author: BLANCHE, Justice.

text:
    STATE of Louisiana v. Donald Earl MITCHELL.
    No. 82-KA-1557.
    Supreme Court of Louisiana.
    Sept. 2, 1983.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., Nancy F. Gilliland, Michael J. Fontenot, Asst. Dist. Attys., for plaintiff-appellee.
    Edward R. Greenlee, Monroe, for defendant-appellant.
   BLANCHE, Justice.

Defendant Donald Mitchell was convicted of second degree murder for the shooting death of his estranged wife and sentenced to life imprisonment without benefit of parole, probation or suspension of sentence. See LSA-R.S. 14:30.1. In urging reversal of his conviction, the defendant assigns five errors.

On February 6, 1981, about two hours before the fatal incident, the defendant persuaded his brother to purchase from a Monroe, Louisiana pawn broker a .22 caliber pistol and cartridges. The defendant loaded the gun and left it on the kitchen table at his mother’s house, then left to pick up his wife from the Burger King where she worked. On the drive back to the residence, the two argued over the defendant’s alleged involvement with another woman. Inside the house, the argument continued, and the defendant seized the pistol and shot his wife twice in the head. About two hours later, the defendant was stopped for traffic violations in Dermott, Arkansas. Subsequently, police learned that the defendant was wanted in Louisiana for the killing of his wife, and he was returned to Monroe later that night. The defendant asserted at trial that he had shot his wife in self-defense when she advanced on him with a knife.

ASSIGNMENTS OP ERROR NOS. 1, 2, 4

By these assignments, the defendant argues that the trial court erred in refusing to suppress certain inculpatory statements taken in violation of his Miranda rights. He also urges that the state failed to disclose, in response to his discovery motion, the content of one of the statements which it introduced at trial.

At about 4:30 p.m. on the day of the murder, the defendant’s vehicle was stopped by Dermott, Arkansas Police Chief Jerry Melton after Melton had received a radio bulletin that Montrose, Arkansas police officers were in pursuit of the defendant’s vehicle. Melton ordered the defendant out of the car, and the defendant surrendered reluctantly as he exited the vehicle with a whiskey bottle in hand. As Melton handcuffed the defendant, he noticed dried blood on the defendant’s head, neck, and back. Melton asked, “What happened?” to which the defendant replied, “My wife shot me.” Melton then asked the defendant whether he had also shot his wife, to which the defendant replied, “Yeah.” When asked where he had last seen his wife, the defendant responded that he had last seen her “lying on the kitchen floor coughing.”

Thereafter, Melton transported the defendant to the Dermott police station where he was advised of his Miranda rights. At the station, Melton learned from the Monroe police department that the defendant had shot and killed his wife and fled the state. Following the Miranda warning, at which time the defendant acknowledged that he understood his rights, Melton interrogated the defendant as to the events which had transpired in Monroe. The defendant again asserted that he had shot his wife twice after she had shot him.

In our opinion, the questioning of Officer Melton prior to the Miranda warnings did not constitute custodial interrogation within the meaning of Miranda. Melton was fully justified in asking the defendant “what happened?” when he saw blood on the defendant’s head, neck and back. Melton could not have reasonably been expected to ignore the possibility that the defendant was seriously wounded and in need of medical treatment. Moreover, Melton was justified in questioning the defendant, pursuant to his right to investigate the apparent criminal activities of the defendant, as to whether he had shot anyone else (such as his wife) and as to the potential whereabouts of any other injured persons should they be nearby and in need of medical treatment. Melton knew of no facts which would have implicated the defendant in a shooting in Monroe; indeed, Melton could not have known, absent further investigation, that the defendant had been engaged in some altercation unrelated to the traffic violations for which he was under custody. Where no finger of suspicion has been pointed at a defendant and where he is not the focus of an investigation of a particular crime, we are unwilling to curtail the ability of the police to investigate potential criminal activity. Such a ruling would require that the police administer Miranda warnings to all persons whom they question as to potential breaches of the law, even where the officers are in the preliminary investigatory process of determining whether any crime has indeed been committed. See State v. White, 399 So.2d 172 (La.1981); cf. State v. Thompson, 399 So.2d 1161 (La.1981); State v. Ordonez, 395 So.2d 778 (La.1981); State v. Green, 390 So.2d 1253 (La.1980); State v. Rogers, 324 So.2d 403 (La.1975).

Even if we were to rule that these statements had been taken in violation of Miranda, we are of the view that the admission of these statements was harmless beyond a reasonable doubt, cf. State v. Gibson, 391 So.2d 421 (La.1980). Introduction of an otherwise inadmissible statement may constitute harmless error if accompanied by the introduction of statements free of constitutional taint and of equal or greater inculpatory cast. Null v. Wainwright, 508 F.2d 340 (5th Cir.), cert. denied, 429 U.S. 970, 95 S.Ct. 1964, 44 L.Ed.2d 459 (1975); State v. Redic, 392 So.2d 451 (La.1980); State v. Jones, 386 So.2d 1363 (La.1980).

The statements obtained by Melton at the Dermott station are equally as inculpatory as the prior statements and free of any constitutional taint. The record amply demonstrates that the defendant was adequately informed of his rights at the station house and freely and voluntarily reiterated the facts he had told Melton at the time of his arrest.

Moreover, other statements free of constitutional taint and of equal or greater inculpatory cast were obtained by two Monroe police officers who transported the defendant from Dermott to Monroe. A short distance out of Dermott, the defendant began to chatter nervously about the incident. One of the officers immediately stopped the defendant from talking and again warned him of his Miranda rights. Pursuant to no questioning from the officers, the defendant, in a rambling narrative, again recounted how he had shot his wife twice in the head. However, he changed the story slightly from his two earlier versions and told the officers that he had shot himself.

The defendant has also advanced the argument that all of these statements should have been suppressed because his state of intoxication vitiated the voluntariness of the statements. He also asserts that his head wound contributed to his weakened defenses against suggestive interrogation.

The burden is upon the state to show affirmatively that the statements were given freely and voluntarily and not under the influence of fear, duress, intimidation, menace, threats, inducements, or promises. LSA-R.S. 15:451; State v. Jackson, 414 So.2d 310 (La.1982). The admissibility of an inculpatory statement is a question of fact for the trial judge, and his rulings as to the credibility of witnesses on the issue are not to be overturned unless unsupported by the evidence. State v. Rodrigue, 409 So.2d 556 (La.1982); State v. Dewey, 408 So.2d 1255 (La.1982). Intoxication and a weakened physical condition due to injury are factors to be weighed by the trial judge in assessing voluntariness, cf. State v. Smith, 409 So.2d 271 (La.1982); State v. Meredith, 400 So.2d 580 (La.1981). Intoxication will render an inculpatory statement inadmissible only where the intoxication is of such a degree that the defendant’s ability to comprehend the consequences of his statement has been negated. State v. Smith, 407 So.2d 652 (La.1981); State v. Robinson, 384 So.2d 332 (La.1980).

In our view, the trial judge analyzed properly the totality of the circumstances in this case and properly determined that the defendant’s statements were given freely and voluntarily, in spite of his state of intoxication and head wound, cf. State v. Edwards, 434 So.2d 395 (La.1983).

Officer Melton testified that he had occasion to deal with many intoxicated drivers during his years in law enforcement and stated that the defendant did not appear so intoxicated or disoriented due to his superficial head wound that he could not appreciate the consequences of his actions. Melton testified that the defendant appeared to understand his Miranda rights and executed the rights form acknowledging that his rights had been explained to him. Furthermore, the two Monroe police officers also testified that the defendant did not appear to be so intoxicated or disoriented that he failed to understand his Miranda rights. They testified that the defendant actually seemed anxious to talk about the incident. Given the substantial support in the record for the conclusions of the trial judge, we agree that the defendant’s state of intoxication and physical condition due to his head wound did not vitiate the voluntariness of his inculpatory statements.

Finally, the defendant argues in brief that he was taken by surprise by the differences in the testimony of the two Monroe police officers and the testimony of Officer Melton, i.e., the defendant told the Monroe officers that he had shot himself, while earlier he had told Melton that his wife had shot him.

La.C.Cr.P. art. 768 requires only that the state notify the defendant of the existence of any inculpatory statements which it intends to introduce into evidence at trial. Our review of the record shows that defense counsel was indeed notified, in compliance with art. 768, of the existence of the statements made to Officer Melton and the two Monroe officers. Moreover, we fail to see how the defendant was prejudiced by the variance in the two versions. At trial, the trial judge offered defense counsel the opportunity for a continuance if he could give some indication to the court as to what he would have done differently in light of this “new” evidence. Counsel merely asserted “surprise” but could offer nothing to show how he would have prepared for trial differently. Under these circumstances, and since the defendant is not entitled to be informed as to the precise substance of such statements (State v. Quincy, 363 So.2d 647 (La.1978)), we find no error in the ruling of the trial court.

These assignments are without merit.

ASSIGNMENT OF ERROR NO. 3

By this assignment, the defendant argues that the trial court erred in admitting into evidence, through the testimony of neighbor Catherine Harris, the hearsay statements of his brother, Steven Mitchell.

Harris testified that the defendant’s brother came to her residence about ten or fifteen minutes after the shooting and told her to call the police because “his sister-in-law had got shot by his brother.” The defendant’s objection that this testimony constituted inadmissible hearsay was overruled by the trial court, and the testimony was admitted under the res gestae exception to the hearsay rule. LSA-R.S. 15:447, 448.

The res gestae consists of events speaking for themselves under the immediate pressure of the occurrence, through the spontaneous words and acts of the participants. To constitute res gestae, the circumstances and declarations must be necessary incidents of the criminal act, or immediate concomitants of it, or form in conjunction with it one continuous transaction. LSA-R.S. 15:447, 448. Here, the statement made to Harris by Stevens would not constitute part of the res gestae, since the statement was, from the circumstances, too far removed from the event to be considered an excited utterance or spontaneous declaration. Nevertheless, though the statement might be considered hearsay, and therefore inadmissible, our conclusion that defendant’s confession was admissible provides a sufficient evidentiary basis upon which to base defendant’s conviction. Therefore, the admission of Harris’ testimony does not constitute reversible error.

ASSIGNMENT OF ERROR NO. 5

By this assignment, the defendant argues that the trial court erred in admitting, through the testimony of Shirley Harris, evidence of a previous beating the defendant administered to his wife. Specifically, he urges that the evidence was merely cumulative and therefore prejudicial, and furthermore, that the witness could not remember the date of the beating.

Shirley Harris was called by the state to rebut the defendant’s assertion on cross-examination that he had beaten his wife only once just a week or so prior to the shooting. At the time of defendant’s testimony, counsel entered no contemporaneous objection. Harris testified as to a beating other than the one the defendant admitted to. Since this testimony concerned a different beating, we fail to see how it could have been cumulative. Furthermore, a witness may testify as to any facts within his or her knowledge and need not pinpoint a specific date as to when the facts occurred. See LSA-R.S. 15:463. Failure to specify an exact date would be a matter affecting the weight to be accorded the testimony rather than its admissibility.

