) may not inherit from and through the child, the statute does not state that the adopted child may not inherit by or through his natural parents.

Practically the same legal question was before the Court in Alack v. Phelps, 230 So.2d 789 (Miss.1970), where a wrongful death claim arose as a result of the death of John B. Phelps. Suit was filed by his administrator in the Federal courts and a compromise settlement of $40,000 was approved by the Chancery Court of Pike County, Mississippi. That court found that Janet Carol Phelps, child of a second marriage between John B. Phelps and Linda Phelps, was the sole wrongful death beneficiary of John B. Phelps and directed that the minor’s guardian deposit the $40,000 in the guardianship account.

When 13 months of age, Ronny Phelps and Johnny Phelps, twin children of John B. Phelps' first marriage, were adopted by their paternal grandparents, the adoption decree following Section 93-17-13, supra. The Court said:

Mississippi early reached the decision that, in the absence of express statutory prohibition, the adopted child will inherit from both the natural and adoptive parents. In Sledge et al. v. Floyd, 139 Miss. 398, 104 So. 163 (1925), the Court said:
“The statutes provide for inheritance by children from their parents, and we see no reason why a child adopted by another should not continue to inherit from its blood relations in the absence of a statute or decree specifically providing to the contrary. * * * [139 Miss. at 407, 104 So. at 165.]
“But nothing in the adoption proceedings themselves nor in the statutes authorizing them deprives a child of the right to inherit from its blood relatives. We do not think the statute intended to deprive children of their rights to inherit from their natural parents and blood relatives. To do so would raise grave questions where a child having expectations should be adopted against its consent or without its power to consent during the tender years of minority and thus be deprived of benefits.
“There is ample authority for the position that a child may inherit from both natural and adopted parents, and we prefer to align ourselves with that line of authorities which so hold.” 139 Miss. at 408, 104 So. at 165. (emphasis added).
While the effect of a final decree of adoption is that the natural parent or parents will not inherit by or through the child, and all parental rights are terminated, Mississippi’s adoption law does not state in any shape, form or fashion that the right of the child to inherit from its natural parents is terminated. We think the intent of the legislature is clear; they intended for the child to continue to inherit from his or her natural parents.
Does the bringing of an action under the wrongful death statute by the Administrator of the Estate of John B. Phelps, deceased, which action was compromised and settled solely for the benefit of the minor child of the second marriage, bar the guardian of Ronny and Johnny Phelps, minors, from bringing action in their behalf? We think not. [230 So.2d at 792-793],

As stated supra, Mississippi statutes and decisions govern the question presented here and are dispositive of it. The chancellor correctly decided the question and the decree of the lower court is affirmed.

AFFIRMED.

PATTERSON, C.J., WALKER, P.J., and BOWLING, HAWKINS, DAN M. LEE, PRATHER, ROBERTSON and SULLIVAN, JJ., concur.

      . Alack v. Phelps was decided January 26, 1970, and the legislature has not amended the adoption statute to change the effect of that decision.


text:
    Irby H. ATKINSON, III v. STATE of Mississippi.
    No. 54901.
    Supreme Court of Mississippi.
    May 30, 1984.
    Thomas L. Kesler, Sams & Kesler, Columbus, for appellant.
    Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROY NOBLE LEE, P.J., and BOWLING and DAN M. LEE, JJ.
   Appeal from Circuit Court, Lowndes County; Harvey Buck, Judge.

AFFIRMED.

PATTERSON, C.J., WALKER, P.J., PRATHER, ROBERTSON and SULLIVAN, JJ.


text:
    MISSISSIPPI STATE HIGHWAY COMMISSION v. Wilbur R. DOWDLE.
    No. 54262.
    Supreme Court of Mississippi.
    May 30, 1984.
    R.L. Netterville, Natchez, for appellant.
    David Bramlette, Adams, Forman, Truly, Ward, Smith & Bramlette, Natchez, for appellee.
    Before 'WALKER, P.J., and DAN M. LEE and SULLIVAN, JJ.
   Appeal from Special Eminent Domain Court, Adams County; Robert A. Bonds, Presiding, Judge.

