author: CARTER, Judge:

text:
    Gerald R. STEWART, et ux. v. Richard DAROUSE, et al.
    No. 83 CA 0438.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.

      A. Wayne Stewart, Denham Springs, for plaintiff-appellee.
    Ron S. Macaluso, Hammond, for defendant-appellant, Vincent Silessi.
    Richard Darouse, in pro. per.
    Before PONDER, WATKINS and CARTER, JJ.
   CARTER, Judge:

This is an appeal from a judgment on a third party demand in a redhibition suit.

On June 12, 1980, plaintiffs purchased a house from Darouse House Moving Company, Inc. The house had previously been owned by Vincent Silessi, who sold the house to Darouse House Moving immediately before Darouse resold the house to the Stewarts.

The Stewarts had engaged a realtor to assist them in finding a home. The realtor had contacted Silessi and obtained a single listing agreement with him. Silessi’s asking price was $8,000.00, and the realtor’s commission was $3,000.00, bringing the total sale price of the house to $11,000.00. The Stewarts were interested in the house for $8,000.00, but indicated that $11,000.00 was more than they were willing to pay.

Silessi then advised the Stewarts that although he could not sell the house directly to them for that price because of the listing agreement, he could sell the house to Darouse House Moving. Darouse House Moving could then, in turn, resell the house to them. Therefore, a deal was concocted wherein Silessi sold the house to Darouse for $8,000.00, the realtor’s commission was avoided, and Darouse then resold the house to the Stewarts for $8,000.00. The entire transaction was accomplished when the check made out by the Stewarts to Darouse was endorsed over to Silessi. For an additional $5,000.00, Da-rouse agreed to move the house from Siles-si’s property to plaintiffs’ lot within 45 days. Of this amount, $2,500.00 was paid to Darouse on June 13, 1980, and the remainder was to be paid after the house had been moved to the Stewarts’ property. Apparently Darouse was merely acting as a “middle man” in the transaction between Silessi and the Stewarts, and his only interest in the transaction was the contract to move the house.

Prior to the passage of the acts of sale, Richard Sanders, an employee of Darouse House Moving, inspected the house to ascertain whether the foundation of the house was structurally sound. Sanders crawled beneath the house and examined the sills and joists. From this examination, he concluded that the foundation was in good condition and that the house could be moved. He apparently advised Darouse of these conclusions.

More than a month after the sale, Da-rouse began operations to move the house. After removing the front and back porches and cutting off two rooms and a bath, Darouse discovered extensive termite damage to the residence. Darouse subsequently notified the Stewarts that it was virtually impossible to move the house unless a substantial amount of repair work was performed.

Because of the many problems experienced by the Stewarts, they filed this suit in redhibition on October 15, 1980, seeking a rescission of the sale of the house, return of the purchase price, damages and attorney’s fees against Richard Darouse and Darouse House Moving.

The remaining defendant, Darouse House Moving Co., Inc. (Darouse) filed an answer and third party demand making Vincent Silessi a third party defendant. In this pleading, Darouse contended that it was an “innocent third party” between the Stewarts and Silessi and that its only interest in the matter was the “moving of the house once it was sold from Mr. Silessi to Mr. Stewart.” Darouse further alleged that the house was severely infested with termites, that Silessi knew of this infestation at the time of the sale, and that Silessi was using Darouse to attempt to insulate himself from liability. In addition to the usual prayers of a third party demand, Darouse asked for judgment against Silessi in the amount of $20,000.00 for damages allegedly sustained by Darouse.

Silessi answered the third party petition denying Darouse’s allegations. Silessi then filed suit against Darouse in the City of Hammond, Seventh Ward Court seeking damages for breach of contract in the amount of $2,500.00, alleging the failure of Darouse to move the house off of his property. This suit was ultimately transferred to the Twenty-first Judicial District Court and consolidated with the instant suit.

On April 8, 1981, the consolidated suits were tried and taken under advisement. On June 18, 1981, the trial court filed written reasons for judgment favorable to the Stewarts on the main demand and favorable to Darouse on the third party demand against Silessi.

On July 1, 1981, before the formal judgment was signed, Silessi filed a pleading styled “Motion to Reopen Trial and Allow Third Party Defendant Vincent Silessi to Amend his Pleading”. On a rule to show cause, memorandums were submitted, but an exhaustive search of the record does not reveal a ruling on the motion. Moreover, however, was apparently successful as he later filed an amendment in response to an order of the court. .

Silessi then filed a “Motion for New Trial,” in which he successfully obtained a partial new trial. The motion was granted for the limited purpose of allowing proof of removal of property, located in the house but not included in the sale, and the value thereof.

After the partial rehearing of April 16, 1982, the trial judge stated that there was no proof of loss shown by Silessi that could be attributable to either the Stewarts or Darouse. Therefore, judgment was rendered on January 17, 1983 in substantially the same form as the previous judgment rendered herein in favor of the Stewarts and against Darouse House Moving Company, Inc. in the amount of $14,231.81 and in favor of Darouse’s third party demand against Silessi in the same amount and ordering a rescission of the sale.

Darouse has not appealed the judgment against him and in favor of the Stewarts on the main demand. Therefore, the judgment is final and not before us on appeal.

Silessi, however, appeals from the adverse judgment on the third party demand. He contends that the trial court erred in granting the third party demand against him because the defects complained of were discoverable by Darouse by mere inspection. Silessi also contends that it was error for the trial court not to set-off the damages he sustained against the judgment awarded Darouse House Moving.

VICE OR DEFECT

In Riche v. Krestview Mobile Homes, Inc., 375 So.2d 133, 137 (La.App. 3rd Cir. 1979), the court held that:

“A redhibitory defect sufficient to entitle a buyer to annul a sale is a defect in the item sold which renders it absolutely useless, or makes the use of the item so inconvenient or imperfect that it must be supposed that had the buyer known of the vice he would not have purchased the item. La.C.C. art. 2520. Additionally, it must be established that the defects existed at the time of purchase, but were neither known nor apparent to the purchaser, and that the seller could not, or would not, correct the defects when given the opportunity to do so. La.C.C. arts. 2530, 2531. Purvis v. Statewide Trailer Sales, Inc., 339 So.2d 403 (La. App. 1st Cir.1976).”

Darouse is an experienced house mover and has been engaged in the house moving business for thirty-five years. It is uncontradicted that he did purport to inspect the house in the case sub judice and that no termite damage was apparent. It was only after he began dismantling the house that he discovered extensive termite damage. Darouse testified as follows:

“Q. Then what happened after this transfer of money and the sale from Silessi to you to the Stewarts?
A. The house had two rooms and a bath added on to it and we went out and we cut the two rooms and bath off. And then we started to see the damage that was to the house.
Q. Where was the damage, Mr. Da-rouse?
A. It was just eat up, the floor joists and where the house sits on the foundation.
Q. The sills?
A. Yes. Now whenever we broke the brick first we went and worked for two days taking the porch, well, first Mr. Stewart went and took the garage down, carried it home then we went out we took the dozers and took all the front porch off and the back porch with the concrete. And then we went to seeing the damage then when we broke the jack the brick well it just termites went every where.
Q. And termites were all in the sills and the floor joists?
A. That is right.
Q. Throughout the entire premises?
A. That is right. I mean we didn’t take all of the sides off of the house I mean we didn’t go all around and break up the house when we seen the house was in that condition we stopped.”

An examination of the entire record makes it abundantly clear that the termite damage was such that it was not discoverable by an inspection of the premises, and the trial judge was correct in so holding. Since Darouse was not aware of the termite infestation and damage at the time that he performed the favor (i.e. purchase the house for resale to the Stewarts), the defect in the house at the time of its purchase was a redhibitory defect. Therefore, Darouse is entitled to annul the sale from Silessi to himself.

Having determined that the termite infestation was a redhibitory vice, we must examine whether Silessi is a good or bad faith seller to determine the extent of his liability to Darouse.

From the record it is clear that Silessi had on prior occasions attempted to sell the house. He had been unsuccessful in disposing of the house because of the termite infestation, dry rot, or a combination of the two.

We find that Silessi knew of the defect in his house and failed to declare it. Under LSA-C.C. art. 2545, he is answerable to the buyer for damages, including reasonable attorneys’ fees. Therefore, Darouse is entitled to recover from Silessi, a bad faith seller, restitution of price and repayment of all expenses, including reasonable attorney’s fees. However, nonpecuniary damages for mental anguish, which were awarded by the trial court, are not available in a redhibitory suit, and the trial judge erred in this regard. Paul v. Ford Motor Co., 392 So.2d 704 (La.App. 3rd Cir.1980); Laughlin v. Fiat Distributors, Inc., 368 So.2d 742 (La.App. 3rd Cir.1979). In addition to the above, we find two other errors in the judgment of the trial court which affect appellant Silessi. The sum of two hundred and fifty dollars ($250.00) was awarded for “moving trailer and utility pole”; however, we only find as a proven item of damage the sum of $50.00. Further, the sum of $2500.00 paid by the Stew-arts to Darouse was a deposit and partial payment for moving the house. Since the house was not moved, Darouse alone is responsible to the Stewarts for a return of their $2500.00. It was error for the trial court to include this item as an element of damages in the judgment in favor of Da-rouse on the third party demand against Silessi.

SET-OFF

Silessi contends that the trial court erred in not finding that Silessi suffered damages in an amount exceeding the value of the judgment rendered against him by the “acts of negligence committed by Darouse House Moving Company, Inc.” Silessi contends that certain items of furniture or other items in the house were taken or destroyed, and further that the trial court should have allowed the testimony on the rehearing as to the damage to the house itself as the result of leaving it severed and unattended on the property.