This assignment is without merit.

DECREE

The conviction of the defendant, Donald Mitchell, is affirmed.

DENNIS and LEMMON, JJ., concur.

      . Defendant himself was wounded superficially by a bullet which hit him in the back of the head, apparently as a result of a suicide attempt after killing his wife, according to the testimony of the defendant’s brother. There is also some suggestion in the record that the defendant intentionally grazed himself with a bullet to establish a claim that his wife had tried to kill him. However, the defendant testified at trial that he had been wounded by a ricochet after firing a third shot into the ceiling.

      . At trial, the defendant acknowledged that the two officers had stopped him from talking and warned him of his Miranda rights. However, he asserted that he had told them only that he had shot his wife and nothing more.

      . There are strong indications in the record that counsel knew of the substantive differ-enees in the statements, albeit slight, through pre-trial conversations with the prosecutor.


source: Caselaw Access Project

author: WATSON, Justice. LEMMON, J., DENNIS, Justice,

license: Public Domain

text:
    STATE of Louisiana v. Robert E. HUSBAND.
    No. 82-KA-1488.
    Supreme Court of Louisiana.
    Sept. 2, 1983.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., John Craft, Dolores Smith, Mary Charlotte McMullan, Beryl McSmith, Asst. Dist. Attys., for plaintiff-appellee.
    William Ary, New Orleans, for defendant-appellant.
   WATSON, Justice.

Defendant, Robert E. Husband, was convicted at a bench trial of being a felon in possession of a firearm and sentenced to three years at hard labor. LSA-R.S. 14:95.-l. He has appealed his conviction, relying on three specifications of error.

FACTS

On August 7,1981, about 2:50 P.M., three New Orleans Police Officers, Napoleon Williams, Jr., Michael Bossetta and Vincent Tuminello, were wearing plain clothes and patrolling in an unmarked car. Officer Bossetta saw Johnny Husband, known to be a convicted felon, at a telephone booth. Observing the outline of a large revolver under Johnny’s waistband, Bossetta went in pursuit. Johnny ran to a White Fleet taxicab parked across the street, drawing the revolver and tearing his shirt in the process. Officer Bossetta drew his weapon and said “Don’t do it, Johnny.” (Tr; 3) Johnny threw the gun onto the right front passenger seat of the cab and sat on it. As Officer Williams approached the driver’s side of the vehicle, he observed this defendant, Robert Husband, slide a second revolver into the space between the split front seats.

Officer Bossetta removed Johnny Husband and his revolver from the cab. Meanwhile, Officer Williams directed the driver out of the cab and retrieved the second revolver. Learning that the cab driver was Robert Husband, Johnny’s brother, the officers ran a computer check on the guns and the two names. Both men had prior felony convictions and Johnny Husband’s gun was stolen. Defendant, Robert Husband, was arrested for being a felon in possession of a firearm.

Johnny Husband testified that both of the pistols belonged to him, and Robert was unaware they were in the vehicle. Johnny said he had placed one under the seat and the other under the arm rest while Robert was away from the cab. Robert testified, on the contrary, that Johnny threw both guns in the cab as he returned from the phone booth and one fell between the seats.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant contends the trial court erred in denying his motion to suppress the gun, arguing that Officer Williams lacked probable cause to justify defendant’s detention.

The officers testified that cab drivers commonly carry guns and the practice is not illegal, barring prior felony conviction or concealment. However, once Johnny Husband, a convicted felon in possession of a weapon, entered the cab, Officer Williams had probable cause to approach the driver’s side of the automobile. It was imperative that the vehicle and its armed passenger be stopped. LSA-C.Cr.P. art. 215.1; Terry v. State of Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970).

In light of the conflicting testimony of the Husband brothers, Officer Williams’ account of the second revolver is the most credible. Thus, while detaining the automobile, Officer Williams observed defendant secret the second revolver between the seats. There was probable cause for the arrest of Johnny Husband and Officer Williams’ plain view of the second revolver had prior Fourth Amendment justification. See Texas v. Brown, - U.S. - , 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983). This weapon was accessible to both defendant and his armed passenger. Officer Williams was entitled to take the weapon into protective custody. State v. Cobb, 419 So.2d 1237 (La., 1982); State v. Reed, 388 So.2d 776 (La., 1980); State v. Ford, 407 So.2d 688 (La., 1981). Compare Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).

Defendant’s attempt to hide the gun certainly justified his temporary detention. State v. Wade, 390 So.2d 1309 (La., 1980). The inconvenience involved in removing defendant from the cab and questioning him about his name was a permissible “de min-imis” intrusion on his liberty. Pennsylvania v. Mimms, 434 U.S. 106 at 111, 98 S.Ct. 330 at 333, 54 L.Ed.2d 331 at 337 (1977); State v. Bolden, 380 So.2d 40 (La., 1980); State v. Reed, supra. Once the computer check revealed that defendant was a convicted felon, the officers were justified in detaining him and the gun. State v. Cobb, supra.

This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO

Defendant contends the evidence was insufficient to prove his guilt beyond a reasonable doubt.

The question is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found all the elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Joseph, 425 So.2d 1261 (La., 1983).

The elements of the crime are: (1) possession of a firearm; (2) conviction of an enumerated felony; (3) absence of the ten year statutory period of limitation; and (4) general intent to commit the offense. LSA-R.S. 14:95.1.

The only witness who saw defendant in possession of the revolver was Officer Williams. It is argued that this testimony was insufficient because it was contradicted by both of the Husband brothers. However, since their testimony differed, the trier of fact was entitled to accept that of Officer Williams. A rational trier of fact could have concluded beyond a reasonable doubt, on the basis of Officer Williams’ testimony, that the defendant had been in possession of a firearm and had the requisite general criminal intent.

On direct examination, after the state had rested, defendant testified that he went to the penitentiary for attempted armed robbery and was released on February 14, 1980. A “prison packet” from the state penitentiary, the record of defendant’s previous conviction and imprisonment, was introduced into evidence by the state. A fingerprint expert took defendant’s fingerprints in open court. They matched those on a certified true copy of a fingerprint card in the “prison packet”. A rational trier of fact could have found that the defendant had been convicted of attempted armed robbery, one of the felonies enumerated in LSA-R.S. 14:95.1, and ten years had not elapsed since the completion of his sentence.

Therefore, the evidence was sufficient to prove defendant’s guilt beyond a reasonable doubt.

This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER THREE

Defendant1 complains that the trial court erroneously admitted the “prison packet” into evidence. Defendant argues that records of his prior imprisonment were unauthenticated hearsay and highly prejudicial.

Since defendant’s testimony on direct examination verified the fact that he had been convicted of attempted armed robbery and had not completed his sentence more than ten years prior to this offense, there was no prejudice.

This assignment lacks merit.

DECREE

For the foregoing reasons, the conviction and. sentence are affirmed.

AFFIRMED.

DENNIS, J., concurs with reasons.

LEMMON, J.,

concurs but disagrees with the dicta concerning the essential elements of the offense, which the state has the burden of proving. The cleansing period is an affirmative defense, and the defendant has the burden of proving entitlement to this defense.

DENNIS, Justice,

concurring.

I respectfully concur.

The officers had probable cause to arrest Johnny Husband for being a convicted felon in possession of a weapon. Because of the circumstances the officers had reasonable cause to suspect that other criminal activity was afoot and that the defendant was involved. When approached by Officer Bos-setta, Johnny Husband ran directly towards the defendant’s cab. The defendant neither attempted to escape from the passenger with a gun nor aid in his capture; rather he attempted to hide his own weapon between the front seats of the cab. Accordingly, the officers were entitled to ask the defendant to step from the cab for brief questioning and to temporarily seize any weapons on his person or within his reach during the investigatory stop for their protection. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977).

      . LSA-R.S. 14:95.1 provides:
      “A. It is unlawful for any person who has been conyicted of first or second degree murder, manslaughter, aggravated battery, aggravated or simple rape, aggravated kidnapping, aggravated arson, aggravated or simple burglary, armed or simple robbery, burglary of a pharmacy, burglary of an inhabited dwelling, or any violation of the Uniform Controlled Dangerous Substances Law which is a felony or any crime defined as an attempt to commit one of the above enumerated offenses under the laws of this state, or who has been convicted under the laws of any other state or of the United States or of any foreign government or country of a crime which if committed in this state, would be one of the above enumerated crimes, to possess a firearm or carry a concealed weapon. “B. Whoever is found guilty of violating the provisions of this Section shall be imprisoned at hard labor for not less than three nor more them ten years without the benefit of probation, parole, or suspension of sentence and be fined not less than one thousand dollars nor more than five thousand dollars.
      “C. Except as otherwise specifically provided, this Section shall not apply to the following cases:
      “(1) The provisions of this Section prohibiting the possession of firearms and carrying concealed weapons by persons who have been convicted of certain felonies shall not apply to any person who has not been convicted of any felony for a period of ten years from the date of completion of sentence, probation, parole or suspension of sentence. “(2) Upon completion of sentence, probation, parole, or suspension of sentence the convicted felon shall have the right to apply to the sheriff of the parish in which he resides, or in the case of Orleans. Parish the superintendent of police, for a permit to possess firearms. The felon shall be entitled to possess the firearm upon the issuing of the permit.
      “(3) The sheriff or superintendent of police, as the case may be, shall immediately notify the Department of Public Safety, in writing, of the issuance of each permit granted under this Section.”

      . Johnny Husband was charged with possession of stolen property and being a felon in possession of a firearm. He was subsequently tried and convicted.

      . The trial court sustained an objection to the prosecutor’s attempt to cross-examine defendant concerning the records of his conduct in the prison.


author: LEMMON, Justice.

text:
    STATE of Louisiana v. Borlis WILSON.
    No. 82-KA-1568.
    Supreme Court of Louisiana.
    Sept. 2, 1983.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Marion B. Farmer, Dist. Atty., William J. Burris, Abbott Reeves, Asst. Dist. Attys., for plaintiff-appellee.
    Samuel Collett, Jr., Bogalusa, S. Austin McElroy, Covington, Thomas J. Ford, New Orleans, Office of Indigent Defender, for defendant-appellant.
   LEMMON, Justice.

In this appeal from a conviction of aggravated rape, the only issue is whether the trial judge erred in accepting defendant’s waiver of a jury trial. For the reasons that follow, we hold that defense counsel’s questioning of defendant on the record in open court, together with the evidence presented at the pretrial sanity hearing, established that defendant voluntarily and knowingly waived his right to trial by jury.

