text:
    STATE of Louisiana ex rel., James C. CURRY v. Mr. D.R. GUILLORY, Warden Wade Correctional Center Haynesville, La. 71038 and the State of Louisiana.
    No. 82-KH-2514.
    Supreme Court of Louisiana.
    Nov. 18, 1983.
   PER CURIAM.

Granted. The record supports relator’s claim that he entered his plea of guilty to felony theft, La.R.S. 14:67, with a reasonable but mistaken impression of his total sentencing liability. Cf., State ex rel. La-Fleur v. Donnelly, 416 So.2d 82 (La.1982). The transcript of the Boykin colloquy on May 28, 1981, shows clearly that relator’s attorney recommended he plea under the misapprehension that the promised two-year sentence would mark the final release date of relator from the Department of Corrections, despite the fact that the plea would also automatically revoke relator’s parole on a previous conviction. R.S. 15:574.10. That misunderstanding was never expressly corrected by the trial court or the state at the plea hearing. However, while relator’s parole term was due to expire at the end of the next two years, he owed a balance of nearly 8 years on his original sentence at the time of his release on parole, and would have to serve it upon revocation. R.S. 15:574.9(E).

Accordingly, this case is remanded to the district court for purposes of giving the relator the opportunity, at his option, to withdraw his guilty plea entered on May 28, 1981.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Louisiana, ex rel., Michael COOPER v. STATE of Louisiana, et al., Ross Maggio, Jr., Warden Louisiana State Penitentiary.
    No. 83-KP-1783.
    Supreme Court of Louisiana.
    Nov. 18, 1983.
    Writ Granted Oct. 28, 1983.
   PER CURIAM.

In the above entitled matter we ordered a new sentencing hearing in accordance with the provisions of C.Cr.P. art. 894.1. The trial judge has petitioned the court to recall and vacate our order on the grounds that Art. 894.1 had not been enacted into law at the time defendant was sentenced.

The resentencing of defendant was based on the merits of defendant’s writ application. The court’s previous order, 444 So.2d 113, that the defendant’s new sentence be considered in accordance with C.Cr.P. art. 894.1 is merely a direction to the new sentencing Judge that the sentencing hearing be conducted in accordance with law.

The reconsideration of the court’s previous order granting the writ is denied.

MARCUS and WATSON, JJ., would grant reconsideration, recall the order previously issued and deny the application.


text:
    James L. MARTIN v. PALA, INC. and Aetna Casualty & Surety Company.
    No. 83-C-2173.
    Supreme Court of Louisiana.
    Nov. 18, 1983.
   In Re: Pala, Inc. and Aetna Casualty & Surety Company, applying for Certiorari, or writ of Review, to the court of Appeal First Circuit, Number 82-CA-0829, 439 So.2d 1094, from the Eighteenth Judicial District Court, Parish of Iberville, Number 25,582 Division “B”.

Denied.

MARCUS & LEMMON, JJ., would grant the writ.

BLANCHE, Justice, would grant the writ.

The plaintiff has the same burden of proof in compensation cases as in other civil disputes. The jurisprudential “presumption” applied by the majority of the court in Hammond v. Fidelity and Casualty Co. oí New York, 419 So.2d 829 (La.1982) would not be applicable here as the chain of causation was broken by the plaintiff’s full recovery and his further disability thereafter was not work related.


author: CALOGERO, Justice,

text:
    STATE of Louisiana, ex rel. Howard MATTHESON v. John T. KING, Secretary of Dept. of Corrections, and Ross Maggio, Warden State Prison.
    No. 83-KD-2296.
    Supreme Court of Louisiana.
    Nov. 18, 1983.
   In Re: Howard Mattheson, applying for Writ of Habeas Corpus and Stay Order, Criminal District Court, Parish of Orleans, Number 263-971.

Denied.

CALOGERO, Justice,

concurs in the denial.

This Court has already ruled that petitioner’s Fifth, Sixth, Eighth and Fourteenth Amendments were not violated by the trial court’s refusal to grant petitioner’s wife use immunity for testimony at either the guilt or sentencing phase of petitioner’s trial. However, I adhere to my minority view expressed in dissent originally, that Mrs. Mattheson should have been granted use immunity when she invoked her Fifth Amendment right and refused to testify. She was really the only eye witness to whether defendant intentionally killed, or his gun accidentally discharged. The right of the defendant, who was convicted and sentenced to death, to call Mrs. Mattheson and have her testify, in my view, outweighs the unconsequential benefit to the state in not affording her immunity, not from prosecution, but immunity from the state’s later use of testimony and derivative evidence given under compulsion (use immunity).


author: CALOGERO, J.,

text:
    STATE of Louisiana ex rel. Arthur TURNER v. Ross MAGGIO Jr., Warden, Louisiana State Penitentiary.
    No. 83-KH-2202.
    Supreme Court of Louisiana.
    Nov. 28, 1983.
   In Re: Arthur Turner applying for Supervisory Writ from the 10th Judicial District Court, Parish of Natchitoches, Number 355231.

Granted. Judgment of the district court is reversed and the case is remanded. An evidéntiary hearing is ordered to determine whether this case differs from State v. James Dunn, 408 So.2d 1319, 81-K-2132 of this Court decided January 25, 1982.

CALOGERO, J.,

concurs. If relator was promised parole opportunity after 10 years 6 months, his plea would have been involuntary and should be vacated. In any event ordering relator considered for parole is beyond the jurisdiction of the trial court.


text:
    CHEVRON U.S.A., INC. v. MARTIN EXPLORATION COMPANY, Ken G. Martin, BTA Oil Producers, Cotton Petroleum Corporation, Thomas A. Durham, Herschell J. McCunn, Loren G. Horton, John O. Smith, Robert L. Brownlee, G.D. Ward and Gordon Smith.
    No. 83-C-1543.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re Chevron U.S.A., Inc., BTA Oil Producers and Cotton Petroleum Corporation, applying for certiorari, or writ of review. Court of Appeal, First Circuit, Parish of West Baton Rouge. Eighteenth Judicial District Court. No. 13903, Division “C”.

Granted.


text:
    William J. GUSTE, Jr., STATE of Louisiana ex rel. v. TEXACO, INC., et al.
    No. 83-C-1743.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re Ernest R. Eldred — Third Party, applying for certiorari, or writ of review. Court of Appeal, First Circuit. Sixteenth Judicial District Court. No. 60407. Parish of St. Mary.

Granted.


text:
    Labertha COLBERT v. LOUISIANA STATE UNIVERSITY DENTAL SCHOOL and Underwriters Adjusting Company.
    No. 83-C-1753.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re Louisiana State University Dental School and Underwriters Adjusting Company, applying for Certiorari, or writ of review, to the court of Appeal Fourth Circuit, Parish of Orleans, Number CA 0692, from the Civil District Court, Number 81-8940.

Granted.


text:
    STATE of Louisiana ex rel. William J. GUSTE, Jr. v. TEXACO, INC., et al.
    No. 83-C-1756.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re The Law Firm of Broadhurst, Brook, Mangham, Hardy & Reed, applying for certiorari, or writ of review. Court of Appeal, First Circuit, Parish of St. Mary. Sixteenth Judicial District Court. No. 60407.

Granted and consolidated with # 83-C-1743. (See Order Attached).


text:
    STATE of Louisiana v. Jan J. PORRETTO.
    No. 83-KD-2166.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re Jan J. Porretto, applying for writs of certiorari and/or review, mandamus, prohibition and stay order. Twenty-fourth Judicial District Court, Parish of Jefferson. No. 80-1980.

