author: KNOLL, Judge.

text:
    Carl SENEGAL, Plaintiff-Appellant, v. GEORGE THERIOT’S, INC., et al., Defendant-Appellee.
    No. 83-383.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 1984.
    Rehearing Denied Feb. 29, 1984.
    Writ Denied April 13, 1984.

      Carl Senegal, in pro. per.
    David R. Lestage, DeRidder, Raggio, Cappel, Chozen & Berniard, Chris M. Tra-han, Lake Charles, for defendant-appellee.
    Before FORET, YELVERTON and KNOLL, JJ.
   KNOLL, Judge.

This appeal involves a claim for damages arising from a scuffle in Theriot’s grocery store between a security guard for the store and plaintiff, Carl Senegal. During the scuffle, the security guard shot the plaintiff in the left leg.

Senegal brought a tort action against George Theriot’s, Inc.; Benjamin Williams; United States Fidelity and Guaranty Insurance, the insurer of Theriot and Williams; Wayne McElveen, the Sheriff of Calcasieu Parish (Williams was an off-duty sheriff’s deputy), and his insurers, North River Insurance and International Surplus Insurance. After a jury trial, verdict was rendered in favor of the various defendants and against the plaintiff, Carl Senegal.

Plaintiff has raised one issue on appeal

(1) Whether the jury erred in its conclusions regarding the facts surrounding appellant’s shooting.

Carl Senegal made several trips to Theri-ot’s grocery on July 5, 1980. It is clear that the first time Senegal entered the store he was asked to leave because he was not wearing a shirt as required by the store regulations. The store personnel decided not to make an issue of this and let him enter. Later in the day Senegal returned to the store wearing a sheet of newspaper with a hole in it for his head as a substitute for a shirt. The assistant manager, Carolyn A. Winstead, told Senegal to leave and not to return without wearing a shirt. Senegal left the grocery store and again returned wearing a sheet of newspaper for a shirt. The cashier attempted to handle the matter quietly by letting him get the item he needed. The security guard for the grocery store, Benjamin Williams, came over to talk to Senegal to make Senegal aware of the store’s shirt policy and asked him to leave the store. Senegal began arguing and pointed his finger at Carolyn A. Winstead, calling her a profane name, and verbally threatened her by saying that he would return to the store and would get her first. As Senegal left the store, Carolyn Winstead called the sheriffs office for assistance. A short while later Senegal returned to the store wearing a blue tank top shirt. Benjamin Williams met Senegal at the door. A brief conversation was held and suddenly a scuffle ensued. Carolyn A. Winstead saw Senegal’s hand and William’s hand on William’s gun. The struggle continued until the pistol went off wounding Senegal in the left leg.

Plaintiff attempted to show that he was leaving the scene prior to the shooting or, at least, he was retreating. The defendants provided the testimony of plaintiff’s treating physician and the scientific results of gunpowder residue tests administered to plaintiff just after the incident, which show the entry wound to be in the front of the leg.

Dr. William Akins treated Senegal in the emergency room after the shooting. It was Dr. Akins’ opinion that plaintiff’s leg wound was caused by a bullet entering the front of the thigh and existing on the backside of the thigh. Senegal introduced the medical records of the emergency room which contained a notation by Dr. Ray which indicated the entry wound to be in the back of the thigh and the exit wound to be in the front of the thigh. Dr. Ray was not Senegal’s treating physician, but just received him in the emergency room.

The jury was presented with this evidence. It is well settled that where there is conflicting testimony, a reasonable evaluation of credibility made by the trier of facts should not be disturbed on appellate review unless manifestly erroneous. Zone v. Town of Bunkie, 407 So.2d 1351 (La.App. 3rd Cir.1981); Canter v. Koehring Company, 283 So.2d 716 (La.1973). Our review of the record fails to reveal any clear error in the factual findings evidently reached by the jury in this case. We will not disturb the jury’s findings.

In a related issue Senegal complains for the first time on appeal that the evidence concerning the results of the gunpowder residue tests should have been withheld from the jury because the test themselves had been destroyed. The test results were testified to by experts from the state crime lab. Plaintiff’s attorney cross-examined the expert and at no point objected to the introduction of the test results. Any complaint which plaintiff had concerning the test results was waived since he did not timely object to such testimony in the trial court. LSA-C.C.P. Art. 1635. To preserve a party’s right to urge error on appeal, it is necessary to make formal objection to admissibility or competency of evidence sought to be introduced. Coleman v. Occidental Life Ins. Co. of N.C., 407 So.2d 6 (La.App. 3rd Cir.1981) reversed on other grounds, 418 So.2d 645 (La.1982).

For the foregoing reasons the judgment of the trial court is affirmed.

AFFIRMED.

      . Plaintiff made 4 assignments of error. One error complained that the trial court failed to state the factual basis for its verdict — this is not a requirement of the Louisiana Code of Civil Procedure and therefore will not be addressed. The second assignment of error is a statement of fact by the appellant and does not present a legal issue for us to determine. The remaining assignments of error will be treated in one assignment as discussed above.


source: Caselaw Access Project

author: DOMENGEAUX, Judge.

license: Public Domain

text:
    Junius DEROUEN, Plaintiff-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, et al., Defendants-Appellees.
    No. 83-408.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 1984.
    Rehearing Denied Feb. 29, 1984.

      J. Michael Placer, Lafayette, for plaintiff-appellant.
    Roy, Forrest & Lopresto, L. Albert Forrest, Armentor & Wattigny, Minos H. Ar-mentor, New Iberia, for defendants-appel-lees.
    Before DOMENGEAUX, DOUCET and LABORDE, JJ.
   DOMENGEAUX, Judge.

The case before us was previously remanded to the trial court to consider the liability of the defendants, Evelyn M. Jean-Louis and her insurer, State Farm Mutual Automobile Insurance Company. Proceedings were initially instituted by plaintiff-appellant, Junius Derouen, against defendants-appellees, City of New Iberia, Evelyn M. Jean-Louis, and her liability insurer, State Farm Mutual Automobile Insurance Company. Plaintiff sought to recover for personal injuries and property damages allegedly resulting from an automobile accident which occurred at the intersection of Robertson and Corinne Streets in the City of New Iberia. Thereafter, New Iberia filed a third party claim against defendants, Jean-Louis and State Farm, who in turn reconvened against it. After the plaintiff had rested, the trial judge granted a motion for a directed verdict moved for by Jean-Louis and State Farm dismissing those defendants from the law suit. Following trial, judgment was rendered in favor of New Iberia against the plaintiff, dismissing plaintiff’s suit at his costs. Plaintiff then appealed against all defendants. In our review of that case, published as Derouen v. City of New Iberia, et al., 415 So.2d 596 (La.App. 3rd Cir.1982), we reversed the trial court and ordered judgment in favor of the plaintiff and against the City of New Iberia. We further ordered that the judgment of the lower court granting defendants, Jean-Louis and State Farm’s motion for a directed verdict be reversed and we remanded the matter to the district court to allow Jean-Louis and State Farm the opportunity to introduce evidence in their defense in order to determine whether or not they should be held solidarily liable with defendant City. After trial of the matter on remand the district court granted judgment dismissing the demands of the plaintiff against Jean-Louis and State Farm. Plaintiff has perfected this appeal of that judgment and the controversy is therefore before us for the second time.

On August 31, 1978, an electric semaphore traffic signal controlling the intersection of Robertson and Corinne Streets was malfunctioning. Plaintiff entered that intersection while traveling east on Robertson Street and as he proceeded through the intersection his vehicle was struck on the right rear side by defendant Jean-Louis’ vehicle which was traveling north on Corinne Street.

At trial the police officer who investigated the accident, Officer Lacy, gave two different versions of the manner in which the light was malfunctioning: In his report, his deposition, and in the predominant part of his testimony at trial he claimed that when the light was malfunctioning plaintiff had a green light and defendant Jean-Louis had no light at all; conversely, in his deposition and in response to cross-examination based on that isolated statement in his deposition, he said that when the light malfunctioned defendant Jean-Louis had a green light and plaintiff had no light at all. On original hearing we held that it was manifestly erroneous for the trial court to base its judgment entirely on the last version and determined that the most credible version of the officer’s conclusion concerning the light operation was to be found in the report prepared the day of the accident. That report states that on some cycles plaintiff’s signal showed green and defendant’s signal showed no color at all. Therefore we found the evidence to preponderate in favor of the plaintiff who claimed to have had the right-of-way as he proceeded into the intersection.

On remand the investigating officer testified that despite the vacillations and contradictions in his prior testimony his best recollection' was that the light would be green facing traffic driving north on Corinne and would be a blank or no light at all, facing traffic traveling east on Robertson. The trial judge in his written reasons for judgment stated:

“Despite his [Officer Lacy’s] confusion, the Court has to conclude, for whatever it is worth, that his statement was as is shown above, and, to that extent, that it favors defendants Jean-Louis and State Farm Insurance Company.
* * * * * *
Unfortunately, the testimony of the Jean-Louis’ driver and passenger had to be presented to the Court by deposition. Jean-Louis’ passenger, ..., was dead at the time of remand trial. The Jean-Louis’ driver was committed to an institution at the time of remand trial. Everyone agrees they were not available. The depositions were accepted into evidence. They both state clearly that they were faced with a green light at the time they entered this intersection.
There is no evidence whatsoever to contradict the evidence given by the Jean-Louis’ driver and passenger. The only other evidence whatsoever is the evidence of Officer Lacy, confused as it was, and it supports the testimony of the Jean-Louis’. If we consider that it was impossible for both drivers to have had a green light (although both experts said anything was possible) then there are no physical facts or evidence whatsoever to show negligence of the Jean-Louis’. It is true that the Derouen vehicle preceded the Jean-Louis vehicle, by a few feet, into the intersection so that the front of the Jean-Louis’ car struck the right rear of Derouen’s car. Derouen also admitted that he sped up when he saw them coming, which could account for his being slightly further into the intersection than they. The Court does not believe that this would constitute preemption of the intersection, under applicable principles;
The Court has another reason for believing that the Jean-Louis car did not enter Robertson Street on an adverse light or without stopping if no light was visible. Robertson Street is a much more heavily traveled, wider street. Anyone who lives in the City of New Iberia would automatically, upon entering Robertson Street, (unless completely heedless of his own safety) slow down and observe traffic conditions on this major east-west thoroughfare. The evidence clearly shows that the southwest corner (the corner between the drivers of these vehicles) was a blind corner making it impossible for the drivers to see one another until they were almost in the intersection.
The Court takes into consideration all of the evidence of the first hearing and the evidence of the remand in deciding this case. As stated previously, Robertson is an «unusually wide street and is the major east-west thoroughfare between Iberia Street and Hopkins Street some ten blocks distant. There are a great number of businesses located on this street, as well as on Hopkins Street to the west, as well as on Iberia Street to the east. Robertson Street has no stop signs on it except for one 4-way stop sign at one intersection near Iberia Street. The other east-west streets in the area all have stop signs giving north-south traffic the right of way. It is a matter of common knowledge that traffic entering Robertson Street (on those streets not controlled by a semaphore light) has to be extremely cautious in entering Robertson Street. The corner of the -intersection, located between the drivers of these two vehicles at the time, had a house built very close to the corner. There was a large bush growing directly on the corner which makes it almost a blind intersection. The Court finds it very difficult to believe, under the circumstances, that the driver of the Jean-Louis vehicle would have entered Robertson Street on a red light or on a signal not showing any light, without stopping — and without checking for traffic on Robertson Street.
* * * * * *
As the Court sees the matter, Der-ouen, the plaintiff, is under the burden of proving by a preponderance of the evidence that it was the negligence of the Jean-Louis’ which caused this intersec-tional collision. Taking into consideration the evidence of Officer Lacy; the evidence of the driver and passenger in the Jean-Louis’ vehicle; as well as the improbability of a driver entering a main thoroughfare from a lesser street, on an unfavorable light, the Court cannot say that the plaintiff, Junius Derouen, has discharged his burden of proving, by a preponderance of the evidence, the negligence of the Jean-Louis’.”

We agree with the trial judge that the doctrine of preemption does not apply because before a motorist can successfully rely upon that doctrine, he must show he entered the intersection at a proper speed sufficiently in advance of the adverse vehicle without requiring any emergency action by the adverse vehicle. Abshire v. Southern Farm Bureau Casualty Insurance Company, 346 So.2d 1354 (La.App. 3rd Cir.1977); Fontenot v. State Farm Mutual Insurance Company, 345 So.2d 186 (La.App. 3rd Cir.1977). The facts here clearly do not indicate that to be the case because the Derouen vehicle preceded the Jean-Louis vehicle only by a few feet and as the trial judge pointed out in his written reasons for judgment that could be accounted for by the plaintiffs admission that he sped up when he saw the defendant’s automobile approaching.

It is fundamental law that a plaintiff bears the burden of proving his case. Ashford v. Richards, 228 So.2d 530 (La.App. 1st Cir.1969). Further, negligence must be established with reasonable certainty and by a preponderance of the evidence: The showing of a near possibility or probability of negligence is insufficient. Mayes v. McKeithen, 213 So.2d 340 (La.App. 1st Cir.1968), writ refused 215 So.2d 130 (La.1968). We agree with the trial judge that plaintiff has not established negligence on the defendant’s part but has merely shown the possibility of negligence. As pointed out by the trial judge there is no evidence that effectively rebuts the testimony of the Jean-Louis’ that they did not proceed through the intersection with the traffic light indicating a green signal. That being the case, negligence of the defendant has not been proven. On the record before us we cannot say the trial judge committed manifest error in dismissing plaintiff’s demand on the basis that he had not proved negligence on the part of the driver of the Jean-Louis vehicle.

For the above and foregoing reasons the judgment of the trial court is affirmed.

AFFIRMED.

      . Plaintiff relies upon the language in our earlier decision which indicates he had the right-of-way. However, that decision did not address the factual determinations relevant here but rather held the City of New Iberia to be liable because of its malfunctioning light and the City’s failure to show negligence on the part of Derouen, the plaintiff. The purpose of this appeal is to decide the preponderance of the evidence as between the plaintiff and the driver of the Jean-Louis vehicle.


author: DOUCET, Judge.

text:
    Verena Hargrove FEAZELL, Plaintiff-Appellant, v. John A. FEAZELL, Jr., Defendant-Appellee.
    No. 83-435.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 1984.

      David A. Sheffield, Alexandria, for plaintiff-appellant.
    • Lauve & Hill, Blaise Hill, Alexandria, for defendant-appellee.
    Before DOMENGEAUX, DOUCET and LABORDE, JJ.
   DOUCET, Judge.

Plaintiff, Yerena Hargrove Feazell, filed a rule to have past due alimony and child support made executory, wherein she sought attorney’s fees, court costs and an order holding her ex-husband in contempt of court. The trial judge found the defendant, John A. Feazell, Jr., was indeed behind in alimony and child support payments, however, the defendant was given credit for payments made to third parties allegedly at plaintiff’s request. Plaintiff appeals. We affirm.

The parties were divorced by decree dated March 19, 1976, wherein defendant was ordered to pay alimony in the sum of $200.00 per month and provide support for the parties’ three minor children in the sum of $300.00 per month. Thereafter, plaintiff obtained a Judgment for Arrearages on June 6, 1976 whereby plaintiff avoided contempt by agreeing to pay past due sums at the rate of $100.00 per month. On August 1, 1976, defendant obtained a reduction in alimony to $100.00 per month. The present Rule for Arrearages sought clarification of the amount due from August 1, 1976 through December 1981. By stipulation it was agreed that defendant was $200.00 in arrears, on the aforementioned arrearages judgment, for the period of July 1976 through May 1977. In addition, defendant was in default at the rate of $400.00 per month from June 1977 through December 1981.

Included in the dispute is whether some of the checks which defendant gave plaintiff at Christmas time in 1977-1981 should be credited against the past due alimony and child support payments. The trial judge found that the checks in question should be credited against the arrearage, except one check payable to the order of “Cash” in the sum of $100.00.

Disagreement also exists pertaining to checks issued by Mr. Feazell with notations such as “clothes”, “school supplies” and “doctor’s bills”. Plaintiff resists any credit for these items.

Another group of checks, totaling $4,145.82, payable to third parties, are also in dispute. The trial judge found that all of these checks, less those payable to the Tioga Baptist Academy in the sum of totaling $400.00, and Central State Life Insurance Company, totaling $394.67, should be credited. Thus the trial court was of the opinion that the cost of private school tuition and burial insurance should be borne by Mr. Feazell alone.

Payments totaling $956.08 which were made by defendant to Wabash Insurance Company are also in dispute. These payments were for hospital insurance and the trial judge agreed with defendant that plaintiff had requested defendant to take out the insurance.

After deducting those amounts which the trial judge found should be credited from the arrearage of $27,200.00, a balance of $2,703.38 remained, and that amount was made executory. Additionally, plaintiff was awarded $500.00 attorney’s fees and all costs. The trial court did not hold the defendant in contempt, being of the opinion that the defendant made a serious good faith attempt to meet his court-ordered obligations.

Appellant maintains the trial court erred in its calculation of alimony in arrears and further erred in allowing the aforementioned credits.

John A. Feazell, Jr. filed into evidence checks made payable directly to the plaintiff during the period of time covered by the hearing. The only resistance offered by the plaintiff in rule to this credit was her claim that she allocated $300.00 each year to Christmas gifts for the children, and considered the defendant to be in default by that amount each year. Mrs. Fea: zell testified that those additional sums were 'Volunteered each Christmas by Mr. Feazell. Mr. Feazell testified that the plaintiff requested some additional funds each Christmas, made payable directly to her order, and she was permitted to spend those funds in any manner in which she desired. A notation on the check shows “Christmas for children”. There was no testimony as to who made the notation on that check although there was an admission on the part of Verena Hargrove Fea-zell that she made various notations on each of the checks as received. Notably, during this month, there was no so-called alimony and child support check. It is plaintiffs position that these payments were intended to be in addition to any other support and she would purchase gifts for the children on the father’s behalf.

With regard to payments made to third parties, the plaintiff resists the allowance of this credit by citing to this Court the jurisprudence to the effect that a party who is the payee of an alimony and child support judgment is entitled to spend the payments as that party chooses, and that if the payor makes unilateral payments to some third party, which benefits the persons whom the payor is required to support, then no credit for those payments is received. Odum v. Odum, 273 So.2d 576 (La.App. 1st Cir.1973); Thompson v. Cour-ville, 372 So.2d 579 (La.App. 3rd Cir.1979). Defendant contends his actions were not unilateral, rather, payments by him to dentists, doctors and other third parties on behalf- of the children and Mrs. Feazell, were made at her request. Thus, Mr. Fea-zell claims he is entitled to a credit against the alimony and child support obligation owed to Mrs. Feazell.

The record indicates that Yerena Hargrove Feazell would request John A. Feazell, Jr. to make payments direct to the third parties from “her money”. Among these third party payments are two checks, with regard to which Mrs. Feazell admits that she had placed these clothes on layaway for the children near school time, and desired that Mr. Feazell make those payments on her behalf. Two other payments are as follows: 1) Central State Life Insurance Company $394.68, 2) Tioga Baptist Academy $400.00. Defendant acknowledges that these were made by him on his own accord, and therefore, no credit is owing for these two payments.

Mrs. Feazell testified that she asked Mr. Feazell to maintain hospitalization insurance on her behalf, and that she would pay him back one day although she could not afford to have her monthly payments deducted from her alimony check. The trial judge found Mr. Feazell acted in accordance with her request, and therefore he was entitled to an offset against alimony owed to her.

It is well settled that parents may agree to modify the terms of child support obligations and such "an agreement will be given effect if it is in the interest of the children. Gomez v. Gomez, 421 So.2d 426 (La.App. 1st Cir.1982); Duplechan v. Duplechan, 270 So.2d 264 (La.App. 3rd Cir.1972). Where such an agreement exists, a non-custodial parent father may satisfy his obligation of child support in ways other than direct payment. Hamilton v. Hamilton, 421 So.2d 291 (La.App. 1st Cir.1982); In the Matter of Andras, 410 So.2d 328 (La.App. 4th Cir.1982); Powell v. Barsavage, 399 So.2d 1308 (La.App. 4th Cir.1981); Blankenship v. Blankenship, 382 So.2d 982 (La.App. 1st Cir.1980); Seifert v. Seifert, 374 So.2d 157 (La.App. 1st Cir.1979).

