text:
    Alice H. JONES, Administratrix of the Estate of Beverly Henry, et al. v. PHILCO-FORD CORP., et al.
    No. 83 CA 0057.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.

      Raymond L. Simmons, Baton Rouge, for plaintiff-appellant Alice H. Jones, Adminis-tratrix of the Estate of Beverly Henry, et al.
    Paul Marks, Jr., Baton Rouge, for defendant-appellee Capital City South and Willie Spooner, Jr.
    Eugene R. Groves, Baton Rouge, for defendant-appellee Gulf States Utilities Co.
    Calvin E. Hardin, Jr., Baton Rouge, for defendant-appellee G.T.E. Products Corp. & Philco-Ford Corp.
    Grayson H. Brown, Baton Rouge, for in-tervenor-appellee Travelers Indem. Co.
    Before PONDER, WATKINS and CARTER, JJ.
   WATKINS, Judge.

This is an action for damages brought by Alice H. Jones, arising out of the deaths of her daughter Beverly Henry and grandson Corey Henry, which allegedly were caused by a fire in Mrs. Henry’s residence resulting from the explosion of a television set manufactured by Philco-Ford Corporation or G.T.E. Products Corporation, both of which were named as parties defendant. Also named as parties defendant were Capital City South, the partnership which owned the residence in which the fire- occurred, Willie Spooner, Sr., alleged primary partner in Capital City South, and Gulf States Utilities Co., indicated to be the supplier of electricity to the residence.

The alleged accident and deaths occurred on February 9, 1981. Suit was filed by Alice H. Jones in her capacity as Adminis-tratrix of the Estates of Beverly Henry and Corey Henry on February 8, 1982. Thereafter, on March 4,1982, a Supplemental and Amended Petition was filed, in which it is alleged that Alice H. Jones is appearing in her capacity as Administratrix of the Estates of Beverly Henry and Corey Henry, and as Tutrix of the minor children, Rhonda Henry, Bruce Henry and Herley Henry, who were children of Beverly Henry and brother and sisters of Corey Henry.

Gulf States Utilities filed a peremptory exception of prescription and no right of action, and a dilatory exception of lack of procedural capacity. Capital City South and Willie Spooner, Jr., filed similar exceptions of prescription, no right of action, and lack of procedural capacity. G.T.E. filed peremptory exceptions of no cause or right of action and of prescription and peremption, also asserting that “Philco-Ford Corporation” named co-defendant, did not exist as a legal entity. The minutes of court indicate the peremptory exceptions of no cause or right of action were overruled, but the peremptory exceptions of prescription filed by all defendants were sustained. Judgment was signed dismissing plaintiff’s suit with prejudice. Plaintiff appealed.

We should note in passing that an intervention was filed before judgment by Travelers Indemnity Company alleging that Travelers had been subrogated by discharge of a fire insurance claim of Capital City South to all claims Capital City South might have against Philco-Ford and G.T.E. arising out of damages resulting from the explosion of the allegedly defective television set. The trial court did not directly rule upon the intervention in dismissing plaintiff’s suit. As Travelers has neither appealed nor answered the appeal, we decline to make a determination of the present status of its intervention.

The sole question before the court is whether or not the one year prescriptive or peremptive period for the filing of an action for wrongful death acts as a bar to plaintiffs suit.

Plaintiff’s original petition, filed one day less than one year after the date of the tragic fire, suggests that it is intended to institute an action for wrongful death, as the items of damage mentioned are “loss of support and earnings, loss of affection, companionship, society, motherly and brotherly love, and funeral expense (sic).” The amended petition, filed more than one year after death, contains elements of a surviv-orship action, as it mentions pain and mental anguish of the two decedents.

Louisiana’s wrongful death action and survivorship action are both the product of amendment of LSA-C.C. art. 2315 (to use the number of the present Codal article) originating in the last century, the survivor-ship action in its present form originating in La. Act No. 223 of 1855 and the wrongful death action originating in La. Act No. 71 of 1884. In general, both types of actions, wrongful death (the right to recover for injuries to the living resulting from tortious fatal injury) and survivorship (the right to recover damages standing in the shoes of the decedent for the tortious injuries suffered by the decedent before his death, whether or not the tort had a causal connection with death) find their Codal roots in one brief and somewhat ambiguously worded paragraph of LSA-C.C. art. 2315, the fourth as art. 2315 presently stands amended. We quote the entire article so that the paragraph in question may be read in context:

“Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.
Damages may include loss of consortium, service, and society, and shall be recoverable by the same respective categories of persons who would have had a cause of action for wrongful death of an injured person.
The right to recover damages to property caused by an offense or quasi offense is a property right which, on the death of the obligee, is inherited by his legal, instituted, or irregular heirs, subject to the community rights of the surviving spouse.
The right to recover all other damages caused by an offense or quasi offense, if the injured person dies, shall survive for a period of one year from the death of the deceased in favor of: (1) the surviving spouse and child or children of the decease (sic), or either such spouse or such child or children; (2) the surviving father and mother of the deceased, or either of them, if he left no spouse or child surviving; and (3) the surviving brothers and sisters of the deceased, or any of them, if he left no spouse, child, or parent surviving. The survivors in whose favor this right of action survives may also recover the damages which they sustained through the wrongful death of the deceased. A right to recover the damages under the provisions of this paragraph is a property right which, on the death of the survivor in whose favor the right of action survived, is inherited by his legal, instituted, or irregular heirs whether suit has been instituted thereon by the surviv- or or not.
As used in this article, the words ‘child’, ‘brother’, ‘sister’, ‘father’, and ‘mother’ include a child, brother, sister, father, and mother, by adoption, respectively.”

The Courts of Appeal of this State have unanimously required that an action for wrongful death (which is what plaintiff’s original petition clearly constitutes) be filed within one year of death. However, as we noted in McClendon v. State, through Dept. of Corrections, 357 So.2d 1218 (La.App. 1st Cir.1978), the reasoning of the Courts of Appeal differs as to whether the one year period is a period of prescription or peremption, or a combination of the two. There is no definitive decision of the Louisiana Supreme Court on the subject. The basic difference between a period of prescription and a period of peremption, as may be seen by a reading of McClendon, supra, and Succession of Roux v. Guidry, 182 So.2d 109 (La.App. 4th Cir.1966), writ refused 248 La. 1106, 184 So.2d 27 (1966), is that while prescription acts as a bar to a cause of action, the right created by a statute containing a peremptive period ceases to exist and utterly vanishes at the end of the peremptive period. From that reasoning derives the principle that although prescription is subject to interruption or suspension (as the case may be), the peremp-tive period is subject to neither, as the right disappears entirely at the closing of the period during which the right exists.

In a definitive opinion, in which we fully discussed the jurisprudence and approached the issue from all sides, we held in McClendon that the one year period for bringing an action for wrongful death was a prescriptive period, not a peremptive period. Applying that analysis, we held that the running of prescription on a claim for wrongful death was suspended under the doctrine of contra non valentem for the period during which no knowledge existed of the identity of the perpetrator of a murder (for which the Department of Corrections could allegedly be held responsible, as it had negligently released the perpetrator). Thus, the view of this circuit is that the period of one year within which to file an action for wrongful death is a prescriptive period, which is subject to suspension or interruption, as the case may be.

Other circuits, notably the Fourth, have adopted a complex line of reasoning based upon the premise that the wrongful death action period of one year is peremptive. Although the line of cases, see especially Succession of Roux, supra; Cacibauda v. Gaiennie, 305 So.2d 572 (La.App. 4th Cir.1974), and Meadoux v. Hall, 369 So.2d 240 (La.App. 4th Cir.1979), is skillfully reasoned, we differ with that line of cases in its basic premise, viz. that the one year period for bringing an action for wrongful death is a period of peremption. We adhere to our view, expressed in McClendon, supra, that the period of one year is a prescriptive period.

The original petition filed by plaintiff on February 8,1982, is defective in that the plaintiff, Alice H. Jones, appeared in her capacity as Administratrix of the Estates of Beverly Henry and Corey Henry. While it is not stated in either the body of the petition or the prayer, presumably the claim is made on behalf of the successions of the decedents. No mention is made in the petition, either directly or indirectly, as to whether this is a survivorship and/or wrongful death action, or as to whether the decedents were married, or as to whether the decedents were survived by anyone, or as to whether plaintiff, Alice H. Jones, is related to the decedents. It can be seen, therefore, that the original petition is grossly defective in many respects. In view of the damages alleged, it appears that the petition is intended to institute an action for wrongful death. Notwithstanding the serious defects set forth above, we find it unreasonable to state that the petition would not have put the defendants on notice of the legal demand for damages for the alleged wrongful death of Beverly Henry and her son, Corey. Hence, we are compelled to hold that the petition filed by plaintiff on February 8, 1982 sufficiently informed defendants of the legal demand based on wrongful death and prescription was interrupted.

It is well established in Louisiana jurisprudence that “the elemental basis of legal interruption of liberative prescription in tort suits is informing the defendant of the legal demand.” Nini v. Sanford Brothers, Inc., 276 So.2d 262 (La.1973). The basic requirement, therefore, for the interruption of prescription by filing suit is that a cause of action be asserted that is sufficient to put the defendant on notice of the nature of the claim being filed against him. It is not necessary that the correct plaintiff sue or that he bring suit in the proper procedural capacity. Thus the filing of a petition prepared before the death of the plaintiff but filed after plaintiff’s death was held to interrupt the running of prescription in Nini, supra, a worker’s compensation case. Similarly, we held the filing of suit by the father of a man who some six months before the filing of suit had attained the age of majority interrupted the running of prescription. Nettles v. Great American Insurance Company, 155 So.2d 87 (La.App. 1st Cir.1963), cert. denied 244 La. 1024, 156 So.2d 227 (1963). In these cases the reasoning was the same, there was notice to the defendant of the legal proceedings based on the claim involved. Hence, prescription was interrupted.