Granted. The ruling of the district judge on supplemental motion for a new trial is reversed and the trial court is ordered to try the motion for a new trial and the supplemental motion for a new trial at the same time.


text:
    STATE of Louisiana ex rel., Glen A. BORDELON v. Honorable H. Charles GAUDIN, Judge, Div. “G”, 24th JDC, Parish of Jefferson.
    No. 83-KH-0308.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re Glen A. Bordelon, applying for writ of certiorari and review. Parish of Jefferson. No. 79-2938.

Granted in part and denied in part. The multiple offender sentence is set aside and the case is remanded for resentencing in compliance with R.S. 15:529.1, which requires that the defendant’s two year sentence be vacated prior to imposition of the multiple offender sentence; otherwise denied.


text:
    Kathleen Dupre DUSENBERY, Individually and as Natural Tutrix of the Minors Kimberly Ann Dusenbery and Stephanie Marie Dusenbery v. McMoRAN EXPLORATION COMPANY, and J.M. Huber Corporation.
    No. 83-C-1681.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re The Joint Venture of Bur-mont/McMoRan, Burmont Company, and McMoRan Exploration Company, applying for certiorari, or writ of review. Court of Appeal, First Circuit, Parish of Terrebonne. Thirty-second Judicial District Court. No. 55494.

Granted in part and denied in part. (See Order Attached). Writ is granted as to the indemnity issue only, (Assignment # 2). Otherwise denied.


text:
    Janet F. LAMB v. Edward C. LAMB. Edward C. LAMB v. Janet F. LAMB.
    No. 83-CC-1925.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re Edward C. Lamb, applying for writs of certiorari, mandamus, prohibition and or review. Fifteenth Judicial District Court. No. 81-4785-E c/w 81-5260-G. Parish of Lafayette, Third Circuit Court of Appeal.

Granted in part and denied in part. Because of the delays in these proceedings prompted by the parties’ appeals and writ applications, it is ordered that the consolidated cases be tried expeditiously. Otherwise, the application is denied.


text:
    HIBERNIA NATIONAL BANK IN NEW ORLEANS v. Norman L. JOHNSON and Gayfryd Dorothea McNabb Johnson.
    No. 83-CC-1995.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re Hibernia National Bank in New Orleans, applying for supervisory writs. Fourth Circuit Court of Appeal. Civil District Court Parish of Orleans. No. 83-8908, Division “C”.

Dismissed as moot at the request of relator.


text:
    STATE of Louisiana, ex rel. John D. BROWN v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 83-KH-0306.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re John D. Brown, applying for supervisory writ. Parish of Concordia. No. 80-1742. Seventh Judicial District Court.

Denied.


text:
    STATE of Louisiana, ex rel. Ernest Reginald PICHON v. Honorable Thomas W. TANNER, Judge, 22nd Judicial District Court, Parish of St. Tammany, Covington, Louisiana.
    No. 83-KH-0307.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re Ernest Reginald Pichón applying for writs of certiorari and review. Parish of St. Tammany. No. 50751.

Denied.


text:
    Henry E. YOES, Jr. and St. Charles Herald, Inc. v. Charles C. WILSON, Sheriff, et al.
    No. 83-CC-1524.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re Henry É. Yoes, Jr. and St. Charles Herald, Inc., applying for writ of certiorari and/or prohibition, mandamus. Twenty-ninth Judicial District Court. No. 22756. Parish of St. Charles. Fifth Circuit Court of Appeal.

Denied.


text:
    Edmund J. NOLAN, Jr., and Sally Ward v. Thomas OCHELLO, Jr., and Allstate Insurance Company.
    No. 83-C-1759.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re Thomas Ochello, Jr., and Allstate Insurance Company, applying for writ of certiorari and review. Court of Appeal, First Circuit. Parish of St. Tammany, Twenty-Second Judicial District Court. No. 62252.

Denied.


text:
    Melvin N. OATIS v. CATALYTIC, INC., et al.
    No. 83-C-1761.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re Olin Corporation, applying for cer-tiorari, or writ of review. Court of Appeal, Third Circuit. Fourteenth Judicial District Court. No. 81-1200. .Parish of Calcasieu.

Denied.

CALOGERO, J., would grant the writ.


text:
    FORREST HOUSE APARTMENTS, A Limited Partnership and Bobby L. Forrest, Individually v. The LOUISIANA TAX COMMISSION.
    No. 83-C-1762.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re Forrest Éouse Apartments, A Limited Partnership, and Bobby L. Forrest, Individually, applying for certiorari, or writ of review. Court of Appeal, First Circuit. Parish of East Baton Rouge, Nineteenth Judicial District Court. No. 217796.

Denied. The result is correct.

BLANCHE, J., would grant the writ.


text:
    Edmund J. NOLAN, Jr. and Sally Ward v. Thomas OCHELLO, Jr. and Allstate Insurance Company.
    No. 83-C-1764.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re Edmund J. Nolan, Jr. and Sally Ward, applying for certiorari, or writ of review. Court of Appeal, First Circuit. Twenty-second Judicial District Court. No. 62252. Parish of St. Tammany.

Denied.


text:
    Wilburn Troy STRICKLAND v. TOSORO DRILLING CO., Aetna Casualty and Surety Co., Louisiana Land and Exploration Co. and National Union Fire Insurance Co. of Pittsburg, Pa.
    No. 83-C-1765.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re Tosoro Drilling Company and Aetna Casualty and Surety Company, applying for certiorari, or writ of review. Court of Appeal, First Circuit, Parish of Pointe Coupe. Eighteenth Judicial District Court. No. 16-268.

Denied.


text:
    George W. BAILEY and His Wife, Bennie Day Bailey v. James T. ADKINS.
    No. 83-C-1766.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re James T. Adkins, applying for cer-tiorari, or writ of review-. Court of Appeal, Third Circuit, Parish of Natchitoches. Tenth Judicial District Court. No. 50361B.

Denied.


text:
    J. Burns B. WRIGHT v. LOUISIANA POWER & LIGHT, John A. Casadaban and Maryland Casualty Company. John CASADABAN v. LOUISIANA GAS SERVICE COMPANY et al. U.S. FIDELITY & GUARANTY CO. and Maryland Casualty Company v. LOUISIANA GAS SERVICE COMPANY, et al. RICHARDS EQUIPMENT, INC. v. LOUISIANA GAS SERVICE COMPANY, et al.
    No. 83-C-1789.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re John Casadaban, applying for writ of certiorari and/or review. Fifth Circuit, Court of Appeal. Parish of Jefferson. Nos. 266-894,228-388,228/390 and 228/419.

Denied.

CALOGERO and DENNIS, JJ., would grant the writ.


text:
    Mrs. Debra RAMIREZ, Formerly Richard and Frank Ramirez v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY, et al.
    No. 83-C-1790.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re Mrs. Debra Ramirez, formerly Richard and Frank Ramirez, applying for writ of certiorari or review. Court of Appeal, Third Circuit. Parish of Calcasieu, Fourteenth Judicial District Court. No. 81-4180.

Denied.

DIXON, C.J., and DENNIS, J., would grant the writ.


text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. Julian W. THOMPSON.
    No. 83-C-1791.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re Julian W. Thompson, applying for writ of certiorari for review. Court of Appeal, Third Circuit. Parish of LaSalle, Twenty-Eighth Judicial District Court. No. 18174.