The trial court has great discretion in determination of factual matters such as the existence of any agreement relative to child support and, in the absence of an abuse, its decision will not be overturned on appeal. The trial judge was fully aware of the rules relative to child support payments as evidenced by the parties’ excellent pre-trial briefs.

The trial judge, after evaluating the parties’ credibility, was satisfied the father carried his burden of proving agreement as to those items credited. This court will not allow itself to be put in a position of accountant, computing every contribution made towards the minors’ support. We find no manifest error in the trial judge’s finding that payments made by appellee to various creditors on the wife’s behalf were made with her knowledge and consent and, therefore, we will not disturb same on review. Accord: Hamilton v. Hamilton, supra.

For the above and foregoing reasons, the judgment appealed is affirmed at appellant’s cost.

AFFIRMED.


author: LABORDE, Judge.

text:
    GREAT ATLANTIC INSURANCE COMPANY, Plaintiff-Appellee, v. MARTIN SERVICES INTERNATIONAL, INC., Defendant-Appellant.
    No. 83-441.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 1984.

      G. Frederick Seemann, Lafayette, for defendant-appellant.
    David F. Hutchins, Lafayette, for plaintiff-appellee.
    Before DOMENGEAUX, DOUCET and LABORDE, JJ.
   LABORDE, Judge.

Defendant, Martin Services International, Inc. (Martin) appeals a trial court judgment awarding $7,087 to plaintiff, Great Atlantic Insurance Company (Atlantic) representing unpaid insurance premiums on a liability policy issued to defendant. Defendant contends that Atlantic breached the insurance contract by failing to provide legal defense for a third party in a personal injury case, pursuant to a third party indemnity agreement. The trial court held, that under the policy, Atlantic had no duty to provide a defense to a personal injury action arising out of an indemnity agreement between Martin and a third party, Tenneco Oil Company (Tenneco). Further, that Martin’s indemnity agreement with Tenneco was contra bonos mores by virtue of LSA-R.S. 9:2780 and would not constitute a recoverable claim under Atlantic’s policy with Martin. Considering that Martin did assert a claim recoverable under the policy and that the accident giving rise to the claim occurred prior to enactment of the substantive statute, we reverse.

FACTS

Atlantic issued a policy of liability insurance to defendant insuring Martin from personal injury claims of its employees. The policy contained the following provision:

“This policy does not apply to any Contractual Liability with regard to claims made for defense or indemnification asserted by an indemnitee of the named insured with respect to liability assumed by said indemnitee under a contract with a third party.”

This policy limitation was expressly deleted from the policy by subsequent endorsement (amendment) on March 17, 1980.

Prior to this policy amendment, Martin had negotiated a blanket work contract with Tenneco to indemnify Tenneco in the following manner: To provide any necessary legal defense resulting from personal injuries received by Martin’s employees while performing Tenneco’s work.

On March 24, 1980, one of Martin’s employees, Dallas Edmond, suffered an injury while working at Tenneco. Mr. Edmond sued Tenneco, who in turn resorted to Martin to provide a defense to the action in accordance with the indemnity contract. Martin then called upon Atlantic to provide insurance coverage, in the form of a defense for Tenneco, in connection with the amended policy which imported this type of coverage. Atlantic refused, asserting that it had no duty under the policy or in accordance with the law to provide the indemni-tee, Tenneco, with a defense pursuant to the indemnity contract with the insured, Martin. Consequently, Martin withheld further payment of premiums alleging that Atlantic breached the insurance contract. Atlantic then initiated this action on open account to recover the unpaid premiums.

POLICY LIMITS

The first issue presented for our consideration is whether the amended policy provides for coverage which would establish Atlantic’s duty to defend Tenneco in the Edmond suit pursuant to the indemnification agreement between Tenneco and the insured, Martin. Clearly, the policy provision cited above expressly denies coverage for claims arising out of indemnity agreements between an insured and a third party. However, the disclaimer was expressly deleted from the policy by subsequent endorsement (amendment). It is apparent that Atlantic’s motive for deleting the disclaimer was to expand the limits of coverage and provide Martin with protection for claims arising out of indemnity agreements with third parties. Nonetheless, Atlantic argues that the policy does not expressly provide for this type coverage. This may well be true, however, we must determine the import and purpose of the policy amendment.

Upon thorough review of the policy and the respective amendments, we find the policy to be obscure and ambiguous with respect to the claim asserted by Martin. For resolution of this ambiguity we resort to LSA-C.C. art. 1958 which provides:

“Art. 1958. Interpretation against party responsible for doubt
But if the doubt or obscurity arise for the want of necessary explanation which one of the parties ought to have given, or from any other negligence or fault of his, the construction most favorable to the other party shall be adopted, whether he be obligor or obligee.”

The primary object of all insurance is to insure. Therefore, any doubt as to the extent or fact of coverage under a provision will be understood in its most inclusive sense. Bond v. Commercial Union As-sur. Co., 407 So.2d 401 (La.1981); Commercial Capital Systems, Inc. v. Paille, 338 So.2d 293 (1st Cir.1976); Borden, Inc. v. Howard Trucking Co., Inc., 425 So.2d 893 (1st Cir.), writ granted, 429 So.2d 148 (La.1983). Accordingly, we hold that the ambiguous policy amendment shall be construed against the insurer and in favor of the insured, Martin, to import and extend coverage for the type of claim which the disclaimer provision would have formerly negated. Atlantic was therefore bound under the policy to provide Martin’s indemni-tee with a defense to the Edmond-Tenneco suit.

RETROACTIVE APPLICATION OF LSA-R.S. 9:2780

Atlantic further refused to defend the Edmond law suit relying on LSA-R.S. 9:2780. This law provides that the type of indemnity sought by Tenneco pursuant to its work contract with Martin is against public policy (contra bonos mores) and therefore that portion of the work contract is void. We agree with this interpretation and effect of the new law as it relates to indemnity contracts of this nature. However, LSA-R.S. 9:2780 became effective on September 11, 1981, more than 17 months after the accident involving Mr. Edmond and more than 18 months after Atlantic amended its policy to provide coverage for claims arising out of Martin’s indemnity agreements.

In this instance, we are compelled to follow the strict statutory language of LSA-R.S. 9:2780(1) which provides in pertinent part:

“The provisions of this Act shall not apply to a contract providing indemnity to the indemnitee when such contract was executed before the effective date of this Act and which contract governs a specific terminable performance of a specific job or activity listed in Subsection C.”

In accordance with this statutory mandate we adopt and ordain the following rationale in Tobin v. Gulf Oil Corp., 535 F.Supp. 116 (E.D.La.1982) where the court stated:

“[1] Mr. Tobin’s injury, his initial suit against Gulf, and Gulf’s claim against S.E.E. all pre-date the effective date of LRS 9:2780. S.E.E. would therefore have us rule that the statute is to be applied retroactively to void indemnity contracts applicable to accidents occurring prior to the effective date of the act. The law is to the contrary. While the statute may be constitutional and apply to contracts executed prior to the effective date and existing after it with respect to accidents occurring after September 11, 1981, we hold that it is not applicable to accidents or injuries such as Mr. Tobin’s which occurred prior to that date.
LRS 9:2780 is a substantive law and not merely remedial or procedural. Accordingly prospective application of the statute is presumed in the absence of specific provision to the contrary. Lott v. Haley, 370 So.2d 521 (La., 1979); La. C.C. Art. 8; LRS 1:2. LRS 9:2780 makes no specific provision for retroactive effect.”

We therefore hold that LSA-R.S. 9:2780 will not apply retroactively in this instance. The indemnity portion of Martin’s contract with Tenneco has not been abrogated by the substantive provisions of the statute and is therefore valid. Martin’s insurance claim under the terms and import of the insurance policy was a valid and enforceable one. Atlantic’s failure to hon- or the claim constituted a breach of contract. Therefore, Atlantic is not entitled to recover any further sums under the contract.

Based on the above and foregoing reasons, the judgment of the trial, court is reversed and vacated, and plaintiffs suit is ordered dismissed, all at appellee’s costs.

REVERSED.


author: STOKER, Judge.

text:
    William BLANCHARD, Individually and in his Capacity as Administrator of the Estate of Michael Lawrence Blanchard & Sherry Blanchard, Plaintiffs-Appellants, v. Richard T. TINSMAN, et al., Defendants-Appellees.
    No. 83-451.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 1984.
    Rehearing Denied Feb. 29, 1984.
    Writ Denied April 13, 1984.

      Ronald Thompson, Baton Rouge, Allen Gooch & Bourgeois, Sera H. Russell, III, Lafayette, Guglielmo & Lopez, James C. Lopez, Opelousas, Woodley, Barnett, Cox, Williams & Fenet, Clayton Davis, Lake Charles, Edgar Miller, Miller Freight Co., Tampa, Fla., for defendant-appellee.
    Charles R. Ryan, Houma, for plaintiff-appellant.
    Before GUIDRY, CUTRER and STOKER, JJ.
   STOKER, Judge.

The parents of Michael Lawrence Blanchard brought a wrongful death action and a survival action arising from his death. Among others that suit was brought against Richard T. Tinsman, driver of a tractor-trailer unit which jackknifed on the highway and collided with a vehicle driven by Michael Lawrence Blanchard (Michael). Michael died instantly as a result of injuries received in the collision. Michael’s wife, Cheryl Verret Blanchard, also died as a result of injuries sustained in the collision, but she exhibited some sign of life, a heartbeat, for a period of time after Michael’s death.. There were no children of the marriage of Michael and Cheryl.

Various other defendants, who would be legally liable for the alleged negligence of Richard Tinsman, filed exceptions of no right of action grounded on the contention that plaintiffs have no right of action under LSA-C.C. art. 2315 under the circumstances. The circumstances relied upon by ex-ceptors are that Michael’s wife survived him; she therefore acquired the right to assert a survival action for his death and a wrongful death action for her personal damages sustained from his loss; and, finally that these rights passed to Cheryl Verret Blanchard’s parents by inheritance when she died some minutes after Michael.

The trial court sustained the exception and, as to exceptors, dismissed the action of Michael’s parents, William Blanchard, individually and as administrator of Michael’s estate, and Sherry Blanchard. In a separate judgment the trial court additionally dismissed Richard T. Tinsman and other defendants. (See footnote 1). The plaintiffs appeal. We affirm.