As we have stated, the amended petition contained elements of a survivorship action. A survivorship action is subject to a peremptive period of one year from the date of death. Succession of Roux, supra. Here, the date of death was February 9, 1981. The amended petition, as we state immediately above, was not filed until March 4,1982. It came too late to assert a survivorship action, the peremptive period having expired.

For the foregoing reasons the judgment of the trial court sustaining the exception of prescription with respect to the wrongful death action is reversed. In all other respects the said judgment is affirmed. We remand to the trial court for further proceedings. Costs of this appeal are assessed against appellee.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.


source: Caselaw Access Project

author: CRAIN, Judge.

license: Public Domain

text:
    Fred B. HARRINGTON v. AETNA LIFE AND CASUALTY COMPANY.
    No. 83 CA 0171.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.
    Rehearing Denied Dec. 22, 1983.

      Kerry E. Shields, Keaty & Keaty, New Orleans, for plaintiff-appellant.
    Albert Dale Clary, Franklin, Moore & Walsh, Baton Rouge, for defendant-appel-lee.
    Before SHORTESS, LANIER and CRAIN, JJ.
   CRAIN, Judge.

This appeal is from a judgment of the trial court which sustained defendant’s exception of res judicata. Plaintiff appealed.

This matter arises out of an automobile accident between a car and a truck in Pointe Coupee Parish on September 12, 1981. The plaintiff, Fred B. Harrington, was driving an automobile owned by his employer, Global Fluids, when it was involved in a collision with a pick-up truck owned by defendant, Reading and Bates, and insured by the defendant, Aetna Life and Casualty Company (Aetna). Plaintiff claimed damages from personal injuries received in the accident.

Ms. Doris Boudreaux, claims adjuster for the defendant, handled the plaintiff’s claim by contacting him on the telephone. At the trial Ms. Boudreaux testified that from her telephone conversations with the plaintiff he understood that the claim would be settled for $384.25, which included $184.25 for medical and $200.00 for his injuries. Ms. Boudreaux’s testimony is unrebutted since plaintiff did not take the stand on his own behalf.

On September 30,1981, Aetna sent plaintiff a check in the amount of $384.25. On the front of the check a representative for Aetna wrote in block letters “CLAIM SETTLEMENT”. Plaintiff endorsed the check on the reverse side and beneath the endorsement wrote “NOT A RELEASE OF ANY CLAIMS”. He then deposited the check in his bank.

On June 14, 1982, plaintiff filed suit against Aetna seeking damages for his personal injuries. Thereafter, the defendant filed an answer and also a peremptory exception of res judicata contending the matter had been settled.

The exception of res judicata was set down for hearing for November 12, 1982. The only evidence produced was the cheek and the testimony of Aetna’s claims adjuster who had caused the check to be sent to the plaintiff.

Based on this evidence the trial court rendered judgment on November 19, 1982, sustaining the peremptory exception of res judicata, dismissing plaintiff’s claim at his costs. Plaintiff claims on appeal that this was error. We affirm.

The common law doctrine of accord and satisfaction has no statutory basis in Louisiana law but is a jurisprudentially recognized method by which an obligation can be extinguished. McClelland v. Security Industrial Insurance Company, 426 So.2d 665 (La.App. 1st Cir.1982), writ denied, 430 So.2d 94 (La.1983). The defense of accord and satisfaction is properly raised by the peremptory exception of res judicata. Louisiana National Bank of Baton Rouge v. Heindel, 365 So.2d 37 (La.App. 4th Cir.1978).

The essential elements to maintain the defense of accord and satisfaction are: (1) a disputed claim between debtor and creditor; (2) the debtor having tendered a check for less than the sum claimed by the creditor; and (3) the creditor having accepted the tender by negotiating the check. Charles X. Miller, Inc. v. Oak Builders, Inc., 306 So.2d 449 (La.App. 4th Cir.1975).

An accord and satisfaction is not present when there is no evidence that the creditor was fully informed of the nature of the compromise offer by the debtor. Adams v. Sconza, 380 So.2d 679 (La.App. 4th Cir.1980) and Louisiana National Bank of Baton Rouge v. Heindel, 365 So.2d at 39.

However, where the debtor both tenders the cheek with a written notation along with an oral statement to the creditor indicating it is in full settlement of all claims, an accord and satisfaction is present. Amite County Co-Operative v. Heck, 393 So.2d 341 (La.App. 1st Cir.1980). The unilateral action by the creditor in altering an endorsement from payment in full to partial payment and negotiating the altered instrument will not change the legal import of its acceptance by the creditor as an acknowledgment of payment in full satisfaction of the obligation. Charles X. Miller, Inc. v. Oak Builders, Inc., 306 So.2d at 452.

As pointed out in Berger v. Quintero, 170 La. 37, 127 So. 356 (1930);

If plaintiff was not satisfied with the settlement tendered, he should not have retained the check, and caused it to be certified by the bank upon which it was drawn, but should have returned it, in the absence of a waiver of the condition attached to the remittance. By retaining the check, and causing it to be certified, he is now precluded from rejecting it, and suing defendant upon the entire claim.

The telephone conversation between plaintiff and Ms. Boudreaux combined with the notation made by plaintiff on the reverse side of the cheek gave the trial judge sufficient evidence to conclude that plaintiff understood that the check was tendered to him in full and final settlement of his personal injury claim.

For the foregoing reasons we affirm the judgment of the trial court. All costs of this appeal are to be paid by the appellant.

AFFIRMED.


author: LOTTINGER, Judge.

text:
    STATE of Louisiana v. Sylvester REED.
    No. 83 KA 0174.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.
    Rehearing Denied Dec. 22, 1983.
    Writ Denied Feb. 27, 1984.

      Ossie B. Brown, Dist. Atty. by Ralph L. Roy, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    David Price, Asst. Public Defender, Warren J. Hebert, Baton Rouge, for defendant-appellant.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   LOTTINGER, Judge.

Defendant, Sylvester Reed, was charged with the armed robbery of Becky Sharp in violation of La.R.S. 14:64. Reed pled not guilty and was tried by a jury on September 27, 28, and 29, 1982, and was found guilty as charged. He was sentenced to 20 years at hard labor without benefit of probation, parole or suspension of sentence.

The defendant alleged 22 assignments of error, but has briefed only three assignments of error, namely: Nos. 8, 15 and 16. Those assignments of error not briefed are considered abandoned. Rule 2-12.4, Uniform Rules — Courts of Appeal.

ASSIGNMENT OF ERROR NO. 8

By this assignment of error defendant contends that the trial court erred when it denied defense counsel’s request to appoint independent counsel for state witness, Donald Ray Davis, to advise him of his rights and privileges against self-incrimination. The state offered Davis “transactional immunity” from any prosecution for his participation in the instant offense in return for his testimony. Defendant argues that independent counsel should have been appointed to consult with the witness before he actually waived his Fifth Amendment privilege by testifying, and that the failure to so appoint independent counsel resulted in the testimony being entered into evidence, which testimony adversely affected defendant. The defendant further contends that the procedures set forth in La. Code Crim.P. 439.1 were not followed, that Davis’ transactional immunity was invalid and he was left with no immunity at all, and that such prosecutorial misconduct has severely prejudiced the defendant.

The trial judge questioned the witness as to his understanding of the testimony to be given and that the immunity granted was transactional vis-a-vis use and derivative use immunity. Inasmuch as transactional immunity was granted the witness, the requirements of La.Code Cr.P. 439.1 are inapplicable. Additionally we find that In re Rebar Steel Anti-Trust Investigation, 343 So.2d 1377 (La.1977) is in-apposite.

Mr. Davis was an alleged conspirator of the defendant. The Supreme Court has recognized the prosecutor’s right to grant “transactional” immunity to potential defendants in return for a relinquishment of a fundamental right, when bargaining in good faith, and such agreements are binding on the state. State v. Tanner, 425 So.2d 760 (La.1988).

Inasmuch as the witness was advised by the court of his right against self-incrimination, and prosecution against him had not commenced, he was not entitled to counsel at the defendant’s trial. Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964).

ASSIGNMENTS OF ERROR NOS. 15 AND 16

Defendant contends that the trial court erred when it overruled defendant’s hearsay objection to certain testimony illicited from the state’s witness, Mrs. Mary Davis. Defense counsel objected on hearsay ground when Mrs. Davis testified as to what she heard Mrs. Joyce Foster, the alleged girlfriend of the defendant, say on the phone.

“Hearsay evidence” is evidence of an unsworn, out-of-court statement made by a person other than the testifying witness, which evidence is introduced for the truth of its content; evidence is not hearsay when it is offered to prove that an utterance occurred, and not to prove the truth of the facts. State v. Sheppard, 350 So.2d 615 (La.1977). Admission of objectionable hearsay evidence which is merely cumulative or corroborative of other evidence adduced at trial is considered harmless. State v. Spell, 399 So.2d 551 (La.1981). When the testimony of one witness as to what another witness told her merely corroborates the other witness’ testimony and offers no facts into evidence which were not before the trier of fact already, the admission of the testimony, even if the testimony is deemed to be hearsay, is not reversible error. State v. Arnold, 367 So.2d 324 (La.1979).

