text:
    Elizabeth Cosse, wife of/and Elliot A. COSSE v. Adrian BRULEY, Lynda S. Guffey wife of/and Thomas Guffey, State Farm Insurance Co., Alliance Insurance Co. Inc., and Commercial Union Insurance Co.
    No. CA 1006.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1984.
    Anthony J. Russo, Clarence F. Favret, III, New Orleans, for plaintiffs-appellants.
    Edward P. Lobman, Sidney J. Angelle, Metairie, Robert P. Hogan, Covington, for defendant-appellee.

      Before BYRNES, LOBRANO and WILLIAMS, JJ.
   BYRNES, Judge.

This is a personal injury action arising out of a vehicular collision. Elliott Cosse and his wife Elizabeth Cosse, plaintiff-appellants, filed suit in the 25th Judicial District Court for Plaquemines Parish against the Estate of Joseph H. Foster and his insurer, Alliance Insurance Co., Adrian G. Bruley and his insurer State Farm Insurance Co., Lynda S. Guffey and her insurer, Alliance Insurance Co., and Commercial Union Insurance Co., plaintiffs uninsured motorist carrier.

Elliot Cosse’s claims for his personal injuries and property damage were settléd with Commercial Union and all defendant’s were dismissed prior to trial.

Trial was held on March 21, 1983 to determine if any damages were suffered by plaintiffs as a result of the injuries to Elizabeth Cosse. At the end of the plaintiffs’ case in chief all defendants’ moved for a directed verdict. The trial judge granted this motion. Plaintiffs now appeal the granting of the directed verdict dismissing defendants from the action.

ISSUES

Appellants contend that the trial court erred in granting defendants’ motions for Directed Verdict. They argue that the trial court erred in finding that defendants, Adrian Bruley Sr. and Lynda Guffey, were confronted with a sudden emergency and therefore were not negligent and were not a concurring proximate cause of the accident or injuries herein.

FACTS

On September 6, 1980 appellants were traveling south in the left hand lane of Louisiana Hwy. 23. Defendants, Guffey and Bruley were each following appellants’ automobile in the same lane of traffic. As appellants’ car approached the intersection of East Third St. and Hwy. 23, Joseph Foster, who was traveling North on Hwy. 23, lost control of his vehicle, struck the median, and was hurled into the southbound lane of traffic directly in front of appellants’ car. As a result the Cosse’s automobile collided with the right side of Foster’s vehicle. Immediately thereafter Guffey’s truck struck appellants’ vehicle in the rear and the Bruley automobile struck Guffey’s truck in the rear.

As a result of this collision appellants sustained bodily injury and their automobile was a total loss. Mr. Foster, who was apparently drunk when the accident occurred, died instantly.

NEGLIGENCE OF GUFFEY AND BRULEY

Appellants contend that both Guffey and Bruley were negligent in failing to bring their vehicles to a stop prior to colliding with plaintiffs’ car and each other. The defendants argued at trial that the Doctrine of Sudden Emergency should be invoked to relieve them of liability for the accident. The trial court specifically found that:

... the sole and approximate cause of the accident was the negligence of Mr. Joseph Foster. That all of the three vehicles which were confronted with the sudden emergency, the same sudden emergency that confronted the vehicle of Guffey and the vehicle of Bruley and confronted the vehicle of Cosse in this matter. [TR., p. 107]

We agree with the trial court’s assessment of negligence in this matter.

LSA R.S. 32:81(A) requires a driver to maintain a reasonable distance between himself and the vehicle in front of him in light of traffic and road conditions. It is well settled that a driver must maintain a sufficient distance from a lead vehicle to allow him to stop under normal circumstances. Eubanks v. Brasseal, 310 So.2d 550 (La.1975). Further, a driver can successfully rebut the presumption of negligence which arises in a rear-end collision by showing that he kept his vehicle under control, he observed the lead vehicle, and was following at a safe distance under the circumstances. Covington v. Hughes, 402 So.2d 198 (La.App. 1st Cir.1981). Finally, the driver of a following vehicle will not be held liable for accidents which occur as a result of a sudden emergency which was not the fault of the following vehicle and which could not have been reasonably anticipated. Smith v. Alexander, 415 So.2d 1016 (La.App. 4th Cir.1982).

The record establishes that there was a light rain falling on the day of the accident. Guffey’s truck was two or two and one half car lengths behind Cosse, and Bruley was approximately two and one half car lengths behind Guffey. Both vehicles were traveling 35-40 mph. It is clear from the testimony that Guffey was not tailgating Cosse and Bruley was not tailgating Guffey.

The collision between Foster and Cosse took place directly in front of Guffey. The left lane in which Guffey was travelling was completely blocked and the right lane was partially blocked. Guffey took the only action a reasonable prudent person could take under the circumstances, he applied his brakes. There is no evidence to suggest that Guffey was following so closely that he could not have avoided hitting the Cosse vehicle had it slowed down or stopped under normal circumstances.

As to Bruley, he saw the accident begin to unfold in front of him. He took his foot off the accelerator to slow down. He did not apply his brakes immediately for fear that a sudden stop under the wet conditions may cause another car to collide with his rear-end. However, when he noticed Guf-fey’s vehicle approaching too fast he applied the brakes and lightly hit Guffey in the rear. Again, there is no evidence to show that Bruley, could not have safely stopped under normal circumstances absent the sudden emergency.

Accordingly, we find that Bruley and Guffey acted reasonably and prudently under the circumstances.

DIRECTED VERDICT

Appellants’ contend that the trial court erred in granting the defendants’ motions for Directed Verdict. They argue that the trial judge must examine the evidence in the light most favorable to the plaintiff and that a directed verdict should not be granted unless the evidence is so overwhelmingly in favor of the mover that a reasonable trier or fact could not arrive at a different verdict. To support these arguments appellants cite LA.C.C.P. Art. 1810, Pellerin v. Tudor Construction Co., 414 So.2d 403 (La.App. 1st Cir.1982), and Oppenheim v. Murray Henderson Undertaking Co. Inc., 414 So.2d 868 (La.App. 4th Cir.1982).

We find appellants’ arguments in this regard to be without merit under the circumstances. The cases upon which appellants rely relate to C.C.P. Art. 1810(A) regarding directed verdicts in jury trials. The case at bar is a bench trial and the procedure for granting a dismissal at the close of plaintiff’s case, which is the relief defendants sought, is set out in C.C.P. Art. 1810(B) which provides:

In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his rights to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.