Denied

DENNIS and LEMMON, JJ., would grant the writ.


text:
    Raymond J. PALMER v. Martha Darwin PALMER.
    No. 83-C-1792.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re Martha Darwin Palmer, applying for writ of certiorari or review. Court of Appeal, Third Circuit. Parish of Vernon, Thirtieth Judicial District Court. No. 35260.

Denied.

DENNIS, J., would grant the writ.


text:
    Frank S. VENEZIA, Sr. v. DEPARTMENT OF INSPECTIONS and Code Enforcement.
    No. 83-C-1794.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re Frank S. Venezia, Sr., applying for writ of certiorari and/or review. Fifth Circuit Court of Appeal. Jefferson Parish Personnel Board. No. 1982-38.

Denied.


text:
    Kathleen Dupre DUSENBERY, Individually and as Natural Tutrix of the Minors, Kimberly Ann Dusenbery and Stephanie Marie Dusenbery v. McMoRAN EXPLORATION COMPANY, and J.M. Huber Corporation.
    No. 83-C-1630.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re Hart, Inc., applying for writ of certiorari and/or review. First Circuit Court of Appeal. Thirty-Second Judicial District Court, Parish of Terrebonne. No. 55494.

Denied.

CALOGERO, J., would grant the writ.


text:
    Michael Sylvester CAROLLO v. SHONEY’S BIG BOY ENTERPRISES, INC. and the U.S. Fire Insurance Co.
    No. 83-C-1798.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re Michael Sylvester Carollo, applying for certiorari, or writ of review. Court of Appeal, Fifth Circuit, Parish of Jefferson. Twenty-Fourth Judicial District Court. No. 228-532.

Denied.


text:
    Wilburn Troy STRICKLAND v. TESORO DRILLING CO., Aetna Casualty and Surety Co., Louisiana Land and Exploration Co., and National Union Fire Insurance Co. of Pitt, Pa.
    No. 83-C-1799.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re Louisiana Land and Exploration Company, applying for certiorari, or writ of review. Court of Appeal, First Circuit, Parish of Pointe Coupe. Eighteenth Judicial District Court. No. 16-268.

Denied.


text:
    J. Burns B. WRIGHT v. LOUISIANA POWER & LIGHT, John A. Casadaban and Maryland Casualty Company. RICHARDS EQUIPMENT, INC. v. LOUISIANA GAS SERVICE COMPANY, Lloyds London and British Insurance Companies, Inc., T. Simons, Alwynn J. Cronvich, the Jefferson Parish Sheriff's Office and North River Insurance Company of Morristown, New Jersey. John CASADABAN v. LOUISIANA GAS SERVICE COMPANY, Lloyds London and British Insurance Companies, Inc., T. Simons, Alwynn J. Cronvich, the Jefferson Parish Sheriff's Office and North River Insurance Company of Morristown, New Jersey. U.S. FIDELITY & GUARANTY CO. and Maryland Casualty Company v. LOUISIANA GAS SERVICE COMPANY, the Parish of Jefferson, State of Louisiana, Jefferson Parish Sheriffs Office and Alwynn Cronvich, et al.
    No. 83-C-1800.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re Richards Equipment, Inc., applying for writ of certiorari and/or review. Fifth Circuit Court of Appeal. Parish of Jefferson, Twenty-fourth Judicial District Court. Nos. 266-894, 228-388, 228-390 and 228-419.

Denied.

CALOGERO and DENNIS, JJ., would grant the writ.


text:
    J. Burns B. WRIGHT v. LOUISIANA POWER & LIGHT, John A. Casadaban and Maryland Casualty Company. RICHARDS EQUIPMENT, INC. v. LOUISIANA GAS SERVICE COMPANY, Lloyds London and British Insurance Companies, Inc., T. Simons, Alwynn J. Cronvich, the Jefferson Parish Sheriff's Office and North River Insurance Company of Morristown, New Jersey. John CASADABAN v. LOUISIANA GAS SERVICE COMPANY, Lloyds London and British Insurance Companies, Inc., T. Simons, Alwynn J. Cronvich, the Jefferson Parish Sheriff's Office and North River Insurance Company of Morristown, New Jersey. U.S. FIDELITY & GUARANTY CO. and Maryland Casualty Company v. LOUISIANA GAS SERVICE COMPANY, the Parish of Jefferson, State of Louisiana, Jefferson Parish Sheriff's Office and Alwynn Cronvich, et al.
    No. 83-C-1801.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re U.S. Fidelity & Guaranty Co. and Maryland Casualty Company applying for writ of certiorari and review. Fifth Circuit Court of Appeal. Parish of Jefferson, Twenty-fourth Judicial District Court. Nos. 266-894, 228-388, 228-390 and 228-419.

Denied.

CALOGERO and DENNIS, JJ., would grant the writ.


text:
    Wilburn Troy STRICKLAND v. TESORO DRILLING CO., Aetna Casualty and Surety, Co., Louisiana Land and Exploration Co., and National Union Fire Insurance Co., of Pitt, Pa.
    No. 83-C-1802.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re Wilburn Troy Strickland, applying for certiorari, or writ of review. Court of Appeal, First Circuit, Parish of Pointe Cou-pee. Eighteenth Judicial District Court. No. 16-268.

Denied.


text:
    Melvin N. OATIS and Olin Corporation v. CATALYTIC, INC., et al.
    No. 83-C-1803.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re Melvin N. Oatis, applying for writ of certiorari and or writ of review. Court of Appeal, Third Circuit. Fourteenth Judicial District Court, Parish of Calcasieu. No. 81-1200.

Denied.

CALOGERO, J., would grant the writ.


text:
    Karen Deroche Wife of/and Paul REMONDET v. RESERVE NATIONAL INSURANCE COMPANY.
    No. 83-C-1805.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re Karen Deroche wife of/and Paul Remondet, applying for writ of certiorari or review. Court of Appeal, Fifth Circuit. Twenty-third Judicial District Court, Parish of St. James. No. 14284, Div. A.

Denied.


text:
    Janice Kinchen, Wife of Randolph M. HOWES v. Randolph M. HOWES.
    No. 83-C-1812.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re Randolph M. Howes, applying for writ of certiorari. Court of Appeal, Fourth Circuit. Parish of Orleans, Civil District Court. No. 81-16104.

Denied.


text:
    The HOME INDEMNITY COMPANY v. CENTRAL LOUISIANA ELECTRIC COMPANY, et al.
    No. 83-C-1825.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re Central Louisiana Electric Company and Continental Casualty Company, applying for writ of certiorari or review. Third Circuit, Court of Appeal. Thirty-sixth Judicial District Court, Parish of Beauregard.

Denied.

DIXON, C.J., would grant the writ.


text:
    Judy LA FAUCI v. Lonnie S. MARTIN, Carl E. Herrington, Jr., Chevron USA Inc., a/k/a Chevron Oil Co., a Division of the California Company, XYZ Insurance Company and John Doe.
    No. 83-C-1831.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re Judy La Fauci, applying for writ of certiorari or review. Court of Appeal, Fifth Circuit. Twenty-fourth Judicial District Court, Parish of Jefferson. No. 216-046.

Denied.


text:
    Brenda F. JACKSON, et ux. v. FIREMAN’S FUND INSURANCE CO., et al.
    No. 83-C-1845.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re Brenda F. Jackson, et ux, applying for writ of certiorari. Court of Appeal, Third Circuit. Parish of Calcasieu, Fourteenth Judicial District Court. No. 82-3686.

Denied.

DIXON, C.J., CALOGERO and WATSON, JJ., would grant the writ.


text:
    William I. FOX v. LOUISIANA STATE RACING COMMISSION.
    No. 83-C-1849.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re Louisiana Downs, Inc., applying for certiorari, or writ of review. Court of Appeal, Fourth Circuit. Civil District Court, Parish of Orleans. No. 82-6122.