The trial court ruled that the case was reopened for the limited purpose of showing loss of the items not actually sold with the house, “like washing machine, furniture, etc.”, and the rehearing was not granted for the purpose of showing damaged conditions of the house as a result of actions of Darouse. Testimony was then proffered as to the actual damage to the house. Both from the proffered testimony and the testimony as concerns the appliances, it is clear that Silessi told the Stew-arts that whoever bought the house got these items. The Stewarts, before learning of the severe termite damage, had removed the items and have since tendered their return. Regardless of this, the trial judge found, and we agree, that these items “had no real value.”

As to Silessi’s purported proffer of testimony as concerns damages to the structure remaining on Silessi’s property, the trial judge properly excluded this testimony. The previous judgment had resolved this matter and this partial rehearing and/or new trial was limited to grounds of the value of property Mr. Silessi removed from the premises. In addition, there is simply no valid evidence in the record to support appellant’s contentions, and the record clearly supports the trial court’s finding that “the house in question was almost totally destroyed by termites prior to the sale” and damages in set-off were not proven.

CONCLUSION

Therefore for the above and foregoing reasons, we herein amend the judgment of the trial court and deny that portion of Darouse’s third party demand for mental anguish and deny the $2500.00 deposit designated as “payment on moving”, and reduce the award of $250.00 to $50.00 for moving the utility pole. Therefore, we reduce the total principal amount of the judgment in favor of Darouse against Silessi from $14,231.81 to $10,531.81, and, as amended, the judgment is affirmed in all other respects. All costs to be paid by third party defendant, Vincent Silessi.

AMENDED AND AFFIRMED.

APPENDIX A

JUDGMENT

This cause came on for trial on the 18th day of April, 1981. Present were A. Wayne Stewart, attorney for Gerald R. Stewart and Patricia J. Stewart; Charles G. Walker, attorney for Richard Darouse and Darouse House Moving Company, Inc.; and Ron Macaluso, attorney for Vincent Silessi.

After hearing the evidence and reviewing the pleadings, the Court considering the law and evidence to be in favor of plaintiffs, Gerald R. Stewart and Patricia J. Stewart, and against the defendant, Da-rouse House Moving Company, Inc. and Vincent Silessi for written reasons filed June 18, 1981.

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of Gerald R. Stewart and Patricia J. Stewart and against Darouse House Moving Company, Inc. in the amount of FOURTEEN THOUSAND TWO HUNDRED AND THIRTY-ONE AND 81/100 ($14,231.81) DOLLARS, together with legal interest thereon from October 14, 1980 until paid;

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of Darouse House Moving Company, Inc. and against Vincent Silessi in the amount of FOURTEEN THOUSAND TWO HUNDRED AND THIRTY-ONE AND 81/100 ($14,231.81) DOLLARS together with legal interest thereon from October 14, 1980 until paid;

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Vincent Silessi be and is hereby condemned to pay the full cost of this proceeding.

Judgment read, rendered and signed, in open court in Amite, Louisiana, on the 4th day of August, 1981.

(s)Edward B. Dufreche

JUDGE,

21st Judicial District Court

Respectfully submitted:

/s/A. Wayne Stewart

A. WAYNE STEWART

Attorney at Law

P.O. Drawer 546

Denham Springs, Louisiana 70726

(504) 664-3785

APPENDIX B

JUDGMENT

This matter came on for partial rehearing on April 16, 1982. Present was A. Wayne Stewart, Attorney for Gerald A. Stewart and Patricia J. Stewart; Charles G. Walker, Attorney for Richard Darouse and Darouse House Moving Company, Inc.; and Ron Macaluso, Attorney for Vincent Silessi.

After hearing the evidence and reviewing the pleadings, the Court considering the law and evidence to be in favor of plaintiffs, Gerald R. Stewart and Patricia J. Stewart, and against the defendant, Da-rouse House Moving Company, Inc., and in favor of third party plaintiff, Darouse House Moving Company, Inc. and against third party defendant, Vincent Silessi for written reasons assigned herein;

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of Gerald R. Stewart and Patricia J. Stewart, against Darouse House Moving Company, Inc. in the amount of FOURTEEN THOUSAND TWO HUNDRED AND THIRTY-ONE AND 81/100 ($14,-231.81) DOLLARS, plus legal interest thereon from October 14, 1981 until paid;

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of Darouse House Moving Company, Inc. and against Vincent Silessi in the amount of FOURTEEN THOUSAND TWO HUNDRED THIRTY-ONE AND 81/100 ($14,231.81) DOLLARS plus legal interest thereon from October 14, 1981 until paid;

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Act of Sale on the premises which is the subject matter of this suit be and is hereby rescinded and set aside;

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Vincent Silessi be and is hereby condemned to pay the full costs of this proceeding.

Judgment read, rendered and signed in Amite, Louisiana in Open Court on the 17th day of January, 1983.

(s) Edward B. Dufreche

Judge,

21st Judicial District Court

Respectfully submitted:

/s/A. Wayne Stewart

A. WAYNE STEWART

Attorney at Law

Post Office Box 686

Denham Springs, Louisiana 70726-0686

(504) 664-4657

      . Richard Darouse filed an "Exception of No Cause and No Right of Action" contending that he was acting solely in his capacity as President of Darouse House Moving Co., Inc. Judgment was subsequently rendered sustaining this exception; no appeal was taken, and this portion of the proceeding is now final and not before us on appeal.

      . In his written reasons for judgment, the trial court stated:
      "The facts indicate clearly that the house in question was almost totally destroyed by termites prior to its sale. The damage was such that it could not be discovered by an inspection of the premises.
      Plaintiffs sustained damages as follows, to-wit:
      Cost of house_$ 8,000.00
      Payment on moving_ 2,500.00
      Insurance policy_ 256.00
      Moving trailer and utility pole_ 250.00
      Attorney’s fees for mortgage_ 230.00
      Interest paid on loan --- 495.81
      Attorney’s fees for this suit _ 1,500.00
      Mental anguish of both parties - 1,000.00
      TOTAL __ $14,231.81
      The court will grant judgment in the total amount shown in favor of plaintiffs and against defendant, Darouse House Moving Company, Inc., together with legal interest from the date of demand and for all costs.
      The court is further convinced that in this case Darouse was acting in the capacity of a middle man or agent for third party Vincent Silessi, and that there should be judgment on the third party demand in favor of third party plaintiff, Darouse House Moving Company, Inc. and against third party defendant, Vincent Silessi, in the same amount for which it was case in the main demand.
      Any other claims of third party plaintiff are dismissed.”
      The formal judgment, attached as Appendix A, made no mention of the unresolved third party claims. Additionally, there is no judgment in the consolidated suit of Vincent Silessi v. Da-rouse House Moving, Inc., #8247, Hammond City Court, City of Hammond, Seventh Ward Court. Nor do we find any formal disposition of the $20,000.00 claim for damages in the third party demand of Darouse against third party defendant Silessi.

      . The amendment filed provided as follows:
      “Now into Court through undersigned counsel comes, Vincent Silessi, third-party defendant, who in response to the order of this Court in re-opening the case amends the third-party demand answer by alleging the following:
      VI.
      As a result of the actions and negligence of plaintiff, Gerald R. Stewart and Richard Da-rouse and Darouse House Moving, Inc., ap-pearer has been damaged in an amount exceeding the amount of the judgment rendered in this matter previously." (emphasis added)

      . A copy of this judgment is attached as Appendix B. This judgment is silent as to the unresolved claims mentioned in footnote 2. Additionally, this judgment does not address Silessi's amendment to his demand for set-off or the ruling of the trial court on the partial new trial.

      . The trial court judgment clearly indicates that the termite damage was not discoverable by mere inspection. In the main demand, however, he erroneously awarded attorneys’ fees and damages for mental anguish to the purchasers. Good faith sellers are only responsible for those damages provided in LSA-C.C. art. 2531. Darouse, however, did not appeal this error, and that portion of the judgment is now final.

      . LSA-C.C. art. 2545 provides as follows:
      "The seller, who knows the vice of the thing he sells and omits to declare it, besides the restitution of price and repayment of the expenses, including reasonable attorneys’ fees, is answerable to the buyer in damages."

      . We have noted the numerous procedural irregularities throughout the trial of this matter. However, neither appellant nor appellee have set forth any concern over the procedural irregularities noted by this court.


source: Caselaw Access Project

author: CRAIN, Judge.

license: Public Domain

text:
    Mr. and Mrs. Mervin LeBLANC, et al. v. CITY OF PLAQUEMINE, et al.
    No. 83 CA 0564.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.
    Rehearing Denied April 10, 1984.

      John Schwab and Leu Ann Lester Greco, Baton Rouge, for plaintiffs, Mr. and Mrs. Mervin LeBlanc, et al.
    Wallace F. Brand and David A. Leckie, Brand & Leckie, Washington, D.C., and William C. Dupont, Dupont, Dupont & Du-pont, Plaquemine, for defendants, City of Plaquemine.
    Before SHORTESS, LANIER and CRAIN, JJ.
   CRAIN, Judge.

This is an appeal from a judgment of the trial court in a suit for declaratory judgment holding that the plaintiffs have the right to terminate electric service from the defendant, the City of Plaquemine (City), in order to obtain the same service from Gulf States Utilities (GSU).

FACTS

Green Acres subdivision is located in Iberville Parish, outside of the corporate limits of the City. It consists of two separate developments, Green Aeres I and Green Acres II. The subdivision was developed by Allied Investments (Allied), a partnership that was later incorporated.