It is obvious from the record that the prosecution illicited from this witness an out-of-court, unsworn statement made by a person other than the testifying witness. However, it is also obvious that the unsworn statement offered in evidence was overheard by the testifying witness and that the prosecution offered the statement not for the truth of its content but merely to prove that an utterance occurred. Additionally, the admission of the hearsay statement was merely cumulative or corroborative of other testimony illicited from another state’s witness.

Therefore, since the statement was offered to prove that the utterance occurred and not for the truth contained therein, and that the testimony in question was cumulative and corroborative of other testimony in the record, we find no error on the part of the trial judge in overruling defendant’s hearsay objection.

There is no merit to these assignments of error.'

Therefore, the conviction and the sentence of the defendant are affirmed.

AFFIRMED.


text:
    STATE of Louisiana v. Sylvester REED & Marvin Cannon.
    No. 83 KA 0194.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.

      Ossie Brown, Dist. Atty. by Ralph L. Roy, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Allen Helm, Baton Rouge, for Cannon.
    David Price, Asst. Public Defender, Baton Rouge, for Reed.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   LOTTINGER, Judge.

By bill of information, defendants Sylvester Reed and Marvin Cannon, were charged with the armed robbery of Samuel Bailey in violation of La.R.S. 14:64. Both defendants pled not guilty and were tried together by jury on August 31, September 1 and 2,1982. The jury found both defendants guilty as charged. Defendant Cannon was sentenced to forty-five (45) years at hard labor without benefit of probation, parole or suspension of sentence; defendant Reed was sentenced to twenty-five (25) years at hard labor without benefit of probation, parole or suspension of sentence, to run consecutively with the sentence imposed on defendant Reed following this conviction on the charge of armed robbery of one Becky Sharp, 441 So.2d 1257.

Defendants appeal their convictions and sentences. Inasmuch as the defendants’ supplemental Assignment of Error requires a reversal and new trial, we pretermit discussion of the other assignments of error.

The crime occurred under such peculiar circumstances that one “victim” of the crime was at one time charged with being one of the perpetrators of the crime. This “victim,” and the named victim, designated in the bill of information, testified as eye witnesses to the crime. Neither of them were able to identify the appellants as having committed the crime. Only Leonidas England, an alleged “co-conspirator” of the crime, was able to positively identify the appellants as the perpetrators of the crime.

On cross-examination, the defense counsel planned to show that Mr. England had an interest in testifying a certain way. He attempted to do this by pointing out that Mr. England had committed at least two other armed robberies for which no charges had yet been filed by the district attorney’s office. The prosecutor objected stating that only convictions could be used as a basis for impeachment. The trial judge sustained the prosecutor’s objection, thus, disallowing any questions pertaining to the other robberies. The trial judge’s limitation of the appellant’s inquiry into any interest of Mr. England in testifying resulted in a violation of their constitutional rights of confrontation and cross examination. U.S. Const. Amend. VI; La. Const. Art. I, § 16.

In State v. Brady, 381 So.2d 819 (La.1980), the Louisiana Supreme Court reversed a lower court’s ruling that the defendant could not question a witness as to whether or not he had “made a deal” with the D.A. The witness had been arrested and had forfeited bond, but yet the state was delaying any disposition of the case until after he had testified. The court distinguished between the impeachment of a witness’ general credibility under La.R.S. 15:495 and the impeachment of a witness’ credibility on the basis of bias or interest under La.R.S. 15:492. The court stated:

“R.S. 15:492 permits a witness to be ques-. tioned as to ‘any particular fact showing or tending to show’ bias or interest in the case on trial and this Court has held on numerous occasions that a witness’ hope or knowledge that he will receive leniency from the state is highly relevant to establish bias or interest. State v. Daniels, 378 So.2d 1361 (La.1979); State v. Bailey, 367 So.2d 368 (La.1979); State v. Franks, 363 So.2d 518 (La.1978); State v. Robinson, [337 So.2d 1168, 1169 (La.1976)]; State v. Lewis, 236 La. 473, 108 So.2d 93 (La.1959). [footnote omitted] “The right to cross-examine witnesses concerning their interest in a ease is not only a statutory right, it is a right protected by the Sixth Amendment of the United States Constitution and Article 1, Section 16 of the Louisiana Constitution. The United States Supreme Court stated in Pointer v. Texas, 380 U.S. 400, 13 L.Ed.2d 923, 85 S.Ct. 1065 (1965) that the right of cross-examination is included in the right of an accused to confront witnesses against him. See also Davis v. Alaska, 415 U.S. 308, 39 L.Ed.2d 347, 94 S.Ct. 1105 (1974); Douglas v. Alabama, 380 U.S. 415, 13 L.Ed.2d 934, 85 S.Ct. 1074 (1965). The Louisiana Constitution explicitly guarantees defendants the right of cross-examination: ‘An accused is entitled to confront and cross-examine the witnesses against him.... ’ Louisiana Constitution, Article 1, Section 16. Under both constitutions the exposure of a witness’ motivation in testifying is a proper right of cross-examination. See United States v. Davis, 415 U.S. at 316, 94 S.Ct. at 1110; Greene v. McElroy, 360 U.S. 474, 496, 3 L.Ed.2d 1377, 79 S.Ct. 1400 [1413] (1959).” 381 So.2d 822.

The facts in the instant case are very similar to those in Brady. In both of these cases the defense was trying to point out to the jury that because of pending charges or possible involvement in a crime which could result in charges, the district attorney’s office could exercise some leverage over the witness, and that the witness was testifying with the hope of leniency.

The state argues that the witness was compelled to testify pursuant to La. Code Crim.P. art. 439.1, that the state was not trying to hide the fact that the witness was a participant in the subject armed robbery, and thus there was no prejudice in disallowing the question. The question sought to be asked by the defense did not involve the subject armed robbery, but other crimes not yet charged. We are of the opinion that under Brady the trial judge’s refusal to allow the defendants to inquire into the witness’ motive for testifying deprived defendants of constitutionally guaranteed rights of cross examination and confrontation.

We have reviewed the cases cited by the state and find them inapposite.

Therefore, the convictions and sentences are reversed, and the defendants are granted a new trial.

REVERSED: NEW TRIAL ORDERED.


author: LANIER, Judge.

text:
    Joe John NICOLOSI v. LIVINGSTON PARISH SCHOOL BOARD.
    No. 83 CA 0200.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.

      Ernest G. Drake, Jr., Ponchatoula, for plaintiff.
    J. Donald Cascio, Denham Springs, for defendant.
    Donald Phelps, Baton Rouge, for Ronald J. Gill.
    Byard Edwards, Jr., Ponchatoula, for third party defendant.
    Before SHORTESS, LANIER and CRAIN, JJ.
   LANIER, Judge.

This is a suit for damages in tort against a school board and an elementary school principal arising from an incident in which a student fell and was injured on school premises. The trial judge ruled that the school board and the school principal were not negligent and dismissed the petition. This devolutive appeal followed.

FACTS

In May of 1978, the Livingston Parish School Board operated the Albany Elementary School in the Albany community of Livingston Parish. Ronald J. Gill was the principal of this school, and Patricia Nicolo-si and Lottie E. Howell were both students at the school.

Prior to the morning recess (10:00 A.M.-10:10 A.M.) on May 19, 1978, Lottie Howell sent a note to Patricia Nicolosi challenging her to a fight. At first, Nicolosi declined but after being called “chicken” agreed. It was further agreed by Nicolosi and Howell that the fight would take place during recess at the rear of the bandroom on the school grounds, an area designated as “off-limits” to students, to avoid detection. During the course of the fight, Nicolosi fell and was injured. What caused Nicolosi to fall was disputed at the trial.

After Nicolosi fell, she was picked up by Janice Cowart, one of the teachers on recess duty, and taken to the principal’s office. Nicolosi was interviewed concerning the incident by the principal. Nicolosi’s family was notified of the incident and her sister picked her up from school and took her to their grandmother’s house. Nicolosi’s mother then took her to the Lallie Kemp Charity Hospital where X-rays were taken and it was determined that she had broken her right hip. Nicolosi was then transferred to the New Orleans Charity Hospital where she was placed in traction. On May 24, 1978, surgery was performed and three Knowles pins were inserted to transfix the fracture. After surgery, Nicolosi was put in a body cast for six weeks. Once the body cast was removed, she was sent to physical therapy to relearn how to walk.

The fracture to the hip has now resulted in vascula necrosis (death of the bone). Ni-colosi’s right leg is approximately one inch shorter than the left and this causes her to limp. The range of motion in the right leg is limited. Nicolosi cannot engage in activities which she previously enjoyed and experiences considerable pain on occasion.

FACTUAL FINDINGS OF TRIAL COURT

The appellants contend that the trial court was clearly wrong in reaching the factual findings that the pipes, logs and other hazardous objects located back of the bandroom were not in the place where Patricia Nicolosi fell, in not finding that Nico-losi tripped on a pipe embedded in the ground and fell on a railroad tie, in finding that all students of the school had been warned against going in the “off-limits” area located behind the bandroom and in not finding that the defendants were legally at fault and responsible for Patricia Ni-colosi’s injuries. (Specifications of Error 1, 2, 3, 4 and 11).