The appellants urge equitable considerations, but unfortunately the case must be decided against them. The trial court’s ruling was correct. LSA-C.C. art. 2315; Haas v. Baton Rouge General Hospital, 364 So.2d 944 (La.1978); Simmons v. Brooks, 342 So.2d 236 (La.App. 4th Cir.1977); Walker v. St. Paul Ins. Companies, 339 So.2d 441 (La.App. 1st Cir.1976), writ granted, 341 So.2d 554 (La.1977), on remand 343 So.2d 251 (La.App. 1st Cir.1977), writ denied 345 So.2d 61 (La.1977).

Preliminarily the appellants urge that because Cheryl never regained consciousness and never was aware of Michael’s death, she did not acquire an action under Article 2315 and, therefore, she had no action which passed to her parents. Such an argument can only relate to the elements of damage which may be recovered and not to the question of right of action under Article 2315. In the matter now before us, we decide only that the parents of Michael have no right of action under the circumstances. Whether Michael suffered any conscious pain and suffering and whether Cheryl was conscious so as to experience any loss of love, affection and companionship are questions of fact and relate to the elements of damage for which a recovery in this case can be had. At this point we confine ourselves to affirming the exception. If on trial of any action by Cheryl’s parents it should be decided that there could be no recovery for the elements of damage mentioned above, that would not shift any right of action to the parents of Michael.

In appellants’ principal contention and argument, they urge that we give a broad interpretation to the word “surviving” as used in LSA-C.C. art. 2315. They contend that we should not consider Cheryl to be the survivor merely because she survived in the technical sense. The collision rendered Cheryl unconscious and she remained in the throes of certain death which did occur within a short period of time. In fact, the only life sign she showed was a heartbeat. She was not breathing. Efforts at resuscitation were unsuccessful. Cheryl’s heartbeat ceased in the ambulance on the way to the hospital and she did not respond to chest compressions. In view of these facts and circumstances appellants urge that, under a common sense interpretation of Article 2315, they are the true survivors. The appellants’ argument runs as follows:

“Appellant (sic) submits that it is probable that Cheryl did have ‘vital signs’ after Michael no longer showed signs. However, appellant (sic) submits that the evidence is conclusive that Cheryl could not have recovered from her injuries and that neither Michael nor Cheryl ‘survived the accident’.
⅝ ⅝ ⅜ ⅜ sfc #
“Appellant (sic) submits that it should not matter which person has vital signs longer in a multiple death catastrophe where no one regains consciousness as C.C. art. 2315 is concerned with actual survival and not the moment of death.”

We disagree that this is the meaning of survivorship contained in Article 2315. As we interpret the article the term “surviving” has reference to survival in fact, in point of actual time, not survival of the accident. As harsh as the result seems to be, that is the result dictated by the clear meaning of the article. The jurisprudence cited above has so interpreted the article.

For reasons that are not entirely clear the appellants cite and discuss at length the case of Collins v. Becnel, 297 So.2d 506 (La.App. 4th Cir.1974). Appellants urge that Collins v. Becnel gives an “ordinary, common sense definition of ‘surviving’ ” as employed in Article 2315. They urge that a common and ordinary interpretation be given the article here and urge that we not adopt a technical and narrow interpretation of the word “surviving.” We cannot find that Collins v. Becnel, supra, has any application to this case. The decision and reasoning of the court in that case may have given a common sense and ordinary meaning to the word “surviving” as it applied to the facts of that case. However, the opinion in that case does not influence the decision here.

The facts of the case of Collins v. Bec-nel, supra, are altogether different from the facts before us. In Collins the deaths of a mother and her only child occurred simultaneously and instantaneously. The defendants sought to defend against an action by the mother’s brothers and sisters, the claimants next in line under Article 2315. The defendants sought to invoke the presumptions of survivorship of commo-rientes set forth in LSA-C.C. arts. 936-939 to determine beneficiaries of wrongful death claims under Article 2315. The defendants in Collins contended that under Article 939 there was a presumption that the daughter survived the mother. The Court of Appeal for the Fourth Circuit held in Collins that the presumptions sought to be invoked, applicable in succession law, are not applicable, and did not apply, to actions for wrongful death under Article 2315. The Court of Appeal held that the law of torts made the mother’s brothers and sisters “the wrongful death action beneficiaries ... where in actual fact the victim ‘left no spouse, child, or parents surviving.’ ”

By holding that the presumptions of sur-vivorship applicable in succession law did not apply, and “in actual fact” the mother could not be said to have left her deceased only child (who died simultaneously with her), the brothers and sisters were the next in line to assert the Article 2315 action.

We do not interpret appellants’ arguments contained in their brief relative to Collins v. Becnel, supra, as urging that we adopt the presumptions of survivorship contained in the Civil Code articles. Appellants appear to concede their inapplicability. They quote from a law review note in 50 Tul.L.Rev. 441 at pages 449-450, entitled “Tort-Wrongful Death” which treats the Collins case, in which the writer states that the court in Collins employed the word “surviving” in its ordinary sense and meant surviving in actual fact. Appellants then argue that if we should follow Collins v. Becnel, “the ordinary, common sense definition of ‘surviving’ allows Michael’s parents a right of action for their loss of love and affection, and Cheryl’s parents the same right for the loss of their daughter.” Appellants further suggest that this would be the just and equitable solution. We are inclined to agree that such would be a just and equitable solution. Nevertheless, in this case we are compelled to conclude that, in actual fact, Cheryl survived Michael. Therefore, Cheryl was the surviving beneficiary under Article 2315 in the first instance.

If this result is unjust and inequitable, as we are inclined to think it is, it is a matter for legislative correction. We feel bound by the decision and holding in Haas v. Baton Rouge General Hospital, supra; Simmons v. Brooks, supra, and Walker v. St. Paul Ins. Companies, supra, and the clear meaning of Article 2315.

For the foregoing reasons, the judgment of the trial court dismissing plaintiffs’ action is affirmed. Costs of this appeal are assessed to plaintiffs-appellants.

AFFIRMED.

      . The defendants who filed exceptions of no right of action are Hartz Mountain Corporation, Sanders Leasing Systems, Inc. and Liberty Mutual Insurance Company. Although defendants, Richard T. Tinsman, the State of Louisiana, Miller Freight Company, R.E. Heidt Construction, Inc. and North-West Insurance Company did not file exceptions, the trial court (as indicated in the text of the opinion above) dismissed these defendants along with the exceptors, relying on the authority of LSA-C.C.P. art. 927.


text:
    Eva G. BUSHNELL, et al., Plaintiffs-Appellants, v. Mary Katherine ARTIS, Defendant-Appellee.
    No. 83-452.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 1984.

      Wilford D. Carter, Lake Charles, for plaintiffs-appellants.
    R. Keith Findley, Lake Charles, for defendant-appellee.
    Before FORET, YELVERTON and KNOLL, JJ.
   KNOLL, Judge.

This suit involves a boundary dispute and a predial servitude between adjoining landowners in Allen Parish. The trial court determined that the plaintiffs owned a 15 foot wide strip of land between the homes, but awarded defendant a predial servitude because defendant’s home encroached on the disputed land. As compensation for the predial servitude the defendant was ordered to pay plaintiffs $1500. The plaintiffs have appealed asking that defendant’s home be demolished or, in the alternative, that the amount of compensation be increased. The defendant has answered the appeal seeking a reduction of the amount of compensation awarded.

The issues on appeal are as follows:

1) Whether the trial court erred in granting a predial servitude under the authority of LSA-C.C. Art. 670;
2) Whether the trial court erred in its calculation of the amount of compensation plaintiffs are due for the predial servitude; and
3) Whether the trial court erred in denying plaintiffs’ damages for medical expenses and mental anguish.

FACTS

In 1965 Dallas Simeon sold the following described tract to the plaintiffs:

The East one hundred five (105) feet off Lot Nine (9) of the Nixon Subdivision of Northwest Quarter Section Thirty-six (36) Township Six (6) South, Range Five (5) West of Louisiana Meridian. This tract is subject to a Fifteen (15) foot strip off the West side of said lot.

Mr. Simeon testified that the notary public who prepared the deed thought that the tract was subject to a 15 foot alley on the west side of the lot. No alley actually existed. Nonetheless, shortly after their purchase, plaintiffs erected a chain link fence which was offset twelve feet from their western boundary.

In 1977 Dallas Simeon sold defendant a fifty foot lot west of and adjacent to plaintiffs’ land. There was no reference in defendant’s deed to the fifteen foot strip of land described in plaintiffs’ conveyance. Defendant constructed a brick home which encroaches approximately six feet onto the disputed fifteen foot strip.

Neither party to this appeal has contested that portion of the trial court’s judgment which recognized plaintiffs’ ownership of the fifteen foot strip of land.

APPLICABILITY OF LSA-C.C. ART. 670

Plaintiffs urge that Art. 670 is not applicable because defendant was not in good faith when she constructed her home partially on plaintiffs’ land.

LSA-C.C. Art. 670 provides as follows:

“When a landowner constructs in good faith a building that encroaches on an adjacent estate and the owner of that estate does not complain within a reasonable time after he knew or should have known of the encroachment, or in any event complains only after the construction is substantially completed the court may allow the building to remain. The owner of the building acquires a predial servitude on the land occupied by the building upon payment of compensation for the value of the servitude taken and for any other damage that the neighbor has suffered.

Plaintiffs base their argument on the definition of “possessor in good faith” found in LSA-C.C. Art. 487. We disagree. That acticle requires the good faith possessor to possess by virtue of an act translative of title. The opening language of Art. 487 restricts that definition of good faith solely “[f]or the purposes of accession_” Art. 670 does not appear in the same title of the Civil Code as Art. 487. Accordingly, the definition of good faith found in Art. 487 is not applicable to the provisions of Art. 670.