AFFIRMED.


text:
    Linda HILL v. William Earl HILL.
    No. 54911.
    Supreme Court of Mississippi.
    May 30, 1984.
    James E. Brown, Jr., Starkville, for appellant.
    Hugh Gibson, Liston, Gibson & Lancaster, Eupora, for appellee.
    Before WALKER, P.J., and DAN M. LEE and SULLIVAN, JJ.
   Appeal from Chancery Court, Webster County; W.W. Brand, Jr., Chancellor.

AFFIRMED.


author: PRATHER, Justice,

text:
    Robert BROWNING v. STATE of Mississippi.
    No. 54882.
    Supreme Court of Mississippi.
    May 30, 1984.

      Bernard Gautier, Pascagoula, for appellant.
    Bill Allain, Atty. Gen., by Anita Mathews Stamps, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, HAWKINS and PRATHER, JJ.
   PRATHER, Justice,

for the court:

Robert Browning was convicted in the Circuit Court of Jackson County, Judge Robert Mills presiding, for the armed robbery of a Yellow Cab Co. driver named James McCreary. The jury sentenced Browning to life in prison. Browning, perfects this appeal arguing that:

(1) The defendant was denied a fair trial since the jury was informed that the defendant was represented by court appointed counsel, and;

(2) That the verdict was against the overwhelming weight of the evidence. We affirm.

I.

Browning, 56 years old, arrived at Pasca-goula by bus from Houma, Louisiana around 11:30 p.m. on December 4, 1981. At 12:08 p.m. on December 5, Sue Bayliss, dispatcher for Yellow Cab Co., received a call from a fare who wanted to be picked up at 5507 Arrowhead Road. The defendant’s sister, Pearl Wells and his nephew, Isaac Wells, lived at this address. The dispatcher notified James McCreary, one of the cab drivers on duty, to proceed to 5507 Arrowhead. Around 12:15 p.m. McCreary picked up Browning at this address and was told by Isaac Wells, Browning’s new-phew, to take Browning to the Lakeside Manor. Browning got in the cab, and Isaac stayed behind.

After arriving at the apartments, Browning pulled a knife out and threatened to “stick” McCreary if he did not turn over his money. McCreary gave the man a money bag containing $29.00; Browning exited the cab and walked into the apartment lobby. McCreary notified his dispatcher of the robbery, who in turn called the police. Officer Glen Vail was dispatched to the scene. Browning came out of the apartments at which time McCreary pointed him out to Vail. As Vail walked toward him, Browning began to run and then dropped the money bag. A knife was also found nearby. Both the money bag and knife were identified by McCreary at the scene.

Isaac Wells, Browning’s nephew, testified and corroborated the state’s story by saying that he had told McCreary where to take Browning. Browning claims that he had no reason to rob the cabby since he had just been paid and was carrying around $185.00. However, a search of Browning’s personal belongings turned up little or no money. Browning also had several felony convictions. Pearl Wells did testify that she had a knife similar to the one found by police near the place where Browning was arrested. She said some of her knives were missing but had no idea when she missed them.

II.

First, we address whether or not reversible error occurred when the jury was made aware that Browning was being represented by court-appointed attorney.

We condemned the practice of stating to the jury that defense counsel was court-appointed in Sanders v. State, 429 So.2d 245 (Miss.1983) where we reversed Sanders’ conviction on double jeopardy grounds. In Sanders, supra, defense counsel told the jury that he was court-appointed. This Court in objecting to such practice wrote that:

As a postscript we note — and wish to condemn — a practice observed. At the rape trial, his counsel explained to the jury that he had been appointed by the court to represent Sanders. We have seen this in other trial records. Attorneys representing defendants on appeal before this Court not infrequently make this statement in their briefs. We have seen attorneys appear for oral argument and introduce themselves as court-appointed counsel for the defendant.
For reasons which we assume are obvious, see United States v. Naylor, 566 F.2d 942, 943 (5th Cir.1978), this custom or practice, if it is as widespread as we perceive, should be stopped immediately. (Id. at 252).