Denied.

DIXON, C.J., would grant the writ.


text:
    Joseph MARINO, Individually and on Behalf of His Minor Child, Domenick J. MARINO v. WINN-DIXIE LOUISIANA, INC.
    No. 83-C-1852.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re Joseph Marino, et al, applying for writ of certiorari and review. Court of Appeal, Fourth Circuit. Parish of Orleans, Civil District Court. No. 81-6923.

Denied.

WATSON, J., would grant the writ.


text:
    William I. FOX v. LOUISIANA STATE RACING COMMISSION.
    No. 83-C-1853.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re Louisiana State Racing Commission, applying for writ of certiorari/review. Fourth Circuit Court of Appeal. Civil District Court, Orleans Parish. No. 82-6122. Denied.

DIXON, C.J., would grant the writ.


text:
    STATE of Louisiana v. William CONGER.
    No. 83-KH-2066.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
    Certiorari Denied Jan. 9, 1984.
    See 104 S.Ct. 728.
   In re William Conger, applying for remedial writ. Fourth Circuit Court of Appeal. No. K-1340. Criminal District Court, Parish of Orleans. No. 297-507, Section “G”.

Denied. New claims must be first made in appeal to the 4th Circuit, Court of Appeal or in post-conviction proceedings filed in the district court.


text:
    Robert F. BEYER, Jr., William J. Bravender, Jr., Ellis W. Adams, Ronald L. Passons, John A. Liljeberg, Jr., Kerry Simon and Henry E. Williams v. DAUL INSURANCE AGENCY, INC. & Michael B. Daul, Jr.
    No. 83-CC-2082.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re Robert F. Beyer, Jr., et al., applying for supervisory writ of certiorari or review. Fifth Circuit Court of Appeal. No. 83-C-607. Twenty-fourth Judicial District Court, Parish of Jefferson. No. 267-187.

Denied.


author: LEMMON, J.,

text:
    Rudy Raymond RODRIGUEZ v. Cathy Ann Morvant RODRIGUEZ.
    No. 83-OC-2167.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re Cathy Ann Morvant Rodriguez, applying for writ of review and writ of mandamus. First Circuit Court of Appeal. No. 83 CA 0580. Nineteenth Judicial District Court, Family Court, Parish of East Baton Rouge. No. 43871, Division “B”.

Denied.

LEMMON, J.,

concurs. Relator may apply to the trial court and present her evidence of the child’s emotional behavior since the visitation order, in an effort to modify the order on the basis of circumstances arising since the order.


text:
    TOLMAK, INC. v. SERVITRON, INC. and the Home Indemnity Company. The HOME INDEMNITY COMPANY v. CENTRAL LOUISIANA ELECTRIC COMPANY, et al.
    No. 83-C-1850.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re Tolmak, Inc. and the Home Indemnity Company, applying for certiorari, or writ of review. Court of Appeal, Third Circuit, Parish of Beauregard. Nos. 83-173 and 83-174. Thirty-Sixth Judicial District Court. Nos. 14396 and 17049.

Denied.

DIXON, C.J., would grant the writ.


text:
    TOLMAK, INC. v. SERVITRON, INC. and the Home Indemnity Company. The HOME INDEMNITY COMPANY v. CENTRAL LOUISIANA ELECTRIC COMPANY, et al.
    No. 83-C-1851.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re Tolmak, Inc. and Servitron, Inc., and the Home Indemnity Co., applying for writ of certiorari or review. Court of Appeal, Third Circuit. Nos. 83-173 and 83-174. Parish of Beauregard, Thirty-Sixth Judicial District Court. Nos. 14396 and 17049.

Denied.

DIXON, C.J., would grant the writ.


text:
    CONCERNED CITIZENS OF CENLA, INC. and Lorena Pospisil v. CITY OF ALEXANDRIA and Redevelopment Agency of the City of Alexandria.
    No. 83-C-1807.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re Concerned Citizens of Cenia, Inc. and Lorena Pospisil, applying for certiorari or writ of review. Court of Appeal, Third Circuit, Parish of Rapides. No. 82-836. Ninth Judicial District Court. No. 124269.

Denied.


text:
    STATE of Louisiana v. Gregory BROWN.
    No. 83-KK-1781.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re State of Louisiana, applying for writ of certiorari. Criminal District Court. No. 294-544. Parish of Orleans, Fourth Circuit Court of Appeal. No. K 0829.

Denied.


text:
    STATE of Louisiana, ex rel. Robert E. PITTMAN v. STATE of Louisiana.
    No. 81-KH-3073.
    Supreme Court of Louisiana.
    Nov. 4, 1983.
   In re Robert E. Pittman, applying for motion to substitute appointed counsel of record. Parish of Washington.

Denied.


text:
    STATE of Louisiana v. Edward JOHNSON.
    No. 83-KH-2287.
    Supreme Court of Louisiana.
    Nov. 11, 1983.
   In re Edward Johnson, applying for remedial writs. Parish of Jefferson, Twenty-fourth Judicial District Court.

Granted. Transferred to the district court for action.


text:
    STATE of Louisiana, ex rel. Jerome M. VICTOR v. Lyall G. SHIELDS.
    No. 82-KH-0961.
    Supreme Court of Louisiana.
    Nov. 11, 1983.
   In re Jerome M. Victor, applying for writ of mandamus. Orleans Parish. Nos. 272-703, 271-672.

Granted. The Court has considered relator’s application to withdraw his appeal and his now deceased attorney’s concurrence which was stated to the district court on June 24,1982. Accordingly, the application to withdraw the appeal is granted.


text:
    STATE of Louisiana, ex rel. Lionel BUCHANAN v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 83-KH-1424.
    Supreme Court of Louisiana.
    Nov. 11, 1983.
   In re Lionel Buchanan, applying for writ of certiorari, prohibition, mandamus or ha-beas corpus. Parish of Orleans. No. 286-398.

Granted. Relator is granted an out-of-time appeal to the Court of Appeal.


text:
    STATE of Louisiana, ex rel., Francis E. MULCAHY v. Fred SLIMAN, Sheriff In/and For the PARISH OF EAST BATON ROUGE.
    No. 83-KH-2129.
    Supreme Court of Louisiana.
    Nov. 11, 1983.
   In re Francis E. Mulcahy, applying for a writ of habeas corpus. Nineteenth Judicial District Court, Parish of East Baton Rouge. No. 6-78-105. First Circuit Court of Appeal. No. 88-KH-1103.

Granted and remanded. The district court must afford relator an opportunity to traverse the Commissioner’s report and make a de novo determination of the disputed findings and recommendations. See R.S. 13:713.


author: LANIER, Judge.

text:
    Jacqueline CARR v. SECRETARY OF STATE, et al.
    No. 83 CE 1105.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 4, 1983.
    Writs Denied Oct. 6 and Oct. 11, 1983.

      Cynthia D. Young, Baton Rouge, for James H. Brown, appellee.
    James R. Jenkins, Covington, for The Parish of St. Tammany, appellee.
    Jacqueline Carr, in pro per.
    Julian J. Rodrigue, Jr., Covington, for Absent Defendants, appellee.
    Delbert Talley, in pro per.
    Jerry Kenneth Sehwehm, in pro per.
    Before PONDER, COLE, SAVOIE, LA-NIER and ALFORD, JJ.
   LANIER, Judge.