Facts

The 78-year old victim was awakened at 1:00 a.m. by a noise in the grocery store connected to her home. A few minutes later, defendant burst through her window and dragged her from the bed to the living room, where he beat her, threatened her life, and then raped her both anally and vaginally. Defendant then dragged her to the cash register in her grocery store, forced her to open it, took all the cash and left the building.

The victim immediately notified the police and named defendant as the rapist, explaining that she had known him all of his life. When the police arrived at defendant’s house, he was awake and dressed only in blue undershorts, which were spotted with feces (a condition consistent with the victim’s statement that she had a bowel movement when the rapist penetrated her anus). The officers took defendant to the police station, where the victim positively identified him. The next day, she again identified defendant from a photographic line-up.

The trial consisted of the testimony of the victim, the arresting officer, and the parish coroner, who stated that his examination of the victim on the night of the rape revealed bruises and cuts to the face and lips, feces in the vagina and on her legs, and anal tears consistent with forcible anal penetration. The court found defendant guilty as charged and sentenced him to life imprisonment.

Waiver of Jury Trial

Appellate counsel contends that the trial court erred in permitting defendant to waive trial by jury without determining that the waiver was made knowingly and intelligently. Counsel further argues that the trial judge’s refusal to accept defendant’s guilty plea during the trial indicates the waiver of trial by jury was not voluntary and knowledgable.

Before the trial began, defense counsel advised the court that defendant wished to waive his right to trial by jury, despite the attorney’s contrary recommendation. Counsel then questioned defendant concerning his understanding of this fundamental right and his intention to waive it. Apparently satisfied from counsel’s questioning that defendant was aware of the consequences of his action, the trial judge accepted the waiver.

After trial began, defense counsel informed the judge that defendant (against counsel’s advice) wished to enter a plea of guilty as charged. The trial court questioned defendant, but ultimately refused to accept the plea.

The right to trial by jury is protected by La. Const. Art. I, § 17 (1974). Except in capital cases, the defendant may knowingly and intelligently waive trial by jury and elect to be tried by the judge. La.C.Cr.P. Art. 780, 782. As in the case of other significant rights, however, waiver of trial by jury is valid only if the defendant acted voluntarily and knowingly. In order to protect this valuable right, as well as to prevent postconviction attacks on the waiver, the better practice is for the trial judge to advise the defendant personally on the record of his right to trial by jury and require the defendant to waive the right personally either in writing or by oral statement in open court on the record. 3 Standards for Criminal Justice § 15-1.2(b) (2d ed. 1980); see also State v. Kahey, 436 So.2d 475 (La.1983). By this procedure, the trial judge not only insures that an express waiver is recorded, but also assures that the waiver is made voluntarily and knowingly.

In the present case, defendant personally waived trial by jury by a statement in open court on the record. Although the questioning conducted by defense counsel was intended primarily to establish that the defendant was acting contrary to counsel’s advice, the colloquy made it clear that defendant was aware of his right to trial by jury and that his decision to be tried by the judge was the product of his voluntary and intelligent choice. Perhaps the more favored procedure would have been for the trial judge to conduct an independent inquiry on the record. Nevertheless, the record contains defendant’s acknowledgment that he understood the difference between a jury trial and a bench trial and that counsel had explained the difference in terms that he understood. The record also established that defendant, in interviews preparatory to the hearing to determine his competency to assist in his defense, discussed with the psychiatrist his prior experience in court and his understanding of jury and judge trials.

On the basis of the overall record, we conclude that defendant voluntarily and knowingly waived his right to trial by jury.

Accordingly, the conviction and sentence are affirmed.

      . Defendant was represented by a different at-tomey at trial.

      . Defense counsel questioned his client as follows:
      “MR. COLLETT:
      “For the record, Your Honor, again after having spoken with the defendant, Borlis Wilson, and explaining to him the difference between a trial by jury and a trial by judge and after making my recommendation to Mr. Wilson that he should take the trial by jury, he has informed me that he wishes to waive to have a trial by jury and have his trial by judge. For the record, I’d like to ask Mr. Wilson a few questions and get his response.
      “Borlis, do you understand the difference between a trial by jury and a trial by judge?” “THE DEFENDANT:
      “Yeah.”
      “MR. COLLETT:
      “Did I explain that to you in terms you could understand?”
      “THE DEFENDANT:
      “Yeah.”
      MR. COLLETT:
      “Did you understand the difference?”
      “THE DEFENDANT:
      (Nodding affirmatively).”
      “MR. COLLETT:
      “You understand you’re waiving your constitutional right to a trial by jury by doing so?”
      “THE-DEFENDANT:
      (Nodding affirmatively).”
      “MR. FORD:
      “Your Honor, for the record, if it please the Court, I was with Mr. Collett yesterday afternoon, and we spoke with Mr. Wilson for about ten minutes about this problem after Mr. Collett had already spoken to him previous to this, and I was there with Mr. Collett. Despite the recommendation by Mr. Collett, he still desires to have a trial by judge.”

      . The trial judge questioned defendant as follows:
      “Q. State your full name and date of birth, Mr. Wilson.”
      “A. Borlis Wilson, ’64, 12th month, 8th day.”
      “Q. What grade did you go to in school?” “A. Eighth.”
      “Q. Can you read and write the English language?”
      “A. Yeah.”
      “Q. Do you understand me talking to you today?”
      “A. Yeah.”
      “Q. Have you understood when your attorneys and your mother have talked to you today?”
      “A. Yeah.”
      “Q. Do you understand the proceedings here against you today?”
      “A. Yeah.”
      “Q. You were examined by a doctor yesterday morning, a psychiatrist, Dr. Carlos. Do you remember talking to him yesterday?”
      “A. Yeah.”
      “Q. And he said you were of average intelligence and that you were legally sane. Do you recall that?”
      “A. Yeah.”
      “Q. Are you taking any drugs or any alcoholic intake or suffering from any mental condition that would in any way affect your mental ability to understand what’s going on today?”
      “A. No.”
      “Q. What was your answer?”
      “A. No.”
      “Q. You are represented here by Mr. Sam Collett and Tom Ford. As we said earlier, they have discussed with you at length all the constitutional rights and the serious penalty attached to the crime of aggravated rape which you are charged with, is that correct?”
      “A. Yeah.”
      “Q. You realize that you are pleading guilty to this charge over the objection of both of your attorneys?”
      “A. Yeah.”
      “Q. Are you satisfied with your attorneys’ services? Have they advised you well?”
      “A. Well, I can’t say satisfied.”
      “Q. Well, why wouldn’t you be satisfied?”
      “A. I don’t know.”
      MR. FORD:
      “Your Honor, if it please the Court, I’d like the Court to question the defendant Borlis Wilson further for the record about this, because he’s never indicated this to us.”
      “EXAMINATION BY THE COURT:
      “Q. This is the first time anybody has ever been notified that you were dissatisfied with their services. What do you base that belief on?”
      “A. Repeat that.”
      “Q. What do you base your belief about their services on? Why do you think their services have not been satisfactory? Haven’t they offered to go to trial with you and take this matter through a hearing?”
      “A. Yeah.”
      “Q. And it was at your request that you waived the jury trial, is that correct?”
      “A. Yeah.”
      “Q. And they have also further insisted that you go on and see this whole thing through a judge trial, is that correct?”
      “A. (Nodding affirmatively).”
      “Q. Is it your request that you do not want to go forward with this trial, right?”
      “A. Why should I?”
      “Q. I’m sorry. I didn’t understand you.”
      “A. I said, why should I?”
      “Q. If you have defenses that you want to raise, this is your opportunity to do so.”
      “A Well, my lawyer told me I have a ninety percent [chance] of not getting out of here with all the evidence they have against me, I could be found guilty. So, the way I feel, why should I go through a trial and get found guilty? Why shouldn’t I just go ahead and plead guilty?”
      “Q. Well, you’re only talking about a few hours out of your life here today as opposed to many years in the future.”
      “A. So what’s the difference between a few hours and a few minutes in my life, not talking about theirs.”
      “Q. Well, you’re not guilty at this time. You’re presumed innocent.”
      “A. Well, from what he has done told me, I as soon be.”
      The judge concluded:
      “I don’t think you’re of a mind to adequately give a free and voluntary guilty plea at this point. It’s something that you have to want to do, and I don’t think you’re wanting to do it. It’s my impression you’re doing it for another purpose. I don’t know what the purpose is. I don’t think it’s a free and voluntary plea, and we’re going to go ahead and go with the trial.”

      . Similarly, when a defendant waives trial altogether by pleading guilty, the trial judge should address defendant in open court on the record, because it is impermissible to presume waiver from a silent record. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

      . Defendant may well have concluded, because of the overwhelming strength of the state’s case and the horrible facts of the crime, that a jury would have been unsympathetic and that he could do no worse in a bench trial, particularly as to the possibility of a verdict of the lesser offense of forcible rape.

      . Ideally, the judge should endeavor to determine the defendant’s understanding and intention, preferably other than by leading questions calling for simple affirmative answers.

      . The psychiatrists opined that defendant had a low normal level of intelligence, understood the proceedings against him, and was capable of assisting in his defense.


author: PER CURIAM.

text:
    STATE of Louisiana v. Joseph N. SHERER.
    No. 82-KA-1782.
    Supreme Court of Louisiana.
    Sept. 2, 1983.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John Sturgeon, Dist. Atty., Ronald Kilgallen, Asst. Dist. Atty., for plaintiff-appellee.
    Philip Letard, Vidalia, for defendant-appellant.
   PER CURIAM.

Defendant Joseph N. Sherer was convicted by a jury of two counts of negligent homicide. In a previous opinion we affirmed his convictions but vacated his two multiple offender adjudications and sentences. State v. Sherer, 411 So.2d 1050 (La.1982). On remand, the district court adjudged him to be a multiple offender on one conviction of negligent homicide, sentenced him to seven years on that conviction, sentenced him to five years on the regular negligent homicide conviction, and made the sentences consecutive for a total of 12 years at hard labor.

On this appeal, defendant has argued one assignment of error attacking his sentences because of the court’s failure to state for the record the reasons for sentencing, and the imposition of consecutive rather than concurrent sentences. At the time of sentencing the defendant had served three years which will apply on his sentence and had been released on bail by the court for twenty three months immediately prior to the sentence hearing. At the sentence hearing, the district court judge indicated that he was pleased with the defendant’s conduct while on bail because he had not been in trouble and had made diligent effort toward his rehabilitation. The judge expressed a belief that defendant had come about as near to rehabilitation as one can get. In fact, the judge stated that he would write a letter recommending the defendant for parole when he became eligible in about one and one half years.