The court must grant the dismissal if it finds that the plaintiff has not established his case by a preponderance of the evidence. Bradley v. Hunter, 413 So.2d 674 (La.App. 3rd Cir.1982) writs denied 415 So.2d 952 (La.1982). Contrary to appellants’ contention neither party is treated more favorably when the court reviews the evidence under Art. 1810(B).

On review we are required to give great weight to the factual findings of the trier of fact. Arceneaux v. Dominique, 365 So.2d 1330 (La.1978). Given the facts as stated herein we cannot say that the ruling of the trial court was not based upon a preponderance of the evidence. Accordingly, we affirm the judgment of the trial court, granting defendants’ motions to dismiss.

For the foregoing reasons the judgment of the trial court is affirmed. All costs of this appeal are to be borne by appellants.

AFFIRMED.


source: Caselaw Access Project

author: CIACCIO, Judge.

license: Public Domain

text:
    Judy Theresa JONES v. Lee Anthony THIBODEAUX.
    No. CA-1234.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1984.
    Rehearing Denied Feb. 22, 1984.

    Writ Denied April 13, 1984.

      Floyd J. Reed, Reed & Reed, New Orleans, for defendant-appellant.
    Kim A. Gandy, New Orleans, for plaintiff-appellee.
    Before GARRISON, KLEES and CIAC-CIO, JJ.

       Garrison, J. was of the opinion the rehearing should be granted.

   CIACCIO, Judge.

Plaintiff filed suit seeking to have defendant declared the father of her child. After a trial on the merits, the court found defendant to be the father of the child. Defendant has appealed and raises three issues: (1) Whether the blood test evidence was admissible; (2) Whether plaintiff proved filiation by a preponderance of evidence; (3) Whether Louisiana Act 521 of 1972 (enacting La.R.S. 9:396-398) is constitutional.

We find the blood test evidence admissible, that plaintiff proved filiation by a preponderance of evidence, and that Louisiana Act 521 of 1972 is constitutional. Accordingly, we affirm.

At trial defendant timely objected to the blood test evidence arguing that a proper foundation had not been laid for admissibility of this evidence. Defendant makes the same argument on appeal.

The Uniform Act on Blood Tests to Determine Paternity was approved by the National Conference of Commissioners on Uniform State Laws and the American Bar Association in 1952. Louisiana adopted the act in its entirety in 1972. Section one of the Act, La.R.S. 9:396, provides the authority for the court to order that the blood tests be conducted. Section two, La.R.S. 9:397, provides for the selection of the experts to conduct the tests and states, in part, that the experts shall be called by the court as witnesses to testify to their findings and shall be subject to cross-examination by the parties. Section four, La.R.S. 9:397.2, provides for the effect of the test results and states, in part, if the experts conclude that the blood tests show the possibility of the alleged father’s paternity, that admission of this evidence is within the discretion of the court, depending upon the infrequency of the blood type.

The trial judge in this case ordered the tests conducted and appointed Dr. L. Ray Bryant as the expert. Defendant testified that he went to Dr. Bryant’s office and permitted the taking of the required samples of his blood. (Defendant also provided Dr. Bryant’s office with a picture of himself, permitted the taking of his thumbprint and allowed inspection of his driver’s license, all for identification purposes). Dr. Bryant testified at trial concerning the procedures involved for maintaining the integrity of the tests and his conclusions that the probability of defendant being the father of the child is 99.8%.

Appellant’s brief contains the following outline of Dr. Bryant’s testimony concerning the routine his staff is expected to follow for drawing, testing and evaluating blood samples:

1. A person in Dr. Bryant’s office requests the donors for photographs of themselves, compares them with drivers’ licenses, and secures a thumbprint. As to the child, only a photograph and thumbprint are obtained.
2. Thereupon, a blood donor nurse draws three blood samples from each of the three persons into three separate vials which she then labels respectively.
3. Yet another person takes the nine vials containing the blood of the three persons and delivers them to two other locations in the hospital. Two of each of the three vials are delivered to the red cell laboratory and one of the three vials is delivered to the white cell laboratory.
4. In the red cell laboratory, technicians perform tests and analyses upon the blood and reduce the results to a written communication which is sent to the office of Dr. Bryant.
5. In the white cell laboratory, technicians perform tests and analyses upon the blood and reduce the result to a written communication which is sent to the office of Dr. Bryant.
6. Dr. Bryant then reviews the reports or communications from the two laboratories, the red cell laboratory and the white cell laboratory, and puts the data together and makes one of two conclusions:
(a) Parenthood is excluded, or
(b) Parenthood cannot be excluded.
7. A written report is prepared under the direction of Dr. Bryant and signed by him.

Dr. Bryant testified to his findings and was cross-examined by the parties. The doctor’s conclusions indicated the possibility of the defendant’s paternity, and, the trial judge, exercising his discretion under La.R.S. 9:397.2, admitted this evidence. We find no abuse of that discretion and will not disturb the trial court’s ruling on admissibility.

Appellant next argues that plaintiff did not carry her burden of proof at trial. Appellant’s argument is, of course, based upon the evidence remaining in exclusion of the blood test evidence.

The evidence produced by plaintiff, in addition to the blood test evidence, included her testimony about the sexual relationship which existed between her and the defendant. This testimony indicated that plaintiff and defendant had engated in sexual intercourse during the time period of conception. In order to corroborate this testimony, plaintiff produced a diary wherein she had made notations on the days on which she and defendant had sex. Plaintiff also testified that she had not had sex with anyone other than defendant during the time period of conception.

Plaintiff testified also, that defendant was aware that she had become pregnant and had wanted her to have an abortion. She further testified that defendant continued to see her before and after the child was born, visited her and the child in the hospital, sent her flowers in the hospital with a card that read “May God Bless Our Son”, visited her and the child at her home and occasionally gave her money for support of the child. Plaintiff also produced a baby book, two pages of which were a family tree diagram which -plaintiff testi-' fied was filled in at the hospital by her and the defendant on their respective sides of the tree.

Defendant admitted to having a casual sexual relationship with plaintiff, but testified that this relationship had come to an end some months prior to conception. Defendant denied being aware of plaintiff’s pregnancy, visiting her during pregnancy or at the hospital, sending her flowers or giving her money.

When defendant was first asked if he knew that plaintiff had a baby, he replied, that he knew because of the lawsuit. Subsequently, defendant admitted to having visited the plaintiff and to having seen the child in January of 1980. Defendant also initially agreed that a picture of him holding the baby would be “inaccurate.” When confronted with the photograph, however, defendant acknowledged the January, 1980, visit.