The obvious reasons to condemn such practice include inferences of poverty, and sympathy on behalf of the defendant. However, we point out here that while Sanders, supra, does condemn this practice, it does not hold such conduct reversible error. In fact, United States v. Naylor, 566 F.2d 942 (5th Cir.1978) relied upon in Sanders held that such practice “while not commendable practice, was not error”. (Id. at 943).

The comment in the case sub'judice arose in an unusual manner. Sometime prior to trial, the public defender recommended that Browning plead guilty pursuant to a plea bargaining arrangement where the state had agreed to recommend a sentence of ten years. Browning took this recommendation offensively and refused the services of the public defender and initially proceeded to represent himself at trial. The trial judge started voir dire by introducing the lawyers and the defendant, indicating to the jury that the defendant would be representing himself.

Following the voir dire examination by the court and the prosecution, Browning attempted to voir dire the jury at which time he made the following statement:

BY MR. BROWNING: Thank you. Ladies and gentlemen of the jury, I’m not a lawyer, I wish I had one though. I want to say that I’ve been incarcerated at the A.D.D. (Adult Detention Center) I was appointed the public defender and the only thing they did for me was....

Browning was interrupted by the judge who explained to him the purpose of voir dire proceedings. The trial judge explained to Browning that he would be required to follow the procedural rules of the court and the laws of the state even though he was not a lawyer. Then Browning changed his mind and asked that he be represented by the public defender.

Under these facts, it was Browning himself who initially stated to the jury that he had appointed counsel. He cannot now claim his own action as reversible error.

This set of facts does not present grounds for reversal.

III.

Browning further questions the weight of the evidence. The defendant testified on his own behalf and denied the robbery. The evidence he presented conflicted with the evidence presented by the state creating a question for the jury. We have also held on numerous occasions that the credibility of the witnesses is a jury determination. After reviewing the record we hold that the jury’s verdict was not against the weight of the evidence. Hill v. State, 432 So.2d 427 (Miss.1983); Groseclose v. State, 440 So.2d 297 (Miss.1983); Wilson v. State, 264 So.2d 828 (Miss.1972).

AFFIRMED.

PATTERSON, C.J., and WALKER and ROY NOBLE LEE, P.JJ., and BOWLING, HAWKINS, DAN LEE, ROBERTSON, and SULLIVAN, JJ., concur.


author: JONES, Justice. MADDOX, Justice

text:
    Jess W. HALL; S & L Beverages & Blends, Inc.; and Lucian J. Simonetti v. JEFFERSON COUNTY, a Political Subdivision of the State of Alabama, et al.
    82-1153.
    Supreme Court of Alabama.
    April 6, 1984.
    Douglas Corretti of Corretti & Newsom, Birmingham, for appellants.
    Charles S. Wagner, Asst. County Atty., for appellees.
   JONES, Justice.

This -is a land use case. The appeal is from a final judgment of the circuit court in which Plaintiffs/Appellants Jess W. Hall, S & L Beverages & Blends, Inc., and Lucian Simonetti sought, and were denied, rezoning of their real property from classification C-l to C-3. We reverse and remand.

Under a C-l classification, the subject property could be used for, inter alia, service stations, bakeries, banks, barber and beauty shops, bowling alleys, bus stations, cafes and restaurants, dog kennels, drug stores, fortune telling and palmistry, hotels, ice cream, soda and soft drink dispensing establishments, indoor recreation, laundry and dry cleaning stations and plants, lodge halls, mini-warehouses, motels, private clubs, private schools, post offices and other public buildings, professional and office buildings, radio stations, retail stores and service establishments, shopping centers, theaters, veterinarian establishments, and the sale of packaged beer and wine for off- and/or on-premises consumption. Classification C-3 would permit the additional sale of liquor for off-premises consumption.