Nevertheless, the judge sentenced the defendant to a total of twelve years at hard labor, giving no reasons for making the habitual offender sentence of seven years consecutive with the regular sentence of five years. The maximum penalty for negligent homicide is five years at hard labor. La.R.S. 14:32. At the time of this offense, the maximum habitual offender enhanced penalty for this crime was double the maximum sentence, or ten years. La.R.S. 15:529.1. Thus, if the sentencing judge had imposed two regular maximum sentences of five years consecutively, or one maximum habitual offender sentence of ten years concurrently with a regular sentence, the defendant would have received a total of ten years imprisonment. By making defendant’s seven year habitual offender sentence consecutive with his.five year regular sentence the district court extended his total time to 12 years at hard labor.

Although the sentencing judge gave no reasons for the double enhancement of a consecutive habitual offender sentence, the record reflects some negative features in defendant’s background. The defendant had a substantial criminal record: the instant offenses represented his third vehicular transgression while intoxicated amidst a number of other less serious traffic violations including speeding and revocation violations; he also had been convicted of burglary, grand larceny and felony theft. The defendant admitted during the sentencing hearing .that he had taken a drink about two months before during a bout with pneumonia and a mild heart attack. The judge expressed slight displeasure that the defendant was not participating in AA as well as the drug abuse clinic defendant said he was attending. The judge expressed concern that the defendant might “blow up again” if the pressure was taken off him. Because the judge gave no reasons for the sentence and expressed optimism about defendant’s affirmative response to parole, however, it cannot be ascertained that those facts account for the doubly enhanced sentence.

Because the function of the consecutive sentence should be similar to the sentence imposed on habitual or dangerous offenders, sentences for crimes arising from a single course of conduct should be concurrent rather than consecutive, absent a showing that the offender poses an unusual risk to the safety of the public. See State v. Franks, 373 So.2d 1307 (La.1979); State v. Cox, 369 So.2d 118 (La.1979). Cf. La.C. Cr.P. art. 883. We cannot presume that the sentencing judge viewed the defendant as an unusual risk to the safety of the public because he did not so state. Instead, the judge expressed his belief that the defendant had become virtually rehabilitated and should be released on parole at the earliest possible time. For these reasons, the imposition of consecutive rather than concurrent sentences totaling 12 years at hard labor upon a defendant deemed parole-eligible by the sentencing judge for crimes of criminal negligence, rather than intentional offenses, arising from a single course of conduct, are unexplained by the judge’s statements and unillumined by this problematic record.

Accordingly, the defendant’s sentences are vacated and the case is remanded to the district court for resentencing with a full statement of reasons for the particular sentences imposed.


author: DENNIS, Justice.

text:
    CENTRAL LOUISIANA ELECTRIC COMPANY, INC. v. LOUISIANA PUBLIC SERVICE COMMISSION.
    No. 83-CA-0604.
    Supreme Court of Louisiana.
    Sept. 2, 1983.
    Rehearing Denied Oct. 7, 1983.
    William 0. Bonin, Landry, Watkins & Bonin, New Iberia, for plaintiff-appellant.
    Michael R. Fontham, Paul L. Zimmering, William E. Brown, Stone, Pigman, Walther, Wittmann & Hutchinson, New Orleans, James F. Abadie, Abadie & Hudson, Marshall B. Brinkley, Baton Rouge, for defendant-appellee.
   DENNIS, Justice.

Plaintiff, Central Louisiana Electric Company, sought judicial review in district court of the defendant Commission’s failure to authorize higher rates so as to produce a 12.41 percent fair rate of return, instead of the 11.6 percent allowed by the Commission. The district court held that the Commission’s rate order is presumed to be valid and found that the plaintiff had failed to carry its burden of proving that the agency had acted arbitrarily.

The plaintiff utility appealed to this court. See Art. 4, Section 21, La. Const, of 1974. It contends that the rate order must be set aside because the record does not contain any reasons, findings or evidence which support the rates fixed by the commission. We conclude that plaintiff’s appeal has merit and that the Commission’s order must be reversed.

In its rate order the Commission made the following findings of ultimate facts:

“The Commission has determined that CLECO should be given the opportunity to earn an 11.6% overall rate of return. In order to earn an 11.6% overall rate of return, the Company should be permitted to increase its rates for retail electric service in Louisiana by $30,200,000.”

However, the Commission’s rate order does not contain any findings of basic facts related to its ultimate factual findings as to fair rate of return and just and reasonable rates. Moreover, the rate order contains no reasons explaining how the rate of return was derived from the evidence or from findings based thereon.

A reviewing court will not substitute its judgment for that of the Commission in fixing public utility rates, and the agency’s rate order will be upheld unless shown to be arbitrary, capricious, abusive of its authority, clearly erroneous or unsupported by evidence. See So. Cent. Bell Tel. v. L.P.S.C., 352 So.2d 964 (La.1977). Therefore, to enable a reviewing court to intelligently review the Commission’s determinations, the agency must provide the court and the parties with findings as to the disputed issues and a statement of reasons supporting its determination such as to enable a reviewing court to determine with some measure of confidence whether or not the ratemaking authority, which still remains in the Commission, has been exercised in a manner which is not arbitrary, capricious or unreasonable. Giallanza v. Louisiana Public Service Comm’n, 412 So.2d 1369 (La.1982); Cf., Dunlop v. Bachowski, 421 U.S. 560, 95 S.Ct. 1851, 44 L.Ed.2d 377 (1975); Glazer v. Comm’n on Ethics for Public Employees, 431 So.2d 752 (La.1983); Baton Rouge Waterworks Co. v. La. Pub. Serv. Comm., 342 So.2d 609 (La.1977).

Since the primary purpose of the ratemaking process is to set rates at such a level that the utility’s revenues will produce a fair rate of return, it is necessary for the Commission to delineate and make explicit the basis upon which it has computed the utility’s fair rate of return. So. Cent. Bell Tel. v. L.P.S.C., 352 So.2d 964 (La.1977). This is particularly so in a ease such as this where the commission rejected the fair rates of return derived from the evidence by the expert witnesses, including that proposed by its own consultant, and calculated a different rate of return upon an undisclosed basis. Cf. Dunlop v. Bachowski, supra.

Although we may uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned, such as when the findings and reasons are necessarily implied by the record, we will not supply a finding from the evidence or a reasoned basis for the Commission’s action that the Commission has not found or given. Giallanza v. LPSC, supra; B.R. Waterworks v. Louisiana Public Service Comm’n, 342 So.2d 609 (La.1977); Cf. Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974); 3 K. Davis Administrative Law Treatise at 130. Consequently, when the Commission fails to explain the basis or reason for its decision, and no rationale for its action is obvious, we must vacate its order and remand for a redetermination.

The rate order of the Public Service Commission and the judgment of the district court are reversed and the case is remanded to the Commission for a new determination.

DIXON, C.J., concurs.

      . Richard J. Lurito, the Commission’s expert, testified that the rate of return on common equity should be 16.0 percent which would give a fair rate of return of 12.41 percent. Dr. Charles Moyer, expert witness for CLECO testified that the return on common equity should be 19.6 percent which would mean a fair rate of return higher than that proposed by Mr. Lurito.

      . The Commission’s attorneys argue that the Commission’s action was based on passages of prefiled expert testimony. However, from our examination of the record and the rate order this is far from clear. We cannot accept appellate counsel’s post hoc rationalizations for agency action. Burlington Truck Lines, Inc. v. U.S., 371 U.S. 156, 169, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962).


author: WATSON, Justice.

text:
    STATE of Louisiana v. Edward JOSEPH.
    No. 82-KA-1558.
    Supreme Court of Louisiana.
    Sept. 2, 1983.
    Rehearing Denied Oct. 7, 1983.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Kenny Lassus, William C. Credo, Asst. Dist. Attys., for plaintiff-ap-pellee.
    Philip E. O’Neill, Gretna, for defendant-appellant.
   WATSON, Justice.

Defendant, Edward Joseph, was convicted by a ten to two jury verdict of armed robbery. LSA-R.S. 14:64. Defendant was sentenced to fifty years at hard labor and has appealed his conviction and sentence alleging seven errors by the trial court.

FACTS

On May 1, 1981, at approximately 5:00 A.M., a “Li’l General Food Store” (Tr. 208) at the corner of Veterans Highway and Bonnabel Boulevard was robbed by a black man with a silver revolver. The night manager of the store, Sherman Earl Thomas, surrendered about forty dollars from the cash register in a brown paper bag. Joseph was seen leaving the store by Deputy Sheriff Doskey, who happened to be parked in front. Joseph went around the comer of the building and entered a dark colored automobile. As Joseph left, driving the wrong way on Bonnabel, the night manager came out and told the officer he had been robbed. A chase ensued in the adjacent residential district. Because Joseph’s vehicle had a half block lead, Deputy Doskey kept his lights off to prevent the suspect from eluding him. When Doskey got within thirty feet of Joseph’s car, Joseph turned south on Bonnabel and extinguished his lights. Doskey then turned on all his lights and made an unsuccessful attempt to stop the suspect. Officers at the intersection of Bonnabel Boulevard and Veterans Highway were also unable to stop Joseph’s speeding car. Joseph continued southbound on Bon-nabel Boulevard until he hit a police vehicle blocking the North 1-10 service road. Deputy Sheriff Grady Smith jumped out just before the crash.

The chase took fifteen to twenty-five minutes and ended approximately four blocks south of the convenience store. Joseph’s female passenger pointed a silver .38 revolver at Smith, but it apparently misfired. Smith fired four shots while looking for cover. Joseph, at the scene and at trial, was identified by Doskey, the night manager and a customer of the convenience store, Janet Razavi. Inside Joseph’s car was a brown paper bag containing $40.58. At trial, almost seven months after the offense, two of the identifying witnesses could not recall whether or not Joseph had had a mustache. One said he had had no facial hair.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant contends that the trial court violated LSA-C.Cr.P. art. 772 by commenting upon the facts in the following colloquy:

“For the record, the Court will describe the gun — the weapon present is apparently a nickel plated silver looking revolver with a kind of handle on it. Mr. D.A.: What kind of revolver?
“MR. LASSUS: .38 caliber revolver.
“MR. O’NEIL: Objection, I object to the court describing anything.
“THE COURT: I asked if there was any objection. Let the Supreme Court find out the best way they can.” (Tr. 213-214)

Janet Razavi had just testified that the gun appeared similar to the one that the robber had carried and was the same color. Later, Deputy Doskey identified the weapon as being the one recovered from Joseph’s vehicle. Night manager Thomas described it as a silver revolver which appeared to be like the weapon used in the robbery. Deputy Smith testified that the weapon recovered from defendant’s vehicle was a .38 caliber silver revolver and the revolver in evidence appeared to be the same one. Louise Braun, an expert in the field of firearm identification, said the weapon was the one she received in the case of State v. Edward Joseph.