The City operates a public utility and furnishes electric services both within and without its corporate limits. During the initial stages of development of Green Acres I, in the late 1960’s or early 1970’s, Allied requested the City to extend its electric facilities to the subdivision. Mr. J. Gerald Dupont, a partner in Allied, testified that Allied actually preferred service by GSU, but the arrangement with the City was agreed upon because the City would not furnish water unless it could also furnish electric service. There was no written document containing this agreement between Allied and the City. The City installed its poles and lines down the length of the principal street of the subdivision.

After Green Acres I was completed, lots were sold. Some of the purchasers requested electric service from the City while a few chose service from GSU, which has electric facilities to the rear of some of the lots.

Green Acres II was developed in the mid-1970’s in much the same way as Green Acres I, except that Allied entered into a “utilities service agreement” with the City whereby the home-owners would be allowed to tie into the city sewerage system if Allied would include an additional restrictive covenant in their subdivision restrictions, providing that the City would be the sole supplier of electric service in Green Acres II. That agreement was filed with the Iberville Parish Recorder on August 3, 1977; however, there was no evidence that this additional restriction was ever actually added to the existing restrictive covenants.

The plaintiffs in this suit are approximately 50 customers all residing in Green Acres subdivision and all presently receiving electric service from the City. Each plaintiff had verbally requested from the City initial service or transfer of service (from a prior location) to their home in Green Acres subdivision. This request was accompanied by a utility deposit or their previous deposits were transferred to their new account in Green Acres. Plaintiffs have since requested service from GSU, but GSU has declined pending the plaintiffs’ release from the City’s electric services. At the time suit was filed, GSU’s rates were considerably lower than the City’s.

TRIAL COURT

Plaintiffs filed suit on October 10, 1980, seeking a declaration of an alleged right to terminate the City’s electric service in favor of service by GSU and an injunction prohibiting the City from continuing to serve them. The petition alleges that the City’s service “is illegal, ultra vires and in excess of the corporate municipal authority of the City of Plaquemine, in that there is no service agreement therefor between any of plaintiffs and the City of Plaquemine, as required by La.R.S. 33:1326.” In its answer, the City denied the allegations of the petition and averred the existence of service agreements sufficient for the purposes of La.R.S. 33:1326. The City pleaded affirmatively the existence of custom and usage bearing on the terms of electric service agreements and made a reconventional demand for compensation for electric facilities that were installed in order to service plaintiffs in the event plaintiffs prevailed.

By off-the-record stipulation before trial, plaintiffs agreed not to advance their claim for injunctive relief.

After trial on the merits, the trial judge held that the City did not have any service agreements as contemplated by La.R.S. 33:1326, and plaintiffs have the right to terminate electric service from the City in order to obtain service from GSU. The court also found that since the City failed to charge plaintiffs for service extensions when service was first provided, the City is not entitled to compensation from the plaintiffs for electric facilities or extension of service should plaintiffs elect to terminate service with the City. From that judgment, the City appeals, citing eight assignments of error.

ASSIGNMENTS OF ERROR

Appellant argues in its first assignment of error that the court erred in concluding that no “service agreements” of the kind required by La.R.S. 33:1326 exist between the plaintiffs and the City. We agree.

La.R.S. 33:1326 provides:

Any parish or municipality operating a gas, water, or electric light or power system, sewerage plant, or transportation system, may extend such services to persons and business organizations located outside its territorial bounds, or to any other parish or municipality. Such extension shall be in accordance with the terms of service agreements entered into by the parish or municipality supplying the service and the persons, business organizations, parishes, or muncipalities receiving the service. (Our Emphasis)

As the trial judge pointed out, there are no prior decisions interpreting this statute to guide us as to what constitutes a “service agreement”. However, La.R.S. 33:1323 does provide that the Local Services Law, of which La.R.S. 33:1326 is a part, “shall be construed liberally, to the end that, through the use of arrangements provided herein, greater economy and efficiency in the operation of local services may be encouraged, and the benefits of such services may be extended.”

The trial court found that La.R.S. 33:1326 must be interpreted to mean that a “service agreement” is more than a request for utility service and a deposit to ensure payment of the bill. Although the trial judge found that La.R.S. 33:1326 did not require a written agreement, he suggested that the City could have set up a written service agreement with each person stating the duration of service, cost of installation, price of electricity, termination charges, etc. Because the City did not have such an agreement with its customers, the trial judge found that the City had no La.R.S. 33:1326 “service agreements” with plaintiffs.

On appeal, the City argues that a reading of the Local Services Law (La.R.S. 33:1321 et seq.) demonstrates that the term “service agreements” cannot reasonably be construed to mean more than a contract valid under Louisiana’s law of obligations. The City then submits that the arrangements under which it furnishes electric service to the plaintiffs constitute valid binding contracts and therefore, sufficient “service agreements” for the purposes of La. R.S. 33:1326. The City’s expert witness, Mr. Sylvan J. Richard, general manager of the Louisiana Energy and Power Authority, who is in close contact with municipal utilities, testified that he did not know of a single municipal utility that reduces its service agreements with customers to writing.

THE EXISTENCE OF LA.R.S. 33:1326 SERVICE AGREEMENTS

After review of the Local Services Law we are persuaded that the appellant’s interpretation of the meaning of “service agreements” in La.R.S. 33:1326 is the correct one. It is obvious that had the legislature intended a stricter construction of La. R.S. 33:1326, it would have specified what additional formalities were necessary. In two other provisions in the same act, additional formalities are specified for different agreements. La.R.S. 33:1325 requires that La.R.S. 33:1324 agreements between political subdivisions be reduced to writing, and La.R.S. 33:1331 requires that they include a statement of the financial obligations of each of the parties to the agreement. Therefore, in view of La.R.S. 33:1323’s policy of liberal construction, we conclude that the term “service agreements” in La.R.S. 33:1326 in no event requires any more than the basic requirements of a contract under Louisiana law.

La.C.C. art. 1779 states the four requisites of a valid contract: (1) competent parties, (2) their consent, (3) a certain object, and (4) a lawful purpose. We find each of these elements met in this case, forming a valid contract or “service agreement” between the City and its customers. In Grein v. Hawkins, 295 So.2d 219 (La. App. 3rd Cir.1974) the court held that use of sewerage utility services, billings and payment of bills evidenced a binding contract in that case. In City of Houma v. Terrebonne Parish Police Jury, 345 So.2d 1206 (La.App. 1st Cir.1977), the court stated that the “service agreements” provided for in La.R.S. 33:1326 are “accords reached by the entity supplying the utility and the receiver of the utility service.” We see no reason why the request for utility service, combined with service, billing and payment — certainly an accord reached between the City and plaintiffs — should not be termed a contract or “service agreement” in the case before us. Indeed, the appel-lees do not dispute that there is a contract present but argue that this alone is not sufficient absent more specific terms. We disagree.

TERM OF THE SERVICE AGREEMENTS

Appellees argue that the service agreements by which they receive electricity from the City do not comply with La.R.S. 33:1326 because there is no agreement as to duration of term. The implication of this argument is if a service agreement exists it can be terminated unilaterally by the customer in favor of another supplier. The appellant in its second assignment of error argues that these agreements are not unilaterally terminable by the plaintiffs for purposes of obtaining electricity from another source either during the period of the requirements of the customers receiving the service, or for the depreciable life of the facilities employed to furnish the electric service. Since the trial court found that no service agreements exist, its opinion contains no findings as to the termination or duration of these agreements.

The term of the service agreements involved in this case was not stipulated in the agreements. In the absence of an express stipulation as to the term of a contract, Louisiana courts will infer a reasonable term from the nature of the contract and the circumstances of the case. La.C.C. art. 2050; Equitable Petroleum Corporation v. Central Transmission, Inc., 431 So.2d 1084 (La.App. 2d Cir.1983); Parquette v. Arceneaux Music Center, Inc., 425 So.2d 362 (La.App. 3rd Cir.1982). Among those circumstances are the manner of the parties’ execution of their obligations, and pertinent usage and custom. La. C.C. arts. 1953, 1956 and 1966; See Wolfe v. Sample, 141 So. 812 (Orl.La.App.1932).

The parties in this ease agreed that the testimony of six of the plaintiffs would be deemed representative of that which would have been elicited from the remaining plaintiffs, had they been called. Each of these plaintiffs testified as to their different subjective intentions regarding the City’s extension of electric service. Two testified that they did not have any particular intention as to the duration of the service at the time they requested it. Two testified that they, unknown to the City, intended to switch to GSU eventually. One testified that he intended that his service could be terminated at any time. None of these intentions were communicated to the City at the time service was requested. Most significant was the fact that not one of the plaintiffs could claim knowledge of (nor was there cited) a single case of a City’s customer switching to another utility without the express consent of the City. On the other hand, it is obvious that based upon its substantial investment in electric facilities, for both generating and distributing electricity, the City’s understanding was that these service agreements were not terminable at the customer’s will for the purpose of obtaining the same service from another utility.

The following provisions of the Civil Code allow for the employment of custom and usage in defining the terms of the agreements in this case:

La.C.C. art. 1903. The obligation of contracts extends not only to what is expressly stipulated, but also to everything that, by law, equity or custom, is considered as incidental to the particular contract, or necessary to carry it into effect.
La.C.C. art. 1953. Whatever is ambiguous is determined according to the usage of the country where the contract is made.
La.C.C. art. 1964. Equity, usage and law supply such incidents only as the parties may reasonably be supposed to have been silent upon from a knowledge that they would be supplied from one of these sources.

Also, La.C.C. art. 1966 states, in pertinent part: “By the word usage mentioned in the preceding articles, is meant that which is generally practiced in affairs of the same nature with that which forms the subject of the contract.”