The Jefferson County Planning and Zoning Commission, after a public hearing on October 14, 1982, recommended to the Jefferson County Commission that Plaintiffs’ rezoning application be approved. The Jefferson County Commission, after a second public hearing, denied Plaintiffs’ application for rezoning of their property.

Plaintiffs initiated this cause on December 20, 1982, naming Jefferson County and its individual Commissioners, and their respective successors in office, as Defendants.

Trial commenced ore tenus on July 18, 1983. On July 26, 1983, the trial court entered a final judgment upholding the decision of the Jefferson County Commission and denying Plaintiffs’ request to rezone This appeal followed. We their property. reverse.

FACTS

Plaintiffs are the owner and lessees of a parcel of realty, improved by a small building, situated on the southwest side of U.S. Highway 78 in the Forestdale area of Jefferson County, Alabama. The land fronts onto Highway 78 and is within the Jefferson County zoning jurisdiction. The building is vacant, and contains approximately 1,200 square feet of floor space. The subject property was formerly used as a small, fast-food restaurant, as well as a vacuum cleaner sales office.

Highway 78 is a four-lane thoroughfare running between Birmingham and Jasper and to points beyond. The predominant zoning classification of the properties along both sides of Highway 78 in the area in question is C-l. There are three parcels of realty within the area of the subject property which are zoned C-3.

Under the C-l classification, property may be used for the retail sale of packaged beer and wine for off- and/or on-premises consumption. The tract of land situated immediately to the east of Plaintiffs’ property is zoned C-l, and is used for a convenience store for the sale of beer, wine, and gasoline. The property abutting the convenience store to the east, separated from the Plaintiffs’ property only by the convenience store, is zoned C-3, and is used as a nightclub-lounge, where beer, wine, and liquor are sold for on-premises consumption. The other two C-3 zoned parcels in the area are family-style restaurants that specialize in the sale of pizza and beer for on-premises consumption. All C-3 parcels were changed from C-l classifications pursuant to the same procedural and substantive rules, there being no “use variance” procedure available to the landowners.

In the immediate area of the subject property are supermarkets, drug stores, and a convenience store with C-l zoning classifications, wherein beer and wine are sold for off-premises consumption.

Plaintiffs’ property is approximately 2,000 feet from the nearest school or church, and is further from the nearest church and school than the convenience store and nightclub-lounge properties located to the east of it.

The subject property complies with the off-street parking requirements of Jefferson County zoning ordinances and has adequate ingress to and egress from Highway 78. Such ingress and egress is similar to that of the adjacent convenience stores, the nightclub-lounge, and other properties located along Highway 78.

There is no drainage problem affecting Plaintiffs’ property, and all utilities, including sanitary sewer, are adequate and available at the site.

The nearest establishment to Plaintiffs’ property selling liquor for off-premises consumption is an ABC Store in the Westgate Shopping Center in Birmingham, approximately four and one-half miles to the southeast of the Plaintiffs’ property. There is another ABC Store at Brookside, Alabama, approximately six and one-half miles to the northwest of the parcel in question.

Plaintiffs presented testimony from an urban planner and real estate appraiser to the effect that use of the property under a C-3 zoning classification would not adversely affect adjoining property values or the properties themselves.

DECISION

Portions of the trial court’s decree read as follows:

“This is an action filed by the Plaintiff, Jess W. Hall, as owner, and S & L Beverages & Blends, Inc., and Lucian J. Simo-netti as lessees of a parcel of land in the unincorporated area of Jefferson County seeking a declaratory judgment that the refusal of the County Commission of Jefferson County to rezone the property owned or leased by the Plaintiffs from C-l (commercial) to C-3 (commercial, for off-premises sale of liquor) was arbitrary and capricious and violated the rights and privileges afforded the Plaintiffs under the constitution of the United States and the State of Alabama.
“The Plaintiff[s] sought a change of zoning before the Jefferson County Commission of the subject property from C-l commercial district to C-3 commercial district to permit the use of the subject property for a package store selling at retail for off-premises consumption wine, beer, whiskey, ice, cigarettes, snack foods, soft drinks and other convenience store items but not a full grocery store inventory.
“The present zoning (C-l) permits the subject property to be used for service stations, bakeries, banks, barber and beauty shops, bowling alleys, bus stations, cafes and restaurants not including the sale of on-premises alcoholic beverages, dog kennels, drugstores, fortune telling and palmistry, hotels, ice cream, soda and soft drink dispensing establishments, indoor recreation, laundry and dry cleaning stations and plants, lodge halls, mini warehouses, motels, private clubs, private schools, post offices and other public buildings, professional and office buildings, radio stations, retail stores and service establishments, shopping centers, theaters, veterinarian establishments, and the sale of package beer and wine for off-premises consumption. The C-3 zoning sought by the Plaintiffs would permit the subject property to be used for any establishments selling intoxicating beverages and liquors, dance halls and nightclubs and taverns.
“The subject parcel is located in a corridor of land on each side of the highway, 80% of which is zoned C-l and slightly less than 20% is zoned residential. Approximately 265 feet from the subject property is a parcel of land zoned C-3 and occupied by a restaurant and lounge selling beer, wine and liquor for on-premises consumption. A convenience store adjacent to the subject property sells beer and wine (off-premises). The nearest establishment selling liquors for off-premises consumption is the State ABC store located in the Westgate Shopping Center approximately 4V2 miles to the southeast on Highway 78.
“The evidence shows that the subject property can be used for most of the uses permitted under the C-l zoning classification and the evidence fails to show any material change in circumstances in the area that has affected or would affect the uses of the subject property.
“The issue is whether the County Commission arbitrarily and capriciously denied the Plaintiffs application to rezone.... If the question of zoning or rezoning is fairly debatable, a Court will not substitute its judgment for that of the governing body acting in a legislative capacity....
“It is clear beyond doubt that the subject property has a reasonable, practical and suitable use under its present zoning. The C-l zoning classification appears to have the broadest possible commercial uses authorized by any of the county zoning classifications. Considering the primary zoning scheme of the area where the subject property is located, including the proximity of the residential uses of the lands immediately adjacent to and behind the C-l zoning corridor on each side of the highway, the Court finds and concludes that the Plaintiffs have failed to sustain the burden of proof that the County Commission acted arbitrarily and capriciously when it denied the Plaintiffs’ application.... The Court further finds and concludes that the Plaintiffs have failed to show that they were treated differently in any manner than others similarly situated. The ‘equal protection’ contention is denied.”

We note that the aforementioned decree, if supported by evidence, is favored with a presumption of correctness and is not to be disturbed unless it is plainly or palpably wrong or manifestly unjust. Woodard v. City of Decatur, 431 So.2d 1173 (Ala.1983). Our standard of review, as well as the standard applicable in the trial below, is whether the County Commission’s denial of the zoning application is founded upon “fairly debatable” factual and policy issues. Jefferson County v. O’Rorke, 394 So.2d 937 (Ala.1981); City of Gadsden v. Downs, 412 So.2d 267 (Ala.1982).

Both the trial court and Appellees emphasize the fact that because “[it] is clear beyond a doubt that the subject property has a reasonable, practical and suitable use under its present zoning,” Plaintiffs’ sole motivation in seeking to have their property rezoned is financial. To be sure, under certain circumstances, the profit motive is an inappropriate test for determining the propriety of zoning restrictions. In Woodard v. City of Decatur, supra, this Court said:

“We think it appropriate to point out here that financial loss is not the test to determine if the zoning ordinance is arbitrary and capricious. COME, an Unincorporated Association of Citizens v. Chancy, 289 Ala. 555, 269 So.2d 88 (1972). This Court in Episcopal Foundation of Jefferson County v. Williams, 281 Ala. 363, 367, 202 So.2d 726, 730 (1967), stated:
“ ‘The fact that the complainants ... may suffer some financial loss and depreciation in the value of their property is not a test of the constitutionality of the zoning ordinance; nor is it a test to determine if the zoning ordinance is arbitrary, capricious, inequitable and discriminatory.’ ”