This is a suit to enjoin the October 22, 1983 primary election for the St. Tammany Parish Police Jury. Made defendants are the Secretary of State of Louisiana (Secretary), the St. Tammany Parish Council (Council) and all candidates who qualified for the election. Candidate Jerry Kenneth Sehwehm filed declinatory and dilatory exceptions alleging insufficiency of service of process and improper use of summary procedure. The Secretary filed dilatory exceptions of prematurity and unauthorized use of summary proceedings, a peremptory exception of no cause of action and a motion to dismiss alleging that the “plaintiff has unduly delayed in seeking this injunctive relief and has by her own inaction forfeited her rights, if any, to a summary proceeding at this time.” The trial court sustained “the exceptions in the proceedings” and dismissed the suit. This devolutive appeal followed.

FACTS

On September 13,1980, the people of St. Tammany Parish (Parish) voted to adopt a home rule charter which provided for a Parish President and Parish Council ⅛ lieu of the Police Jury form of government. The new Parish Council was composed of 16 persons, two elected at large and 14 elected from single member districts. The 14 council districts were the same as the prior 14 Police Jury districts established by a 1979 federal court order. Jacqueline Carr represents Parish Council District 13.

On September 11,1982, the people of the Parish voted to repeal their home rule charter. On October 18,1982, suit (Vinturella v. Unangst) was filed contesting this election.

On January 20,1983, the Council adopted an ordinance to reapportion the 14 single member districts based on the 1980 census. This ordinance provided that the districts established would be “the Districts, for which persons shall qualify for election therefrom to the governing body of St. Tammany Parish, La., to take office on the 2nd. Monday in January, 1984”.

By letter dated May 31, 1983, the United States Department of Justice (Justice) advised the Council that it did not interpose any objection to the charter repeal election of September 11, 1983, or the change back to the Police Jury form of government.

On June 16, 1983, the trial in Vinturella v. Unangst was held in the district court. On July 12,1983, the trial judge ruled that the charter repeal election was valid. On July 22, 1983, an appeal of that judgment was taken to this court.

The qualifying period for candidates for the 14 seats on the Parish governing authority was July 25-29, 1983. On July 25, 1983, Jacqueline Carr qualified for the office of “POLICE JUROR/COUNCIL MEMBER, DISTRICT 13, ST. TAMMANY PARISH, LOUISIANA, PRESENT PLAN”. By letter dated July 26, 1983, the Attorney General of Louisiana advised the St. Tammany Parish District Attorney that since neither the Police Jury plan of government nor the 1983 reapportionment plan had been approved by Justice, the Parish was still under the councilmanic form of government, the reapportioned new Police Jury districts were not in effect, qualification papers should be accepted by the Clerk of Court for either councilman or police juror, a candidate who qualified for councilman could convert to police juror if the plan of government were approved and a candidate would run in the new Police Jury district if the reapportionment were approved.

On July 27, 1983, Carr requalified for the office of “Councilman Dist. 13 (redistricting plan in effect for the 1979 councilmanic elections, present district represented)”. Her qualifying papers of July 25,1983 were voided.

On July 27, 1983, Stanford Allen Owen qualified for “Parish Council Member-District 9”. On July 28,1983, Joseph M. Shoemaker, Jr. qualified for “Councilman District # 9”. On July 29, 1983, Raymond W. Ward qualified for “Parish Councilman, District 13”, Janice Marline Houston qualified for “Parish Council District 13”, and Willard J. Nolan qualified for “COUNCIL-MEMBER DISTRICT 13”.

By letter dated August 1, 1983, Justice advised the Council that it did not interpose any objection to the redistricting of the councilmanic districts.

On August 3, 1983, six of the candidates for the St. Tammany Parish governing authority filed suit (Sharp v. Brown) in the 19th Judicial District Court, Parish of East Baton Rouge, seeking to enjoin the October 22, 1983 primary election. Carr was not a party to this suit. The suit alleges that the judgment in Vinturella v. Unangst was on appeal and not final; the Attorney General of Louisiana advised that the Parish was still under the councilmanic form of government and that candidates for the parish governing authority could qualify for both councilman and police juror; the filing fee for these positions is different; the candidates qualified for the old districting plan; the new districting plan was approved after qualifying was closed and the candidates are now qualified in districts that no longer exist; and some candidates qualified for the offices of parish president and councilman-at-large which no longer exist. The suit asked that the Secretary be enjoined “from holding said election until it is determined which form of government, the Home Rule Charter or the Police Jury, shall govern this Parish and until this court can order qualifying reopened to allow qualifying in the districts as they now exist.” On August 9, 1983, the Clerk of Court of St. Tammany Parish (Clerk) intervened and requested that she either be ordered to recertify the candidates in the new districts or reopen the qualifying period to allow candidates to qualify in their correct districts. Also on August 9, 1983, candidate Schwehm intervened and objected to delaying the scheduled primary election. The original plaintiffs amended their petition on August 12, 1983, to provide that since the filing of the original petition they learned that the Police Jury plan of government was given preclearance by Justice by letter dated May 31, 1983; the qualifying for candidates for the governing authority of St. Tammany Parish should be for police juror in the new districts; and the Secretary should be enjoined from printing the ballots for the October 22, 1983 election until either the Clerk recertifies the candidates for the office of police juror in the new districts or the qualifying period was reopened and the candidates qualified for the proper office in the proper district. On August 17, 1983, a consent judgment was rendered in Sharp v. Brown ordering the Clerk to recertify the persons who qualified for the offices of councilman in the Parish as properly qualified for police juror in the new Police Jury districts. The Secretary was ordered to accept the recertification and print the election ballots accordingly. Carr, Ward and Nolan were recertified in the new District 13. Houston was recertified from old District 13 to new District 10. Owen and Shoemaker were recertified from old District 9 to new District 13.

Substantial differences exist between the old District 13 and the new one. The new one only has approximately one-sixth of the same geographical area of the old one, has approximately 3300 less people and has 50,-000 more acres. Carr lives in the common one-sixth portion of each district.

Carr first received actual knowledge of the judgment in Sharp v. Brown in the latter part of August 1983. Carr has not received legal notice of that ruling.

This court affirmed the trial court judgment in Vinturella v. Unangst, 440 So.2d 775 (La.App. 1st Cir.1983).

This suit was filed on September 19,1983. The trial court judgment was signed on September 23,1983, and the order of appeal was signed that same day.

CONSTITUTIONALITY OF FIVE-JUDGE PANEL

La. Const, of 1974, art. V, § 8(A) provides that each court of appeal “shall sit in panels of at least three judges selected according to rules adopted by the court.” By Act 506 of 1980, effective January 1, 1981, in all election cases involving objections to candidacy and contests of elections, the courts of appeal of Louisiana were required to sit and render judgment en banc. La.R.S. 18:1409(H). This legislation is constitutional. Regira v. Falsetta, 405 So.2d 825 (La.1981); Carrere v. Castano, 397 So.2d 798 (La.1981); Hargrave, Louisiana Constitutional Law, 43 La.L.Rev. 505-506 (1982). See also Rule 1-5, Uniform Rules, Courts of Appeal. By Act 137 of 1983, effective June 24, 1983, La.R.S. 18:1409(H) was amended to provide as follows:

The appellate court shall sit en banc in all election contests involving candidates for offices voted on throughout the state or throughout a congressional district, justice of the supreme court, judge of a court of appeal, membership on a state board or commission, district judge, district attorney or membership in the state legislature. In all other cases arising under this Chapter, the court may sit in panels of three or more as directed by the chief judge.