He testified that he had visited plaintiff because she had called him at his office and asked him to see her. Defendant claims to have obliged plaintiff’s request for a visit because he was aware that some women experience postpartum depression and he thought he would be kind and visit plaintiff. He admits that during the visit he held the child, but it was because plaintiff had made this additional request. The photograph in the record shows defendant holding and feeding the baby.

Credibility evaluations and factual resolution are the province of the trier of fact, in this case the trial judge. The trial judge found defendant to be the father of the child. Our review of the entire record satisfies us that this finding is not clearly wrong. We, therefore, will not disturb the finding. Canter v. Koehring Co., 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Defendant also argues that the statutes dealing with the blood tests are unconstitutionally vague. In support of his position, defendant has cited certain United States Supreme Court cases recognizing the principle that a non-criminal statute is unconstitutionally vague if men of common intelligence must necessarily guess at its meaning. The remainder of defendant’s argument is unsupported by any authority. He dismembers the statutes and argues that certain phrases are without unequivocal meaning.

Statutes are presumed constitutional. The party alleging unconstitútionality bears the burden of proof. Buras v. Orleans Parish Democratic Executive Committee, 248 La. 203, 177 So.2d 576 (1965).

By adopting the Uniform Act on Blood Tests to Determine Paternity, the legislature intended to provide a carefully regulated evidentiary procedure having precedence over laws of general applicability. The thrust of the statute is to make available scientific evidence, adduced through medical experts appointed by the court and called to testify by the court. McGowan v. Poche, 393 So.2d 278 (La.App. 1st Cir.1980).

We are not impressed with defendant’s complaints that the terms “blood tests”, “experts”, and “blood types” are not adequately defined in the statutes. We find that men of common intelligence can clearly understand the meanings of these terms as they are used in La.Act 521 of 1972. While these terms may have multiple connotations when considered in a vacuum, as defendant suggests we do, when they are considered in the context of the act, the terms provide denotations with enough clarity and specificity to meet constitutional requirements.

Accordingly, we find that defendant has failed to carry his burden of proving that the statutes are unconstitutional. His plea of unconstitutionality is, therefore, overruled.

Having failed to find merit in any of appellant’s specifications of error, we affirm the judgment of the trial court. All costs are to be paid by defendant-appellant.

AFFIRMED.


text:
    STATE of Louisiana v. Karl GATLIN.
    No. KA-0843.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1984.

      Dwight Doskey, Orleans Indigent Defender Program, New Orleans, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Crim. Div., New Orleans, Harry P. Connick, Dist. Atty., Beryl M. McSmith, Asst. Dist. Atty., New Orleans, for the State.
    Before GARRISON, KLEES and CIAC-CIO, JJ.
   CIACCIO, Judge.

Defendant, Karl A. Gatlin, was charged with being a convicted felon in possession of a firearm. R.S. 14:95.1. He was tried before a jury, found guilty as charged and sentenced to serve (10) years in prison, at hard labor. The defendant appeals his conviction and sentence relying on one (1) assignment of error. We affirm the defendant’s conviction, vacate the sentence and remand for resentencing.

On August 18, 1981 at approximately 3:40 A.M., Officers Athena Capello and Wyatt Frazier were on routine patrol on Canal Street in New Orleans. At that time they observed the driver of a bronze vehicle disregard a stop light at the intersection of Canal and Dauphine Streets. The police officers proceeded to follow the subject car and a high speed chase ensued through the streets of the French Quarter. During the chase, the defendant disregarded traffic signs and his vehicle reached speeds of 50-60 miles per hour. The defendant was forced to stop when a vehicle blocked his path at Bienville and Dauphine Streets. While approaching the defendant’s vehicle, Officer Capello observed the defendant reach under the car seat. The police officers ordered Gatlin and his girlfriend, Angela Guiterrez, to step out of the car. At the time, Officer Capello observed a large white plastic see-through bottle, which appeared to contain black capsules, on the floor of the car near the brake and accelerator. She also observed two small orange-brown bottles containing pills. Officer Capello performed a pat down search of the defendant and Officer Frazier performed a search of his girlfriend. It was discovered that the defendant did not have a driver’s license. He was arrested for traffic violations and narcotics offenses. He was informed that, due to the narcotics violations, his car was going to be impounded. Officer Capello asked him if there was anything of value in the car that the defendant wanted removed before the car was impounded. According to the police officers the defendant hesitated and then told them that his gun was in the trunk of the car. Officer Capello testified that she opened the trunk'of the car, with the defendant’s permission, and she retrieved a loaded black automatic pistol which was in plain view. Officer Capello gave the gun to Sergeant Morales who placed it on the dashboard of the police ear. A check of the gun’s registration failed to reveal a registrant. However, a computer check of the defendant’s name revealed that he was a convicted felon.

At the trial, the defendant refuted the story of the two police officers. He stated that on the night of the alleged offense he had left a bar with his girlfriend and was on his way home when he decided to stop at a store located between Dauphine, Iber-ville and Bienville Streets. He stated that he proceeded up Chartres Street to St. Louis Street where he turned at Dauphine and proceeded towards Canal Street. He said that this is where he was stopped by the police and accused of disregarding a stop light at Dauphine and Canal Street. He testified that he told the police he had not yet reached the mentioned intersection. He also testified that he informed the policeman that he had lost his driver’s license, and, when the policeman began to search his car, he objected because they did not have a warrant.

The defendant also testified that the vehicle he was driving was rented from Ohio by his boss, Louie Hilvey. The defendant stated that he had been using the car for two months but the vehicle was also driven by his boss and by the defendant’s neighbor. Gatlin further stated that he didn’t know who owned the gun and that he had never handled it. He contended that the narcotics found in the car belonged to his girlfriend and he had not heard from her since his arrest.

The defendant’s sole assignment of error is a request for review of the record for errors patent on its face. La. Const. Art. 1 Sec. 19 (1974). La.C.Cr.P. Art. 920(2).

Our review of the record reveals an error in sentencing. No other errors discoverable by a mere inspection of the pleadings and proceedings have been found. La.C. Cr.P. Art. 920(2).

The defendant was found guilty of being a convicted felon in possession of a firearm and was sentenced to “serve Ten (10) years at hard labor in the custody of the Department of Correction for the State of Louisiana”.