Patricia Nicolosi testified that another student, Lottie E. Howell, sent her a note asking her to fight. At first, Nicolosi declined to do so but after being called “chicken” she agreed to the fight. She admitted that the students went behind the band-room to fight so no one would see them. After the fight commenced, Lottie Howell began winning and Patricia tried to run away from her. In her get-away attempt, Patricia tripped on a pipe and fell on a log injuring her hip. A teacher, Janice Cowart, arrived shortly after Patricia fell and carried her to the principal’s office. Nicolo-si testified that she knew that the school had rules prohibiting fighting and throwing things other than balls. She also knew that she must go to school on time and must go back to class when the recess bell rang. Nicolosi testified that she was never told not to go back of the bandroom.

Lisa Albin was a student who witnessed the fight and generally corroborated Nicolo-si’s testimony. Albin testified that after the fight commenced Nicolosi turned to go away and tripped and fell. Albin did not know specifically what Nicolosi tripped on but did observe bricks, pipes and old logs in the area.

Lottie E. Howell testified that she and Patricia Nicolosi commenced fighting close to the rear of the bandroom to avoid detection. Howell testified that after the fight commenced Nicolosi fell. Thereafter, Howell fell on top of Nicolosi, and Nicolosi complained of her hip hurting. Howell denied knowing that students were not to be in the area back of the bandroom.

Dawnice L. King, a student who witnessed the fight, testified that Nicolosi pushed Howell and Howell fell to the ground. Howell got back up and then both students fell to the ground and rolled around. Howell and Nieolosi got up, Nico-losi tried to flip Howell over but did not quite make it, and Howell fell on top of Nieolosi on the ground. King testified that she had previously tripped on a pipe back of the bandroom but that she did not see anything on the ground where Nieolosi fell. Janice Cowart arrived at the scene within thirty to forty seconds after Nieolosi fell to the ground. King did not have the impression that Nieolosi was trying to run from the fight. King was aware that the area behind the bandroom was “off-limits” to students. She testified that the students went behind the bandroom so they would not get caught.

Janice Cowart, a teacher at Albany Elementary School, had recess duty on the day that Nieolosi was injured. She observed the girls “squared off” and saw each deliver blows or swinging. She immediately proceeded to the area to intervene. When she arrived, Nieolosi was on the ground. Nico-losi said she was sorry that the fight occurred and she did not want anyone to get into trouble. Cowart did not observe Nico-losi running away from Howell and did not observe a log, pipe or brick in the area where the incident occurred. Nieolosi did not tell Cowart that she was running from Howell or that she tripped on a pipe. Co-wart carried Nieolosi to the principal’s office. Cowart admitted there were no physical barriers or signs warning children of the “off-limits” areas but testified that children were instructed during homeroom about this restricted area.

Genie Quave Douglas was the other teacher on recess duty at the time of the incident. She testified that she observed Howell and Nieolosi close to the back wall of the bandroom. She proceeded to the scene of the incident but arrived after Janice Cowart. She looked around the area to see if anything had been dropped and observed that the ground was clear.

Ronald Johnny Gill testified that he was the principal of Albany Elementary School on the day of the incident. Nieolosi had been a student at the school for almost two full school years at that time. Gill testified that grades 4 to 6 went to recess in the same area, that from 100 to 175 children were at recess in the area and that the area was supervised by two duty teachers. Gill questioned Nieolosi about the incident and she said that she tripped and fell during a fight with Howell. Nieolosi did not say that she tripped on a pipe or that she was attempting to run away from Howell. Homeroom teachers were responsible for advising students that back of the band-room was “off-limits”.

Based on the above testimony and the other evidence of record, the trial judge reached the following factual conclusions:

The incident arose out of an altercation between petitioner and another. student at the Albany Elementary School. They went to an off-limits area behind the band room in order to settle their differences by fighting. In the course of their encounter petitioner lost her balance and fell to the ground, sustaining the injuries complained of.
While petitioner contends that her fall was caused by tripping over a pipe while seeking to get away from the encounter, resulting in her falling on logs, her claim is not substantiated by the evidence. Only petitioner and one other student, Lisa Darlene Albin, testified to this version. Petitioner did not relate this account to the duty teacher or the principal immediately following the accident. Dawn King, a witness to the incident, while testifying that she had seen the pipe in the photo two to three weeks before the fight, and had tripped over it herself, testified that petitioner tried to flip Lottie Howell over. She didn’t quite make it, and fell on the ground. She did not see the petitioner attempt to run away from Lottie. She did not see petitioner fall over a pipe, and she did not see anything on the ground at the spot where petitioner fell and rolled around with Lottie.
Lottie Howell testified that petitioner was not trying to run away. She didn’t remember seeing anything on the ground and didn’t remember hearing petitioner say that she tripped. She fell on top of petitioner. They were fighting close to the wall of the band room, so as to be out of sight. In her words, if petitioner tripped on anything it was her own shoe laces.
The photographs and testimony of some witnesses indicates that there was football equipment, jumping pits, remnants of a bon fire, and other items situated on a portion of the off-limits area of the school ground to the north of the accident site. However both duty teachers testified that they saw nothing over which petitioner could have tripped, nor was there anything on the ground to hurt her where she fell. Their testimony shows that petitioner was on wet grass in the shadow of the overhang of the band room. This was very close to the building and not in the area where the photographs and testimony indicate that the objects were located.

After carefully reviewing all the evidence of record, we find that there is a reasonable factual basis for the factual findings of the trial court and these determinations are not clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). These assignments of error are without merit.

ADEQUACY OF TEACHER SUPERVISION

The appellants contend that the# trial court committed error when it concluded that there was adequate supervision on the playground and that the presence of more teachers or better placement of those on yard duty could not have prevented the accident. (Specification of Error 5). In particular, the appellants contend that a teacher-student ratio of 1 to 85+ on a school playground is not adequate supervision, particularly when hazardous objects are present on the playground.

The trial judge correctly determined that hazardous objects did not cause the student’s fall. He also made the following factual determinations:

There was no evidence to show that the accident could have been prevented had there been more teachers on duty. There were an adequate number of teachers on duty. Petitioner was seeking to avoid detection while engaging in the encounter with Lottie Howell. Two duty teachers arrived on the scene within moments of the encounter in an attempt to stop it. There is no evidence of any negligence on their part.

There is no evidence in the record to show that Patricia Nicolosi or Lottie Howell had propensities for fighting or were otherwise disciplinary problems.

The fact that each student is not personally supervised every moment of each school day does not constitute fault on the part of a school board or its employees. Narcisse v. Continental Insurance Company, 419 So.2d 13 (La.App. 3rd Cir.1982). The evidence shows that as soon as Janice Cowart saw the students “squared off” against each other, she immediately proceeded to the scene in an attempt to stop the fight. The students, by design, went to the rear of the bandroom to avoid detection of their planned fight. The testimony of Laura Knighten, a teacher with 27 years experience, indicated that even with great diligence by teachers it was impossible to stop all incidents on a school ground. Spontaneous and/or planned acts of violence by students on school grounds do not create liability on behalf of the school board and its employees if the school ground is otherwise well supervised. Hampton v. Orleans Parish School Board, 422 So.2d 202 (La.App. 4th Cir.1982); Harris v. Bogalusa City School Board, 393 So.2d 751 (La.App. 1st Cir.1980).

The testimony of the school principal, Ronald J. Gill, indicated that at the recess period in the area where the incident occurred there were between 100 and 175 students supervised by two duty teachers. There is no evidence in the record to show the exact number of students at recess on the day in question. A teacher-student ratio of 1 to 50 or 1 to 87.5 is not inadequate under the facts and circumstances of this case. Hampton, 422 So.2d at 203 (1 to 57); Capers v. Orleans Parish School Board, 365 So.2d 23 (La.App. 4th Cir.1978) (250 to 300 students supervised by 6 to 8 adults); Par- tin v. Vernon Parish School Board, 343 So.2d 417 (La.App. 3rd Cir.1977) (1 to 90).

Considering all of the evidence in this case, there is a reasonable factual basis for the ruling of the trial judge on the issue of adequate supervision and this ruling is not clearly wrong. Arceneaux v. Domingne, 365 So.2d at 1333.

EVIDENTIARY RULINGS

In their original petition appellants alleged that Patricia Nicolosi tripped and fell on a log on school grounds while attempting to escape from an attack by other students, that the school board and school principal negligently allowed the inherently dangerous condition to exist and that the school board' and school principal failed to provide proper supervision. The school board’s answer was a general denial. The principal answered, asserted the student’s contributory negligence and assumption of risk as affirmative defenses and third partied the student with whom Nicolosi was fighting.

The trial of this matter was scheduled to commence on March 5, 1982. On February 23,1982, the appellants filed a supplemental and amending petition which alleged that Patricia Nicolosi tripped on logs, pipes and other debris on the school grounds, that she was a child of below average intelligence, that the school board, school principal and school instructors were aware that she was a child of below average intelligence and that as a result of her fall and injuries she suffered severe emotional and psychological trauma. On February 26, 1982, the order permitting the filing of this supplemental and amending petition was signed by a judge other than the trial judge. Rule V of the Court Rules of the Twenty-First Judicial District Court provides that all civil cases will be allotted as soon as they are filed, and that after the allotment an order may not be signed by another judge without the consent of the judge to whom it is allotted. The school principal was served with the supplemental and amending petition on March 1, 1982, and the school board was served on March 2, 1982.