The testimony at trial established what were the customary practices between utilities and their customers. Mr. Richard testified that in his 25 years in the utility business in Louisiana he had not known or heard of a single instance in which a customer to whom one Louisiana utility had extended service was permitted unilaterally to terminate that service in favor of another supplier.

Also significant is the fact that GSU refused to serve the plaintiffs until they obtained releases from the City. The only recorded transfer of a.customer from the City’s service to another service was that of Plaquemine High School and a few nearby customers to service by Louisiana Power and Light (LP & L). This was part of a settlement reached by City and LP & L in an antitrust suit, in which the City agreed (in a. letter drafted by LP & L) to refrain from making any claim against LP & L “for inducement of breach of contract or otherwise”. The trial court ruled the letter inadmissible as hearsay; however, the record reflects that the letter was signed by the mayor of the City of Plaquemine who testified at trial. We find the letter tends to prove, along with GSU’s conduct, that these utilities recognize the possibility of contractual difficulty resulting from City customers attempting to unilaterally change utility companies.

Finally, we note that the plaintiffs residing in Green Acres II were sufficiently put on notice by the document entered into by Allied and the City that the City would be the sole supplier of utility services to that subdivision. The document was filed in the office of the parish recorder and under the provisions of La.R.S. 9:2721 this constituted notice to the buyers who subsequently requested City service, that nonter-minability was arguably a condition of that extension.

Based on the above examination of custom and usage in the utility business, and the nature of these service contracts, we find that these service agreements with the City are not terminable at will by the plaintiffs for a reasonable term and reverse the judgment of the trial court.

We do not find it necessary at this time to fix the actual duration of the reasonable term of these service agreements for these plaintiffs since plaintiffs did not request such a determination in their petition. We decide only that there are valid service agreements that cannot be unilaterally terminated for a reasonable term for the sole purpose of obtaining electricity from another supplier. Of course, the City is bound to provide these plaintiffs the same right of termination it provides its other customers.

For the foregoing reasons, we reverse the judgment of the trial court, and assign all costs of this appeal to the plaintiffs. We do not reach appellant’s remaining assignments of error, which are concerned with compensation in the event of termination.

REVERSED AND RENDERED.

      . Testimony indicated that at the time this agreement was made the City’s utility subsidized its water and sewerage services.

      . The dispute in this case would ordinarily not occur since La.R.S. 45:123 prohibits one electric public utility from constructing facilities or offering to furnish electric service to any point which at the time is located within 300 feet of an electric line of another electric public utility. However, this statute specifically excludes from its application "municipally-owned or operated utilities of the State of Louisiana”.

      .Because of our holding in this case it is not necessary for us to determine whether the service agreement with the developers of Green Acres II acted as a restrictive covenant on purchasers of lots in that development. The plaintiffs who live in Green Acres II are actually receiving electricity from the City.

      . The remaining plaintiff who testified was not questioned as to his intent as to duration when he requested service.

      . The determination of what is the "reasonable term” of these service agreements should be reached by taking into consideration such matters as the amount of time necessary for. the City to recover its investment, the prevailing practice with similar contracts for furnishing electrical service to customers and any other matters which might be relevant to determine the length of a customer service contract to enable the utility to furnish such service at the least possible cost.

      . This would include the right to terminate electrical use in the event the particular plaintiff no longer requires electrical service at the address where it is being supplied. However, no other customer is given the right to terminate in favor of another supplier.


author: ALFORD, Judge.

text:
    STATE of Louisiana v. Kerry Van WELCH.
    No. 83 KA 0771.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.
    Writ Denied May 25, 1984.

      Ossie Brown, Dist. Atty. by John Sinque-field, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    James Boren, Boren, Holthaus & Perez, Baton Rouge, for defendant-appellant.
    Before LOTTINGER, EDWARDS and ALPORD, JJ.
   ALFORD, Judge.

Defendant, Kerry Van Welch, was indicted by the grand jury for the first degree murder of Marshall Carruth on April 16, 1977, in violation of LSA-R.S. 14:30. After trial by jury, defendant was found guilty as charged and sentenced to life imprisonment at hard labor without benefit of probation, parole or suspension of sentence. Defendant appeals his conviction alleging twelve assignments of error:

1. The trial court erred by overruling defense objection to the testimony that the victim had said he did not like to work with the defendant.
2. The trial court erred in denying a requested mistrial after testimony that the victim had said he did not like working with the defendant.
3. The trial court erred by refusing to admonish the jury after testimony that the victim had said he did not like working with the defendant.
4. The trial court erred by not allowing the defense counsel to competently cross-examine prosecution witness Mr. Riddle.
5. The trial court erred by denying the defense request for a mistrial based on intentional prosecutorial jury information tactics.
6. The trial court erred by admitting into evidence a tire tool which could not possibly have been that tool allegedly involved in the instant case.
7. The trial court erred by failing to allow defense counsel to competently examine and/or cross-examine Eddie Bennett.
8. The trial court erred in denying the defense requested motion for appointment of a sanity commission.
9. The trial court erred in denying defense requested motion to suppress.
10. The trial court erred in denying the defense requested motion to exclude reference to prior convictions.
11. The trial court erred in denying the defense requested motion to quash and plea of unconstitutionality.
12. The trial court erred by failing to sustain the defendant’s objection to the verdict as being a “qualified verdict”.

Assignments of error numbers 8, 10, and 11 were neither briefed nor argued on appeal and are thus considered abandoned. Uniform Rules-Courts of Appeal, Rule 2-12.4; State v. Kohler, 434 So.2d 1110 (La. App. 1st Cir.1983).

On April 16, 1977, Marshall Carruth was found brutally murdered at the Baker Tire Center, his place of employment. That morning, the victim opened up the Baker Texaco Station as usual. About 7:00 a.m., he continued in his usual routine and proceeded to the tire center about a half mile away where he was to open up the center and fill the register with cash. Sometime around 8:00 a.m., a customer found the body of Carruth in the office. His head and face were horribly beaten and blood was splattered on the walls, floor and ceiling. The cash register was open and loose change was found on the floor. No suspects were arrested and the crime remained unsolved.

Sometime during the summer of 1980, defendant and Barbara Welch were married. Testimony in the record reveals that a few days after the marriage, defendant informed Barbara that he had killed a man. Because she thought Welch .was just “talking big”, Barbara did not pay much attention to the defendant’s assertions. Sometime later, defendant and Barbara physically, but not legally, separated.

During the summer of 1982, defendant and Barbara were talking on the telephone when the subject of having killed a man recurred. Disturbed by this, Barbara Welch went to her father to ask advice. Barbara’s father, Bud Kirouac, went to a friend, Charles Hicks, who worked as a pre-sentence investigator for the City Court of Baker. Hicks went to the Baker police with Barbara’s information.

The Baker police asked Barbara if she would tape her telephone conversations with the defendant, and, if possible, get Welch to talk about the killing. Barbara consented to the request. In furtherance of the investigation, the police supplied her with a tape recorder and tapes which she could use to tape conversations with the defendant. Subsequently, on August 17 and 18 of 1982, two tapes were made of defendant • talking with his wife on the phone. On the tape dated August 18,1982, Welch admits killing Marshall Carruth and fears that because of this God will not forgive him and he will be condemned to hell.

On September 10, 1982, at about 6:00 a.m., the Baker police stopped defendant on his way to work and asked him to come down to the station for questioning about a matter under investigation. The defendant freely agreed. Upon arriving at the station, defendant was given his Miranda rights and signed a rights waiver form. When told by Baker police officers Bour-goyne and Funderburk that they had information that defendant was responsible for the murder of Marshall Carruth, defendant initially denied involvement. Seconds later, however, after the police repeated their assertions, defendant put his head down, started crying and said something to the effect of, “You may as well take your gun and shoot me now because I’m not going to spend the rest of my life in prison.”

Stan Easley is a Baker policeman, a born-again Christian, and a very religious man. Because he was initially assigned to the Carruth killing, those investigating the case have, out of courtesy, kept Easley informed as to the progress of the investigation through the years. When Easley heard the tape between defendant and Barbara, wherein defendant admitted killing Carruth and expressing fears about eternal damnation, Easley requested that he be allowed to talk to Welch after he was arrested about his religious suppositions and his fears that he would never be forgiven for the crime. Easley testified his motives were pure- and he simply wanted to share Christ with Welch.

After the initial interrogation of defendant mentioned above, Bourgoyne and Fun-derburk left the room and Easley came in. Easley testified that when he entered the room Welch greet him with a “Hi”. Immediately thereafter, Easley clearly identified himself as a policeman. Easley also testified that Welch knew who he was and knew he was a police officer from earlier encounters.

Defendant and Easley sat down together and had a prayer session which lasted several hours. During this session, defendant and Easley discussed the salvation of the Lord which is available to all Christians and the fact that Welch could be forgiven for the crime. The defendant, of course, made inculpatory statements to Easley about the crime.

After the prayer session, Welch made an oral confession to Officer Bourgoyne. Immediately thereafter, after having been given his Miranda rights again, defendant gave a taped confession wherein he admitted killing Carruth with a tire tool.

Sometime later in the morning, after having met with his wife, father-in-law, and minister, Welch apologized to his father-in-law for the crime and asked Officer Fun-derburk to gather up the Carruth family because Welch wanted to apologize to them. It is significant to note that subsequent to the confessions and inculpatory statements, defendant has never denied his involvement in this crime.