One found guilty of being a convicted felon in possession of a firearm shall be subject to the following sentence:

R.S. 14:95.1(B) ... shall be imprisoned at hard labor for not less than three years nor more than 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 (Emphasis Supplied)

The clear language of the statute indicates that a conviction for this offense mandates a sentence of imprisonment and a fine. In this case no fine was imposed as required by law, and thus, the ease must be remanded to the district court for resen-tencing, in order that a fine can be imposed. La.C.Cr.P. Arts. 882 and 916. In this case the statute provides for a minimum and maximum fine, thus requiring the imposition of some fine. This case is distinguishable from State v. Williams, 489 So.2d 387 (La., 1983). In the Williams case supra the statute in question (R.S. 14:52) only provided for a maximum fine, thus giving the trial court the discretion of refusing to impose a fine. In this case no such discretion existed and the case must be remanded for the imposition of a fine.

Furthermore, the record fails to reveal that the sentence is to be served “without the benefit of probation, parole or suspension of sentence”, as required by statute. R.S. 14:95.1(B). The Louisiana Supreme Court has held that the ommission of this restriction will render a sentence “unlawfully lenient.” State v. Telsee, 425 So.2d 1251 (La., 1983). Although the subsequent case of State v. Napoli, 437 So.2d 868 (La., 1983) appears to be in conflict with Telsee, supra, we adopt the rationale utilized by our brethern of the First Circuit, who followed the Telsee approach in the cases of State v. Jackson, 439 So.2d 622 (La.App., 1st Cir., 1983); State v. Thomas, 439 So.2d 629 (La.App., 1st Cir., 1983); State v. Johnson, 439 So.2d 636 (La.App., 1st Cir., 1983). Accordingly, we find Gatlin’s sentence is illegally lenient and we, therefore, remand this case to the district court in order that the sentence be amended to add the imposition of the mandatory fine and to specify that it is to be served “without the benefit of probation, parole or suspension of sentence”. R.S. 14:95.1(B).

Additionally, we have reviewed the record to determine if the State has proven its case beyond a reasonable doubt.

The standard of review in this case is that enunciated in Jackson v. Virginia, namely whether any rational trier of fact, when viewing the evidence in the light most favorable to the prosecution, could have found that the State proved the essential elements of the crime beyond a reasonable doubt. 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). State v. Edwards, 400 So.2d 1370 (La., 1981).

In this case the accused was charged with being a convicted felon in possession of a firearm. R.S.14:95.1. In order to convict the accused of this offense three elements must be proven:

1) Status of the defendant as a convicted felon
2) Possession by the defendant
3) The instrumentality possessed was a firearm.

The Louisiana Supreme Court has held that “constructive” possession will satisfy the “possession” element of the offense. State v. Day, 410 So.2d 741 (La., 1982).

In this case the parties stipulated that Karl Gatlin was the same person who plead guilty to possession of methadone and possession of pentazocine on November 13,1980 (Doc No. 278-904). A certified copy of the conviction, bill of information and docket master were admitted into evidence, without objection. The firearm which was retrieved from the scene of the crime, a black automatic pistol, was also introduced into evidence. The gun was identified as the firearm which was retrieved from the trunk of the defendant’s vehicle. It was the same gun which belonged to the defendant, as he allegedly stated to the officers on the night of his arrest.

Therefore, the totality of the evidence when viewed in the light most favorable to the prosecution satisfies this Court that any rational trier of fact could have found that the State proved the essential elements of this crime beyond a reasonable doubt.

For the reasons assigned, the defendant’s conviction is affirmed. The sentence is vacated and the case is remanded to the district court for resentencing in accordance with the directives expressed herein.

CONVICTION AFFIRMED.

SENTENCE VACATED AND CASE REMANDED FOR RESENTENCING.


text:
    STATE of Louisiana v. Carlin MORGAN.
    No. K 1457.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1984.
    Writ Denied March 9, 1984.

      Harry F. Connick, Dist. Atty., Nancy Sharpe, Asst. Dist. Atty., Timothy M. Warner, Student Practitioner, New Orleans, for the State.
    William Noland, Gary W. Bizal, New Orleans, for Carlin Morgan.
    Before SCHOTT, CIACCIO and WARD, JJ.
   CIACCIO, Judge.

Upon application of the State, we granted certiorari to review a ruling of the district court which granted defendant's motion to suppress evidence, viz, a gun, seized from defendant’s person pursuant to a war-rantless search.

The facts are uncontroverted. Defendant was driving a motorcycle and attracted the attention of the police because he was “lagging behind” traffic. The police noticed that defendant would not pass the patrol car although they were traveling at 5 to 10 m.p.h. below the speed limit. While stopped at a traffic light, the police officers noticed the defendant was not wearing any eye protection, a violation of La.R.S. 32:190.1.

When the light turned green the officers allowed defendant to proceed ahead of them. Then, they pulled him over for the purpose of issuing him a citation for no eye protection. While looking at defendant’s driver’s license, the officers noticed that his license did not have a motorcycle endorsement. Because of the lacking endorsement, the officers effected a custodial arrest of defendant. Incident to this arrest the defendant was searched and the officers found a gun and a knife. Defendant was then arrested for carrying the concealed weapons, and later charged for being a convicted felon in possession of the firearm.

When a law enforcement officer has probable cause to believe that a person has committed a crime, he may place that person under arrest. Incident to such lawful arrest, the officer may lawfully conduct a full search of the arrestee and the area within his immediate control for weapons and for evidence of a crime. Gustafson v. Florida, 414 U.S. 260, 94 S.Ct, 488, 38 L.Ed.2d 456 (1973); United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); State v. Blanchard, 374 So.2d 1248 (La.1979); State v. Daigre, 364 So.2d 902 (La.1978); State v. Breaux, 329 So.2d 696 (La.1976).

Defendant argues that the evidence should be suppressed because he was unlawfully arrested. Defendant argues that driving a motorcycle without a license to do so is not a violation of law. Alternatively, defendant argues that, if his failure to have a motorcycle endorsement is a violation, it is a violation for which the officer may only issue a summons and the officer may not execute a custodial arrest.

We must determine whether the full custody arrest of defendant was lawful. , If the arrest was lawful, the search of defendant incident thereto was lawful and the evidence seized should not be suppressed. If the officer has authority only to issue a summons and may not make a custodial arrest, the defendant could not be searched and evidence found as a result of a search should be suppressed. State v. Breaux, supra.

La.R.S. 32:408(C.) requires that motorcycle use “shall be provided for by making an endorsement on one of the basic classes [of licenses] outlined in this section. Such an endorsement shall be made only after the applicant has taken and successfully passed tests specifically designed for the operation of [motorcycles].” La.R.S. 32:423 gives the Department of Public Safety authority “to impose restrictions suitable to the licensee’s driving ability with respect to the type of ... motor vehicle which the licensee may operate .... ” The statute further provides that, “The department may either issue a special restricted license, or may set forth such restrictions on the usual license form. * * * No person shall operate a motor vehicle in violation of the restrictions imposed in the license issued to him.”