While reaffirming our adherence to these axioms regarding financial gain and/or loss in the context of zoning, we find them inapposite to the facts now before us. By way of speculation, had Plaintiffs sought a change from “residential” to “commercial” zoning under the current facts, Appellees’ “financial impact” argument would merit consideration. See Cale v. City of Bessemer, 393 So.2d 959 (Ala. 1980). In other words, where one seeks to change the “basic use” of his property from one zoning classification to another (e.g., residential to commercial), the mere projection of financial loss under the less advantageous classification, without more, will not justify the change. Woodard, supra. Here, however, the “basic use” of the subject property would remain, for all practical purposes, the same under C-3 as under C-l, the exception being that under C-3 zoning Plaintiffs would be permitted the fullest and most beneficial use of their land.

Assuming that Plaintiffs sought to reclassify their realty from C-l to C-3 in order to utilize it more profitably (i.e., to make more money), it is difficult, if not impossible under these circumstances, to envision a more logical reason. The legal justification for such reasoning is summarized in 63 Am.Jur.2d Property § 3 (1972):

“Property ... is composed of certain constituent elements, namely, the unrestricted right of use, enjoyment, and disposal of the particular subject of property. Of these elements the right of user is the most essential and beneficial. Without it all other elements would be of little effect, since if one is deprived of the use of his property, little but a barren title is left in his hands. This right of free and untrammeled user for legitimate purposes is fundamental and within the protection of the United States Constitution.”

Stated another way, property ownership should, and does, bring with it freedom to use one’s possession as the owner deems appropriate, subject, of course, to reasonable restraints for the general health, safety, or public welfare. Absent the need for such reasonable impediments, the landowner’s “bundle of rights” should remain inviolate. Indeed, the “fairly debatable” standard is not invoked unless and until the zoning authority has met the threshold test of showing that the challenged zoning restriction comports with a legitimate governmental interest, or has a substantial relation to a legitimate public purpose.

The “fairly debatable” standard is a rule of procedure or application and does not subsume or modify the fundamental requisite that the ordinance itself and its application must have a reasonable and substantial relationship to the promotion of public health, safety, morals, or general welfare. City of Boca Raton v. Boca Villas Corp., 371 So.2d 154 (Fla.1979). As this Court observed in Jefferson County v. O’Rorke, 394 So.2d 937 (Ala.1981):

“When a zoning restriction exceeds bounds necessary for the welfare of the public, it must be stricken as an unconstitutional invasion of property rights.”

The trial court’s rationalization—“It is clear that the subject property has a reasonable, practical and suitable use under its present zoning”—approaches the problem inversely. The zoning ordinance is not in itself a grant of powers, rights, and privileges to the landowner from which the trial judge was free to add or detract. Such plenary powers, rights, and privileges originated with Plaintiffs’ ownership of the subject property.

As Plaintiffs’ counsel aptly states, a logical extension of the reasoning adopted by the trial court in rejecting the rezoning, in these circumstances, would obviate any past, present, or future need for a C-3 zoning classification. Moreover, assuming such classification, no request for reclassification from C-l to C-3 could ever be justified. Thus, the rhetorical question is: “Because you can use your land for most purposes, why do you need more?” Whatever the underlying motives behind that query, they cannot be justified, in this land use context, under the guise of enlightened social policy.

•In requesting a reclassification of their property from C-l to C-3 zoning, Plaintiffs were not seeking to modify the basic character of their area. What was at the time commercial under C-l would thereafter remain commercial under C-3, the basic difference, again, being that a C-3 classification would permit the sale of liquor for off-premises consumption.

Arbitrariness and capriciousness by municipal governing bodies cannot be sanctioned under the denomination “fairly debatable.” Anything is debatable. Everything is not fairly debatable. Assuming the posture of this case invokes the “fairly debatable” standard, we find no fairly debatable justification for the denial of Plaintiffs’ request to rezone their property from the C — 1 to the C-3 classification. Consequently, we hold that the trial court erred in affirming the order of the county commission rejecting the recommendations of the Jefferson County Planning and Zoning Commission.