It is questionable whether a description of an item of evidence to record what is fully apparent to the jury constitutes a comment on the facts or a recapitulation of the evidence. In any event, because the evidence identifying the revolver as the weapon used in the robbery was unanimous and overwhelming, the jury’s determination could not have been affected. Compare State v. Williams, 375 So.2d 1379 (La., 1979). Since the trial court’s remarks did not imply an opinion as to defendant’s guilt or innocence, any error was harmless. See State v. Hodgeson, 305 So.2d 421 (La., 1974); State v. Williams, 355 So.2d 1291 (La., 1978) and State v. Williams, 397 So.2d 1287 (La., 1981).

This assignment lacks merit.

ASSIGNMENTS OF ERROR NUMBER TWO AND THREE

Defendant contends that a mistrial should have been granted because inadmissible evidence of other crimes was solicited by the state during the testimony of Sherman Thomas.

The night manager was asked: “Why did you give him the money?” Thomas replied, “Because he had came [sic] to the store on a previous occasion and when he showed me the gun, I knew what he meant.” (Tr. 240)

The court concluded that the statement that defendant had been in the store on another occasion did not amount to evidence of another crime and denied a mistrial.

Later, during his identification testimony, Thomas, when asked, “How did you know that was the same person?” replied: “Because he had robbed me on an earlier occasion and I had a good remembrance of him.” (Tr. 245)

The trial court concluded that the remark was extemporaneous and unsolicited. He noted that it was made in an unaccentuated monotone. Before the jury returned, Thomas was cautioned against further references to other crimes.

The jury was instructed: “to disregard completely the last remark made by the witness and the answer to his last question that was asked him by the District Attorney. Do not consider this at all in your deliberation.” (Tr. 252)

Since the remark was not made by a judge, district attorney, or court official, it is not covered by LSA-C.Cr.P. art. 770. The trial court concluded that an admonition was sufficient to insure a fair trial. LSA-C.Cr.P. art. 771. Defendant argues that the state deliberately solicited the testimony and an admonition was insufficient.

The remarks were voluntary and unresponsive to the prosecutor’s questions. See State v. Babin, 336 So.2d 780 (La., 1976) and State v. Michel, 422 So.2d 1115 (La., 1982). The form of the questions does not indicate bad faith on the part of the state. The admonition was sufficient to cure any prejudice resulting from the unsolicited remarks. State v. Perry, 420 So.2d 139 (La., 1982).

These assignments lack merit.

ASSIGNMENT OF ERROR NUMBER FOUR

Defendant contends that the trial court erred in sustaining the prosecutor’s objection to the following question posed to witness Thomas: “Did Ms. Razavi ever relate to you that she had been out all that previous evening carousing and drinking?” (Tr. 258)

It is argued that defendant was trying to show Ms. Razavi’s state of mind and the question was therefore proper cross-examination under State v. Sheppard, 371 So.2d 1135 (La., 1979). However, Ms. Raza-vi’s state of mind was not at issue. The hearsay objection was properly sustained.

This assignment lacks merit.

ASSIGNMENTS OF ERROR NUMBER FIVE AND SIX

Defendant contends that his sentence of fifty years at hard labor was not imposed in compliance with the sentencing guidelines of LSA-C.Cr.P. art. 894.1. It is argued that the trial court was inaccurate as to his criminal record and the facts of this case. Also, Joseph contends that the sentence is disproportionate and excessive.

In imposing sentence, the trial court noted that Joseph endangered the lives of several police officers and the general citizenry when he raced down Bonnabel and hit the police car. Joseph’s accomplice-passenger then tried to shoot the arresting officer. The court concluded that Joseph displayed a blatant disregard for human life.

Joseph had three prior felony convictions. Immediately upon being released from parish prison after a theft conviction, Joseph had been convicted of three counts of armed robbery. He was also convicted of receiving stolen things and simple burglary.

The trial court concluded that Joseph’s offense was necessarily punishable by imprisonment; that his criminal record and his conduct during this offense created an undue risk of another crime being committed; that he required correctional treatment; and that a lesser sentence would deprecate the seriousness of the crime.

It is argued that the act of the passenger-accomplice should not have been considered, and Joseph himself did not point the .38 caliber pistol when arrested. Joseph also contends that Deputy Smith’s life was not endangered because he had left the vehicle.

Defendant has not specified any factual inaccuracy in the criminal record recited by the trial court. Regardless of the accomplice’s act, Joseph showed disregard of human life during his attempt to escape. Defendant was subject to imprisonment for life because of his three prior felonies under LSA-R.S. 15:529.1. The sentence does not appear facially excessive and is within the trial court’s discretion.

These assignments lack merit.

ASSIGNMENT OF ERROR NUMBER SEVEN

Defendant contends that no rational trier of fact could have found him guilty of armed robbery.

It is argued that the paper bag in evidence was old, wrinkled and discolored and could not have been the bag given to the armed robber by the night manager. It is contended that the identifications were faulty because defendant had a well developed “Fu Manchu” (Defendant’s Brief, p. 18) .mustache and none of the witnesses recalled this noticeable feature. It is also argued that the state failed to prove the amount of money taken from the cash register and that deputy Smith hit Joseph’s vehicle rather than vice versa.

There is nothing in the record to establish that defendant had a mustache at the time of the crime. Three eye witnesses identified him within thirty minutes of the robbery and also at trial. Manager Thomas testified that the brown bag looked like the one he gave the robber, and he calculated how much money was taken by running a tape to determine what was missing from the cash register. This evidence established the amount stolen with sufficient precision. Joseph was caught red-handed with the gun and money in his possession. No reasonable doubt of his guilt exists. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

This assignment of error lacks merit.

For the foregoing reasons, the conviction and sentence of defendant, Edward Joseph, are affirmed.

AFFIRMED.

DENNIS, J., concurs.

      . LSA-R.S. 14:64 provides:
      “A. Armed robbery is the theft of anything of value from the person of another or which is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.
      “B. Whoever commits the crime of armed robbery shall be imprisoned at hard labor for not less than five years and for not more than ninety-nine years, without benefit of parole, probation or suspension of sentence.”

      . LSA-C.Cr.P. art. 772 provides:
      “The judge in the presence of the jury shall not comment upon the facts of the case, either by commenting upon or recapitulating the evidence, repeating the testimony of any witness, or giving an opinion as to what has been proved, not proved, or refuted.”

      . LSA-C.Cr.P. art. 770 provides:
      “Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
      “(1) Race, religion, color or national origin, if the remark or comment is not material and relevant and might create prejudice against the defendant in the mind of the jury;
      “(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;
      “(3) The failure of the defendant to testify in his own defense; or
      “(4) The refusal of the judge to direct a verdict.
      “An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, requests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial.”

      . LSA-C.Cr.P. art. 771 provides:
      “In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
      “(1) When the remark or comment is made by the judge, the district attorney, or a court official, and the remark is not within the scope of Article 770; or
      “(2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770.

        “In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.”


text:
    A. Raoul BEZOU v. Margaret Gaines, Wife of A. Raoul BEZOU.
    No. 83-CC-1304.
    Supreme Court of Louisiana.
    June 17, 1983.
   In re Margaret Gaines Bezou, applying for writ of certiorari and/or review and mandamus. Civil District Court, Parish of Orleans, Division “I”. Fourth Circuit Court of Appeal. No. C-0977. 436 So.2d 592.

Granted. Execution of the judgment of the trial court is stayed. The case is remanded to the Court of Appeal to decide the merits of the custody issue on the entire record after briefing and argument by the parties. In the meantime, the mother shall retain unlimited custody, (which she has exercised for the entire lives of both children), and the trial court shall retain jurisdiction to fix reasonable visitation privileges in the light of the mother’s relocation outside of Louisiana.

CALOGERO, MARCUS and DENNIS, JJ., would deny the writ.


text:
    INTERDICTION OF George Nelson RONSTROM.
    No. 83-CC-1240.
    Supreme Court of Louisiana.
    June 27, 1983.
   In re Interdiction of George Nelson Ron-strom, applying for supervisory writ. Fourth Circuit Court of Appeal. Civil District Court, Parish of Orleans. No. 81-15535, Division “E”. 436 So.2d 588.

Denied.

MARCUS, J., would grant the writ.


text:
    In re INTERDICTION OF George Nelson RONSTROM.
    No. 83-CC-1302.
    Supreme Court of Louisiana.
    June 27, 1983.
   In re Hibernia National Bank, applying for remedial writ. Alternative, for Writ of Certiorari, Court of Appeal, Fourth Circuit. Civil District Court, Parish of Orleans. No. 81-15535. 436 So.2d 588.

Denied.

MARCUS, J., would grant the writ.


text:
    Raoul A. BEZOU v. Margaret Gaines, wife of Raoul A. BEZOU.
    No. 83-CC-1448.
    Supreme Court of Louisiana.
    June 28, 1983.
   In re Margaret Gaines, applying for writ of certiorari and review, mandamus and stay order. Civil District Court, Parish of Orleans. Fourth Circuit Court of Appeal. No. C-0977. 486 So.2d 592.

Stay order denied.

DIXON, C.J., WATSON and LEMMON, JJ., would grant the stay order.


text:
    Llewellyn SONIAT, Patricia Leonard, Jerome Glazer, Philip Baptiste, George Ethel Warren, Betty Solomon and Reverend W.E. Hansey v. Councilman Sidney J. BARTHELEMY, Councilman Joseph I. Giarrusso, Councilman Bryan Wagner, Councilman James Singleton, Councilman Mike Early, Councilman Lambert Boissiere, Jr., Councilperson Wayne Babovich and Orleans Parish Registrar of Voters.
    No. 83-CC-1721.
    Supreme Court of Louisiana.
    Aug. 3, 1983.
   In re Council for the City of New Orleans, et al, applying for remedial writs, certiorari, and review. Civil District Court, Parish of Orleans. Division “C”. Court of Appeals, Fourth Circuit. No. C-1112, 436 So.2d 707, STAY ORDER.

Denied.


text:
    Grady L. MESSER v. Leonard O. LONDON.
    No. 83-C-1782.
    Supreme Court of Louisiana.
    Aug. 24, 1983.
   In re Leonard 0. London, applying for certiorari, or writ of review. Court of Appeal, First Circuit. Twentieth Judicial District Court. No. 19049. Parish of East Feliciana. 436 So.2d 756.

Granted.


text:
    Lloyd A. NICHOLSON, Jr. v. Patricia M. GRISAFFE.
    No. 83-C-1829.
    Supreme Court of Louisiana.
    Aug. 24, 1983.
   In re Patricia M. Grisaffe, applying for certiorari, or writ of review. Court of Appeal, Third Circuit, Parish of Iberia. Sixteenth Judicial District Court. No. 53267. 436 So.2d 763.

Granted.


text:
    Guido SALAS v. Steve J. MORTILLARO.
    No. 83-C-1841.
    Supreme Court of Louisiana.
    Aug. 24, 1983.
   In re Guido Salas, applying for certiorari, or writ of review. Court of Appeal, Fifth Circuit, Parish of Jefferson. Twenty-Fourth Judicial Court. No. 284-803. Division “M”. 436 So.2d 773.