We read the above statutes to require that anyone wishing to operate a motor vehicle on the roadways of this state must obtain the appropriate endorsement on his license. This endorsement may be obtained only after the person, with an otherwise valid license, has successfully passed tests designed specifically to ensure that person’s ability to safely operate a motorcycle. La.R.S. 32:423 makes operation of a motorcycle without having first obtained the appropriate endorsement, a violation of law. The penalty for such a violation is found in La.R.S. 32:427, which provides, “Whoever violates a provision of this Chapter [i.e., Chapter 2. Driver’s License Law] shall be fined not less than ten dollars, nor more than five hundred dollars or imprisoned not more than six months, or both.”

The violation of driving a motorcycle without first obtaining the appropriate endorsement is, by definition, a misdemean- or offense. La.C.Cr.P. Art. 933; La.R.S. 14:2. Having committed a misdemeanor offense in the presence of the officers, defendant was subject to arrest without a warrant. La.C.Cr.P. Art. 213. Not every authorized detention, however, may constitute an “arrest” which justifies incident to it a search of the person. The arrests contemplated which do justify a search of the person incident to it are full custody arrests reasonably and lawfully made with the purpose of booking the person, La.C. Cr.P. Art. 228, for the offense charged. State v. Breaux, supra.

The officers in this ease effected a full custody arrest of defendant with the purpose of booking him for driving a motorcycle without the appropriate license endorsement. The record indicates that defendant was booked for his violation of La.R.S. 32:423. If this full custody arrest was reasonably and lawfully made, then the search of defendant was also lawful. We must determine, then, whether a full custody arrest is authorized for a violation of the Louisiana Driver’s License Law, La. R.S. 32:401-427.

The Louisiana Driver’s License Law comprises the entirety of Chapter 2 of Title 32 of the Louisiana Revised Statutes. Within Chapter 2 there is no provision addressing whether violators should be arrested or only issued summonses. By contrast, Title 32, Chapter 1, Louisiana Highway Regulatory Act, provides that the arresting officer “shall issue a summons or otherwise notify [the Chapter 1 violator] in writing to appear at a time and place to be specified in such summons and notice.” La.R.S. 32:391.

The penalty for violations of Chapter 1 is much less severe than the penalty, noted above, for Chapter 2 violations. See La. R.S. 32:57. The Legislature apparently considered Chapter 1 violations less serious than Chapter 2 violations, and provided that Chapter 1 violators shall be issued summonses while making no such provisions for Chapter 2 violators.

We would expect that, absent some contrary directive, a law enforcement officer who witnesses the commission of a misdemeanor offense would arrest the perpetrator. The only authority for issuing a Chapter 2 violator a summons rather than making a full custody arrest is La.C. Cr.P. Art. 211, which provides,

Art. 211. Summons by officer instead of arrest and booking
A. When it is lawful for a peace officer to arrest a person without a warrant for a misdemeanor, he shall give a written summons instead of making an arrest if all of the following exist:
(1) The officer has reasonable grounds to believe that the person will appear upon summons;
(2) The officer has no reasonable grounds to believe that the person will cause injury to himself or another or damage to property or will continue in the same or a similar offense unless immediately arrested and booked;
(3) There is no necessity to book the person to comply with routine identification procedures.
B. In any case in which a summons has been issued, a warrant of arrest may later be issued in its place.

The unstated corollary to Art. 211 is that if all three of the article’s requirements are not met, the officer shall make an arrest rather than issue a summons.

In this case the officers were prohibited from issuing defendant a summons under La.C.Cr.P. Art. 211 because the requirement of Art. 211 A (2) was not satisfied. Absent a motorcycle endorsement on defendant’s license, the officers did not have reasonable grounds to believe that defendant could safely operate the motorcycle without causing injury to himself or another or damage to property. Further, if the officers had only issued a summons and allowed defendant to drive away, they would have permitted him to continue committing the same offense, as he would still not be authorized to drive a motorcycle.

We conclude that the officers in this case acted properly by making a full custody arrest of defendant.

An additional argument has been made that La.R.S. 32:411 (which is in Chapter 2) gives the person arrested the option of depositing his driver’s license in lieu of bail, therefore, giving the arrestee the option to determine if his arrest should be of the full-custody variety. This statute is part of Chapter 2 because it deals directly with drivers’ licenses. It does give the arrested licensee the option of depositing his license in lieu of bail. The statute, however, applies only when the person is lawfully possessed of an operator’s license and is arrested and charged with a violation of a Chapter I offense or any municipal or parish ordinance. It has no application to this case.

We hold that defendant was subject to a full custody arrest for having violated the provisions of La.R.S. Title 32, Chapter 2, in the presence of the arresting officers. Incident to that full custody arrest defendant was subject to a full search of his person and the area within his immediate control. Any evidence seized as a result of such a search is not suppressible on the ground that the search was unconstitutional.

Accordingly, the judgment of the district court is reversed. Defendant’s motion to suppress is hereby denied. This case is remanded to the district court for further proceedings consistent with this opinion.

      . Even in a non-custodial detention, like the one in Breaux, an officer, after stopping the person, if he reasonably suspects that he is in danger of life or limb, may search the person’s outer clothing for a dangerous weapon or for any other thing the possession of which may constitute a crime. La.C.Cr.P. Art. 215.1. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The reasonable suspicion which would authorize a “stop and frisk" is not, however, the legal justification for the search in this case. The only legal justification for the search in this case is that it is incident to a lawful arrest.

      . See State v. Hammett, 359 So.2d 126 (La.1978), and La.C.Cr.P. Art. 15, that the application of articles of the Louisiana Code of Criminal Procedure is not restricted to the crimes defined in the Louisiana Criminal Code (i.e. Title 14 of the Louisiana Revised Statutes).

      . We consider La.C.Cr.P. Art. 211 to be applicable to crimes other than those defined by Title 14 of the Louisiana Revised Statutes. See footnote 2. See also, the Official Revision Comment under Art. 211.


author: WILLIAMS, Judge.

text:
    STATE of Louisiana v. Kevin LEE.
    No. KA-1193.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Crim. Div., Harry F. Connick, Dist. Atty., Parish of Orleans, William R. Campbell, Jr., John H. Craft, Asst. Dist. Atty., New Orleans, for plaintiff-appellee.
    Dwight Doskey, Frank Larre, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    BYRNES, LOBRANO and WILLIAMS, JJ.
   WILLIAMS, Judge.