At the trial the appellants called the school principal as an adverse witness under cross-examination. During the course of this examination, the appellants attempted to introduce into evidence an evaluation of Patricia Nicolosi performed by the Special Education Clinic of Southeastern Louisiana University which was completed on March 30, 1978. The defendants objected to this document as an expansion of the pleadings and complained about the filing of the supplemental and amending petition. The trial judge observed that the pretrial conference in this matter was held on November 6, 1981, that the order authorizing the supplemental and amending petition was signed by a judge other than himself, that he did not think it was fair to allow a supplemental and amending petition at a time when the attorneys for the defendants would not have a chance to prepare a defense, and he refused to allow the report in evidence. The report was then proffered by the appellants. Subsequently, Pete Galliano, a clinical psychologist who was part of the team who conducted the March 30, 1978 evaluation of Nicolosi, was allowed to testify about the portions of the evaluation conducted by him and the results of this evaluation.

Also, during the testimony of the school principal, the appellants attempted to introduce into evidence the report of the Science Research Associates, Inc. dated March 25, 1977, showing the individual skills profile of Patricia Nicolosi as it related to the national percentile of students. This document was proffered as Nicolosi Proffer No. 2. The appellants then offered into evidence the national percentile ratings by the Science Research Associates, Inc. for Patricia Nicolosi for March of 1977 and April of 1978. The trial court refused to allow the admission of this evidence, and it was offered as Nicolosi Proffer No. 3. Subsequently, Laura Knighten of the Tangipahoa Parish School system was allowed to testify concerning the results of these two SRA assessment surveys, and Nicolosi Proffer No. 3 was introduced into evidence as Nico-losi-13. The SRA assessment survey results for March of 1977 is a short form version of the test results contained in the SRA assessment survey dated March 25, 1977, marked Nicolosi Proffer No. 2.

During the examination of the school principal, the appellants attempted to introduce into evidence a school vision screening report dated February 16, 1977, that indicated that Patricia Nicolosi had visual acuity of 20-30 in both eyes. This test also showed that Nicolosi was not farsighted and that she passed her near and far point muscle balance test. The trial court refused to allow this document in evidence, and it was offered as Nicolosi Proffer No. 4.

During the testimony of Pete Galliano, the appellants attempted to introduce into evidence the form by which the teacher of Patricia Nicolosi requested an evaluation by the Special Education Clinic of Southeastern Louisiana University. The trial judge refused to allow the introduction, and it was offered as Nicolosi Proffer No. 5. Also during Galliano’s testimony, the appellants attempted to introduce into evidence Special Education Clinic Form No. 25 which purported to be a very short summary of the Clinic’s evaluation. Galliano observed that this case analysis was not the one that he participated in because it classified Patricia Nicolosi as retarded educable, whereas the evaluation that he participated in classified her as borderline retarded or a slow learner. This document was offered as Nicolosi Proffer No. 6. The appellants also attempted to introduce through the testimony of Galliano a Special Education Clinic report dated December 5,1978, which was obtained from the records of the Tangi-pahoa Parish School system. This report indicated that Galliano was not a member of the team which prepared it and no one was produced from the evaluation team to identify the record. This document was offered as Nicolosi Proffer No. 7.

The deposition of Dr. Richard P. Strobach was introduced in evidence as Nicolosi No. 8 on the issue of damages. Subsequently, the appellants offered this deposition on the issue of the capacity of Patricia Nicolosi to be contributorily negligent. The trial judge declined to allow it for this purpose and it was offered as Nicolosi Proffer No. 8.

The appellants in the trial court offered the testimony of Fred Tuton, a clinical psychologist who examined Patricia Nicolosi on January 29, 1982. During the course of his examination as a witness, Tuton was asked to refer to the evaluations of the Special Education Clinic previously referred to as Nicolosi Proffers Nos. 1 and 7. The defendants objected and the trial court sustained the objection because these documents were not in evidence.

The appellants contend that all of the above evidentiary rulings are prejudicial error. The appellants also contend that had the excluded evidence been considered, the trial court would have concluded that Patricia Nicolosi’s diminished mental capacity required that she be treated with a . special degree of care, that she was incapable of understanding abstract instructions and that she was incapable of being contributo-rily negligent. (Specifications of Error Nos. 6, 7, 8 and 9).

After an answer has been filed, the authorization of the filing of a supplemental and/or amending petition is within the discretion of the trial judge. La.C.C.P. arts. 1151 and 1155. Insofar as the appellants attempted to expand their pleadings and add new issues shortly before the trial of this matter commenced, the refusal of the trial judge to allow the supplemental and amending petition was within the much discretion granted to him in these matters. Insofar as the proffered and excluded evidence was relevant to the issues of the contributory negligence of Patricia Nicolosi and her damages, these objections are now moot because the trial judge correctly ruled that the school board and the school principal were not negligent. In any event, we have reviewed the proffered and excluded evidence and even if it would have been accepted by the trial court the result would not be changed. These assignments of error are without merit.

DEFENDANTS’ PHOTOGRAPHS

The appellants contend that the trial court committed error by allowing the defendants to introduce into evidence twelve photographs because they were taken in the winter (eight months after the accident) when the grass at the accident site was short, because defense counsel marked on them prior to introduction which could lead or mislead witnesses and distort the view of the photographs and because they were not authenticated by the party who took the pictures. (Specification of Error No. 10).

The defendants presented the photographs during the testimony of Ronald J. Gill, the last witness to testify at the trial. Gill indicated the photographs were taken in February of 1979, there was no change in the locations of the various buildings shown and he was present when the photographs were taken. Gill identified the various objects shown in the photographs and specifically identified the objects which were marked by letters and arrows. (One of the photographs has Gill in it.) The trial judge determined that a sufficient foundation had been presented for the admission of the photographs and that the plaintiffs’ objection to the time of the taking and the markings thereon went to the weight and not the admissibility of the evidence. These rulings by the trial court were correct. Coleman v. Landry & Turner, Inc., 423 So.2d 41 (La.App. 1st Cir.1982); Macaluso v. Populis, 339 So.2d 386 (La.App. 1st Cir.1976). This specification of error is without merit.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is correct and is affirmed. The appellants are cast for all costs of these proceedings.

AFFIRMED.


text:
    GENERAL AMERICAN OIL COMPANY OF TEXAS v. WILLIAMS, INC., et al.
    No. 83 CA 0213.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.
    Rehearing Denied Dec. 22, 1983.
    Writ Denied Feb. 27, 1984.

      Thomas D. Hardeman, Liskow & Lewis, Lafayette, for General American Oil Co. of Texas.
    Charles L. Stern, Jr. and Stephen H. Kupperman, Stone, Pigman, Walter, Witt-mann & Hutchinson, New Orleans, for Williams, Inc.
    James B. Supple, Franklin, for Cyril Hebert, Gabriel Hebert, Sidney Hebert, Milton LaFont, Berthe Hebert Taylor, Richard L. Bourgeois, Emerite B. Oliver, Walter Bourgeois, Sully Bourgeois, Mabel Bourgeois, Ronald Champagne, Andrea C. Thomas, Michael Champagne, Gary Champagne, Roy Champagne, Wilson Bourgeois, Daisy Belle B. Borel and Valerie Hebert Granger.
    Daniel T. McKearan, Harahan, for Arvel-lia B. Torstenson.
    Walter J. Senette, Jr., Borne, Rogers & Senette, Franklin, for non-resident Hebert heirs.
    Before SHORTESS, LANIER and CRAIN, JJ.
   LANIER, Judge.

This is a concursus proceeding instituted by General American Oil Company of Texas (General American) to determine the ownership of an undivided 7/2oths interest in a 106 acre tract of land located in St. Mary Parish, Louisiana, on which General American has numerous oil, gas and mineral leases. Impleaded as parties defendant are Williams, Inc. of Delaware (Williams) and the heirs of Derneville Hebert. In the trial court, the parties stipulated that an undivided 7/2oths interest in the subject property was in contest, that for Williams to prevail it must be successful on its claim of thirty year acquisitive prescriptive as to this 7/2oths interest or, in the alternative, on its plea of good title to a ⅜⅛⅛ interest, and that the Hebert heirs did not possess the property except for acts of civil possession in 1973 when they granted mineral leases to General American. The trial court determined that Williams acquired the V2oths interest by the acquisitive prescription of thirty years. This devolutive appeal followed.

FACTS

On April 22, 1857, Derneville Hebert obtained a patent from the State of Louisiana for the West ½ of the Southeast ¼ of Section 30, Township 14 South, Range 9 East in St. Mary Parish, Louisiana, containing 106.96 acres. Hebert died on January 20, 1896, and was survived by his widow, Udolie Bonin Hebert, and ten children. His succession was opened but no judgment of possession was rendered.

On June 3,1903, Mrs. Hebert purportedly sold the entirety of the property to Charles A. O’Niell. On September 1, 1903, O’Niell purportedly sold the entirety of the property to the Albert Hanson Lumber Company, Ltd. (Hanson).