Denied.


text:
    Harry WILLIAMS, Jr. v. Cedric FLOYD and William M. Justice, Jr.
    No. 83-C-1844.
    Supreme Court of Louisiana.
    Aug. 24, 1983.
   In re Cedric Floyd and William M. Justice, Jr., applying for certiorari, or writ of review. Court of Appeal, Fifth Circuit, Parish of Jefferson. Twenty-Fourth Judicial District Court. No. 284-802. 436 So.2d 771.

Denied.


author: CALOGERO, J.,

text:
    Roberta Margaret Young MADDEN, Individually and In Her Capacity as Executive Director of Louisiana Common Cause, and Charles A. “Sam” Jones, III, Individually, and Winston J. Jackson, Jr., Individually v. R.E. EDWARDS and James H. “Jim” Brown, In His Capacity as Secretary of State.
    No. 83-C-1813.
    Supreme Court of Louisiana.
    Aug. 24, 1983.
   In re R.E. Edwards, applying for writ of certiorari and review. Court of Appeal, First Circuit. Parish of East Baton Rouge, Nineteenth Judicial District Court. Nos. 269,479; 269,480; 269,481. 436 So.2d 759.

Denied.

LEMMON, J., would grant the writ.

CALOGERO, J.,

concurs in the denial being of the opinion that the application has not been timely filed.


text:
    Roberta Margaret Young MADDEN, Individually and In Her Capacity As Executive Director of Louisiana Common Cause, and Charles A. “Sam” Jones, III Individually, and Winston J. Jackson, Jr., Individually v. Michael J. MUSMECI, Sr. and James H. “Jim” Brown, In His Capacity as Secretary of State.
    No. 83-C-1811.
    Supreme Court of Louisiana.
    Aug. 24, 1983.
   In re Roberta Margaret Young Madden, Individually and in her Capacity as Executive Director of Louisiana Common Cause and Charles A. “Sam” Jones, III, Individually, and Winston J. Jackson, Jr., Individually, applying for writs of certiorari and/or review. First Circuit Court of Appeal, Parish of East Baton Rouge. Nineteenth Judicial District Court, Nos. 269,479; 269,480; 269,481. 436 So.2d 759 and 436 So.2d 762.

Denied.


text:
    Roberta Margaret Young MADDEN, Individually and In Her Capacity as Executive Director of Louisiana Common Cause, and Charles A. “Sam” Jones, III, Individually, and Winston J. Jackson, Jr., Individually v. Ken “Cousin Ken” LEWIS and James H. “Jim” Brown, In His Capacity as Secretary of State.
    No. 83-C-1810.
    Supreme Court of Louisiana.
    Aug. 24, 1983.
   In re Roberta Margaret Young Madden, Individually, and in her capacity as Executive Director of Louisiana Common Cause; Charles A. “Sam” Jones, III, Individually, and Winston J. Jackson, Jr., Individually, applying for certiorari, or writ of review. Court of Appeal, First Circuit. Nineteenth Judicial District Court, Parish of East Baton Rouge. No. 269480. 436 So.2d 761.

Denied.


text:
    STATE of Louisiana ex rel., Alvin BERRY v. STATE of Louisiana; CRIMINAL DISTRICT COURT, SECTION H, CRIMINAL SHERIFF OF NEW ORLEANS, Louisiana, Charles Foti (Custodian).
    No. 83-KH-1826.
    Supreme Court of Louisiana.
    Sept. 2, 1983.
   In re Alvin Berry, applying for remedial writ. Parish of Orleans, Criminal District Court.

Writ denied.


text:
    BANK OF DIXIE v. Clyde E. ROBINSON and Pearline M. Robinson.
    No. 83-CC-1907.
    Supreme Court of Louisiana.
    Sept. 8, 1983.
   In re Clyde E. Robinson and Pearline M. Robinson, applying for emergency stay order. Sixth Judicial District Court, Parish of East Carroll. No. 13637. Court of Appeal, Second Circuit. No. 15860-CA.

Denied.


text:
    STATE of Louisiana v. Betty KOLL.
    No. 83-KK-1936.
    Supreme Court of Louisiana.
    Sept. 9, 1983.
   In re Betty Koll, applying for remedial writs. Criminal District Court. No. 275-617. Court of Appeal, Fourth Circuit. No. K-1271. Parish of Orleans.

Denied.


text:
    STATE of Louisiana, ex rel., Jessie McGEE v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 82-KH-2838.
    Supreme Court of Louisiana.
    Sept. 16, 1983.
   In re Jessie McGee, applying for remedial writs. Parish of Orleans. No. 253296.

Denied.


text:
    STATE of Louisiana, ex rel., Alton BELGARD v. John T. KING, Secretary.
    No. 82-KH-2757.
    Supreme Court of Louisiana.
    Sept. 16, 1983.
   In re Alton Belgard, applying for writs of habeas corpus, certiorari, prohibition, mandamus and other remedial writs. Rapides Parish. No. 198955.

Denied.


text:
    Marcus MATTHEWS v. Ross MAGGIO, Warden Louisiana State Penitentiary.
    No. 82-KH-2714.
    Supreme Court of Louisiana.
    Sept. 16, 1983.
   In re Marcus Matthews, applying for writ of habeas corpus. Parish of Orleans. No. 62-123.

Denied.


text:
    STATE ex rel., Lehman LUNDY v. STATE of Louisiana.
    No. 82-KH-2923.
    Supreme Court of Louisiana.
    Sept. 16, 1983.
   In re Lehman Lundy, applying for writ of habeas corpus. Criminal District Court, Parish of Orleans. No. 268-183.

Denied.


text:
    STATE of Louisiana, ex rel., John D. HENDERSHOT v. CRIMINAL DISTRICT COURT PARISH OF ORLEANS.
    No. 83-KH-1286.
    Supreme Court of Louisiana.
    Sept. 16, 1983.
   In re John D. Hendershot, applying for writ of mandamus, prohibition and remedial writs. Parish of Orleans. No. 275-873.

Granted and transferred to Court of Appeal, 4th Circuit, for consideration.


text:
    STATE of Louisiana, ex rel., Alex BUTLER v. STATE of Louisiana: Criminal District Court, § F, New Orleans, Louisiana: Criminal Sheriff, New Orleans, Louisiana (Custodian).
    No. 83-KH-1874.
    Supreme Court of Louisiana.
    Sept. 16, 1983.
   In re Alex Butler, applying for remedial writ. Criminal District Court, Parish of Orleans.

Granted for the sole purpose of transferring to the Court of Appeal, Fourth Circuit.


text:
    STATE of Louisiana ex rel., Clarence SIMMONS and Sammy Bernard v. Donald HATHAWAY and William Guste, Jr.
    No. 83-KH-1177.
    Supreme Court of Louisiana.
    Sept. 16, 1983.
   In re Clarence Simmons and Sammy Bernard, applying for writ of habeas corpus. Parish of Caddo, First Judicial District Court. No. 110007.

Granted for the sole purpose of transferring to the district court for consideration.


text:
    STATE of Louisiana v. Thaddeus M. BATISTE.
    No. 83-KH-1958.
    Supreme Court of Louisiana.
    Sept. 16, 1983.
   In re Thaddeus M. Batiste, applying for remedial writ. Criminal District Court, Parish of Orleans. No. 296-729.

Granted and transferred to 4th Circuit, Court of Appeal, for action.


text:
    STATE of Louisiana, ex rel., Carolyn Ann HOLLINGSWORTH v. STATE of Louisiana.
    No. 83-KH-1464.
    Supreme Court of Louisiana.
    Sept. 16, 1983.
   In re Carolyn Ann Hollingsworth, applying for remedial writs. Parish of St. Landry.

Granted. Application transferred to the district court for its consideration.


text:
    Kenneth Lee SIMMONS, STATE of Louisiana ex rel. v. Honorable Miriam G. WALTZER, Judge Criminal District Court, Orleans Parish.
    No. 83-KH-1616.
    Supreme Court of Louisiana.
    Sept. 16, 1983.
   In re Kenneth Lee Simmons, applying for writ of mandamus, Criminal District Court. No. 178-906. Parish of Orleans.

Granted. Transferred to the district court for action.


text:
    STATE of Louisiana, ex rel., Gregory NAVARRE v. Warden Ross MAGGIO, Jr.
    No. 83-KH-1786.
    Supreme Court of Louisiana.
    Sept. 16, 1983.
   In re Gregory Navarre, applying for remedial writ, Thirty-Second Judicial District Court. No. 78-517. Parish of Terrebonne.

Granted. Transferred to the district court to act on the motion to appoint counsel for relator.


text:
    STATE of Louisiana, ex rel., Eddie EDWARDS v. Belvin F. BERGERON, Criminal Sheriff Parish of West Baton Rouge Port Allen, Louisiana.
    No. 83-KH-1858.
    Supreme Court of Louisiana.
    Sept. 16, 1983.
   In re Eddie Edwards, applying for writ of mandamus. Parish of West Baton Rouge.

Granted: The writ is dismissed on relator’s representation that his writ application has been satisfied.


text:
    STATE of Louisiana ex rel., Alex BRANCH v. CLERK OF COURT, 19TH JUDICIAL DISTRICT COURT.
    No. 82-KH-1292.
    Supreme Court of Louisiana.
    Sept. 16, 1983.
   In re Alex Branch, applying for writ of mandamus. Parish of East Baton Rouge. No. 58696.

Denied.


text:
    STATE of Louisiana, ex rel., Edward R. ANTHONY v. 16TH JUDICIAL DISTRICT COURT.
    No. 82-KH-2482.
    Supreme Court of Louisiana.
    Sept. 16, 1983.
   In re Edward R.. Anthony, applying for writs of habeas corpus, certiorari and mandamus. Parish of Iberia. No. 47229.

Denied.


text:
    STATE of Louisiana, ex rel., Charles E. TATE v. CLERK OF COURT, 21ST JUDICIAL DISTRICT COURT, PARISH OF TANGIPAHOA, State of Louisiana.
    No. 83-KH-1181.
    Supreme Court of Louisiana.
    Sept. 16, 1983.
   In re Charles E. Tate, applying for writ of mandamus. Twenty-First Judicial District Court. No. 30359. Parish of Tangipa-hoa.

Granted. The district court is directed to furnish relator a copy of his Boykin transcript.


text:
    STATE ex rel., Kenneth TUBBS v. Ross MAGGIO.
    No. 82-KH-2673.
    Supreme Court of Louisiana.
    Sept. 16, 1983.
   In re Kenneth Tubbs, applying for a writ of certiorari. Parish of Caddo. No. 114831.