Carr contends that Act 137 of 1983 discriminates against local elected offices, is a suspect classification impinging on a fundamental right and is unconstitutional as a violation of the equal protection clauses of the United States and Louisiana Constitutions. Carr cites no federal or state jurisprudence to support this contention.

The law applicable to such a claim is accurately set forth in Williams v. Lallie Kemp Charity Hospital, 428 So.2d 1000, 1009-1010 (La.App. 1st Cir.1983), writ denied 434 So.2d 1093 (La.1983), as follows:

The Louisiana and federal constitutions both require equal protection of the laws. U.S. Const. Amend. XIV; La. Const, art. I, § 3. When a claim is made that a law violates these provisions, and the claimant belongs to a class receiving disparate treatment, a determination must be made as to whether the law impinges on a “fundamental right” or operates to the disadvantage of some “suspect class.” If the law does either of the above, it will be subject to strict scrutiny and be declared invalid unless it is shown that a “compelling governmental interest” exists; if neither a suspect class nor a fundamental right is involved, the test is whether the discriminatory treatment is supported by any rational basis reasonably related to the governmental interest sought to be advanced by it.
Suspect classes are those so recognized by the Supreme Court, and they involve classifications based on race, alienage, national origin, or some other attribute held by discrete and insular minorities.
The number of fundamental rights is likewise finite. Those that have been recognized include free speech, voting, interstate travel, fairness in the criminal process, fairness in procedures concerning governmental deprivations of life, liberty or property, and privacy.

Local governmental subdivisions and political subdivisions, as those terms are defined in La. Const, of 1974, art. VI, § 44(1) and (2), are not a suspect class recognized by the jurisprudence. There is no fundamental right to have a certain number of judges on an appellate court hear a person’s case (except the minimum number of three for the courts of appeal and the mandatory en banc for the Supreme Court required by the Louisiana Constitution). The Louisiana Constitution specifically authorizes the courts of appeal to sit in panels of three or more. Since Carr’s alleged discrimination does not involve a fundamental right or a suspect class, we must only determine if the discriminatory treatment provided by Act 137 is supported by any rational basis reasonably related to a governmental interest.

La.R.S. 18:1409(F) requires courts of appeal to hear an election case involving an objection to candidacy or a contest of an election within 48 hours after the record is lodged and render a' judgment within 24 hours after the case is argued. This is an expedited appeal that takes priority over other matters. The judges of the courts of appeal must leave their routine duties and assemble at the seat of the court to accommodate this requirement of the law. Because of the numerous elected state and local offices in this State, there are numerous election suits. The workload of the courts of appeal was significantly increased with the transfer of the criminal jurisdiction on July 1, 1982. To secure relief from this increased burden and the disruptions of the ordinary decision making process caused by election suits, the legislature of Louisiana, in part at the request of the courts of appeal, enacted Act 137. The distinction provided by Act 137 between candidates entitled to an en banc panel and those entitled only to a panel of three or more is essentially drawn (although not precisely) between offices in the executive, legislative and judicial branches of state government and offices of local government. (Compare Articles III, IV and V of the Louisiana Constitution of 1974 with Article VI.) The number of elected offices in the first category is significantly less than those in the latter. Act 137 provides significant relief to the heavy case burden presently carried by the courts of appeal of Louisiana, reduces disruption to the normal decision making process and does not affect the quality of justice. This is a rational basis reasonably related to a governmental interest. Act 137 is constitutional.

ENTITLEMENT TO INJUNCTION

Carr objects to her own candidacy [La.R.S. 18:1401(A) ] because she was rectified from candidate for Parish Council in old District 13 to candidate for Police Jury in new District 13 pursuant to a judgment rendered in litigation (Sharp v. Brown) to which she was not a party. Carr contends she is entitled to an injunction to prevent irreparable injury because she has been ordered to run in a district in which she does not choose to run. La.C.C.P. art. 3601; La.R.S. 18:1414; Cf. Perez v. Edwards, 336 So.2d 1072 (La.App. 1st Cir.1976), writs refused, 337 So.2d 519, 872 (La.1976). Carr cogently argues that the judgment in Sharp v. Brown is not binding on her because she was not a party to the suit. However, even if we assume this contention correct, Carr failed to demonstrate irreparable injury, loss or damage. When this suit was filed, the 1983 reapportionment plan and the Police Jury form of government had been approved by Justice and this court had upheld the validity of the Home Rule Charter repeal election. The Sharp v. Brown judgment recertified Carr as a Police Jury candidate in the new District 13 where she was domiciled because the old District 13 and the councilmanic form of government no longer existed. If Carr did not choose to run in the new District 13, she could have withdrawn her candidacy. La.R.S. 18:501-502.

The most serious claim urged by Carr is that as the incumbent from old District 13, she was entitled to run for office in any district carved out of that district, that she could have qualified in one of five new districts and that the judgment in Sharp v. Brown deprived her of the opportunity to do so. A candidate for parish governing authority in the next regular election following reapportionment of a district may qualify to run in any new district created in whole or in part by the reapportionment of the old district, if the candidate had been domiciled in the old district for at least one year immediately preceding his qualification. La. Const. of 1974, art. III, § 4(A) and (B); La.R.S. 33:1225; Nicholson v. Grisaffe, 438 So.2d 550 (La.1983); McCarter v. Broom, 377 So.2d 383 (La.App. 1st Cir.1979); Toldson v. Fair, 374 So.2d 759 (La.App. 2nd Cir.1979), writ denied 375 So.2d 1182 (La.1979). Justice did not approve the 1983 reapportionment plan and Carr was not recertified into the new District 13 until after the close of qualifications for office. Carr had the right to elect in which district she would run after these events occurred. Although La.R.S. 18:469 only provides for the reopening of the qualifying period when a candidate in a primary election dies or no candidate has qualified, this statute cannot be interpreted to deprive a candidate of the right to elect which district in which to run granted by Article 3, Section 4 of the Louisiana Constitution. However, Carr has not attempted to exercise this right. She has not withdrawn her candidacy from the new District 13 and she has not attempted to requalify in another authorized district. Carr has not requested in the trial court or this court that she be allowed to do so. Had Carr attempted to do these things and been denied the right to do so, this case would be in a different posture. Because she did not, she cannot now prevail. Even if Carr had done these things, she would not be entitled to enjoin all of the district elections in the Parish. She would only be entitled to enjoin the election in the district in which she elected to run.

Carr asserts in her petition that the 1983 reapportionment plan for the Parish governing authority is unconstitutional because it does not adhere to the “one man-one vote” concept. Carr also alleges that she has filed a complaint in federal district court to enjoin the election on that basis. In the prayer of her petition, Carr seeks to enjoin the primary elections for the Parish governing authority until a proper reapportionment plan is adopted.

The reapportionment of the Parish governing authority was the subject of a 1979 federal court judgment. Any change in that plan must be approved by the federal court. 42 U.S.C. 1973, et seq. We are not the proper forum to grant this portion of the relief sought.

CONCLUSION

For the foregoing reasons, the judgment of the trial court dismissing Carr’s petition for an injunction is affirmed at her costs.

AFFIRMED.


author: GULOTTA, Judge. REDMANN, Chief Judge,

text:
    SUCCESSION OF Henry LYONS.
    No. CA-0635.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 6, 1983.
    Rehearing Denied Nov. 22, 1983.
    Writ Granted Jan. 27, 1984.
    James H. Minge, New Orleans, for appellant.
    Milton E. Brener, New Orleans, for appel-lee.
    Before REDMANN, GULOTTA, GARRISON, BARRY and LOBRANO, JJ.
   GULOTTA, Judge.