ASSIGNMENTS OF ERROR NUMBERS 1, 2 AND 3:

By these assignments, defendant contends the trial court erred by overruling defense counsel’s objection to allegedly hearsay testimony, by denying a motion for mistrial after this testimony and refusing to admonish the jury after this testimony.

While on direct examination, Ruth Adams, the owner and manager of the Baker Tire Center, was asked by the prosecution if she knew whether the victim liked working with defendant. Defense counsel objected on the grounds that the question called for a hearsay response. The trial judge allowed her to answer the question. The witness responded, “No, he did not.” She was then asked by the prosecutor, “And do you know why?” Defense counsel objected again, and the jury was retired. The trial judge asked the witness the same question. She answered that the victim had told her.

The trial judge ruled that the answer was hearsay and refused to allow the question. The judge, however, ruled the response to the first question was proper because the witness knew in her mind that the victim did not like to work with the defendant. The judge denied a motion for mistrial and refused to admonish the jury.

Hearsay evidence is testimony, in court or written evidence, of an out-of-court statement offered as an assertion to show the truth of matters asserted therein. State v. Clay, 441 So.2d 1227 (La.App. 1st Cir.1983). The response to the first question was not an out-of-court statement and therefore does not constitute hearsay. We agree with the trial judge that the testimony was proper.

The trial judge is given discretion to determine whether a fair trial is impossible, or an admonition is adequate, to assure a fair trial when prejudicial conduct does not fit within the mandatory mistrial provisions of La.C.Cr.P. art. 770. State v. Belgard, 410 So.2d 720 (La.1982). The trial judge correctly ruled that the witness’ answer to the first question was admissible. Therefore, it was not error for the trial judge to refuse to grant a motion for mistrial or to give an admonition to the jury.

These assignments of error are without merit.

ASSIGNMENT OF ERROR NUMBER 4:

Defendant contends the trial court erred by not allowing impeachment of a prosecution witness through the use of an alleged prior inconsistent statement.

During his trial testimony, the witness stated defendant left the Texaco Station after the victim had left. In his statement on the day of the murder, the witness did not mention defendant left the station (there was some indications he was not asked the question). Defendant contends this is a prior contradictory statement.

LSA-R.S. 15:493 permits the credibility of a witness to be impeached by proof of any statement made contradictory to his testimony at trial. State v. Molinario, 383 So.2d 345 (La.1980). In this case, since the prior statement by the witness was not contradictory, it could not be used for impeachment. That statement did not contain facts inconsistent with the witness’ testimony, rather it simply lacked information asked for at trial.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER 5:

Defendant contends that the trial court erred in denying his motion for mistrial based on the prosecutor’s reference to defense tactics and the intent of defense counsel’s objections. During cross-examination of a prosecution witness, the assistant district attorney objected to a question. Defense counsel objected to the prosecutor’s comments and asked that the jury be retired. The prosecutor then commented that the jury should hear the argument and not be retired. The trial judge refused to grant a mistrial but did admonish the jury.

Mistrial is a drastic remedy, which is warranted only if substantial prejudice resulted which would deprive defendant of a fair trial, and the ruling of the trial court will not be disturbed absent an abuse of discretion. State v. Clay, supra. In this case, the judge properly admonished the jury to disregard the prosecutor's comments. Furthermore, there was no showing that the remark prejudiced defendant’s right to a fair trial. We find no error in the denial of the mistrial.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER 6:

Defendant contends the trial court erred by admitting into evidence a tire tool which was similar to the tool involved in this case. At trial, he argued that the evidence was not relevant. He now argues that the tool was not the best evidence, thus asserting an additional ground.

It is well settled that a new basis for an objection may not be raised for the first time on appeal. La.C.Cr.P. art. 841; State v. Burdgess, 434 So.2d 1062 (La.1983). Therefore, we will not consider the best evidence ground for defendant’s objection.

The trial court has great discretion in determining the relevancy of evidence, and its determination will not be overturned absent a clear abuse of discretion. The testimony was quite clear that the tool admitted into evidence was the same type tool that was found missing the day of the murder, and had remarkably similar characteristics as the instrument which the doctor testified probably struck the fatal blows. State v. Easley, 432 So.2d 910 (La.App. 1st Cir.1983). Thus, we find no abuse of discretion and, therefore, find no merit in this assignment of error.

ASSIGNMENT OF ERROR NUMBER 7:

Defendant contends that trial court erred by failing to allow him to impeach his own witness. At trial, defense counsel pled surprise and claimed that his own witness was hostile.

The witness had been interviewed by defense counsel’s investigator, and she stated she saw a long blond haired boy running away from the tire center shortly before the victim’s body was discovered. On the morning of the trial, defense counsel discovered through his investigator that his witness was no longer clear on her recollection of the boy running away from the murder scene. The trial judge ruled the witness was not hostile and defendant was not surprised by the testimony when she did not admit seeing this boy.

No one can impeach his own witness, unless he has been taken by surprise by the testimony of such witness, or unless the witness shows hostility toward him. See, LSA-R.S. 15:487. Defendant makes no showing that the witness was hostile. A review of the record indicates she was cooperative and answered defense counsel’s questions. Furthermore, defense counsel knew the witness was waivering on her testimony before he called her as a witness. We also find that the witness did not testify upon some material matter against the party introducing him and in favor of the other side. LSA-R.S. 15:488; See, State v. Rogers, 324 So.2d 403 (La.1975). The witness simply was not testifying as defendant hoped she would.

Therefore, we find the trial judge correctly ruled it was improper for defendant to impeach his own witness.

ASSIGNMENT OF ERROR NUMBER 9:

In this assignment of error, defendant contends the trial judge erred in admitting several oral and taped statements by defendant. The four statements admitted were:

1. A taped confession dated September 10, 1982;
2. An oral statement to Sgt. Easley during their prayer session before the taped confession;
3. An oral statement to Officer Funder-burk regarding an apology to the Carruths which occurred after the preceding identified statements; and
4. An oral statement to defendant’s father-in-law which occurred at the police station after all of the above mentioned statements were taken.

Defendant contends that all the statements were inadmissible as they were fruits of the taped statements made by defendant to his wife. The trial judge ruled that the statements made to defendant’s wife were inadmissible under the husband-wife privilege contained in LSA-R.S. 15:461. We note that defendant’s wife did not testify in this case. We further note that Barbara Welch freely consented to tape the conversation between she and the defendant. Although defendant argues that Barbara’s consent was coerced, we feel the preponderance of the evidence clearly demonstrates that Barbara’s participation was voluntary. Thus, it was not unlawful for Barbara to tape her husband without his consent. LSA-R.S. 15:1303 B (3).

Suppression of evidence under the reasoning of Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), requires a finding that discovery of the evidence is the direct result of some primary illegality or taint. State v. Johnson, 408 So.2d 1280 (La.1982). The taint is lacking in this case.

LSA-R.S. 15:461 creates two distinct husband-wife privileges regarding the competency of one spouse to testify against the other in a criminal proceeding. See, State v. Bennett, 357 So.2d 1136 (La.1978). First, there is a privilege preventing the disclosure at trial of confidential communications made during the marriage by one spouse to the other. Second, there exists another distinct privilege preventing one spouse from being required to testify against the other during the marriage. Since Barbara Welch did not testify, and since the taped conversations were not admitted at trial, there was simply no violation of LSA-R.S. 15:461, and defendant’s argument that all fruits of the taped telephone conversations should have been suppressed is not grounded on any applicable statement of the law.

In this case, the taped conversations were privileged but not illegal. Therefore, no suppression of subsequent statements was required under Wong Sun.

Defendant also contends that the oral statement made to Sgt. Easley and the subsequent confession was subject to the priest-penitent privilege. In the only Louisiana case dealing with this privilege, State v. Berry, 324 So.2d 822 (La.1975), the Louisiana Supreme Court held the trial court did not err in finding the primary purpose of the minister’s visit was not to seek spiritual advice or consolation. No case has dealt with the definition of clergyman within the meaning of LSA-R.S. 15:477, the statute creating the privilege.

Sgt. Easley was not a clergyman, and although he was a former deacon, he never was an ordained minister. Although the officer was a religious man and conducted a prayer session with defendant, we do not find that he was a clergyman under the statute. Therefore, the priest-penitent privilege did not apply and this statement was properly admitted. In any event, this statement was merely cumulative in light of our finding below that the taped confession was properly admitted.

Furthermore, defendant contends that the oral statements and taped conversation were involuntary and the result of a plan by police to play upon defendant’s religious sensitivities.

In Louisiana the statutorily mandated test of voluntariness of a confession is whether the confession was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. LSA-R.S. 15:451. Confessions obtained by any direct or implied promises, however slight, or by the exertion of any improper influence, are involuntary and inadmissible as a matter of constitutional law. The State has the burden of affirmatively proving the confession was free and voluntary. Therefore, if the defendant alleges police misconduct in eliciting a confession, it is incumbent upon the State to rebut these allegations specifically. State v. Odds, 430 So.2d 1269 (La.App. 1st Cir.1983).

The admissibility of a confession is in the first instance a question for the trial judge. His conclusions on the credibility and weight of testimony relating to the voluntariness of a confession for the purpose of admissibility will not be overturned on appeal unless they are not supported by the evidence. State v. Jackson, 381 So.2d 485 (La.1980).