Defendant Kevin Lee was convicted of armed robbery, a violation of LSA-R.S. 14:64. He was sentenced, as a multiple offender, to serve forty years at hard labor. Defendant appeals to this court to review his conviction and sentence for errors patent.

The testimony of Henry Johnson and his wife Marlene indicated that at about 5:40 a.m. on December 9, 1982, Mr. Johnson arrived at the construction site where he worked and exited his Camaro, leaving the car running, to open the gate to the site. Defendant approached him asking if he was doing any hiring and Johnson said no. Johnson turned his back to defendant and proceeded to open the gate. When defendant ordered Johnson not to move, Johnson turned around and saw defendant at the driver’s side of the car holding a revolver. Defendant told Johnson he would shoot him if he moved, and drove off in Johnson’s ear. At about 12:30 a.m. on December 11, 1982, Johnson was riding in his wife’s car with his wife and three other passengers when they saw defendant in the driver’s seat of his Camaro trying to start the car as another man pushed the car. Mr. Johnson pursued defendant while the other men pursued the man who had been pushing the car. When defendant slipped and fell at the curb, Johnson was able to capture him, but the other man was not caught. While Mr. Johnson had defendant pinned on the ground, Mrs. Johnson asked defendant why he stole their car. Defendant replied that he had a sick baby at home and was only trying to get it to the hospital. The police arrived and told the Johnsons they could take their car. Mrs. Johnson discovered a revolver jammed between the front seats of the car.

Joseph Tafaro, one of the arresting officers, also testified to the circumstances of the arrest and perfected the chain of custody linking the gun to that found in the Camaro.

Defendant’s mother testified that defendant lived with her and that he had never had a gun in her house. She said she did not believe defendant possessed a driver’s license or that he could drive, and said he did not own a car. Defendant’s brother corroborated this testimony. Defendant’s sister testified that defendant spent the night at her house on December 9, 1982, and that he did not bring a car with him. She too had never seen defendant drive and did not believe he had a driver’s license or knew how to drive.

Defendant took the stand against the advice of his counsel. He testified that he was waiting for a bus when a man driving the Camaro asked for defendant’s help because the car had run out of gas. He pushed the car on the passenger’s side while the other man pushed and steered from the driver’s side. He was then attacked by Mr. Johnson, whom he had never seen before, and was pinned to the ground. Defendant claimed that the only reason the Johnsons were testifying against him was that the real thief, the stranger he had helped push the car, had gotten away.

SUFFICIENCY OF THE EVIDENCE

The due process clause of the Fourteenth Amendment requires an appellate court to review each case before it on appeal to determine the sufficiency of the evidence upon which the criminal conviction is based. State v. Graham, 422 So.2d 123 (La.1982), appeal dismissed, — U.S.-, 103 S.Ct. 2419, 77 L.Ed.2d 1309 (1983). The evidence is sufficient if any rational trier of fact, viewing the evidence in the light most favorable to the prosecution could conclude that the essential elements of the crime were proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Edwards, 400 So.2d 1370 (La.1981).

The essential elements of the offense of armed robbery are set out in LSA-R.S. 14:64(A) as “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.”

Henry Johnson testified that defendant stole his automobile (a thing of value) threatening to shoot Johnson if he interfered (using intimidation) while armed with a revolver (a dangerous weapon). The Johnsons testified that when questioned at the scene of his capture defendant admitted to the theft, explaining that he had done it to get help for his “sick baby” at home. A revolver was found in the stolen automobile when it was recovered.

Defendant denied being the same man who had stolen the car, but many factors weakened his credibility. His account of the circumstances of his arrest conflicted with the Johnsons’, which defendant attributed to the Johnsons’ error, even asserting that Mr. Johnson “told a bunch of lies up here.” He testified that he was returning from a particular address, but was uncertain in describing the area and apparently denied the existence of landmarks he would have passed on his way to get change for the bus ride. Defendant admitted to several felonies and misdemeanors, some of them thefts, and admitted using several aliases. His explanation of the Johnsons’ motives for pursuing his conviction taxed the imagination.

The jury made a credibility judgment in favor of the Johnsons. Weighing the credibility of each witness is the particular responsibility of the fact finder and this court will not interfere beyond evaluating the sufficiency of the evidence as Jackson, supra, requires. See State v. Richardson, 425 So.2d 1228 (La.1983).

ERRORS PATENT

The trial judge sentenced defendant, as a multiple offender, to forty years at hard labor. Armed robbery, La.R.S. 14:64, expressly precludes eligibility for the benefits of parole, probation, or suspension of sentence. The minutes, however, do not indicate that defendant’s sentence would be without benefit of parole, probation, or suspension of sentence.

In State v. Speed, 335 So.2d 28 (La.1976), the defendant was sentenced to life imprisonment after a conviction for aggravated rape. Answering defendant’s appeal, the State pointed out that the mandatory statutory penalty at that time for aggravated rape was a death sentence. In a plurality opinion, the Supreme Court held that the State’s contention could not be dealt with by the court upon defendant’s appeal for review of sentence. The State was required to bring its request for review of sentence by means of a State appeal following La.C.Cr.P. art. 882.

In State v. Telsee, 425 So.2d 1251 (La.1983), the Supreme Court injected into Louisiana law the apparently novel theory of the “unlawfully lenient” sentence. The defendant had been convicted of forcible rape, a violation of La.R.S. 14:42.1. The statute mandated that at least two years of the offender’s sentence must be without benefit of parole, probation, or suspension of sentence. The Louisiana Supreme Court held that defendant’s sentence, because it failed to specify that any part would be without parole, probation, or suspension, was “unlawfully lenient.” The sentence was amended to withdraw the benefits of parole, probation, and suspension for two years.

The Louisiana Supreme Court has contradicted Telsee in State v. Napoli, 437 So.2d 868 (La.1983), where it set aside the more severe sentence imposed by the First Circuit in State v. Napoli, 428 So.2d 957 (La.App. 1st Cir.1983), and reinstated the original sentence of the trial court. In its per curiam decision of September 2, 1983, the Supreme Court explained:

When the defendant alone seeks review -of a conviction and sentence, the court of appeal should review only those issues raised by the defendant and any patent errors favorable to defendant. The court of..appeal erred in this case by reviewing a sentencing error unfavorable to defendant, thereby providing a chilling effect on defendant’s exercise of his right to appeal.