On September 19, 1904, three of Derne-ville Hebert’s children, namely, Damas, Rosalie and Hortense, sold all of their undivided right, title and interest in the property (%oths) to a fourth child, Mrs. Esperie Hebert Bodin. In this conveyance, the property was described as the East ½ of the Southeast ¼ of Section 30, Township 14 South, Range 9 East. On September 27, 1904, Mrs. Esperie Hebert Bodin sold all of her undivided right, title and interest in the property (4/2oths) to Charles A. O’Niell. In this conveyance, the property was described as the East ½ of the Northeast ¼ of Section 30, Township 14 South, Range 9 East. William T. Shinn, an abstractor based in Franklin, Louisiana, testified that his research of the public records of St. Mary Parish revealed that the Derneville Hebert family owned no other property in Township 14 South, Range 9 East, except that described in the patent.

On January 3,1924, Hanson conveyed the property to the F.B. Williams Cypress Company, Ltd. On October 13, 1934, F.B. Williams Cypress Company, Ltd. transferred the subject property to Williams, Inc. of Louisiana in an act of consolidation. On February 21, 1935, Williams, Inc. of Louisiana transferred the subject property to Williams, Inc. of Delaware, the present defendant.

PRESCRIPTION

The Hebert heirs contend that Williams failed to prove adequate possession of the property over a thirty year period to support their plea of prescription and that Williams could not prescribe against them because they are co-owners in indivisión.

The ownership of immovable property may be acquired by the prescription of thirty years, even in the absence of title or good faith possession. La.C.C. art. 3499. The possession necessary for this prescription must be continuous, uninterrupted, public, unequivocal and with the intent to be owner. La.C.C. art. 3500; Succession of Kemp v. Robertson, 316 So.2d 919 (La.App. 1st Cir.1975), writ denied 320 So.2d 906 (La.1975). The prescriptive title of thirty years extends only to the property actually possessed by the person pleading it, and what is sufficient possession is determined by the nature of the property. La. C.C. art. 3503; A. Yiannopoulos, Louisiana Civil Law Property, § 212 in 2 Louisiana Civil Law Treatise, 567 (2d ed. 1980). A person claiming this prescription must demonstrate his possession by some external and public sign sufficient to give notice to the public of the character and extent of the possession. Suire v. Primeaux, 363 So.2d 963 (La.App. 3rd Cir.1978), writ denied 365 So.2d 243 (La.1978). The burden of proving the facts essential to support a plea of thirty year acquisitive prescription rests on the party making the plea. Briggs v. Pellerin, 428 So.2d 1087 (La.App. 1st Cir. 1983); Levatino v. Williams, 396 So.2d 380 (La.App. 1st Cir.1981).

Section 30 of Township 14 South, Range 9 East is low, poorly drained swampland not suitable for farming, residential or industrial use or cattle grazing. It is only susceptible to trapping and logging. Williams has not built fences along the boundaries of its property in Section 30 because it is impractical, expensive and unnecessary to do so on swampland. Williams has marked its boundaries by blazing trees along the property line, putting splotches of baby blue paint above the blazes, nailing aluminum tags with the company’s initials above the paint and placing posted signs at all avenues of ingress and egress to the property.

Williams blazed and painted its property lines in Section 30 in 1941, 1955, 1966, 1974 and 1980. Williams granted oil, gas and mineral leases on the property in 1951 and 1973. Williams granted a pipeline right-of-way across the property in 1966. Williams granted unrecorded trapping leases on the property for the trapping seasons of 1934r-35 and 1935-36. F.B. Williams Cypress Company, Ltd. and Williams, Inc. of Louisiana and Delaware have paid the taxes on the property since 1924. The trial court ruled that this was sufficient evidence of possession to support Williams’ plea of thirty year acquisitive prescription. See, for example, Bagby v. Clause, 251 So.2d 172 (La.App. 1st Cir.1971), writ refused 259 La. 773, 252 So.2d 669 (1971); A.B.A. Exploration Gas & Oil Company v. A. Wilbert’s Sons Lumber and Shingle Company, 170 So.2d 752 (La.App. 1st Cir.1964). This factual conclusion by the trial court is not clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

The law applicable to prescription between co-owners in indivisión is correctly and succinctly set forth in Givens v. Givens, 273 So.2d 863, 867 (La.App. 2nd Cir.1973), writ refused 275 So.2d 868 (La.1973), as follows:

The well-settled jurisprudential general rule is that an owner in indivisión cannot acquire by prescription the rights of his co-owners in the property held in common. Possession by one co-owner is generally considered as being exercised on behalf of all co-owners....
It is equally well-settled that an exception to the foregoing general rule is recognized in those instances wherein the adversely possessing co-owner gives notice to the other co-owners that he intends to possess contrary to the common interest. Under such circumstances one owner in common may prescribe against a party owning in indivisión with him provided such possession be clearly hostile and notice be given thereof....
In determining whether a particular case falls within the exception rather than the general rule it has been held that mere occupancy, use, payment of taxes and similar acts of possession will not suffice to constitute notice of adverse possession to an owner in common....
However, a solid line of cases has developed the rule that where a co-owner goes into and continues possession under a recorded instrument apparently conveying title (even though the purported conveyance be invalid), the recorded instrument together with the acts of possession constitute notice to other co-owners and the possession is then regarded as hostile to the claims of the other co-owners, rebutting any presumption that possession is for the benefit of all co-owners. (Citations omitted).

Williams went into and maintained possession of the property pursuant to a recorded instrument which apparently conveyed title to the whole of the property. Williams blazed and painted the property lines, granted oil, gas and mineral leases, granted a pipeline right-of-way, granted trapping leases and paid the taxes on the property. These acts of possession together with the recorded instrument conveying title constituted adequate notice to the Hebert heirs that Williams’ possession was hostile. This evidence by Williams successfully rebutted the presumption that its possession was for the benefit of the Hebert heirs. The trial court’s ruling on this issue is correct.

MOOT ISSUES

The Hebert heirs contend in brief that the trial court committed error by allowing into evidence and considering Williams Exhibit No. 9 (the Nuttall affidavit) and Williams Exhibit No. 30 (the Nuttall letter). Roy H. Nuttall was a licensed surveyor who worked for Williams for many years commencing in 1906. The Nuttall affidavit is not signed by a notary public and is a statement of Nuttall’s activities with Williams in Section 30 from 1924 to 1936. The Nuttall letter is dated November 4, 1931, is by Nuttall to Williams and makes some vague references to property which may or may not be that here in question. We have not considered either of these documents in reaching our decision and, accordingly, a review of these evidentiary rulings is moot.

Since we have determined that the trial court’s judgment sustaining Williams’ plea of thirty year acquisitive prescription is correct, it is not necessary for us to pass on whether or not Williams is entitled to a reformation of the 1904 conveyances by Da-mas, Rosalie and Hortense Hebert to Esper-ie Hebert Bodin and from Esperie Hebert Bodin to Charles A. O’Niell.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is correct and is affirmed at the appellants’ costs.

AFFIRMED.

      . Apparently, there is no dispute that Williams has record title to 10/2oas of the property. It appears that the Texas Company has a ⅜⅛ interest in the property, but there are no conveyances of record to show this acquisition.

      . Hebert’s first name is spelled “Derneville” in the patent.

      . The substance of Article 3499 has been replaced by Article 3486 pursuant to Act 187 of 1982, effective January 1, 1983.

      . The substance of Article 3500 is now in Articles 3435, 3436 and 3486 pursuant to Act 187 of 1982.

      . The substance of Article 3503 has been continued in Article 3487 pursuant to Act 187 of 1982.


text:
    STATE of Louisiana v. Richard FERDINAND.
    No. 83 KA 0235.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.
    Rehearing Denied Dec. 22, 1983.
    Writ Denied Feb. 27, 1984.

      J. Mark Rolling, Asst. Dist. Atty., Amite, for plaintiff-appellee State of La.
    Richard Macaluso, Asst. Public Defender, Amite, for defendant-appellant Richard Ferdinand.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   LOTTINGER, Judge.

Defendant herein, Richard Ferdinand, was charged by grand jury indictment with second degree murder in violation of La. R.S. 14:30.1. He pled not guilty, was tried by a twelve person jury and convicted. The trial court sentenced him to be confined with the Department of Corrections for life without benefit of probation, parole, or suspension of sentence. Alleging six assignments of error, defendant appeals his conviction and sentence. However, defendant did not brief assignments of error Nos. 1, 2 and 3, and thus they are considered abandoned. Rule 2-12.4, Uniform Rules— Courts of Appeal.

On May 15, 1982, around 8:30 a.m., defendant and the victim, Leroy Carter, met, apparently by chance, at the Sugar Shack, a combination bar and restaurant, in Kent-wood, Louisiana. The victim gave defendant $1.50 and said he owed it to the defendant’s wife. Apparently, later that day, around 11:00, the victim asked defendant if he had given the money to a woman named Gladys. Defendant returned the money to the victim, placing it near where he was eating. The money was then returned by the victim to the defendant and was apparently passed back and forth between the two men several times — the last time remaining on the table where defendant was eating. After defendant finished eating his lunch, he exited the restaurant. He apparently got in his car and left for about five or ten minutes and returned to the Sugar Shack. Carrying a gun, defendant walked to the victim who was leaving the restaurant. He demanded the victim go inside the restaurant, get his $1.50 and bring it to him or he would kill him. The victim refused and started to turn away when defendant shot him several times. Shortly thereafter, defendant went to the courthouse and turned himself over to the authorities. He stated that he had just killed a man.

ASSIGNMENTS OF ERROR NUMBERS 4 AND 5

In assignments of error numbers 4 and 5, defendant asserts that the trial court erred in failing to allow him to introduce into evidence a taped statement and transcript thereof given by him to police.