The trial court concluded, after listening to the testimony of the various witnesses, that the defendant’s encroachment on the 15 feet in dispute was in good faith. The record fully supports this finding by the trial court. The defendant testified that she had always considered that her property extended to the fence which plaintiffs erected, and she was not aware that plaintiffs had offset the fence from the boundary. Defendant had maintained her yard up to plaintiffs’ fence since 1966. Defendant constructed her home several years after she had moved to the property. During construction plaintiffs never complained to defendant about the location of her new home, and they did not commence this law suit until two years after construction was completed. This case does not approach the bad faith exemplified in either Esnard v. Cangelosi, 200 La. 703, 8 So.2d 673 (1942) or Barker v. Houssiere-Latreille Oil Co., 160 La. 52,106 So. 672 (1925). The trial court’s determination that defendant acted in good faith is reasonable and well supported by the record. Accordingly, we will not disturb this factual finding, therefore, the defendant is entitled to a predial servitude.

EXTENT OF SERVITUDE

A predial servitude is a charge on a servient estate for the benefit of a dominant estate. LSA-C.C. Art. 646. Predial servitudes are either natural, legal, voluntary, or conventional. LSA-C.C. Art. 654. The legal servitude contained in LSA-C.C. Art. 670 provides a predial servitude in favor of a landowner who in good faith constructs a building that encroaches on an adjacent estate such as the case at hand. Legal servitudes are limitations on ownership established by law for the benefit of the general public or for the benefit of particular persons. LSA-C.C. Art. 659.

LSA-C.C. Art. 670 was enacted in 1978 to empower the courts with discretionary authority to grant a predial servitude to landowners who constructed a building in good faith which encroached on an adjacent estate. This authority is premises on the provision that compensation be made to the adjoining landowner burdened by the servitude. Thompson v. Hemphill, 438 So.2d 1124 (La.App. 2nd Cir.1983).

In the case sub judice the defendant’s home encroaches on plaintiffs’ property for approximately six feet. The trial court awarded the encroaching landowner a predial servitude to allow a straight line boundary (of servitude) on a line 3 feet east of the east edge of defendant’s roof from the rear of her lot south to the street.

The trial court’s well reasoned opinion reflects sound reasoning in fixing the pred-ial servitude. The trial judge stated:

“... However, defendant must be allowed enough room to maintain and repair her building and keep noxious weeds from that part of her house.
In addition, it should be self evident that plaintiff and defendant have very poor relations with each other but seem destined to be neighbors. A straight boundary dividing their respective territory would seem more likely to eventually lessen their differences, rather than the possibility of a fence with right angle turns encompassing the immediate perimeter of defendant’s house as a constant reminder to the parties and their successors of the problem which now is of such vital interest to them and which needs very badly to be put to rest.

We therefore find that the predial servitude granted by the trial court under LSA-C.C. Art. 670 was not error.

COMPENSATION

In determining compensation for the predial servitude, the trial judge stated:

“Various land estimates are of record which are self explanatory. It must be remembered (and this court feels should be considered) that this is a taking of the surface in perpetuity and not a voluntary transaction, therefore normal front foot values found in area commercial transactions should not apply. It is the opinion of the court that the sum of $1500.00 would be a fair compensation for the servitude above described.

The plaintiffs contend that compensation for the value of the servitude would include the value of the house placed on the encroaching land. They reason that the amount of the servitude is 15 feet and the total width of the lot that the house is on, is 50 feet. Therefore the servitude represents one-fourth the size of the entire lot. They place a value on the house and lot of $30,000 and arrive at a value of $6,000 for the servitude. The plaintiffs cite no authority for their method in arriving at the value of the servitude. Art. 670 does not provide a method to determine compensation. The defendant urges the value of the servitude to be between $453 and $500 which was an amount fixed by two appraisers. We find that the trial judge relied on sound reasoning in arriving at a value of $1,500 for the value of the servitude. In absence of manifest error, we will not disturb the trial court’s factual determinations. Canter v. Koehring Company, 283 So.2d 716 (La.1973).

The plaintiffs further contend that the trial court erred in denying damages for medical expenses and mental anguish. The trial judge as a trier of fact is in the best position to determine if damages were due the plaintiffs. In his written reasons it is obvious that the trial court was not impressed with this claim. The trial judge did not find any evidence that would support an award for personal injury against the defendant. We will not disturb the trial court’s factual determinations where the record establishes that such finding is not clearly wrong or manifestly erroneous. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

For the foregoing reasons the judgment of the trial court is affirmed. Costs of this appeal are assessed to the plaintiffs.

AFFIRMED.


author: GUIDRY, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Irma Mae SMITH, Defendant-Appellant.
    No. CR83-454.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 1984.
    Edward Larvadain, Jr., Larvadain & Scott, Alexandria, for defendant-appellant.
    Thomas R. Willson, Asst. Dist. Atty., Alexandria, for plaintiff-appellee.
    Before GUIDRY, CUTRER and STOKER, JJ.
   GUIDRY, Judge.

The defendant was convicted of one count of theft of property having a value in excess of one hundred dollars but less than five hundred dollars, and one count of theft of property having a value greater than five hundred dollars, both in violation of LSA-R.S. 14:67. The trial judge sentenced the defendant to prison terms of two years and five years at hard labor, respectively, such sentences to run concurrently. On appeal, we found that the trial judge failed to adequately articulate the reasons for the sentence as required by LSA-C.Cr.P. Art. 894.1. We remanded for resentencing, pre-termitting the issue of excessiveness of the sentence imposed. State v. Smith, 426 So.2d 738 (La.App. 3rd Cir.1983).

On remand, the trial court imposed the same sentence, i.e., concurrent terms of two and five years, and issued additional reasons for imposing sentence. The sole issue on appeal is whether the sentences imposed are excessive.

FACTS

The facts necessary to a resolution of the issue presented are stated in our previous opinion rendered in this matter, from which we quote:

“Defendant, the unmarried mother of six children born out of wedlock, was convicted of wrongfully receiving $4,682.00 in welfare benefits and $161.00 in food stamps over a two year period. The state’s evidence showed that defendant made wilful misrepresentations to her social workers concerning her eligibility for aid to families with dependent children (AFDC) and food stamps. On three occasions, in applying for AFDC benefits, she reported that the natural father of her children, Frank Warren, Jr., took no interest in the children and did not contribute in any manner to their support. Eligibility for AFDC benefits is dependent upon the deprivation of parental support through the continuous absence or incapacity of at least one parent. The continuous absence must be of a nature as to ‘either interrupt or terminate the parent’s functioning as a provider of maintenance, physical care or guidance for the child. ’ Each time the defendant applied for AFDC benefits, she was informed of her duty to give accurate information and to immediately report changes in her personal or financial condition.
Evidence produced at trial showed that Frank Warren, Jr. did in fact take an active role in the raising of the children. He was present in the defendant’s home on most weekends, and occasionally during the week. He provided money for rent, utilities, and clothing for the children. It was clearly shown that there was no ‘parental deprivation’ present so as to make the defendant eligible for AFDC benefits, and that the defendant was aware of this when she made these misrepresentations to the Office of Family Security.
Eligibility for food stamps is based for the most part on household income. In applying for food stamps, the defendant failed to report that she periodically received money from her boyfriend as well as from Frank Warren, Jr. She also failed to report that a member of her household was earning a paycheck. She also reported that she owned no automobiles, although she in fact owned a 1972 Cadillac. The defendant would have been entitled to food stamps had she been truthful in her application, but the amount would have been less. Testimony showed that the amount she would have been entitled to had she been truthful' was $161.00 less than the amount she actually received. ”

REVIEW OF SENTENCE IMPOSED

The defendant contends that the sentences imposed by the trial judge are excessive and violative of Art. 1 § 20 of the Louisiana Constitution of 1974, which provides in pertinent part: “No law shall subject any person to euthanasia, to torture, or to cruel, excessive, or unusual punishment.” (Emphasis added). A sentence is excessive and unconstitutional if it is grossly out of proportion to the severity of the crime or if it is nothing more than the purposeless and needless imposition of pain and suffering. State v. Goode, 380 So.2d 1361 (La.1980); State v. Bonanno, 384 So.2d 355 (La.1980). To determine whether the penalty is grossly disproportionate to the crime, we must consider the punishment and the crime in light of the harm to society caused by its commission and determine whether the penalty is so disproportionate to the crime committed as to shock our sense of justice. State v. Beavers, 382 So.2d 943 (La.1980); State v. Bonanno, supra.

The trial judge is given wide discretion in the imposition of sentences within the statutory limits, and the sentence imposed should not be set aside as excessive absent a manifest abuse of his discretion. State v. Abercrumbia, 412 So.2d 1027 (La.1982). However, it is also clear that a sentence that is well within the statutory maximum may be excessive under certain circumstances. State v. Sepulvado, 367 So.2d 762 (La.1979).

The maximum sentence for theft of property having a value of $500.00 or more is ten years at hard labor and a $3,000.00 fine. The maximum sentence for theft of property having a value greater than $100.00 but less than $500.00 is two years at hard labor and a $2,500.00 fine. LSA-R.S. 14:67. The defendant received concurrent sentences of two years on the food stamp offense and five years on the AFDC offense. Thus, both were within the maximum set by statute. For the reasons which follow, we find that the sentence imposed by the trial judge was not a manifest abuse of discretion.

Prior to sentencing the defendant, the trial judge ordered a pre-sentence investigation. The resulting report contains several recommendations concerning the sentencing of the defendant. Ronald Rider is a juvenile probation officer with the Department of Health and Human Resources. He worked with the defendant in his capacity as probation officer for three of her children. It was his opinion that the defendant not only supplied inadequate supervision to her children, but she also contributed to their delinquency. He felt that the needs of her children would be best served by placing them in another home. Lester Mallette, an investigator for the Office of Family Security, recommended that the defendant be sentenced to the maximum term allowable. He stated that while his office ordinarily hesitates to recommend actual time in prison, he found no circumstances to justify leniency in the case of the defendant. He also felt that the interests of her children would be best served by placing them with someone other than the defendant.

The defendant has an extensive criminal record which includes two arrests for shoplifting, one in 1965 and another in 1977, an arrest in 1981 for aggravated battery, an arrest in 1981 for receiving stolen things, simple battery, and resisting a police officer, and another arrest in 1981 for simple burglary and contributing to the delinquency of a juvenile. In connection with these offenses, she has paid fines and has been placed on probation but has not been sentenced to serve a prison or jail term.

In light of the report of the pre-sentence investigation and the fact that fines and probation have failed to deter the defendant from further criminal conduct, we find that the concurrent sentences of two years and five years are not an abuse of the trial court’s wide discretion. State v. Aberc-rumbia, supra. The only argument offered by the defendant in favor of leniency is that her family will be decimated by her prison term. On the contrary, the record indicates that the interests of her children may be best served by placing them in other homes and providing them with better supervision than that provided by the defendant.