Denied.


text:
    STATE of Louisiana ex rel., Eddie JOHNSON aka Eddie Direckson v. CRIMINAL DISTRICT COURT SECTION “D” PARISH OF ORLEANS.
    No. 82-KH-2636.
    Supreme Court of Louisiana.
    Sept. 16, 1983.
   In re Eddie Johnson, applying for writ of mandamus. Parish of Orleans, Criminal District Court. No. 278-348.

Denied. Moot.


text:
    STATE of Louisiana ex rel, John C. ARMSTRONG v. Andrew G. BUCARO, Judge Pro Tem (Sec. H) Criminal District Court Parish of Orleans New Orleans, Louisiana.
    No. 82-KH-2606.
    Supreme Court of Louisiana.
    Sept. 16, 1983.
   In re John C. Armstrong, applying for a writ of certiorari, and review. Criminal District Court, Section H. No. 280-284.

Denied.


text:
    STATE ex rel., Renie J. HENSLEY v. Ross MAGGIO, Warden Louisiana State Penitentiary.
    No. 82-KH-2538.
    Supreme Court of Louisiana.
    Sept. 16, 1983.
   In re Renie J. Hensley, applying for writ of mandamus. Parish of Jefferson. Nos. 78-2374, 81-1253, 81-1671.

Denied. Moot.


text:
    STATE of Louisiana v. Clifford A. HAYDEN.
    No. 83 KA 0637.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 2, 1983.
    Frank L. Koles, III, Asst. Dist. Atty., Livingston, for appellee.
    Haydn S. Berey, Livingston, for appellant.
   PER CURIAM.

Defendant, Clifford A. Hayden, was charged with first offense operating a vehicle while intoxicated on January 8, 1983, in violation of La.R.S. 14:98. Defendant pled not guilty. After a bench trial, defendant was found guilty as charged and sentenced to pay a fine of $300.00, plus costs, or to serve 30 days in jail. The jail sentence was suspended, conditioned upon defendant’s performance of 14 days of public service work, participation in the Substance and Abuse Clinic, and attendance of the Defensive Driving School. Defendant has appealed this conviction and sentence.

A defendant may appeal to the court of appeal from a judgment in a criminal case when it is triable by jury. La. Const. Art. V, § 10(A); and L.S.A.-C.Cr.P. art. 912.-1(B). A criminal case is triable by jury when the punishment which may be imposed is a fine in excess of Five hundred dollars or imprisonment for more than six months. L.S.A.-C.Cr.P. art. 779.

In the instant case, the maximum penalty which could have been imposed was a fine of not more than Five hundred dollars and imprisonment for not more than six months. L.S.A.-R.S. 14:98(B). Therefore, the defendant did not have a right to trial by jury. Consequently, he does not have a right of appeal herein. Defendant’s proper remedy is by application for a writ of review. L.S.A.-C.Cr.P. art. 912.1(C); Rule 4, Uniform Rules-Courts of Appeal; State v. Ritter, 428 So.2d 964 (La.App. 1st Cir.1983).

We note that appellant filed a late brief asking that his appeal be considered as a writ. We refuse to do so.

APPEAL DISMISSED. WRIT REFUSED.


author: GUIDRY, Judge.

text:
    William E. WELLS, et ux., Plaintiffs-Appellees-Appellants, v. HARTFORD ACCIDENT & INDEMNITY CO., et al., Defendants-Appellants-Appellees, State of Louisiana, Through the Department of Transportation and Development, Defendant-Appellee-Appellant.
    No. 83-184.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 10, 1983.
    Rehearing Denied Sept. 26, 1988.
    Writ Denied Dec. 9, 1983.

      Gist, Methvin, Hughes & Munsterman, David A. Hughes, Alexandria, for defendants-appellants-appellees.
    Führer, Flournoy & Hunter, Leonard Führer, Alexandria, for plaintiffs-appellees-appellants.
    John C. Young, Baton Rouge, for defendant-appellee-appellant.
    Before GUIDRY, FORET and PICKETT , JJ.

       Judge John S. Pickett, Jr., 10th Judicial District Court, Judge Ad Hoc.

   GUIDRY, Judge.

This is a joint action by petitioners, William E. Wells and Barbara Wells, seeking recovery of damages they sustained in an automobile collision. Made defendants in this suit are Rapides Parish Police Jury (hereafter the Parish); its liability insurer, Hartford Accident & Indemnity Co. (hereafter Hartford); and the State of Louisiana, through the Department of Transportation and Development (hereafter the State).

Immediately prior to the filing of this suit, Mr. and Mrs. Wells settled their claims and granted a release to Mrs. Givonna Todd, the driver of the other automobile involved in the collision; her husband, Larry G. Todd; and their insurer, Dairyland Insurance Company (hereafter Dairyland). By way of amended answers, the defendants pleaded the above mentioned receipt and release from the Wells to the Todds and their insurer as a bar to plaintiffs’ suit. The Parish also filed an exception of res judicata based on the same ground which was overruled. The plaintiffs subsequently filed a motion for summary judgment on the issue of whether defendants could avail themselves of the receipt and release under the circumstances. After trial on the merits, the trial judge found that: (1) the Parish, the State and Givonna Todd were each guilty of negligence which was a proximate cause of the accident; (2) each of the three defendants was at fault to the extent of thirty-three and one-third (33½%) percent; and, (3) although the defendants and Givon-na Todd were solidarily liable to the Wells, the receipt and release granted by the Wells to the Todds did not operate to discharge the defendants from their liability to the Wells. Judgment was rendered in favor of Mrs. Wells and against defendants in solido in the principal amount of two-thirds (⅜) of $136,715.74 or the sum of $91,143.83 and in favor of Mr. Wells and against the defendants in solido in the principal amount of two-thirds (⅜) of $235,827.76 or the sum of $197,231.97. From this judgment, the Parish and its insurer appeal suspensively and the State appeals devolutively presenting the following issues:

(1) Whether the trial judge erred in concluding that the defendants were not released by the plaintiffs’ release of the Todds and Dairyland.
(2) Whether the trial judge erred in finding the Parish and/or the State at fault.

The plaintiffs have also appealed presenting additional issues as follows:

(3) Whether the trial judge erred in finding Mrs. Todd at fault.
(4) Whether the trial judge erred in failing to award lost earnings, past and future to Mrs. Wells.
(5) Whether the trial judge erred in failing to award future medical expenses to Mr. Wells.

FACTS

Five miles north of Pineville, Hooper Road, a road maintained by the Rapides Parish Police Jury, forms a T-intersection, from the East, with Louisiana Highway 3225 which was formerly U.S. Highway # 71. This T-intersection is controlled by a “STOP” sign posted on Hooper Road directing traffic on Hooper Road to stop and yield the right of way to traffic on Louisiana Highway # 3225.

On December 18, 1981, at approximately 3:50 p.m., William and Barbara Wells were proceeding in a northerly direction on Louisiana Highway # 3225 approaching its intersection with Hooper Road. At the same time Givonna Todd was proceeding in a westerly direction on Hooper Road approaching its intersection with Louisiana Highway # 3225. As the two vehicles proceeded in this manner, Givonna Todd, upon first seeing the stop sign, instead of braking, elected to run the stop sign. She thus proceeded into the intersection and collided with the Wells’ vehicle.

Hooper Road is a winding blacktop road with many curves. It becomes straight a short distance prior to the T-intersection allowing a vehicle to pick up speed. At the time of the accident, only a stop sign warned of this intersection and this sign was defaced and obscured by tree limbs. The trial court concluded from the evidence that the Parish and the State were guilty of negligence in failing to adequately warn of this dangerous intersection. As a result of the accident, both Mr. and Mrs. Wells sustained severe multiple injuries.

By receipt and release executed March 30, 1982, Barbara Wells acknowledged receipt of payment of $10,310.00 and William Wells acknowledged receipt of payment of $15,553.50 by Dairyland Insurance Company and in consideration of those sums granted a release to Larry G. Todd, Givonna Todd and their insurer, Dairyland Insurance Company. The release provides in pertinent part as follows:

"... We do hereby release, acquit and forever discharge Larry G. Todd and Gi-vonna Todd and Dairyland Insurance of and from any and all actions, causes of action, claims, demands, damages, costs, loss of services, expenses and compensation on account of, or in any way growing out of, and any and all known and unknown bodily injuries and property damage resulting or to result to either or both of us from an accident that occurred on or about the 18th day of December, 1981, at or near Tioga LA. near Alexandria LA... This release contains the ENTIRE AGREEMENT between the parties hereto, and the terms of this release are contractual and not a mere recital.”

A full copy of the release referred to is annexed to this opinion as Appendix I. This suit was filed on April 12, 1982.

It is the contention of the defendants that the negligence of Givonna Todd was the sole cause of the accident. Alternatively, they contend that if they are found to be joint tortfeasors with Mrs. Todd, since the above release does not expressly reserve the creditors’ rights against them, under C.C. Art. 2203, as solidary obligors, they were also discharged by the discharge of Mrs. Todd. We first consider this alternative contention.

EFFECT OF RELEASE ON THE DEFENDANTS

The trial judge found that defendants were eo-tortfeasors with Mrs. Todd, but concluded that the release, either on its face or according to the true intentions of the parties did not effect a discharge of anyone other than the Todds and Dairyland. In so concluding, he stated in his written reasons for judgment as follows:

“The Court finds that the release, either on its face or according to the true intention of the parties to it, does not have the effect of releasing anyone other than the parties named therein, the Todds and Dairyland. The release was executed as part of a partial settlement negotiated between plaintiffs’ counsel and a representative of Dairyland Insurance Company; the entire consideration for the release was paid by Dairyland; the present defendants played no part in arriving at the partial settlement, paid no consideration toward the partial settlement and did not even know of its existence until it came to light indirectly during the course of this litigation.
Unlike the standard broad, general form of release commonly used in settling automobile liability claims, the release in this case was limited and specified that only the Todds and Dairyland were to be released. This distinguishes it from those cases in the jurisprudence dealing with the type of release containing the ‘catchall’ language purporting to release all other possibly liable parties.
Moreover, even if the release might possibly appear on its face to have included parties not named, such was clearly not the intent of the parties to the release. In connection with their motion for summary judgment, plaintiffs introduced strong, convincing and unrebutted evidence that it was always their specific intention and the intention of the Todds and Dairyland to do nothing more than settle with the latter and to reserve full rights against all other parties, including defendants herein. Thus, were it to be considered significant for the release to contain a reservation of rights against the defendants herein, the Court has no hesitancy in finding that the failure of the release to contain some sort of reservation of rights was due to a mutual error of fact on the part of both the plaintiffs on the one hand and the Todds and Dairyland on the other.
Therefore, the Court will interpret the release according to its true intent only, which was to reserve all rights against the State of Louisiana, the Rapides Parish Police Jury and the latter’s insurer, Hartford Accident and Indemnity Company.”