When defendant turned himself over to the authorities, he told an officer that he had just shot a man. Later that day, he gave a taped statement through formal questions and answers to the officers. In it he alleged that the victim had grabbed him and was getting ready to hit him right before he shot him.

At trial, the State chose not to use the taped statement, but rather, through the testimony of a police officer, introduced the extemporaneous statement first made by defendant. The defense wanted to use the taped statement, but did not want defend-' ant to take the stand because of a prior conviction. Defendant argues that the statement is one made against penal interest, an exception to the hearsay rule and, therefore, should be allowed into evidence in connection with the testimony of the officers who took the statement. The State argues that this was a self-serving statement and that, therefore, it is precluded from being introduced. Additionally, the State asserts that if the statement were allowed to be so introduced, it would deprive the State of the right to cross examine defendant.

We are not convinced that the statement at issue is either a self-serving statement or a statement against interest. We believe it is a confession made by defendant. It does not conflict with defendant’s. first statement, which he made upon turning himself in to the authorities.

As a confession, it would be deemed admissible as an exception to the hearsay rule. However, even if this statement should have been admitted into evidence, we do not believe that the failure to do so was prejudicial in light of the overwhelming evidence from eyewitnesses who testified that the victim was not taunting defendant, but rather attempting to leave when he was shot. An error is harmless if there is little likelihood that it would have changed the result. La.Code of Crim.P. art. 921; State v. Frisco, 411 So.2d 37 (La.1982). Before a constitutional error can be held harmless, the court must be able to declare its belief that it was harmless beyond a reasonable doubt. State v. Jones, 386 So.2d 1363 (La.1980).

Based on the evidence brought out at trial, we are prepared to make that finding here. Accordingly, we find this assignment of error lacking any merit.

ASSIGNMENT OF ERROR NUMBER 6

In this assignment of error, defendant alleges that it is unconstitutional for the State to attack a defendant’s credibility by use of an eight year old conviction. In particular, defendant asserts that such violates Art. 1, Section 16 of the Louisiana Constitution and the Sixth Amendment of the U.S. Constitution.

Article 1, Section 16 of the Louisiana Constitution provides, in pertinent part, that no person shall be compelled to give evidence against himself.

We feel this argument is specious because defendant’s credibility was never actually attacked by the State. Defendant was not compelled to testify against himself. Indeed, he never took the stand. Nor was there any mention of the eight year old conviction in the record.

Moreover, we do not feel that it would be improper for a court to allow the introduction of an eight year old conviction in order to impeach a defendant. In State v. Hartman, 388 So.2d 688 (La.1980), the court found that the trial court’s ruling to allow the State to impeach a defendant by using an almost 20 year old conviction was proper.

Accordingly, for the foregoing reasons, w;e find this assignment lacking merit.

Therefore, the conviction and sentence are affirmed. AFFIRMED.

EDWARDS, J., concurs and will assign written reasons.


author: ALFORD, Judge.

text:
    STATE of Louisiana v. Robert J. RODRIGUE.
    No. 83 KA 0256.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.
    Rehearing Denied Dec. 22, 1983.

      James Alcock, Asst. Dist. Atty., Houma, for plaintiff and appellee.
    Joseph R. Raggio, Baton Rouge, for defendant and appellant.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   ALFORD, Judge.

Defendant, Robert J. Rodrigue, was charged by grand jury indictment with the crimes of aggravated kidnapping in violation of LSA-R.S. 14:44 on Count 1 and aggravated crime against nature in violation of LSA-R.S. 14:89.1 on Count 2. Defendant was tried by a twelve-person jury, found guilty as charged on both counts, and sentenced to life imprisonment at hard labor without benefit of probation, parole or suspension of sentence on Count 1, and fifteen (15) years at hard labor on Count 2, to run consecutively with the sentence received on Count 1. Defendant now appeals his convictions and sentences, alleging 16 assignments of error, and briefing 12 assignments of error in three arguments. The defendant has expressly abandoned four of his assignments of error and we will not consider them in this opinion. Rule 2-12.4, Uniform Rules — Courts of Appeal. Additionally, after a short outline of the facts, we will address defendant’s assignments in the three argument format suggested by defendant’s brief.

Although the testimony is sometimes directly in conflict, it appears certain that on September 21, 1979, Linda Reeves, a resident of Mississippi who was in Houma only temporarily, had just concluded a shopping trip to the local mall. At this point, Linda was to be home in about a half-hour to help her mother cook supper for her stepfather. As she proceeded through an intersection, the defendant allegedly hollered from his 18 wheel truck (without the float) that Linda’s car was smoking. Concerned because it was her stepfather’s car, Linda crossed the intersection and turned on to Coteau Road where she pulled the car over on the shoulder of the road. The defendant pulled up behind her. After he inquired as to the car’s condition, Linda testified that without warning or provocation, the defendant grabbed Linda’s hair, began slapping her, and forced her into the cab of his truck. Shoving Mrs. Reeves into the sleeping compartment of the cab, the defendant then tied her hands and feet with some kind of wire. Subsequent to this, the testimony of Mrs. Reeves is that the defendant tore open her blouse and pulled her pants down; at this point, the defendant got behind the wheel and drove for a few miles. (The defendant testified he stopped at a school nearby).

After striking the victim several more times and cussing the female gender in general, the defendant then forced Linda to perform oral sex upon him. Although she testified the defendant threatened many times to kill her, Linda thought because she sympathized with his marital problems the defendant released her after it became dark with the threat to kill her if she told anyone what he had done. Linda drove back to her mother’s trailer where she immediately took a shower and left with her mother-in-law to return to Mississippi. Linda’s mother testified that she noticed marks and abrasions on Linda’s arms and ankles, testifying that these marks appeared to be the result of something tied too tightly that had cut into the skin. Later, Linda’s step-father called the local sheriff’s office. The investigators arrived a short time after Linda departed for Mississippi. Subsequently, the defendant was indicted by the grand jury and unanimously convicted after deliberations of only 19 minutes. Defendant then filed this appeal.

ARGUMENT NO. 1

(Assignments of Error Nos. 6, 7, 10, 11, 12 and 13)

By this argument, defendant alleges that the prosecution failed to prove beyond a reasonable doubt each and every element of the crimes with which defendant was charged, that is, the crimes of aggravated kidnapping and aggravated crime against nature.

The proper standard of appellate review for sufficiency of evidence is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential 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. Moore, 432 So.2d 209 (La.1983). Aggravated kidnapping occurs when the offender forcibly seizes and carries a person from one place to another with the intent to force the victim, or some other person, to perform a sexual act, or acts, for the advantage of the offender as a condition of the release of the person seized. State v. Sonnier, 402 So.2d 650 (La.1981). Sexual gratification constitutes “something of apparent value” for the purposes of the statute defining aggravated kidnapping. Id.

LSA-R.S. 14:44 defines aggravated kidnapping and provides as follows:

§ 44 Aggravated kidnapping
Aggravated kidnapping is the doing of any of the following acts with the intent thereby to force the victim, or some other person, to give up anything of apparent present or prospective value, or to grant any advantage or immunity, in order to secure a release of the person under the offender’s actual or apparent control:
(1) The forcible seizing and carrying of any person from one place to another; or
(2) The enticing or persuading of any person to go from one place to another; or
(3) The imprisoning or forcible secreting of any person.
Whoever commits the crime of aggravated kidnapping shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.

An examination of the record before us on appeal reveals that the victim was forced by defendant into his truck and was pushed by him into the compartment in the truck behind the two front seats. He slapped her repeatedly, tied her hands together and tied her feet behind her with some kind of wire. Defendant then drove to a site some distance away and forced the victim to commit an act of oral sex upon him. The record further reveals that the victim identified her attacker as defendant at an in-court identification and had previously picked out his picture as her attacker as well as having previously identified him at a line-up. She further testified that defendant kept saying he was going to kill her. The victim’s mother corroborated the victim’s testimony that she had been tied at her wrists and ankles by testifying that her daughter’s skin at her arms and ankles looked like it had been “tied real tight and cut into the skin.” Defendant testified in his own behalf, saying that a sexual encounter with the female victim did take place at the time and place so determined but with the consent of the victim and that the act was one of sexual intercourse with consent. Further, he stated that the victim had entered his truck of her own accord and freely accompanied defendant down the highway to the spot where the incident took place.

Although the record presents us with a conflict in testimony, we also see that viewing the evidence in the light most favorable to the prosecution, sufficient corroborating evidence was entered at trial to prove the elements of: (1) forcing the victim to give up something of apparent present value, and (2) forcible seizing and carrying of a person from one place to another. However, the record does not sustain the finding of the element required by the aggravated kidnapping statute that the offender forced the victim to submit to his sexual demands as a condition of her release or even the promise of a release. When the victim was questioned, she denied that defendant made any statements indicating a promise of release or that he would release her in return for her cooperation. Nor is there any indication in the transcript of testimony that defendant was asking for any other sort of ransom which would secure the release of the victim.

In the very recent case of State v. Moore, 432 So.2d 209, 225 (La.1983), the Louisiana Supreme Court held:

Although the evidence establishes that the victim was forcibly seized and deprived of his valuables, the essential element of the crime, intent to deprive in order to secure a release, is missing. There is no evidence in the record from which any rational trier of fact could have concluded the victim was deprived of his valuables in exchange for his release or promise of release. The crime of aggravated kidnapping is limited to cases of kidnapping for ransom (i.e., kidnapping with intent to extort). LSA-R.S. 14:44, comment; State v. English, 367 So.2d 815, appendix at 823 (La.1979). (emphasis in original).