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

• AFFIRMED.


text:
    STATE of Louisiana v. Edward Joseph PICKENS.
    No. CR83-466.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 1984.
    Sherman Stanford, Opelousas, for defendant-appellant.
    David Miller, Asst. Dist. Atty.,' Opelou-'sas, for plaintiff-appellee.
    Before DOMENGEAUX, DOUCET and LABORDE, JJ.
   DOMENGEAUX, Judge.

Defendant, Edward Joseph Pickens, was charged with second degree murder, a violation of La.R.S. 14:3o.!, by grand jury indictment. Immediately preceding the trial, defendant entered a plea of guilty to a reduced charge of manslaughter in a plea bargain with the State. The trial judge ordered a pre-sentence investigation. Upon receiving the report from the Louisiana Department of Corrections, and after hearing testimony given at the sentencing proceeding, the trial judge sentenced defendant to 19 years at hard labor under La.R.S. 14:31; plus two additional years imprisonment to run consecutively, without benefit of parole, probation, suspension of sentence, or credit for good time, pursuant to La.R.S. 14:95.2.

ASSIGNMENT OF ERROR

Defendant contends the trial court erred in the imposition of an excessive sentence in violation of the Eighth Amendment of the Constitution of the United States which prohibits cruel and unusual punishment, and in violation of the sentencing guidelines provided in La.C.Cr.P. Art. 894.1.

FACTS

The events of the night of June 26, 1982, were related to the court during the proceeding when defendant entered a guilty plea to manslaughter by Det. Capt. Roy Richard (Opelousas Police Department), who interrogated defendant after he had been arrested; further testimony was rendered by defendant and Lawrence Pickney, defendant’s cousin, during the sentencing proceeding.

Defendant and his cousin were shooting dice outside Tee’s Lounge in Opelousas when an argument began with Walter Joseph, the victim. Walter Joseph then chased Lawrence Pickney with a knife. Defendant, along with other bystanders, stopped the argument and halted the chase. Defendant and his cousin then left the scene to drive around and buy beer in Pickney’s automobile. Defendant told his cousin to stop at his house so that he could pick up his gun. Defendant retrieved a .30 caliber, lever-action rifle from his brown Monte Carlo and put it in his cousin’s car. Both defendant and his cousin drove back to the vicinity of Tee’s Lounge. Defendant, with the gun in his possession, got out of his cousin’s car and into his other vehicle (a 1972 green Dodge Swinger) which was parked nearby. Pickney drove back to the bar; defendant followed soon after. Upon arriving at the bar Pickney was spotted by Walter Joseph who began chasing him once again with the knife drawn. Pickney attempted to get a lug wrench from the inside of his own car, but the doors were locked. At this time, defendant arrived in the parking area, got out of his automobile, and saw Joseph chasing his cousin brandishing the knife. Defendant then took his gun from the seat of the car where he had placed it. Joseph noticed the defendant at this point. Defendant stepped toward Joseph and shouted to him not to cut his cousin with the knife that was in his hand. Joseph allegedly approached the defendant. Once more defendant told the victim not to use the knife, coupled with a warning that he was going to shoot him. Defendant claims that Joseph continued to walk nearer with the knife pointed at him. Defendant shot Joseph once in the neck.

Defendant was arrested at his home following the fatal shooting of Joseph. Defendant was informed of his rights and gave a taped statement admitting to the shooting, but claimed that he was attacked by the victim. There were no witnesses to the crime itself.

Defendant entered a plea of guilty to manslaughter. The transcript of the colloquy between the judge and the defendant at the time the guilty plea was entered shows that defendant’s right to trial by jury, right to confront his accusers, and right against self-incrimination were properly waived under the standard of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

REVIEW OF SENTENCE

Defendant complains that the sentence imposed, 19 years at hard labor with an additional two years to run consecutively without benefit of parole, probation, suspension of sentence, or credit for good time is in violation of the Eighth Amendment and the sentencing guidelines set forth in La.C.Cr.P. Art. 894.1.

The defendant contends that the trial judge did not stte for the record the considerations taken into account and the reasons for the term of imprisonment. However, in our review of the record we find that the sentencing judge relied upon the presentence investigation report. The court carefully explained the considerations taken into account and the factual basis for imposition of the sentence. The court noted defendant’s social and criminal history which included a juvenile record and a previous aggravated assault charge that had been dropped. Additionally, defendant had pled guilty to resisting arrest and had also been involved in a battery charge on his wife. The court further noted that defendant’s history indicated an inclination towards violence. The court then proceeded to elaborate on the guidelines for sentencing a defendant guilty of a felony to imprisonment. There was no error in the consideration by the judge of the prior adult arrest. State v. Washington, 414 So.2d 818 (La.1982). Nor was there error in the consideration of the juvenile history.. State v. Guajardo, 428 So.2d 468 (La.1983). The defendant presented no mitigating facts and none were apparent from the circumstances of the case.

Further, as to determining what is excessive punishment under the Eighth Amendment’s prohibition against cruel and unusual punishment, the Louisiana Supreme Court in State v. Sepulvado, 367 So.2d 762 (La.1979), decided that the imposition of a sentence, even though within the statutory limits, may be unconstitutionally excessive in violation of Article 1, Section 20 of the Louisiana Constitution of 1974. A sentence has been determined to be ex-, cessive punishment when the penalty is so disproportionate to the crime as to shock the senses of justice or if it is nothing more than the purposeless and needless imposition of pain and suffering. State v. Goodman, 427 So.2d 529 (La.App. 3rd Cir.1983); State v. Reed, 409 So.2d 266 (La.1982). However, due to the trial judge’s unique advantage of viewing subjective factors not available from the appeal record, he is given wide discretion in the imposition of sentences within statutory limits, and a sentence imposed by him should not be set aside as excessive in the absence of manifest abuse of this discretion. Sepulvado and Goodman, supra; State v. Hartman, 388 So.2d 688 (La.1980); State v. Goode, 380 So.2d 1361 (La.1980).

The defendant was subject to a 21 year term of imprisonment when he pled guilty to manslaughter. By his plea of guilty defendant in effect admitted that the killing was not justified. State v. Boatright, 406 So.2d 163 (La.1981). A sentence of 19 years does not even meet the maximum statutory limit. The additional two years for the use of a firearm in the commission of manslaughter was a mandatory sentence and not within the discretion of the trial judge.

We are unable to find any manifest error. The trial judge complied with proper procedure as set forth in the sentencing guidelines and the sentence imposed followed a plea of guilty to a most serious crime under the laws of the State of Louisiana. Therefore we will not disturb this sentence on appeal.

DECREE

For the above and foregoing reasons, defendant’s sentence is affirmed.

AFFIRMED.

      . La.R.S. 14:30.1 provides:
      "Second degree murder is the killing of a human being:
      (1) When the offender has a specific intent to kill or to inflict great bodily harm; or
      (2) When the offender is engaged in the perpetration or attempted perpetration of aggravated rape, aggravated arson, aggravated burglary, aggravated kidnapping, aggravated escape, armed robbery, or simply robbery, even though he has no intent to kill or to inflict great bodily harm.
      Whoever commits the crime of second degree murder shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence."

      . La.R.S. 14:31 provides in pertinent part:
      "Manslaughter is:
      (1) A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed; or
      (2) A homicide committed, without any intent to cause death or great bodily harm.
      (a) When the offender is engaged in the perpetration or attempted perpetration of any felony not enumerated in Articles 30 or 30.1, or of any intentional misdemeanor directly affecting the person; or
      (b) When the offender is resisting lawful arrest by means, or in a manner, not inherently dangerous, and the circumstances are such that the killing would not be murder under Articles 30 or 30.1.”

      . The penal clause of La.R.S. 14:31 provides:
      "Whoever commits manslaughter shall be imprisoned at hard labor for not more than twenty-one years.”

      . La.R.S. 14:95.2 provides for mandatory additional penalties thusly:
      "Notwithstanding any other provisions of law. to the contrary, any person who uses a firearm or explosive device at the time he commits or attempts to commit the crime of second degree murder, manslaughter, aggravated battery, simple kidnapping, aggravated escape, aggravated burglary, or aggravated arson or attempted aggravated rape, attempted first degree murder or attempted aggravated kidnapping shall upon conviction serve a term of two years imprisonment for the first conviction and upon conviction for each second and subsequent offense listed in this Section, he shall serve a term of five years imprisonment. The penalty provided herein shall be in addition to any other penalty imposed under the provisions of this Title and such person shall serve the additional term of imprisonment without benefit of parole, probation, suspension of sentence or credit for good time and any adjudication of guilt or imposition of sentence shall not be suspended.
      The prison terms provided under the provisions of this Section, shall run consecutively to any other penalty imposed upon conviction of any of the crimes listed in this Section.”

      .La.C.Cr.P. Art. 894.1 states:
      “A. When a defendant has been convicted of a felony or misdemeanor, the court should impose a sentence of imprisonment if:
      (1) There is an undue risk that during the period of a suspended sentence or probation the defendant will commit another crime;
      (2) The defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution; or
      (3) A lesser sentence will deprecate the seriousness of-the defendant’s crime.
      B. The following grounds, while not controlling the discretion of the court, shall be accorded weight in its determination of suspension of sentence or probation:
      (1) The defendant's criminal conduct neither caused nor threatened serious harm;
      (2) The defendant did not contemplate that his criminal conduct would cause or threaten serious harm;
      (3) The defendant acted under strong provocation;
      (4) There was substantial grounds tending to excuse or justify the defendant’s criminal conduct, though failing to establish a defense;
      (5) The victim of the defendant’s criminal conduct induced or facilitated its commission;
      (6) The defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sustained;
      (7) The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the instant crime;
      (8) The defendant’s criminal conduct was the result of circumstances unlikely to recur;
      (9) The character and attitudes of the defendant indicate that he is unlikely to commit another crime;
      (10) The defendant is particularly likely to respond affirmatively to probationary treatment; and
      (11) The imprisonment of the defendant would entail excessive hardship to himself or his dependents.
      C. The court shall state for the record the considerations taken into account and the factual basis therefor in imposing sentence.”