We assume for now the correctness of the trial court’s determination that the defendants are joint tortfeasors with Mrs. Todd.

The provisions of LSA-C.C. Art. 2203 apply to debtors ex delicto as well as to debtors ex contractu. Reid v. Lowden, 192 La. 811, 189 So. 286 (1939); Hoffpauir v. Kansas City Southern Railroad Company, et a 1., 219 So.2d 29 (La.App. 3rd Cir.1969); Clay v. State Farm Mutual Automobile Ins. Co., 330 So.2d 380 (La.App. 3rd Cir.1976). That article provides as follows:

Art. 2203. Remission as to one codebt- or in solido
“The remission or conventional discharge in favor of one of the codebtors in solido, discharges all the others, unless the creditor has expressly reserved his right against the latter.
In the latter case, he can not claim the debt without making a deduction of the part of him to whom he has made the remission.”

Without mentioning this article, the trial judge, in finding that the release on its face did not effect a discharge of the defendants, relied on the facts that the defendants were not parties to the release and that the release did not contain “catch-all” language purporting to release all other possibly liable parties. In so finding, the trial judge has ignored the express provisions of LSA-C.C. Art. 2203 and the jurisprudence interpreting it.

In discussing LSA-C.C. Art. 2203, the Supreme Court in the case of Fridge v. Caruthers, 156 La. 746, 752, 101 So. 128, 130, stated:

“This article of our Code is a literal translation of article 1285 of the French Code. The French commentators are unanimous in holding that the article means just what it says: From the fact that the creditor renounces his right as to one (of the solidary debtors) the law concludes that he intends to renounce his right as to all. Each of the solidary obligors is liable for the whole debt as principal debtor to the creditors and is only liable as surety to his codebtors, and that is why the creditor may not discharge one without discharging the others. Planiol ‘Traite de Droit Civil,’ vol. 2, No. 749; Hue ‘Commentaire du Code Civil,’ vol. 8, No. 138; Aubry et Rau ‘Droit Civil Franeais,’ vol. 4, p. 205; Laurent ‘Principes de Droit Civil,’ vol. 17, No. 340.”

LSA-C.C. Art. 2203 does not require that all co-debtors in solido be parties to a conventional remission or conventional discharge executed in favor of a co-debtor nor does such article require that the conventional remission or discharge contain “catch-all” language releasing all other possibly liable co-debtors in solido. Quite to the contrary, Article 2203, by its express terms, operates to release all co-debtors in solido upon discharge of one unless the creditor has expressly reserved his rights against those co-debtors not parties to the release. In the instant ease, the release executed by the plaintiffs in favor of the Todds and their insurer contained no express reservation of the plaintiffs’ rights against the Parish and the State. Therefore, assuming that Mrs. Todd and the State and Parish are solidary obligors, the aforesaid release, under the plain terms of Article 2203, operated to release plaintiffs’ rights against the State and Parish. Dodge v. Central Louisiana Electric Company, 257 So.2d 802 (La.App. 3rd Cir.1978); Hemphill v. Strain, 371 So.2d 1179 (La.App. 1st Cir. 1979); Written v. Travelers Indemnity Company, 304 So.2d 715 (La.App. 3rd Cir. 1974); Hoffpauir v. Kansas City Southern Railroad, supra. For the above reasons, we conclude that the trial court clearly erred in determining that the release on its face was not sufficient to effect a discharge of the defendants under the provisions of LSA-C.C. Art. 2203.

Plaintiffs and the trial judge also rely on Aymond v. State, Department of Highways, 333 So.2d 380 (La.App. 3rd Cir.1976), for the proposition that one not a party to a release who has paid no consideration for it cannot claim any advantage from it. A careful reading of Aymond reveals that Gerald Ay-mond, whose insurer had settled with the plaintiff, the widow of his deceased guest passenger, was not, in fact, found to be a joint tortfeasor. Therefore, Article 2203 was inapplicable and the defendant could not otherwise claim any advantage from a contract to which it was not a party. This case is inapplicable unless we should determine that the trial judge erred in his determination that Mrs. Todd is a joint tort-feasor with the defendants.

The trial judge, relying on parol evidence allowed over objection, alternatively concluded that even if the release on its face could be construed as effecting the release of the defendants, the true intention of the parties to the release was otherwise.

In connection with the motion for summary judgment, the plaintiffs attached the affidavits of several individuals including themselves. In sum, these affidavits indicate that it was always their specific intention and the intention of the Todds and Dairyland to do nothing more than settle with the latter and to reserve full rights against all other parties, including defendants. Counsel for the defendants agreed that if those parties were called and allowed to testify their testimony would be the same as that set forth in those affidavits. This, however, was done subject to defendants’ objection that the testimony was inadmissible as attempting to vary or contradict the terms of the written contract of release by means of parol evidence. The trial judge relied on the contents of these affidavits for his determination that the instrument of release, properly interpreted according to the intention of the parties, was to reserve all of the Wells’ rights against the State and the Parish. We conclude that the trial judge erred in allowing the introduction of this evidence and in concluding, on the basis thereof, that the Wells specifically reserved their rights against the State and the Parish in the instrument of release under consideration.

Our examination of the written release fails to disclose any ambiguity. On the contrary, the instrument is clear and concise and states that it contains the ENTIRE AGREEMENT between the parties and that the terms are contractual and not a mere recital. The instrument being without ambiguity, parole evidence which would vary the terms of this agreement so as to contain a specific reservation of rights against the Parish and the State is clearly inadmissible. As stated in Reid v. Lowden, supra, at page 288:

“The plaintiff contends that the Court of Appeal erred in holding that the reservation must be in writing and incorporated in the release itself and erred in holding that parol evidence was not admissible to prove a sufficient reservation.
The plaintiff entered into a compromise settlement granting one of the joint tortfeasors a discharge, all of which was reduced to writing. There is nothing in the written compromise settlement and release to show that the plaintiff intend-
ed to reserve his rights against the other tort-feasor. There is no beginning of proof. There is no ambiguity.....
The plaintiff cites Williams et al. v. De Soto Bank & Trust Co., 189 La. 245, 179 So. 303, to the effect that there is nothing sacramental about the form in which the reservation is made.
In the instant case the parties reduced their agreement of settlement and discharge to writing and there is no reservation made therein. The plaintiff is bound by his agreement and cannot alter or change it by parol evidence.”

See also LeBlanc v. Pennsylvania Casualty Co., 20 So.2d 32 (La.App. 1st Cir.1944), followed in Guarisco v. Pennsylvania Casualty Co., 20 So.2d 35 (La.App. 1st Cir.1944, reversed on other grounds, 209 La. 435, 24 So.2d 678 (1945), two cases; Alvis Hotel, Inc. v. Alvis Hotel of Monroe, Inc., 149 So.2d 199 (La.App. 2nd Cir.1963); Felder v. Georgia Pacific Corp., 393 So.2d 394 (La. App. 1st Cir.1981), affirmed 405 So.2d 521 (La.1981).

Plaintiffs also rely on the case of Wise v. Prescott, 142 So.2d 613 (La.App. 4th Cir. 1962), where the Fourth Circuit relied on parole evidence. In that case, the insurance adjuster had written in his own handwriting and underscored the word “only” after the names of the parties released. Without deciding whether we agree with our brethren of the Fourth Circuit that this circumstance created sufficient ambiguity to allow the admission of parol evidence, we note' that there is no such ambiguity in the present case.

Plaintiffs finally contend, relying on Rougeau v. State Farm Mut. Auto. Ins. Co., 262 So.2d 803 (La.App. 3rd Cir.1972), that they are entitled to have the written agreement reformed to reflect the true intention of the parties as found by the trier of fact. We find the case of Rougeau, supra, to be inapposite.

This is not an action to reform the instrument as in Rougeau, supra, nor could it be, because all parties to the instrument are not made parties to this action. Chicago Mill and Lumber Co. v. Ayer Timber Co., 131 So.2d 635 (La.App. 2nd Cir.1961); Chronos Land Co. v. Crichton, 150 La. 963, 91 So. 408 (1922); Bonvillain v. Bodenheimer, 117 La. 793, 42 So. 273 (1906). Therefore this exception to the parol evidence rule is also inapplicable in this case. In sum, we conclude that the trial court clearly erred in admitting and considering parol evidence which had the effect of varying the plain recitals of the instrument of release and thus, failed to properly apply the provisions of LSA-C.C. Art. 2203.

Because, as aforestated, LSA-C.C. Art. 2203 is only applicable where the party released is a joint tortfeasor, Aymond, supra, we will now consider the correctness of the trial judge’s determination of Mrs. Todd’s liability. The plaintiffs contend that the trial judge erred in his determination that Mrs. Todd was at fault. In his written reasons for judgment, the trial judge made the following findings with regard to Mrs. Todd’s liability:

“Ms. Todd testified by deposition that the stop sign on Hooper Road was obstructed from her view and that she did not see it until she was within one hundred feet of the stop sign. She testified that she was unfamiliar with Hooper Road and that it was a narrow curvy S-type road. Ms. Todd further testified that she was travelling between 30 and 35 m.p.h. (P-1). Officer Bobby Potter, the investigating Trooper, testified Ms. Todd told him her speed was 40 m.p.h.
The curvy nature of the road coupled with Ms. Todd’s unfamiliarity with the road should have put her on notice to keep a close lookout and maintain control of her car so that she could negotiate turns and stop within a reasonable distance. When Ms. Todd saw the stop sign, instead of braking, she elected to run the stop sign and proceed through the intersection (P-1). Ms. Todd’s failure to keep a close lookout and her failure to maintain control of her car was a substantial cause in fact of the accident. Accordingly this Court finds that Ms. Todd was clearly at fault in causing the accident. ”

The above findings are fully supported by the record and we find no manifest error in this determination. Canter v. Koehring Company, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, writ granted, 359 So.2d 1303 (La.1978), 365 So.2d 1330 (La.1978), on remand, 370 So.2d 1262 (La.App. 3rd Cir. 1979); Bertrand v. Aetna Casualty and Surety Company, 306 So.2d 343 (La.App. 3rd Cir.1975).

For the above and foregoing reasons, we conclude that LSA-C.C. Art. 2203 is applicable and that the defendants were released as a result of the instrument of release, copy of which is annexed to this opinion as Appendix I, from any and all liability to the Wells arising as a result of the accident which occurred December 18, 1981.

For the above and foregoing reasons, the judgment of the trial court is reversed. It is hereby ordered that the plaintiffs’ claims be dismissed with prejudice. Plaintiffs are cast with costs at the trial level and on appeal.

REVERSED AND RENDERED.

APPENDIX I

RELEASE OF ALL CLAIMS - HUSBAND AND WIFE

(If this release is acknowledged before a Notary Public, no witnesses' signatures are necessary

20-237 4-77

      . Presumably, a decision on this motion was deferred until after trial on the merits.