The instant record is replete with evidence to prove the elements of the crime of simple kidnapping which is defined at LSA-R.S. 14:45 and reads, in pertinent part, as follows:

A. Simple kidnapping is:
(1) The intentional and forcible seizing and carrying of any person from one place to another without his consent;
B. Whoever commits the crime of simple kidnapping shall be fined not more than five thousand dollars, imprisoned with or without hard labor for not more than five years, or both.

LSA-C.Cr.P. article 821(E) effective in 1982 allows the appellate court to modify the verdict of the lower court and render a judgment of conviction on a lesser and included responsive offense where the appellate court finds that evidence, viewed in the light most favorable to the state, supports only a conviction of the lesser included responsive offense. According to the Comment following article 821, this article is a codification of the ruling in State v. Byrd, 385 So.2d 248 (La.1980).

Therefore, the conviction of aggravated kidnapping is reduced to simple kidnapping, and the case is remanded to the lower court for resentencing.

We will now address the question of the sufficiency of evidence to find the defendant guilty of each and every element of the crime of aggravated crime against nature. LSA-R.S. 14:89.1 defines aggravated crime against nature and provides as follows:

§ 89.1 Aggravated crime against nature Aggravated crime against nature is crime against nature committed under any one or more of the following circumstances:
(1) Where the victim resists the act to the utmost, but such resistance is overcome by force;
(2) Where the victim is prevented from resisting the act by threats of great and immediate bodily harm accompanied by apparent power of execution;
(3) Where through idiocy, imbecility or any unsoundness of mind, either temporary or permanent, the victim is incapable of giving consent and the offender knew or should have known of such incapacity;
(4) Where the victim is incapable of resisting or of understanding the nature of the act, by reason of stupor or abnormal condition of mind produced by a narcotic or anesthetic agent, administered by or with the privity of the offender; or when he has such incapacity, by reason of a stupor or abnormal condition of mind from any cause, and the offender knew or should have known of such incapacity; or
(5) Where the victim is under the age of seventeen years and the offender is at least three years older than the victim. Whoever commits the crime of aggravated crime against nature shall be imprisoned at hard labor for not less than three nor more than fifteen years, such prison sentence to be without benefit of suspension of sentence, probation or parole.

The offense of crime against nature is committed by unnatural carnal copulation through the use of the genital organ of one of the participants. State v. Frentz, 354 So.2d 1007 (La.1978). When conflict in testimony arises as to. a factual matter, the question of credibility of the witnesses rests within the sound discretion of the trier of fact; and such factual determination will not be disturbed on review unless clearly contrary to the evidence. State v. Hudson, 361 So.2d 858 (La.1978).

We have reviewed the testimony, including that set forth earlier in this report and have determined that the elements of the offense of crime against nature (that is, unnatural carnal copulation through the use of the genital organ of one of the participants and prevention of the victim’s resisting the act by threats of great bodily harm accompanied by apparent power of execution) were proved by the state beyond a reasonable doubt using the standard of Jackson v. Virginia, supra. See, e.g., State v. Winn, 412 So.2d 1337 (La.1982). Moreover, defendant himself testified that it is possible that he had oral sex with the victim at the time of the incident in question. We find the state has met beyond a reasonable doubt its burden of proving all the elements of aggravated crime against nature as set out in LSA-R.S. 14:89.1(2) and we sustain defendant’s conviction therefor.

ARGUMENT NO. 2

(Assignments of Error Nos. 1, 8, 9, 14 and 16)

By these assignments the defendant complains the trial judge erred when he denied defendant’s pre-trial and post-trial motions for change of venue. These motions were based on the grounds that defendant had received much advance publicity in relation to his previous murder charge and was, therefore, prejudiced at the instant trial. Defendant argues specifically that he was not allowed to quiz the jurors participating in the instant trial to determine if the pretrial publicity received by defendant played a part in their returning a verdict of guilty on both counts.

On examining the record before us, it is evident that the trial judge carefully set forth the procedure he would follow on voir dire to safeguard against any inflammatory or prejudicial remarks that could possible be forthcoming from any prospective jurors. Further, the trial judge questioned each prospective juror, at first taking only six at a time into the courtroom and, where one juror did indicate some prior knowledge of defendant’s prior charge or the publicity surrounding defendant in relation to that murder charge, the trial judge questioned that particular juror out of the presence of the other prospective jurors. The number of prospective jurors questioned at one time was then increased to 14 with the trial judge continuing his very careful voir dire until 13 jurors had been chosen and sworn in. The defense used but six of its allotted peremptory challenges. The trial judge carefully explained to the jurors that any mention of another crime could be prejudicial to defendant and must be avoided.

Relevant factors in determining whether to change venue include: the nature of pre-trial publicity and the degree of circulation; the connection of government officials with the release of publicity; the length of time between dissemination and trial; the severity and notoriety of the offense; the area from which the jury is to be drawn; other events affecting or reflecting the attitude of the community or jurors toward defendant; the degree to which publicity has circulated in areas to which venue could be changed; the care exercised and ease encountered in selecting a jury; the jurors’ familiarity with publicity and its resultant effects; the peremptory challenges for cause exercised by defendant; and any factors likely to affect the candor and veracity of jurors. State v. Rodrigue, 409 So.2d 556 (La.1982).

LSA-C.Cr.P. article 622 provides as follows:

Art. 622. Grounds for change of venue A change of venue shall be granted when the applicant proves that by reason of prejudice existing in the public mind or because of undue influence, or that for any other reason, a fair and impartial trial cannot be obtained in the parish where the prosecution is pending.
In deciding whether to grant a change of venue the court shall consider whether the prejudice, the influence, or the other reasons are such that they will affect the answers of jurors on the voir dire examination or the testimony of witnesses at the trial.

Granting or denying a change of venue rests within the sound discretion of the trial judge and his ruling denying a motion for a change of venue will not be disturbed on appeal unless the evidence affirmatively shows that such ruling was erroneous and a clear abuse of judicial discretion. State v. Sonnier, 379 So.2d 1336 (La.1979); State v. Matthews, 354 So.2d 552 (La.1978).

The record reveals that the trial judge had before him a pre-trial motion for change of venue and a post-trial motion for change of venue and that all the factors needed to be considered were taken into consideration. Although we do not have the benefit of the transcription of the hearing on the pre-trial motion for change of venue, defendant has not shown that a post-trial quiz of the jurors participating in the instant trial could have elicited any showing of bias or prejudice on their part stemming from adverse publicity resulting from a charge different from the instant one. Moreover, the evidence in the record shows affirmatively that the trial judge acted within his sound discretion.

We find no merit in these assignments of error.

ARGUMENT NO. 3

(Assignment of Error No. 15)

By this assignment, the defendant contends that the trial court erred when it denied defendant’s motion for new trial based on newly discovered evidence. After trial, defendant produced an additional witness which he alleges he had not been able to contact prior to trial and now argues that, had this witness’s testimony been introduced at trial, it would probably have changed the verdict of guilty.

LSA-C.Cr.P. article 851 entitled “Grounds for new trial”, provides in pertinent part:

The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.
The court, on motion of the defendant, shall grant a new trial whenever:
(3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty;

In considering a motion for new trial based on newly discovered evidence, the test to be used is not simply whether another jury might bring in another verdict, but whether the new evidence is so material that it ought to produce a different result than the verdict reached. State v. Motton, 395 So.2d 1337 (La.1981), cert. denied, 454 U.S. 850, 102 S.Ct. 289, 70 L.Ed.2d 139 (1981). The trial court’s decision on a motion for new trial will not be disturbed absent a clear abuse of discretion. State v. Huizar, 414 So.2d 741 (La.1982).

The record contains the transcript of the hearing held on defendant’s motion for new trial wherein the newly discovered witness testified at length. That testimony supports defendant’s claim that defendant discovered the true name of this witness only after defendant’s conviction at trial on the merits and that contact with this person was made at that point in time. The new witness was questioned extensively to determine whether or not his testimony could materially affect the verdict which had been rendered at the trial on the merits, with both counsel for the defendant and the State participating in the examination of the new witness on direct, cross and re-direct examination. The trial court in denying defendant’s motion determined that the testimony adduced was relative only to a momentary incident which occurred at a point in time after the criminal acts with which defendant was now charged had happened and would not in any way change the verdict of the jury. Further, he felt that such witness was not in any position to contribute more evidence in favor of defendant than had just been furnished at the hearing.

We have fully reviewed the transcript of testimony taken at the hearing for new trial and find no abuse of discretion on the part of the trial judge in denying defendant’s motion for new trial. There is no merit in this assignment of error.

The defendant’s conviction and sentence for aggravated crime against nature is affirmed; conviction for aggravated kidnapping is reduced to conviction of simple kidnapping and the case is remanded to the trial court for resentencing in accordance with this opinion.

AFFIRMED IN PART, AMENDED IN PART AND REMANDED.

      . The application of article 821(E) brings to our mind a question as to whether the defendant must have filed a motion for post-conviction judgment of acquittal. However, since the trial in this case was held before the effective date of LSA-C.Cr.P. 821, and the record shows that the defendant did file a motion for new trial, we feel that defendant preserved his right to review and State v. Byrd is applicable.