After a thorough review of the record, we conclude the trial judge did not err in ruling that the statements were voluntary. The record indicates that defendant was alert and did not appear to be under the influence of drugs or alcohol. Defendant was given his Miranda rights and signed a waiver form stating he understood and voluntarily waived those rights. Before giving his confession, he again stated he was voluntarily making the statement. The testimony of Detective Bour-goyne and Sgt. Easley indicates Sgt. Eas-ley’s purpose for speaking with defendant was to share Christ, not solicit a statement. We do not find any bad faith on the part of the officers in soliciting the confession. Sgt. Easley was not requested by the investigating officers to speak with defendant, and he did so only in the capacity as a private person. Furthermore, we find that defendant's statement to Officer Funder-burk expressing a desire to apologize to the victim’s family and Welch’s apology to his father-in-law for committing the crime was properly admitted. It is apparent from the record that these statements were spontaneous and voluntary.

A close inspection of the record makes it quite clear in our minds that Kerry Welch was serious about finding forgiveness for the killing of Marshall Car-ruth. His statements with reference to his participation in this crime were not the result of subterfuge, intimidation or pressure, rather they were motivated by a sincere attempt to “come clean” with the Lord and to find the forgiveness “coming clean” would bestow. We think the record is clear that the requirements of LSA-R.S. 15:451 and the jurisprudence have been met, and we find no abuse of discretion on the part of the trial judge in admitting the various statements.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER 12:

Defendant contends that the trial court erred in failing to find that the verdict recommending mercy to the defendant was a “qualified verdict”.

A recommendation of mercy is not considered as a qualification of the verdict, but is regarded only as surplusage. State v. Doucet, 177 La. 63, 147 So. 500 (1933).

Therefore, the trial court did not err in overruling defendant’s objection to the verdict as a “qualified verdict”.

This assignment of error is without merit.

Having found no merit to the assignments of error before this court, the defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . George W. Pugh, Louisiana Evidence Law (New York: The Bobbs-Merrill Company, Inc., 1974), p. 174.


author: LOTTINGER, Judge.

text:
    STATE of Louisiana v. John HOWARD and Carl Hill.
    No. 83 KA 0796.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.
    Writ Denied May 4, 1984.

      Ossie B. Brown, Dist. Atty., by Richard Chaffin, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Prank Gremillion, Baton Rouge, for defendants-appellants.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   LOTTINGER, Judge.

Defendants John Howard and Carl Hill were charged by grand jury indictment with three counts of violation of La.R.S. 40:967 A: Count 1, possession with the intent to distribute methaqualone; Count 2, possession with intent to distribute marijuana; Count 3, possession with intent to distribute cocaine. Defendants pled not guilty, were tried jointly by a jury and found guilty as charged on each count.

Defendant Howard was sentenced as follows: on Count 3, to hard labor for a period of ten years without benefit of probation, parole or suspension of sentence, with credit for time served and to pay a fine of $3,000.00 and costs of court or, in default of payment thereof, to be confined in the East Baton Rouge Parish prison for a period of six months; on Count 2, to ten years at hard labor to run concurrently with Counts 1 and 3; and Count 1, to ten years at hard labor to run concurrently with Counts 2 and 3.

Defendant Hill was sentenced as follows: on Count 3, to hard labor for a period of ten years without benefit of probation, parole or suspension of sentence, with credit for time served and to pay a fine of $1,500.00 and costs of court or, in default of payment thereof, to be confined in the East Baton Rouge Parish prison for a period of ninety days; on Count 2 to imprisonment at hard labor for a period of ten years to run concurrently with Counts 1 and 3; and Count 1, to imprisonment at hard labor for ten years to run concurrently with Counts 2 and 3. Defendants now appeal their convictions and sentences, alleging five assignments of error and briefing two.

ASSIGNMENTS OF ERROR

1. The trial court erred when it denied defendants’ motion to suppress evidence.

2. The trial court erred when it allowed into evidence the testimony of a witness, Deputy Kuntz, concerning other evidence obtained by the police which was apparently not admissible at trial.

3. The trial court erred when it denied defendants’ motion for new trial.

4. The trial court erred when it denied defendants’ motion in arrest of judgment.

5. The trial court erred when it imposed an excessive sentence on defendants.

In brief, defendants have argued only Assignments of Error Nos. 1 and 2. Therefore, Assignments of Error Nos. 3, 4, 5 are considered abandoned. Rule 2-12.4, Uniform Rules — Courts of Appeal.

FACTS

Defendant John Howard lived with his wife, Linda Howard, and Linda’s 15 year old son by a former marriage, Mark Taylor. Defendant Carl Hill, Linda’s brother, had just moved from Virginia and was staying with the Howards until he found employment.

For some two months prior to the defendants’ arrests, the Howard home had been under partial surveillance by the East Baton Rouge Sheriffs Office. This was a result of information obtained by the sheriff’s office that Mark Taylor was dealing drugs at a nearby convenience store and that Linda Howard was deeply involved in narcotics traffic. Ms. Mary Kuntz, a young member of the narcotics division of the sheriff’s office, was assigned an undercover role to investigate.

Ms. Kuntz made Mark’s acquaintance and on April 9, 1981, visited Mark at the Howards in the early afternoon. Mark and Ms. Kuntz were alone because John Howard was at work and Carl Hill had driven to Florida to pick up Linda. Deputy Kuntz and Mark shared two marijuana cigarettes in Mark’s room; they were taken from a plastic bag kept in his dresser drawer which held approximately one ounce of the drug. Mark gave Ms. Kuntz a small sample from the bag and then placed it back in his dresser drawer.

Mark told her however, that his mother, Linda, was due back from Florida with more drugs, including cocaine and quaa-ludes (Methaqualone).

At about 4:00 p.m. that afternoon, Deputy Kuntz reported the above to her narcotics division captain, who, with Kuntz, swore out an affidavit for the issuance of a search warrant. A search warrant was issued authorizing a search of the Howard residence for “a quantity of controlled dangerous substance to wit: Marijuana.”

A raiding party of seven or eight sheriff’s deputies, including deputy Kuntz, watched the Howard residence from concealed locations. Around 10:30 p.m. Linda Howard’s Oldsmobile drove up to the house. The officers saw some suitcases being unloaded; they waited 20 minutes and then decided to enter (except for Ms. Kuntz who stayed behind in a van). Police knocked and declared their identity. Receiving no reply, the officers then began to kick and beat the door with a maul. Shots were fired from the house. John Howard finally let the deputies inside. They immediately handcuffed him and Mark; Hill and Ms. Howard were subdued a little later. Later testimony revealed that the Howards thought they were being burglarized as they had been before. Ms. Howard was found by the deputies to be on the phone to the police reporting a break-in.

The deputies then proceeded to search the house for drugs. In the master bedroom one suitcase was found on the floor and another in a closet. Both were locked and both were forcibly pried open by the deputies. Approximately one pound of cocaine and 30,000 quaaludes were found inside. A brown paper-wrapped package was found in a closet in the same room; a deputy slit it open and found a bale of marijuana.

Sometime after the bulk of the drugs was found, deputy Kuntz was called in from the surveillance van. She then went to Mark Taylor’s room and retrieved the small bag of marijuana which she had seen that afternoon.

Small samples of marijuana were also seized in different areas of the house and in defendant Howard’s car.

Linda Howard, John Howard, and Carl Hill were indicted by the grand jury. Linda Howard withdrew her plea of not guilty, and pled guilty prior to trial and testified for the remaining defendants.

ASSIGNMENT OF ERROR NO. 1

Defendants contend that the trial court erred when it denied their motion to suppress evidence seized during the search of the Howard residence. Defendants’ attack is on two fronts: first, that the affiants intentionally omitted facts in the affidavit which would have precluded a finding of probable cause, and second, that the deputies exceeded the scope of the search under the warrant.

If an affiant intentionally omits relevant facts when swearing out an affidavit in an attempt to mislead the court, the warrant is quashed. State v. Lehnen, 403 So.2d 683 (La.1981). Defendants say that the affiants, Deputy Kuntz and her superi- or Captain Michael Barnett, intentionally omitted the amount of the marijuana which Deputy Kuntz saw in the Howard home (one ounce) and also did not include the time when the officers planned to execute the warrant (whenever Linda Howard returned with the suspected drugs).

Defendants maintain that the affi-ants left this information out because they felt that the magistrate would not have issued the warrant because of the Supreme Court’s opinions in State v. Lewis, 385 So.2d 226 (La.1980) and State v. Boneventure, 374 So.2d 1238 (La.1979). In those cases, probable cause was not present because there was no reasonable belief that the marijuana mentioned in the affidavits would still be in the place to be searched. In both cases a “quantity” of marijuana was mentioned in the affidavit. In Bone-venture, the entire “quantity” observed was “offered for consumption” and police waited two days to execute the warrant; in Lewis, the “quantity” of marijuana was seen by an informant as much as ten days before the warrant was executed. Here, the entirety of the marijuana seen by Ms. Kuntz was not offered for consumption; the deputies only waited seven to eight hours after the sighting to execute the warrant. Hence, the inclusion on the affidavit of the amount and their intention to delay the search would only have destroyed probable cause had the execution of the warrant been delayed longer; this delay was not long enough to do so, thus the warrant would be validated if we were to add the omitted facts and retest.

There was no evidence that the affiants omitted these facts intentionally to mislead the magistrate. The bare fact of their failure to include, absent other evidence, information which would have not immediately killed probable cause, evinces a neglect rather than an intentional fraud.

Next, defendants claim that the deputies exceeded the scope of the search authorized by the warrant. They claim that the warrant authorized a search only for the one ounce bag of marijuana seen by Deputy Kuntz; that the officers’ used this warrant to gain entry into the Howard home to look for other drugs suspected to have been brought there by Linda Howard; that these other drugs were the true object of the search and since they were beyond the scope of the warrant, the search was general and exploratory in nature.