State v. Jackson, 439 So.2d 622 (La.App. 1st Cir.1983), decided October 11, 1983, addresses this conflict. The defendant was convicted of the violation of La.R.S. 14:62.-1, simple burglary of a pharmacy. He was sentenced, as a habitual offender, to ten years imprisonment at hard labor. He appealed, arguing that his sentence was excessive. The First Circuit held that defendant’s sentence was not excessive, but that it was “technically illegal” because it had not been specified that it was without benefit of parole, probation or suspension as La.R.S. 14:62.1 requires. The court in Jackson, reflecting on the Supreme Court’s holding in Speed, supra, looked at La.C. Cr.P. art. 882 on correction of illegal sentence and review of illegal sentence and stated:

This language indicates that the trial court on its own motion can correct an illegal sentence at anytime. This language also indicates that either the state or the defendant may question the legality of a sentence by appeal or in an unap-pealable case by a writ. This language clearly does not limit the correction of sentencing errors only to those adverse to the defendant. In an appellate court, an illegal sentence is considered patent error.

After puzzling over the conflicting jurisprudence, the court decided to follow Tel-see:

The implications of the Napoli writ action are significant. Is a sentencing error adverse to the state patent error as is a sentencing error adverse to the defendant?
Is an appellate court barred from noticing a patent sentencing error adverse to the State even when the defendant questions the legality of the sentence? Is a trial court barred from correcting its own sentencing error which is adverse to the State unless the State follows the procedure required in Speed? Did Telsee overrule Speed? Did the writ action in Napoli overrule Telsee?
Since Telsee was a fully considered opinion of the Court and Napoli only a writ action based on doubtful authority, we elect to follow Telsee. The sentence is amended to provide that it shall be served without benefit of parole, probation or suspension.

Certainly if the trial court can correct a sentence, it would only seem logical that the appellate court should also be able to do so. We, therefore, are of the opinion that defendant’s sentence must be corrected, even though its illegality was not raised by the State, pending an affirmative disposition of the issue by the Supreme Court. Accordingly, we find patent error and amend the defendant's sentence to correct that it shall be served without benefit of parole, probation or suspension of sentence.

AFFIRMED AS AMENDED.


text:
    Joseph AUSTIN v. J. Melton GARRETT, Louisiana State Racing Commission.
    No. CA-1010.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1984.

      Thomas L. Giraud, Giraud, Cusimano, Verderame & Loev, New Orleans, for plaintiff-appellee.
    John E. Jackson, Jr., New Orleans, for defendant-appellant.
    Before BYRNES, LOBRANO and WILLIAMS, JJ.
   WILLIAMS, Judge.

Plaintiff Joseph Howard Austin’s trainer’s license was suspended after the Louisiana State Racing Commission determined that apomorphine was present in a urine sample taken from a horse for which plaintiff was the trainer. The trial court reversed the Commission. We affirm, although on grounds different from the trial court’s.

On October 28, 1981, a urine sample was taken from the horse “Ravis,” which had raced at the Lakefront Turf Club in Kenner that day. Plaintiff was the official trainer of the horse.

The urine sample was divided into two portions, or “splits,” in compliance with the Rules of Racing of the Louisiana State Racing Commission as set forth in LAC 11-6.53.35. One split was set aside in its original liquid form, only to be tested in case of dispute regarding the other sample. Because the Racing Commission’s laboratory lacked the facilities to perform a mass spect test, the urine sample initially to be tested was subjected to thin layer testing. In this procedure, a portion of the split is placed on a plate along with a standard, which in this case was apomorphine. . Because she felt the thin layer test results were inconclusive, on November 4, 1981, Ms. Pizzo, the Racing Commission chemist, took a powdered form of the same split to Dr. Blake at the University of Kentucky for mass spect testing. To change the sample from a liquid to a powdered form, the powdered sample had to be scraped from the thin layer plate. Dr. Blake evidently found some trace of apomorphine on the powdered sample sent him.

On November 24, 1981, plaintiff was notified that there had been a positive showing of the presence of apomorphine in the urine sample of the horse “Ravis.” Plaintiff demanded that the reserved split be tested by an independent laboratory, at plaintiff’s expense. The Racing Commission delivered the split to Dr. Blake on November 28,1981. Plaintiff was unaware that Dr. Blake had already tested the other portion of the urine sample. Dr. Blake reported in a letter of December 9, 1981, that “[tjhin layer data suggested that apo-morphine might be present in a very low concentration in the urine,” but that “[t]he mass spectral data proved negative,” and concluded that there was “insufficient evidence to confirm the presence of apomor-phine in the urine sample.”

In a Ruling of December 30, 1981, the Racing Commission held that plaintiff had violated the rule prohibiting medications including apomorphine.

Plaintiff requested and was granted a suspensive appeal from the Ruling. After an appeal hearing on January 22, 1982, the Racing Commission upheld the Ruling. Plaintiff was suspended for sixty days.

Plaintiff petitioned for and was granted judicial review and a stay of the Racing Commission decision pending that decision.

The trial court rendered judgment on January 25, 1983, reversing the Commission’s decision. In its reasons for judgment, the court wrote:

The Court finds that LAC 11-6:53.35 and LAC 11-6:53.37.1 were not followed in these proceedings. The Louisiana Rules of Racing specifically provide that a urine sample shall be divided into an initial sample and a split sample to be used for future testing. LAC 11-6:53.-37.1 states, as follows:
... Both parts shall be treated with a proper amount of ascorbic acid to preserve the sample against deterioration of the sample ingredients. ■
As testified to at trial (page 152 of Transcript of the Louisiana State Racing Commission), the split sample did not have the additional step of having ascorbic acid added to it.
Therefore, the Court is of the opinion that the decision of the Louisiana State Racing Commission, issued January 22, 1982, should be reversed.

Defendant Racing Commission applied for and was denied a new trial on April 15, 1983. On April 25, 1983, defendant appealed to this court, alleging trial court error in the reversal of the Commission’s decision rendered January 27,1982 on the basis that Rule of Racing LAC 11-6:53.37.1 was not followed, because that rule was not adopted as a Rule of Racing until August 20, 1982.

Plaintiff asserts that while LAC 11-6:53.-37.1 may not have been a specific rule at the time of this case, the duty of care in the handling of urine specimens that it collected was part of the general rule contained in LAC 11-6:53.37. Plaintiff contends that the horse was not medicated with apomor-phine, but rather, that in scraping off the initial urine sample from the thin layer plate, the Commission’s chemist caused some of the apomorphine standard to be scraped off as well, adulterating the urine sample. This, plaintiff contends, was in violation of the Commission’s duty of care in handling the urine sample. That duty is set out in LAC 11-6:53.35 and 11-6:53.37, both of which were in effect at all times relevant to this case. These provisions read:

11-6:53.35
Each specimen shall be divided into portions so that one portion shall be used for initial testing for unknown substances, and another portion shall be preserved for further testing as the Commission may direct. The Commission chemist shall be responsible for safeguarding and testing each specimen delivered to his laboratory by the Commission representative. (Emphasis added). 11-6:53.37
Upon the finding that a test for prohibited substances is negative, the remaining portions of such specimen may be discarded. Upon the finding of test results which are suspicious, positive, or indicative of prohibited substances, such tests may be reconfirmed, and the remaining portion, if available, of such specimen shall be preserved and protected until such time as the stewards rule it may be discharged. (Emphasis added).