In this will contest, Henry Lyons, a nephew of the decedent (Henry Lyons, Sr.) appeals from a judgment annulling the December 14, 1981 olographic will, which names the nephew as universal legatee.

The two-pronged attack in the trial court was that the will was not in the testator’s handwriting and that the testator lacked testamentary capacity. The trial judge concluded that the will “was written and signed by the decedent”, but did “not believe that the decedent had testamentary capacity on the day the Will was written.”

The primary thrust in this appeal by the proponent is the trial court erred in concluding that decedent lack testamentary capacity. Supplemental briefs, however, discuss the issue whether the will was written by the testator.

Because we conclude the opponents of the will failed to carry the required burden of proof to show lack of testamentary capacity, we reverse.

TESTATOR’S HANDWRITING

The one page will reads as follows:

“December 14, 1981”
“I Henry Lyons Sr a resident of 2822 Louisiana Avenue New Orleans Louisiana make this my last will and testament I Bequeath all of the property that I own at the time of my Death to my nephew Henry Lyons I appoint him executor of my estate with full and free Seizin and Dispensed from giving any Security This my will written, dated and is signed by me at New Orleans Louisiana in my own handwriting on this 14th day of December 1981.”
“Henry Lyons”
“One page only”

The testimony regarding the testator’s handwriting was contradictory. Henry Lyons, the universal legatee, and decedent’s niece, Velma Dennis, both testified that the will was in the decedent’s handwriting. Their testimony was buttressed by that of Cy Courtney, a handwriting expert, who compared other writings of the decedent, including a 1951 letter and envelope, and a 1980 Christmas card and envelope, together with a NOPSI identification card bearing the testator’s signature.

On the other hand, the testator’s niece, Geraldine Lyons Miller, and testator’s nephews, Walter and Blaine Clay, testified that the will was not in the testator’s handwriting. Another niece, Rosedale Lyons, stated that portions of the will did not appear to be in the decedent’s handwriting, particularly the testator’s signature.

Opponents point out as significant the testimony of a niece and nephew who stated that their late uncle had never used the name, Henry Lyons, Sr., as it appeared in the olographic will. Although it is apparent (from a comparison of the will with earlier writing of the decedent) that the testator did not refer to himself as Henry Lyons, Sr., we place no such importance on this difference. The will was not signed Henry Lyons, Sr., and the only reference to the use of Sr. is in the body of the will, which was prepared by an attorney as a form for the decedent to follow in writing the will.

When we consider the contradictory lay testimony together with that of the handwriting expert, we cannot say the trial judge erred in finding that the will “was written and signed by the decedent, Henry Lyons.”

TESTAMENTARY CAPACITY

Having so concluded, we are now confronted with the primary thrust of the proponent’s appeal, i.e. the question of the testator’s testamentary capacity.

Well-settled is the rule that testamentary capacity is presumed, and that a person attacking the will has the burden of proving lack of capacity at the time the will was executed such that the testator was not sufficiently sound of mind to understand fully the nature of the testamentary act and appreciate its effect. See Artigue v. Artigue, 210 La. 208, 26 So.2d 699 (1946); Succession of Orlando, 419 So.2d 559 (La.App. 4th Cir.1982); and Succession of Zinsel, 360 So.2d 587 (La.App. 4th Cir.1978), writ denied 363 So.2d 72 (La.1978).

It is also well-settled that the degree of proof required to overcome the presumption of testamentary capacity is similar to that required of the prosecution to rebut the presumption of innocence in a criminal case: The opponent of the will must prove beyond a reasonable doubt that, at the time the will was made, the testator did not have sufficient knowledge and understanding of his action. See Succession of Lambert, 185 La. 416, 169 So. 453 (1936); Succession of Dubos, 422 So.2d 444 (La.App. 4th Cir.1982); writ denied 429 So.2d 132 (La.1983); Succession of Orlando, supra; and Succ. of Collins v. Hebert, 377 So.2d 516 (La.App. 3rd Cir.1979), writ denied 379 So.2d 15 (La.1980).

While the evidence, again, is contradictory regarding testamentary capacity, of significance is the absence of evidence showing lack of testamentary capacity at the time the will was written on December 14, 1981.

Henry Lyons, decedent’s nephew, testified that he had brought the decedent to the hospital on December 11, 1981. On December 14, the day of the writing of the will, he brought the form prepared by an attorney for use by the decedent in writing the olographic will. According to the nephew, at approximately 1:30 a.m. on December 15, the testator gave him an unsealed envelope containing the December 14 will.

Velma Dennis, one of decedent’s nieces, stated she had visited her uncle regularly during 1981, and had seen him on more than five occasions during his hospitalization in December. Her last visit was on the weekend before decedent’s death on Thursday, February 5, 1982. She observed on these visits that the decedent was alert and apparently aware, and that his mind was clear. Although she could not state that she had seen her uncle on December 14, she did testify that she had visited him the second day after he became hospitalized on December 11, and approximately every other day thereafter.

Wayne Lyons, the universal legatee’s son and decedent’s great-nephew, last saw the testator in the hospital on December 21, 1981. According to this witness, the decedent appeared to be aware of what was going on around him, did not seem confused, and appeared to be able to take care of himself. Wayne did not see the decedent on December 14, the day of the writing of the will.

The nurses’ notes during decedent’s hospitalization are especially illuminating. On December 14, despite a temperature of up to 101.9° (noted by the trial judge in written reasons), the decedent was “easily aroused” at 12 a.m., was “alert” at 7:30 a.m. and was “alert and oriented” at 4 p.m. The nurses’ notes indicated that at 10 p.m. on December 12, the decedent was “easily aroused” and “alert and oriented”. The notes further reflect that the decedent was observed reading at 11 a.m. on December 13, and exhibited a good appetite on December 13, 14 and 15.

Witnesses testifying regarding decedent’s lack of testamentary capacity included, for the most part, nephews and nieces who would benefit from an earlier will if the December 14 olographic will were held invalid. One of those nieces, a registered nurse supervisor, saw the decedent on one occasion, on the Sunday before decedent’s Wednesday, December 30 surgery. At another place in her testimony, she stated that this visit occurred one week before the surgery. This witness observed during her 45 minute visit that her uncle was confused and disoriented.

Another niece, who visited the decedent at the hospital either every day or every other day, stated that decedent had “good days and bad days.” She visited on December 13, 16, and 19. Regarding her December 13 visit, she stated the decedent was in “very bad shape.”

Although an opponent nephew stated that his uncle was disoriented while in the hospital, his brother indicated that several times during his hospitalization his uncle “made sense”. Another niece testified that when she first visited her uncle about his fourth day in the hospital, he did not seem to understand what was going on.

Another of decedent’s nieces testified that her uncle was incoherent during his hospitalization, but that on December 19, the decedent had signed checks and, although he needed help with his signature, he had understood what he was signing and what the money was for.

Decedent was first seen by his general surgeon on December 16, 1981 for approximately 5 or 10 minutes, and again on the following day. He performed the operation on the decedent on December 30. This physician observed that he had difficulty communicating with the decedent who would only understand after much repetition. He did not think decedent would understand exactly what he was signing regarding any business matters or disposition of his property. This opinion is suspect, however, considering that the decedent had signed consent forms on December 11, December 21 and December 29, for emergency treatment and operative procedures.