The Fourth Amendment of the United States Constitution, through the Fourteenth Amendment, and Article I, Section 5 of the Louisiana Constitution both require that no search warrant is to be issued without it particularly describing the place to be searched and the persons or things to be seized. The requirements are meant to keep authorized searches as limited as possible, to prevent “general, exploratory rummaging in a person’s belongings.” Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 2038, 29 L.Ed. 564 (1971).

The warrant here authorized the deputies to search the Howard residence for a “quantity of controlled dangerous substance to wit: Marijuana.” The marijuana spoken of in the first paragraph of the affidavit was the one ounce bag seen in Mark’s bedroom dresser drawers; thus that bag was the authorized object of the search. The second paragraph of the affidavit contains only allegations that the Howard residence had been a scene of distribution of “Quaaludes, Marijuana, and Cocaine.”

The deputies, though they waited several hours to execute the warrant, still had probable cause to believe the ounce of marijuana was inside the house when they commenced the search shortly after Linda’s arrival. The warrant authorized the police to search “the premises,” which has been held to mean a garage, some outbuildings close to the main house, and even a tree nearby a house. State v. Michel, 422 So.2d 1115 (La.1982); State v. Hymer, 400 So.2d 637 (La.1981).

The plain view doctrine says that when in the course of a valid search the police came across some other article of incriminating character, they may seize it. Coolidge v. New Hampshire, supra. For the plain view doctrine to apply, however, the initial intrusion must be valid, the discovery must be inadvertent, and the contraband must be immediately recognizable as such. State v. Hernandez, 410 So.2d 1381 (La.1982). The initial intrusion here was supported by a warrant authorizing deputies to search the entire house, and not just Mark Taylor’s bedroom, where the police had last seen the one ounce bag. The deputies were thus within their power in searching the master bedroom where the closed suitcases and the wrapped bale of marijuana were found. Having found these closed containers the deputies’ opening of them was valid because they were empowered to search for the object “on the premises where the thing(s) may be found.” (emphasis added)

Though it is undisputed that the officers suspected that the suitcases contained other drugs brought in by Linda, the search into the suitcases was still valid. For while the police’s finding must also be “inadvertent” to fit under the plain view doctrine, we do not believe that the finding must be wholly unexpected. Rather, the requirement, of “inadvertency” means that police must not have probable cause to believe evidence not listed in the warrant will be found. See United States v. Hare, 589 F.2d 1291 (6th Cir.1979) and its discussion of the “inadvertency” requirement. We do not believe the Louisiana Supreme Court cases of State v. Fearn, 345 So.2d 468 (La.1977) or State v. Williams, 347 So.2d 231 (La.1977) preclude our interpretation of the inadvertency requirement. The court did not define “inadvertent” but merely held those searches and seizures to have not been so.

The police here strongly suspected • that drugs were being brought in, but mere suspicion is not sufficient to establish probable cause and support a warrant. In the course of an intrusion wholly authorized by the legitimate purpose of looking for the one ounce bag of marijuana, the police’s suspicion was confirmed by the actual observation of the cocaine, quaaludes and bale of marijuana contained within the suitcases and wrapped package.

The words of the court in United States v. Hare, supra, bear repeating:

“At first, it may seem illogical to hold that police who lawfully enter premises and discover evidence which is not described in their warrant, in the course of a properly limited search, may not seize it if they knew they would find it before entering, but may seize it if they only thought they might find it, or if they discover it unexpectedly. After all, the line between suspicion and probable cause is seldom very clear. It makes sense, however, if the fact is kept in mind that a warrant is normally required before a search can be conducted or a seizure effectuated, and if it is remembered that the only reason plain view seizures are permitted at all is because the intrusion which the Fourth Amendment seeks to guard against has already lawfully occurred, and the police are faced with a situation in which they observe evidence which they could not have obtained permission to seize, and which now is likely to disappear or be destroyed if they stop and leave to obtain a new warrant. This is the “exigency” which underlies the plain view doctrine, and without this exigency the entire rationale falls. We note that the police cannot create their own exigency by simply failing to obtain a warrant until they are faced with the evidence.” United States v. Hare, supra, at 1295.
This assignment therefore lacks merit.

ASSIGNMENT OF ERROR NO. 2

Defendants complain that the testimony elicited during the state’s case-in-chief by the state from its witness, Deputy Kuntz, was prejudicial to defendants in that the question called for information concerning an extraneous offense and the only purpose in seeking the evidence was to attempt to prove knowledge and intent on the part of defendants. Further, defendants argue that the state’s question was irrelevant and obviously called for hearsay and therefore should have been excluded.

The testimony complained of is as follows:

“Q. Did you ever receive any information concerning John Howard or Carl Hill involved in drugs?
A. Before the case, no.
Q. Did you continue to develop information after the case?
A. Yes.”

La.R.S. 15:434 provides:

“Hearsay evidence is inadmissible, except as otherwise provided in this code.”

Evidence is non-hearsay when offered no-nassertively, i.e., to prove that the utterance occurred or that a conversation had taken place and not to prove the truth of the facts recited. See, State v. Naas, 409 So.2d 535 (La.1981) cert. denied, 457 U.S. 1119, 102 S.Ct. 2933, 73 L.Ed.2d 1332 (1982). At trial, the testimony complained of, although if expanded could have possible led to a statement which would have been hearsay, was limited by the trial judge when he allowed only a “yes” or “no” answer over defendants’ objection. We note that, in brief, defendants do not argue that the question “obviously called for hearsay” and “clearly called for information concerning an extraneous offense.” Since a “yes” or “no” answer is neither an out-of-court statement offered to prove the truth of the matter contained in it nor does it recite an extraneous offense attributable to defendants, such testimony was not hearsay nor was it other crimes evidence within the meaning of La.R.S. 15:445 and 446 and State v. Prieur, 277 So.2d 126 (La.1973); State v. Chaney, 423 So.2d 1092 (La.1982).

Moreover, although defendants had ample opportunity to elicit further information from the witness, Deputy Kuntz, on the point in question, defense counsel chose not to do so. defendants’ complaint that they were prejudiced by testimony that called for hearsay or evidence of an extraneous offense, is merely speculative as evidence of such hearsay and such extraneous offenses was in fact not presented. Moreover, it was within the trial judge’s discretion to determine the relevancy of the testimony offered and that determination will not be overturned absent a showing of abuse of that discretion. La. R.S. 15:441; State v. Chaney supra. As the question addressed the material issue of possession of drugs, it was relevant to the crime charged. La.R.S. 15:435.

We cannot say that the trial judge abused his discretion in any way by allowing into evidence the testimony complained of.

Further, at trial, defense counsel objected to the testimony complained of on the grounds that it was hearsay and irrelevant. Only in their appeal brief do defendants raise the additional grounds that the testimony was immaterial and also constituted evidence of extraneous offenses requiring a Prieur notice. Since it is well settled in Louisiana law that a new basis for an objection may not be raised for the first time on appeal, La.Code Crim.P. art. 841; State v. Burdgess, 434 So.2d 1062 (La.1983), this Court will not address these additional grounds raised by defendants.

We find no merit in this assignment of error.

For the above and foregoing reasons, we affirm the conviction and sentence of defendants.

AFFIRMED.

      . The basis for probable cause in the affidavit reads:
      Affiants inform the Court that on this date, April 9, 1981, Deputy Mary Kuntz while working in an undercover capacity was present at the above location and along with one of the occupants, Mark Taylor, simulated smoking a Marijuana cigarette. Deputy Kuntz also observed other Marijuana present at the residence and was able to secure a sample. Said sample was identified by Deputy Kuntz and Captain Barnett as Marijuana.
      Affiants further inform the Court that information has been received over the past six months from other reliable and confidential informants, as well as other police officers who had been inside the above residence, that 6408 Teah Drive, is being used as a place from which Quaaludes, Marijuana and Cocaine are distributed.

      . It has been held by the federal Fifth Circuit Court of Appeals that the "inadvertent discovery" requirement of Coolidge does not apply to contraband; our Supreme Court has not so held. United States v. Thompson, 700 F.2d 944 (5th Cir.1983); State v. Fearn, 345 So.2d 468 (La.1977).


author: GRISBAUM, Judge.

text:
    STATE of Louisiana v. Carl DUPERON.
    No. 83-KA-671.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 1984.

      William C. Credo III, Asst. Dist. Atty., Gretna, for plaintiff-appellee.
    Joseph L. Montgomery, Indigent Defender Bd., Gretna, for defendant-appellant.
    Before BOUTALL, GRISBAUM and DU-FRESNE, JJ.
   GRISBAUM, Judge.

Carl Duperon was charged with armed robbery in violation of Louisiana Revised Statute 14:64. The jury returned a verdict of guilty, and Duperon was sentenced to 25 years without benefit of parole, probation, or suspension of sentence. From the conviction and sentence, the defendant appeals. We affirm.

Four assignments of error are raised as follows:

(1) The trial court committed reversible error in denying the defendant’s motion to suppress the identification.

(2) The trial court committed reversible error in overruling the defendant’s objection to the admissibility of photographic evidence as having no probative value and being highly prejudicial to the defendant.

(3) The trial court committed reversible error in denying the defendant’s motion to suppress the evidence.

(4) The trial court committed reversible error in failing to properly delineate its reasons for imposing sentence, which sentence was excessive.

On October 17, 1982, at approximately 4:45 a.m., the defendant entered the Fat City Holiday Inn, approached the front desk, and requested of the night auditor change for a $20 bill. When the night auditor explained he could not give change, the defendant displayed a 30/30 rifle and said, “Let’s see what you have.” The victim emptied the cash register, and, upon the defendant’s order, he opened some drawers behind the desk in which there were 50 banded $1 bills and several rolls of coins. The defendant took the money and left. Upon arriving at the inn in response to a Holiday Inn employee’s telephone call, the police questioned the victim and ascertained the perpetrator’s description which they broadcast as follows: a black male, approximately 5'8", medium build, slight mustache, wearing blue jeans and white T-shirt.