Accordingly, the judgment is due to be, and it hereby is, reversed, and the cause remanded.

REVERSED AND REMANDED.

SHORES, EMBRY, BEATTY and ADAMS, JJ., concur.

ALMON, J., concurs in the result.

TORBERT, C.J., and MADDOX and FAULKNER, JJ., dissent.

MADDOX, Justice

(dissenting).

I must respectfully disagree with the majority’s holding that the refusal to rezone the subject property was arbitrary and capricious. The law which governs our review in zoning cases like this is stated in City of Birmingham v. Morris, 396 So.2d 53 (Ala.1981), as follows:

“In the recent decisions of Jefferson County v. O’Rorke, 394 So.2d 937 (Ala.1981), and Cale v. City of Bessemer, 393 So.2d 959 (Ala.1980), the Court reiterated its abiding adherence to the rule of law that a trial court must not disturb the zoning decision of a duly constituted municipal body so long as that decision is based upon a ‘fairly debatable’ rationale. A zoning determination is said to be fairly debatable ‘when for any reason it is open to dispute or controversy on grounds that make sense or point to a logical deduction that in no way involves its constitutional validity,’ Miami Beach v. Lachman, 71 So.2d 148 (Fla.1953), or where the evidence provides a basis for a fair difference of opinion as to the application of the determination to particular property. See generally, 1 R. Anderson, American Law of Zoning, § 3.20 (2nd ed. 1977).
“By virtue of this ‘fairly debatable’ rule, the role of the judiciary in zoning cases is extremely limited and the dimensions of judicial review are narrowly confined. 4 E. Yockley, Zoning Law and Practice § 25-2 (4th ed. 1979); 4 R. Anderson, American Law of Zoning § 25.-26 (2nd ed. 1977). Courts must recognize that zoning is a legislative function committed to the sound discretion of municipal legislative bodies, not to the courts. Waters v. City of Birmingham, 282 Ala. 104, 209 So.2d 388 (1968); Marshall v. City of Mobile, 250 Ala. 646, 35 So.2d 553 (1948). As a result, local governing authorities are presumed to have a superior opportunity to know and consider the varied and conflicting interests involved, to balance the burdens and benefits and to consider the general welfare of the area involved. Episcopal Foundation of Jefferson County v. Williams, 281 Ala. 363, 202 So.2d 726 (1967); Leary v. Adams, 226 Ala. 472, 147 So. 391 (1933). They, therefore, must of necessity be accorded considerable freedom to exercise discretion not diminished by judicial intrusion. Walls v. City of Gun-tersville, 253 Ala. 480, 45 So.2d 468 (1950). Nevertheless, this discretion is not unbounded, and local authorities may not, under the guise of legislative power, impose restrictions that arbitrarily and capriciously inhibit the use of private property or the pursuit of lawful activities. When such arbitrary and capricious action is made apparent, a reviewing court will not hesitate to disturb the zoning determination as a clear abuse of discretion.”

In that case we affirmed a determination by the trial court that the city’s refusal to rezone was not “fairly debatable,” and the facts in that case supported a finding that the zoning authorities had clearly abused their discretion. There, the property owners presented evidence that the zoning authority, by affirmative governmental action, had permitted nonconforming uses of adjacent property, and had effectively frustrated the use of the petitioners’ property for residential purposes. In Morris, there was also substantial evidence of the changed nature of the neighborhood and the deleterious effect that these govern-mentally authorized changes had had upon the property for which rezoning was sought.

As I view the facts of this ease, they can in no way compare with the factual situation present in Morris; consequently, I would affirm the judgment of the trial court.

FAULKNER, J., concurs.

      . It is essential to a proper analysis of this case to understand that in the immediate area there exist both C-l and C-3 parcels. In other words, the reclassification from C-l to C-3 was made on a parcel-by-parcel basis and did not include multiple parcel zones.