This evidence considered, we are led to conclude that the trial judge erred in finding that decedent had lacked testamentary capacity at the time the will was written. We differ from the trial judge not on credibility, but on the sufficiency of the evidence. The opponents failed to overcome the presumption of testamentary capacity and to establish beyond a reasonable doubt that the testator lacked capacity when the will was made. Significantly, none of the witnesses offered by the opponent specifically stated that on December 14 the decedent had been disoriented to a point where he had not understood the nature of a disposition. Furthermore, the nurses’ notes on the day before, the day of, and day after the writing of the will indicated that the decedent was alert and oriented.

Accordingly, the judgment of the trial court dismissing the petition of Henry Augustus Lyons offering for probate the olo-graphic will dated December 14, 1981, is reversed and set aside. This matter is remanded to the trial court for further proceedings consistent herewith.

REVERSED AND SET ASIDE; REMANDED.

REDMANN, C.J., dissents and assigns reasons.

REDMANN, Chief Judge,

dissenting.

Comparison of the will — especially its signature, whose being traced twice is evident to the naked eye — with the admitted specimens of decedent’s handwriting demonstrates that the will is a forgery.

Yet it is not, of course, the burden of the opponents of a questioned will to prove forgery; rather, as La.C.C.P. 2903 expressly declares, it is the burden of the will’s proponent to prove its genuineness.

The trial judge manifestly erred in his two-line obiter dictum finding (in the course of declaring the will invalid for lack of testamentary capacity) that the will is in decedent’s handwriting — implying that proponent had carried the burden of proof.

The only conceivable explanation for that finding by the trial judge is that, instead of himself comparing the handwritings, he merely relied on the conclusion expressed by a witness accepted as an expert — a conclusion unsupported by any underlying factual assertions save that the expert had compared Hs and Ls in Henry and Lyons and concluded that the Ls (not the Hs and Ls) “were in range of [decedent’s] writing.”

A forgery is, by definition, a deliberate attempt to create handwriting that looks like the imitated writing. Thus the fact that there is some similarity to the imitated writing is always present in the case of a forgery. That Ls (or Hs and Ls) in this will are similar to decedent’s does not prove, in the face of the many and consistent dissimilarities, that this will was written by decedent.

Perhaps the worst thing about this will is its signature. The naked eye can see that it consists of two “signatures,” one in light ballpoint ink over which there is traced a second, in visibly different-colored, darker, liquid ink (the same -as that used for the body of the will). The signature appears to have been first traced onto the paper using the lighter ink, and then traced over in the heavier ink. The lighter ink is often visible to the naked eye, because not always covered by the darker ink: in the bottom half of the first downstroke and under the cross-stroke of the H, in the loop of the e, on the underside of the first arch of the n, almost throughout the L and y, on the underside of the second arch of the second n, and under the final stroke of the s. With the slight enlargement of a two-power magnifying glass, the ballpoint writing is visible elsewhere and, in the fluorescent lighting of the writer’s office, the ballpoint ink has a reddish east to it that is not present elsewhere in the will (not even in the written-over word “with” at the end of the ninth line, apparently written over as if the pen’s two nibs had spread apart, or perhaps the pen had been turned, as appears elsewhere in the will, at an angle, so that ink flow was interrupted). That reddish cast is visible through the darker ink when it covers the lighter ink, and it is present throughout the signature, from start to finish — including in the unprecedented double line in the bottom of the H’s initial downstroke (apparently an error made in the ballpoint tracing that was repeated in the dark ink overtracing, to conceal it).

Photocopies of the known samples of decedent’s writing and of the will are attached as an appendix.

A lay witness called attention to the difference between the will’s Hs and Ws and those of the decedent’s writing.

The decedent’s Ws (from the 1951 letter, save the last, from the 1980 Christmas card):

The will’s Ws:

Every one of the 11 known sample Ws has center strokes (where, in effect, double Us join to form a W) very much higher than the side strokes — perhaps twice as high or higher (as if a double J, with the second J backwards). There are ten Ws in the will, and not a single one has its center strokes higher than the side strokes. Every one of decedent’s six Ws beginning a word has a circle-like stroke at its start, and not a one of the four initial Ws in the will does. Not a one of decedent’s eight non-terminal Ws joins itself to the letter following it, while every one of the will’s four non-terminal Ws does.

The Hs are not here photocopied (although they may be inspected in the appended photocopies of the entire documents), because proponent’s expert said he compared the Hs (and Ls, “from the writing of Henry and the word Lyons,” that is, from the signatures or other instances of “Henry” and “Lyons”). The point of this dissent is not to argue with what that expert said, but to argue that he did not say enough to constitute proof of a will attacked as a forgery; and it was proponent’s burden to prove that the will was written, dated and signed by decedent.

There are many other repeated discrepancies, a few of which are here illustrated.

Decedent’s personal pronoun “I” (six from the letter, one from the card) is unfailingly a small i, half a line tall, with upstroke and downstroke never crossing:

The will’s “I” is a small 1 with a dot above it, a full line tall, with upstroke and down-stroke crossing near the bottom to form a clear loop:

Decedent’s small f, on its return from its below-the-line loop, barely touches its vertical stroke before returning to a rightward course:

The will’s f, on its return from its below- its vertical stroke before returning right-the-line loop, proceeds far to the left across ward:

Decedent’s capital B is made with a single cursive stroke, down then looping to the left and back up across its top:

The will’s capital B is made with two strokes, as if made beginning from the bottom of the line and completed, and then adding a second vertical stroke, a straight line:

Decedent’s number 8 is made with a single cursive stroke:

The will’s 8 is made with two strokes, one in the form of an S and the second a straight line joining its ends:

There are other discrepancies, such as the capital S and the small d, p, r and y. (The r gave the will-writer much trouble: the will’s first “December” and last “from” have their r written first without decedent’s characteristic circular stroke at its left top, and then the pen returns to make an evident addition of that circular stroke; and in two places that circular stroke is first made, but then the writer’s own habit took over, for he added after the circle another full but uncircled r — making the words appear to be “propeerty” and “feree.”)

Against this mass of evidence from the will and the known samples of decedent’s handwriting in evidence, proponent offered nothing save the undetailed conclusion of himself and a niece of decedent (whose known self-interest was to defeat rather than support the will) that the will was in decedent’s handwriting, and the virtually undetailed testimony of a handwriting expert. That expert testified that he

“took out the incident [sic] writing of Henry and the word Lyons.... I then mounted the H and capital L on the line in a descent [sic; descending?] order of size .... I was able to find instant [sic; incidence? coincidence?] or near instant L within range. All the L’s were in range of his writing in the L writing and I concluded that these were written by the same hand.”

That expert does not discuss a single other letter or characteristic of decedent’s writing or of the will (and he does not even testify that the Hs appear to be written by the same hand).

It must be said that opponents had employed some purported handwriting expert, yet did not call him or her to testify. But the only inference from failing to call that possible witness is that that witness (of undisclosed qualification, if any; only two persons claiming to be handwriting experts are listed from the New Orleans area in the current classified telephone directory) would not have testified that the will was written in another hand.

But proponent’s evidence and that inference do not come close to overcoming the evidence from the will and the known specimens of decedent’s writing-^do not come close to proving that the will was written, dated and signed by decedent.

The judgment appealed from, refusing probate to this will on other grounds, should be affirmed on the ground that proponent did not bear the burden of proving that the will was “written, dated and signed by the hand of the testator,” C.C. 1588.

      . In the original briefs filed in this court, the sole issue presented was testator’s mental capacity. During oral argument, however, the panel expressed concern about the propriety of remanding the matter or deciding in this court if a serious question arose in the panel’s deliberations concerning the genuineness of the testator’s handwriting. Supplemental briefs addressed to this issue were requested, and that aspect of the matter is also now before us.