Sergeant Ulice of the Jefferson Parish Sheriff’s Office, on traffic patrol, observed a Buick in the vicinity of the robbery scene and followed it as the driver turned off Airline Highway onto Pasadena and stopped near a Time Saver. The sergeant stopped his vehicle about 50 feet behind the Buick as the defendant emerged from the vehicle and approached the front of the Time Saver giving the officer a full-face view. Upon seeing that the suspect fit the description of the armed robber, Ulice exited his vehicle and ordered the man to stop and place his hands on the police unit. After patting him down for weapons, Sergeant Ulice radioed for backup, and when Officer Doody arrived, Ulice left his vehicle and made a closer observation of the Buick. He noticed a “pile of currency and coins” on the floorboard of the passenger side of the car at which time he ordered Officer Doody to arrest and handcuff the defendant. Sergeant Ulice radioed Corporal Schanbien, who was still on the robbery scene, and requested, he bring the victim to observe the suspect. The victim identified the suspect to be the perpetrator of the armed robbery, and the officers transported the defendant from the scene. Sergeant Ulice then seized the cash from the front passenger side floorboard of the car, opened the trunk of the car with a key he had obtained earlier from the defendant, and seized from the trunk more money, both coins and currency, and a 30/30 Marlin rifle. The night auditor later identified the rifle as that used during the course of the robbery and some of the rolled coins and banded currency as similar to that stolen from him at the inn.

ASSIGNMENT OF ERRORS NUMBERS ONE AND TWO

The defendant designated two assignments of error which his counsel neither briefed nor orally argued. Therefore, in accordance with the Uniform Rules of the Courts of Appeal, Rule 2-12.4, we consider them abandoned. See, State v. Dirden, 430 So.2d 798 (La.App. 5th Cir.1983).

ASSIGNMENT OF ERROR NUMBER THREE

In the defendant’s most serious assignment of error, he alleges the warrantless search of his automobile and subsequent seizure of cash, currency, and rifle were made in violation of his constitutional right to be free from unreasonable searches and seizures. (United States Constitution Fourth and Fourteenth Amendments and article I § 5 of the Louisiana Constitution). To the contrary, we find the facts in this case constitute an exception to the per se warrant requirement of the Fourth Amendment.

Initially, it is necessary to determine whether Officer Ulice had an articula-ble suspicion to detain Duperon. A law enforcement officer may stop a person in a public place for questioning whom he reasonably suspects is committing, has committed, or is about to commit an offense. (Article 215.1 of Louisiana Code of Criminal Procedure.) Reasonable cause for an investigatory stop or detention is something less than probable cause. Nevertheless, it requires the detaining officer to have articulable knowledge of particular facts sufficient reasonably to suspect the detained person of criminal activity. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Within one-half hour of the robbery and within the general locality, the police officer spotted a man who fit the description of the armed robber as given by the victim. Sergeant Ulice testified at trial that, in addition to the description fitting the suspect, the particular hour of the morning and the defendant’s proximity to the scene of the crime greatly increased the possibility that he had some connection to the crime. Thus, we find the record reflects Sergeant Ulice possessed articula-ble knowledge of particular facts sufficient to reasonably suspect the suspect had committed an armed robbery.

The defense argues that at the time of the detention Sergeant Ulice went over to the vehicle only to look for evidence linking Duperon to the recent armed robbery. Ul-ice testified during the suppression hearing, however, that he glanced into the Du-peron vehicle in order to ascertain whether there were any persons remaining out of view and that it was at this point he saw the pile of currency and coins lying in plain view on the front passenger floorboard of the car.

The plain view doctrine is an exception to the search warrant requirement in that when there is no intrusion into a protected area, there is no “search” for purposes of the Fourth and Fourteenth Amendments. The jurisprudence has designated three criteria which must be established before the viewing will be removed from the protections of the Fourth Amendment: (1) the prior valid intrusion into a protected area; (2) an inadvertent discovery of evidence; and (3) the evidence immediately recognizable as contraband or evidence. Coolidge v. New Hampshire, 403 U.S. 443, 465, 91 S.Ct. 2022, 2037, 29 L.Ed.2d 564 (1971); State v. Brown, 370 So.2d 525, 527 (La.1979). It was reasonable for Officer Ulice to approach the vehicle in order to make a general visual survey of the inside from his position outside the car in order to assure himself there was no one inside, to protect himself and the public. He, without intruding into a protected area, inadvertently discovered the immediately, recognizable evidence on the front floorboard of the car. The officer’s cursory check of the interior of the vehicle for confederates arriving on the scene who might have endangered lives of others, when it is taken into account the weapon used in the offense had not yet been located, was justified. Moreover, the court in State v. Dixon, 391 So.2d 836, 838 (La.1980) stated if a vehicle is parked on a public street or parking lot, there is no doubt the officer may stand by and look into the vehicle just as any member of the public might.

The plain view doctrine alone, however, does not justify the seizure of the coins and currency. Once the officer becomes aware of the contraband or evidence, he must ordinarily obtain a search warrant in order to seize it. State v. Edsall, 385 So.2d 207, 210 (La.1980). Two requirements must be satisfied before a warrantless seizure of evidence within a movable vehicle is authorized under the automobile exception of the search warrant requirement: (1) there must be probable cause to believe the vehicle contains contraband or evidence of a crime; and (2) there must be exigent circumstances requiring an immediate warrantless search. Chambers v. Maroney, 399 U.S. 42, 52, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419 (1970). Obviously, the officer had probable cause to believe the coins and currency were inside the car since he had previously seen them in plain view. In addition, it is clear the officer had probable cause to believe the trunk of the automobile contained evidence linking the defendant to the armed robbery, since the description broadcast only minutes before had mentioned the perpetrator was armed with a rifle which had not yet been located.

In addressing the issue of whether there were exigent circumstances, the defense argues the exigency of the situation had dissipated once the defendant was arrested and any subsequent search of the car should have been authorized by a warrant.

We find, however, under the circumstances of the instant case there was exigency justifying an immediate seizure of the evidence from the defendant’s automobile. An immediate warrantless search is constitutionally permissible under the automobile exception when the car is movable, the occupants are alerted, and the car’s contents may never be found again if a warrant must be obtained. Chambers v. Maroney, supra; State v. Guzman, 362 So.2d 744, 748 (La.1978); State v. Brown, 370 So.2d 525, 528 (La.1979).

Abandonment by the police officers of the vehicle near the site of the armed robbery would have presented a significant possibility that its contents may never have been found again. The car was parked in a public parking lot where it was highly accessible to the public, and the officers would have been reasonable in assuming that others who may have been involved in the crime would attempt to move the car or remove the evidence. In addition, the danger posed by the possibility that a confederate to the armed robber would attempt to gain possession of the dangerous weapon contributed to the exigency of the situation.

The Louisiana Supreme Court has addressed the issue of requiring a police officer to guard a vehicle, restraining access to its interior, until a search warrant could be obtained. In State v. Guzman, 362 So.2d 744, 749 (La.1978), the court stated:

There is substantial merit in the contention that police must obtain a search warrant for an automobile when they can do so without jeopardizing the contraband sought, but neither this court nor the United States Supreme Court has made that requirement. Although a search may be a greater intrusion into privacy than the sequestration, immobilization, impoundment or detention of the thing to be searched, and although a detached magistrate should be better able than the police to decide whether probable cause to search exists, the sequestration is itself a seizure. The validity of both seizures and searches is measured by the same constitutional standards. It would require an extension of constitutional law to permit the police to seize without a warrant, and then forbid them to search the thing seized unless a warrant is first obtained.

In Chambers v. Maroney, 399 U.S. 42, 52, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419, the Supreme Court stated:

For constitutional purposes, we see no difference between on the one hand seizing and holding a ear before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment.

It was the duty of the officers to promptly conduct the arrested defendant to the police station and cause him to be booked. Accordingly, there was no practical alternative available to the officers under the exigent circumstances other than an immediate seizure of the evidence to the extent necessary to preserve it. See, State v. Brown, 370 So.2d 525, 528 (La.1979).

ASSIGNMENT OF ERROR NUMBER FOUR

In connection with the defendant’s assignment of error number four in which he states the trial court failed to properly delineate its reasons for imposing sentence and imposed an excessive sentence, the record reflects the assignment of error was not properly lodged in this court but appeared for the first time in brief. Louisiana Code of Criminal Procedure Article 844 requires a party to designate those errors which are to be urged on appeal, and Article 920 provides that only errors designated in the assignments of error and those discoverable by a mere inspection of the pleadings must be reviewed on appeal.

While a contemporaneous objection to a sentence at the trial level has been deemed unnecessary to preserve the issue of exces-siveness on appeal, the assignment of error requirement remains viable. State v. Cox, 369 So.2d 118, 121 (La.1979).

Accordingly, pursuant to article 920, the excessiveness issue will not be addressed since it does not fall into the category of error patent. See, State v. Spell, 399 So.2d 551, 557 (La.1981); State v. Marrero, 363 So.2d 494, 497 (La.1978); State v. Sonnier, 441 So.2d 359, 360-61 (La.App. 5th Cir.1983); and State v. Bridges, 444 So.2d 721, 725 (La.App. 5th Cir.1984).

We have further reviewed the entire record for errors patent. Finding none, we affirm the defendant’s conviction and sentence.

AFFIRMED.