      . The author of this opinion is compelled to again state his position as to appellate review of sentences for excessiveness. Our state constitution does not provide for nor does it mandate judicial review of sentences which fall within the limits set by the respective criminal statutes. See State v. Goodman, 427 So.2d 529 (La.App. 3rd Cir.1983), concurring opinion at 529; State v. Vallare, 430 So.2d 1336 (La.App. 3rd Cir.1983); concurring opinion at 1339, writ denied, (La. June 10, 1983). See also State v. Shelby, 438 So.2d 1166 (La.App. 3rd Cir.1983) (our docket No. CR83-63), concurring opinion at 1169.


text:
    STATE of Louisiana, Plaintiff-Appellee, v. Leonard E. DAVIS, Defendant-Appellant.
    No. CR83-489.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 1984.

      Vernon Clark, Smith, Ford & Clark, Leesville, for defendant-appellant.
    Asa Skinner, Asst. Dist. Atty., Leesville, for plaintiff-appellee.
    Before GUIDRY, CUTRER and STOKER, JJ.
   GUIDRY, Judge.

The defendant, Leonard E. Davis, was charged by bill of information with one count of simple burglary, a violation of LSA-R.S. 14:62, and one count of theft of property having a value in excess of $500.00, a violation of LSA-R.S. 14:67. The defendant was found guilty on both counts, and was sentenced to serve five years on each count, such sentences to run consecutively to any other sentence being served.

The defendant’s assignments of error raise the following issues: (1) whether the trial court erred by admitting hearsay testimony; (2) whether the trial court erred in admitting opinion testimony from a witness who was unqualified to testify as an expert; and, (3) whether the trial court' erred in denying defendant’s motion for a mistrial on the ground of allegedly impermissible prosecutorial remarks in closing argument.

FACTS

On August 24, 1981, the defendant and Dennis Holmes illegally entered the Vernon Elementary School building and removed an IBM typewriter from the school library. Later in the same evening, the two returned and removed an air conditioner from a classroom window. Thereafter, the air conditioner was sold to Percy Powell and the typewriter was delivered to James Johnson.

On the day following the burglary, a confidential informant contacted Lieutenant Marvin Massey of the Leesville City Police Department. The informant stated that Dennis Holmes had attempted to sell him some stereo equipment, and that Percy Powell had bought an air conditioner from the defendants, Leonard Davis and Dennis Holmes. Massey arrested Holmes and questioned him. During this questioning, Holmes admitted his participation in the theft of the typewriter and air conditioner, and named the defendant as his co-perpetrator.

Later that same day, Lieutenant Massey contacted James Johnson and Percy Powell seeking information on the items sold to them by the defendant and Holmes. The typewriter and air conditioner were thereafter turned over to the police. Fletcher Cheatham, the principal of Vernon Elementary School, positively identified both items as those stolen from the school. The defendant, Leonard Davis, was arrested on August 26, 1981.

ASSIGNMENT OF ERROR NO. 1

By these assignments, the defendant urges that the trial court erred in admitting hearsay testimony at two points during the trial. The first instance occurred during the testimony of Lieutenant Massey, while he was being questioned about his investigation of the theft. Massey was allowed to testify, over objection, that Percy Powell told him that he purchased an air conditioner from the defendant and Holmes.

We need not determine whether the statement constituted inadmissible hearsay, because even if the statement was inadmissible, the defendant suffered no prejudice by its admission. During the trial, Percy Powell himself testified that he bought the air conditioner from the defendant and Dennis Holmes. The hearsay testimony was merely cumulative and corroborative of the testimony of Percy Powell. Since the defendant was allowed to cross examine Powell, the defendant’s right of confrontation was not abridged. State v. McMahon, 391 So.2d 1120 (La.1980); State v. Monroe, 397 So.2d 1258 (La. 1981).

The second instance of impermissible hearsay alleged by the defendant occurred during the testimony of Dennis Holmes, the co-perpetrator of the theft. Holmes was being questioned by the State’s attorney concerning a conversation Holmes had with defense counsel prior to trial. The alleged hearsay occurred during the following exchange:

“Q. And, did you talk about this particular case? [with Mr. Consenza, defense counsel].
A. Yes sir.
Q. And, what did Mr. Consenza tell you about this case?
A. He told me the same thing ...
By Mr. Consenza:
Objection.
By the Court:
... overruled ...
Q. He told you to say it happened in July and not in August?
A. Yes sir.
Q. And, did he tell you anything if you didn’t testify to that?
A. Seven years.
Q. He said you would get seven years?
A. Yes Sir.
Q. Mr. Holmes, have you been truthful with the court today?
A. Yes sir.”

We find that the testimony objected to was not hearsay, and that in any event, defendant suffered no prejudice by its admission.

The Louisiana Supreme Court defines hearsay as follows:

“In State v. Martin, 356 So.2d 1370 at 1376 (La.1978), this court adopted Professor McCormick’s definition of hearsay as ‘testimony in court ... of a statement made out of court, the statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter.’ As pointed out in State v. Ford, 368 So.2d 1074 at 1077 (La.1979), under this definition, ‘a witness is generally competent to testify that a statement has been made to him [so long as no attempt is also made to vouch for the credibility of its contents]. In that case, the fact of communication turns as much on the credibility of the in-court witness as it does the out-of-court asserter.’ ”

In the instant case, the testimony complained of was introduced merely to show that such statements were made to Holmes. Presumably, the State’s aim was to bolster the credibility of the witness by establishing his willingness to tell the truth despite threats. The truth of the statement allegedly made by Consenza is not at issue, and was never sought to be proved or disproved. These assignments of error are without merit.

ASSIGNMENT OF ERROR NO. 2

By this assignment, the defendant claims that the trial court erred in allowing opinion testimony from a witness who was unqualified to testify as an expert. Defendant was convicted of theft of property having a value greater than $500.00. As such, an essential element of proof required to support the conviction is proof that the property stolen was worth more than $500.00. In this regard, the State offered the testimony of Don Rasliff, who testified that the value of the IBM typewriter stolen from the school was $525.00 to $550.00. We find no error in the trial court’s acceptance of Rasliff as an expert qualified to testify as to the value of the typewriter.

Opinion testimony by a witness is generally inadmissible. LSA-R.S. 15:463. However, when the court addresses questions involving knowledge obtained only by special training or experience, persons having such special training or experience may render opinions as expert testimony. LSA-R.S. 15:464. The requisite qualification of an expert witness is established by LSA-R.S. 15:466:

“The test of the competency of an expert is his knowledge of the subject about which he is called upon to express an opinion, and before any witness can give evidence as an expert his competency so to testify must have been established to the satisfaction of the court.”

Competency of an expert witness is a question of fact within the sound discretion of the trial judge. His assessment of the qualifications of experts will not be disturbed unless clearly wrong. State v. Michel, 422 So.2d 1115 (La.1982); State v. Coleman, 406 So.2d 563 (La.1981).

In the instant case, the record establishes that Rasliff was the office machine repairman for the Vernon Parish School Board, and that he had experience in working on and dealing with IBM typewriters dating back to 1975. Rasliff had four years experience participating in the purchase of typewriters by the School Board. Rasliff estimated that the School Board purchased more than 25 typewriters each year. In addition, Rasliff appraised used or damaged machines for the School Board to determine repair costs or trade in value.

Based on the qualifications established by the record, we are unable to conclude that the trial court was clearly wrong in accepting Rasliff as an expert witness. This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 3

The defendant contends that the trial court erred in denying his motion for a mistrial based on prejudicial remarks made by the-prosecutor in closing argument. In particular, the defendant asserts that the prosecutor called attention to the defendant’s failure to testify in his own defense, mandating a mistrial under LSA-C.Cr.P. Art. 770. The basis of the defendant’s motion is the following remark made by the prosecutor in closing argument:

“He talks about piling evidence up and I don’t think he meant we piled evidence up, but they didn’t even so much as kick any at us, no evidence at all.”

A reference in closing argument to the fact that the State’s case stands uncon-troverted does not generally constitute a ground for a mistrial. State v. Latin, 412 So.2d 1357 (La.1982); State v. Sims, 346 So.2d 664 (La.1977). Such statements refer to the case as a whole and do not focus on the defendant’s failure to testify. However, when the defendant is the only person who can refute the State’s evidence, a reference to the fact that the testimony is uncontroverted focuses the jury’s attention on the defendant’s failure to testify. An example of such a situation occurred in State v. Harvill, 403 So.2d 706 (La.1981). In that case, the State’s entire case consisted of the defendant’s taped confession. The prosecutor’s reference to the unrefut-ed character of the State’s case was clearly a reference to the defendant’s failure to testify, as the defendant was the only witness who could dispute the contents of the confession.

In the instant case, the defendant’s conviction is based on the testimony of the co-perpetrator of the crime as well as that of the persons who received the stolen property from the defendant. The prosecu-torial comment complained of does not focus on the defendant’s failure to testify in his own defense, but rather refers to the entirety of the State’s case, and the fact that no evidence was produced to refute it. This assignment is without merit.

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

AFFIRMED.


text:
    STATE of Louisiana, Plaintiff-Appellee, v. Willie MEARS, Defendant-Appellant.
    No. CR83-625.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 1984.
    Writ Denied March 16, 1984.

      Carl A. Leckband, Jr., Miguez & Leck-band, Lake Charles, for defendant-appellant.
    Leonard K. Knapp, Jr., Dist. Atty., and Karen L. Price, Asst. Dist. Atty., Lake Charles, for plaintiff-appellee.
    Before FORET, YELVERTON and KNOLL, JJ.
   KNOLL, Judge.

Willie Leroy Mears was charged by bill of information with negligent homicide, a violation of LSA-R.S. 14:32. He waived trial by jury and elected to be tried by judge alone. He was found guilty and sentenced to serve three years in the custody of the Department of Corrections. The defendant appeals on the following assignments of error:

1. The trial court erred in denying defendant’s motion for a new trial because the verdict was contrary to the law and evidence; and
2. The trial court erred in denying defendant’s motions for directed verdict and acquittal.

FACTS

On June 26, 1982 at approximately 9:00 p.m., as Bryan Settles, his wife Rita Settles, their young son, and John Meek were leaving the Green Acres Quick Stop on Old Town Road in Calcasieu Parish, a man later identified as the defendant, Willie Leroy Mears, asked if he could follow them home because his car had no headlights. Bryan Settles refused. Nevertheless, the defendant followed them down Old Town Road without headlights. The Settles noticed the defendant following them at a distance of approximately forty feet, swerving from side to side. The night was dark and moonless. The road had two lanes, was paved and had dirt shoulders.

Meanwhile Rocky Cook, the victim, and his companion, Ricky Hawkins, were walking in the opposite direction to the Green Acres store. They were walking in the right lane with the flow of traffic. Hawkins and Cook waited for a truck to pass in the left lane then began jogging across the road to the left lane. They did not see the defendant’s unlit car until it was almost on them. Hawkins leaped for the ditch and escaped unharmed. The defendant struck Cook in the left lane, hurling his body into the right lane of traffic near the center line. The defendant did not stop. Luke Hadnot, who was driving a truck in the right lane of traffic, noticed the defendant had no headlights when he met him. Had-not glanced at defendant’s vehicle, veered away from the center line and then looked back into his lane of traffic. Hadnot saw an object in his lane of traffic that he thought was a cardboard box lying in the center of the road. He attempted to straddle the object rather than hit it. It was not until Hadnot passed over the object that he realized it was a human being.

Meek saw the defendant hit Rocky Cook and told Settles. Settles pulled off the road and saw the defendant hesitate and then quickly accelerate his car past his (Settles’) truck. Settles followed the unlit car for approximately one mile until he obtained the license number of the defendant’s vehicle.

Settles and Meek returned to the scene of the accident and reported the license number to the policemen who had arrived. The investigating officer, Sergeant Joe Valenti, acting on information received at the scene of the accident, drove to a sand pit in the area searching for the defendant. He found the defendant at the sand pit standing near a car fitting the description given him. Valenti observed what appeared to be pieces of hair, flesh, and blood on the left front side of the vehicle. The car’s headlight control mechanism had been detached from the dashboard and was lying on the back seat along with alcoholic beverage containers.

The police transported the defendant back to the scene of the accident where Bryan Settles identified him as being the same person who followed his truck from the Green Acres store. The defendant refused to take a P.E.I. test. Two state troopers then administered a field sobriety test and concluded that the defendant was ■ unstable on his feet, thick tongued, uncooperative, and exuded a strong odor of alcohol.

Samples of what appeared to be human hair and tissue were removed from defendant’s vehicle and submitted to the Southwest Louisiana Crime Lab for examination. It was determined that the hair was from the human limb of a Caucasian, and, although the tissue could not be positively identified as skin, it was noted that this tissue was attached to the limb hair.

An autopsy was performed and it was determined that Rocky Cook died of massive traumatic injuries typical of an upright pedestrian being struck by a car bumper. The examining pathologist concluded that the fatal injuries had been inflicted by the initial impact.

MOTION FOR ACQUITTAL

The defendant contends that the trial court erred in denying his motion for acquittal.

A motion for acquittal is provided by LSA-C.Cr.P. Art. 778 which states in pertinent part:

“In a trial by the judge alone the court shall enter a judgment of acquittal on one or more of the offenses charged, on its own motion or on that of defendant, after the close of the state’s evidence or of all the evidence, if the evidence is insufficient to sustain a conviction."

The denial of such a motion may be reversed on appeal only if there is no evidence of the crime or an essential element thereof or where the denial is a palpable abuse of discretion. State v. Hargrave, 411 So.2d 1058 (La.1982).

The defendant contends that the State failed to prove an essential element of the offense, namely the identity of the victim. Negligent homicide is defined in LSA-R.S. 14:32 as follows:

“Negligent homicide is the killing of a human being by criminal negligence."

It is clear from the above definition of negligent homicide that the identity of the human being killed in negligent homicide is not an element of the offense. Further, the record clearly establishes the identity of the victim as being Rocky Cook. The record fully supports the conviction of the defendant.

This assignment of error is without merit.

MOTION FOR NEW TRIAL

The defendant contends that the trial court erred in denying his motion for a new trial in that the verdict was contrary to the law and the evidence as provided by LSA-C.Cr.P. Art. 851(1). The defendant’s motion is premised on two contentions: (1) that the State failed to present sufficient evidence to prove beyond a reasonable doubt that the defendant committed the crime; and, (2) that defendant’s actions on the night of the accident did not constitute criminal negligence.

The defendant asserts that there was insufficient evidence to establish that he was driving the automobile which struck and killed the victim. The basis for his contention is certain inconsistent statements in the evidence. Bryan Settles, who initially saw the defendant at the Green Acres store, and Ricky Hawkins, the victim’s companion, identified the defendant during their testimonies as being the same person that the police apprehended on the night of the accident, but that he was not clean shaven as he appeared in the court room. Pictures taken of the defendant on the evening of the accident show the defendant to be clean shaven. The other inconsistency involves the description of defendant’s automobile. ■ Settles described the car which followed him from the Green Acre store as being a red Ford Fairlane with a black vinyl top. The defendant’s car as depicted in police photographs was a green Oldsmobile Cutlass with a white top.

The standard of review of sufficiency of the evidence is whether a rational trier of fact, accepting the facts in a light most favorable to the prosecution, could have found the defendant guilty of the crime charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Brown, 421 So.2d 854 (La.1982).

Examination of the evidence in a light most favorable to the prosecution reveals that extensive evidence was introduced showing the identification of the defendant. Bryan Settles identified the defendant as the person who approached him at the Green Acres store and that the defendant followed his truck in a car with no headlights. Settles and the passengers in his truck realized a pedestrian had been struck. They pulled over and observed the defendant’s car slow down, then speed up, leaving the scene of the accident. Settles followed the defendant’s car for approximately a mile and secured the license number of his vehicle. After Settles gave the police the license number, Sgt. Valenti searched the area and found the defendant standing near the suspect automobile. Valenti brought the defendant back to the scene of the accident where Settles identified him as the driver of the car without headlights that followed him from the Green Acres store. At the trial, Trooper Gerald Singer, who was at the scene of the accident, Bryan Settles, and Ricky Hawkins, all identified the defendant as the same person that Sgt. Valenti brought back to the scene of the accident. The car the defendant was driving was damaged on the left front fender on the driver’s side. In the damaged area of the vehicle there was blood, tissue, and human hair of a Caucasion. The victim, Rocky Cook, was a young Caucasian male.

The defendant also asserts that his acts did not constitute criminal negligence. LSA-R.S. 14:12 states that criminal negligence exists when:

.. although neither specific nor general criminal intent is present, there is such disregard of the interest of others that the offender’s conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances. ”

Examination of the evidence in a light most favorable to the prosecution shows that the defendant was operating his automobile without headlights on a road without street lights on a very dark night. He had been drinking alcoholic beverages and failed a field sobriety test. He was drinking and driving under these conditions, swerving from side to side. As a result of these cumulative actions the defendant struck and killed Rocky Cook. The defendant’s conduct constitutes a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances.

This assignment of error is without merit.

DECREE

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

AFFIRMED.


author: YELVERTON, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Clarence WILLIS, Defendant-Appellant.
    No. CR83-637.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 1984.

      Thomas K. Brocato, Small, Small, Williamson & Brocato, Alexandria, for defendant-appellant.
    Edward E. Roberts, Asst. Dist. Atty., Alexandria, for plaintiff-appellee.
    Before FORET, YELVERTON and KNOLL, JJ.
   YELVERTON, Judge.

Defendant, Clarence Willis, was convicted of second degree murder and given the mandatory sentence of life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence (LSA-R.S. 14:30.1). He has appealed the conviction and briefed five assignments of error.

We do not consider these assignments because we find an error patent on the record requiring remand. The error consists of the failure of the trial court to comply with the unwaived three-day delay in sentencing required by Louisiana Code of Criminal Procedure Article 873. This article reads:

“If a defendant is convicted of a felony, at least three days shall elapse between conviction and sentence. If a motion for a new trial, or in arrest of judgment, is filed, sentence shall not be imposed until at least twenty-four hours after the motion is overruled. If the defendant expressly waives a delay provided for in this article or pleads guilty, sentence may be imposed immediately.”

The minutes show that Willis was convicted by a jury on Thursday, April 7, 1983. He was sentenced on Monday, April 11, 1983. The delay was less than three days. State v. Johnson, 275 So.2d 405 (La.1973), holds that a sentence on Monday following a conviction on Thursday is premature [Saturday and Sunday are not counted, C.Cr.P. Art. 13(3)]. Unless the delay is waived by the defendant, a sentence imposed before expiration of the delay is void. State v. Johnson, supra; State v. Augustine, 263 La. 977, 270 So.2d 118 (1972). The record does not disclose any waiver by the defendant of the three-day delay. Therefore, based on the two cases cited above, we must hold that the sentence is void.

The sentence in the instant case has not been challenged. If the conviction stands, the sentence is mandatory. We have accordingly considered whether it is a useless formality for us to remand for reimposition of the same sentence. Our concern in this regard is inspired by State v. White, 404 So.2d 1202 (La.1981), which held that the failure to wait twenty-four hours as required by C.Cr.P. Art. 873 after denial of post-trial motions before sentencing was not reversible, because there was no showing or suggestion that defendant was prejudiced by the failure to observe the delay.

We have concluded that the rationale of the White case, supra, which treats the twenty-four hour delay, is not applicable to the three-day delay provided by Art. 873. The difference lies in the purpose of the delay periods. The first delay is between conviction and sentence and its purpose is to afford an opportunity to defendant to file post-trial motions authorized by law, including the motion for a new trial. State v. Woods, 220 La. 162, 55 So.2d 902 (1951); see also Official Revision Comment (a) to Article 873. The denial of the statutorily granted minimum time to file post-trial motions is prejudicial on its face. The second time period, twenty-four hours between denial of post-trial motions and sentence, relates only to sentencing and unless the sentence is challenged, no prejudice results from failure to observe that delay.

The instant case involves the delay period of three days which was not waived by defendant. Because he was never given the opportunity to file post-trial motions before sentencing, we must declare the sentence void and remand for resentencing in accordance with the law.

For these reasons, the sentence is annulled and set aside, and the case is remanded to the Ninth Judicial District Court, Parish of Rapides, for resentencing in conformity with the law.

SENTENCE ANNULLED AND CASE REMANDED FOR RESENTENCING.