Defendant asserts that the plaintiff’s allegations of lack of due care are unfounded because the record as made before the Commission indisputably demonstrated the detection of apomorphine in the initial split tested. Defendant argues that the fact that the second urine sample tested did not confirm the presence of apomorphine in the first does not invalidate the initial test findings. Evidently defendant believes there is an explanation for the negative findings of the second sample, although he refers to a trial record not provided to the court, rather than explaining his reasons. Defendant concludes that the court has no grounds for reversal under La.R.S. 49:964(G). That provision of the Louisiana Administrative Procedure Act sets out the conditions for judicial intervention as follows:

G. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or
(6) Manifestly erroneous in view of the reliable, probative, and substantial evidence on the whole record. In the application of the rule, where the agency has the opportunity to judge of the credibility of witnesses by firsthand observation of demeanor on the witness stand and the reviewing court does not, due regard shall be given to the agency’s determination of credibility issues.

At the Racing Commission hearing, Ms. Pizzo admitted that the thin layer procedure was not a reliable test for the detection of apomorphine. Dr. Blake admitted that if the thin layer test plate were not scraped with great care, both urine and the apomorphine that had been placed on the thin layer plate as a standard could appear in subsequent testing of the urine sample. Ms. Pizzo scraped the test plate and sent the sample to Dr. Blake, who evidently did detect some apomorphine. On the other hand, the untested reserve sample of urine, when tested for the first time by Dr. Blake using mass spect procedure, showed no apomorphine present. Mr. Rayburn, a Racing Commission Steward, admitted that he noticed nothing peculiar or unusual about the horse and that it was not nervous or shying away from people. Dr. Blake testified that a horse under the influence of apomorphine would run around its stall, jumping up and down, would appear frightened, and would move away from humans. He added that the clinical signs of apomor-phine administration would very definitely be readily observed, and that Mr. Rayburn’s description of the horse’s behavior on the day of the race did not comport with that of an animal medicated with apomor-phine.

We agree with the trial court that the Commission’s decision was in error. The requirement of LAC 11-6:53.37.1 that ascorbic acid be used as a preservative was simply the formulation of a specific procedure to be followed to aid the Commission in meeting the duty of care imposed upon it by LAC 11-6:53.35 and 11-6:53.37. Regardless of whether 11-6:53.37.1 was in effect, the Commission breached its duty to safeguard, preserve, and protect the laboratory specimen entrusted to it, in violation of the standard imposed by 11-6:53.35 and 11-6:53.37. The likelihood that the test’s indication of apomorphine medication was the result of the Commission’s negligent handling of the specimen, rather than any actual medication of the horse, is too high for us to allow the Commission’s decision to be upheld. We find that substantial rights of the plaintiff have been prejudiced because the Commission’s decision was manifestly erroneous in view of the reliable, probative, and substantial evidence on the whole record. La.R.S. 49:964(G).

For the foregoing reasons, the judgment of the trial court is AFFIRMED.

AFFIRMED.


author: MARVIN, Judge.

text:
    STATE of Louisiana, Appellee, v. Donald R. JOHNSON, Deborah J. Cassell, Appellants.
    No. 15568-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 1984.
    Rehearing Denied Feb. 23, 1984.
    Writ Denied April 13, 1984.

      J. Stacey Freeman, Bossier City, for appellants.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, Henry N. Brown, Jr., Dist. Atty., A.L. Blondeau, Asst. Dist. Atty., Benton, for appellee.
    Before MARVIN, FRED W. JONES, Jr. and SEXTON, JJ.
   MARVIN, Judge.

Defendants, Donald R. Johnson and Deborah J. Cassell, in this appeal after each had entered a plea of guilty to CDS related charges, contend that their respective sentences are constitutionally excessive and were imposed without compliance with CCrP Art. 894.1. We affirm.

Both defendants were indicted for the cultivation of some 1200 marijuana plants in a field near the mobile home where they resided. LRS 40:966 A. After trial began, Johnson pleaded guilty to the charge and Ms. Cassell pleaded guilty to the reduced charge of Accessory After the Fact to the cultivation. LRS 14:25. Johnson, who was facing a maximum sentence of 10 years at hard labor, was sentenced to one-half of that time. Cassell faced a maximum sentence of five years at hard labor and was sentenced to one-half of that time.

Defendants admitted that the marijuana under cultivation had a value of $10,000 to $20,000, while the trial judge called it a “substantial” amount. It was also noted that Ms. Cassell kept records of past CDS transactions in which she and Mr. Johnson had been involved and the evidence supported her involvement as a principal to the crime of cultivation, notwithstanding that the prosecution agreed to allow her to plead to the reduced charge.

The court noted the ages, first offender status, marital status, employment records of each defendant, and the fact that Mr. Johnson had been injured in a hunting accident in 1980, and that defendants, who married after indictment, were the parents of a three year old son, and individually, of two much older children, ages nine and sixteen. The court mentioned these mitigating factors but thought them outweighed by aggravating factors such as the seriousness of the offense, that it did not appear that either would be likely to respond to probationary treatment, and that both were in need of custodial and corrections treatment. A PSI report is contained in the record. Compare first offender status and sentences of a married couple for a CDS offense in State v. Tully, 430 So.2d 124 (La.App. 2d Cir.1988).

Under the circumstances shown by this record, we find that the trial court adequately complied with the sentencing guidelines and that the sentences are not excessive.

AFFIRMED.


author: HALL, Judge.

text:
    STATE of Louisiana, Appellee, v. Ward Edward JACKSON, Appellant.
    No. 15676-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 1984.

      Raymond L. Cannon, Tallulah, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, James David Caldwell, Dist. Atty., Tallulah, for appellee.
    Before PRICE, HALL and JASPER E. JONES, JJ.
   HALL, Judge.

The defendant, Ward Edward Jackson, appeals his convictions after jury trial for attempted aggravated rape and attempted second degree murder in violation of LSA-R.S. 14:27, 14:30.1, and 14:42, as well as the 37V2-year concurrent sentences imposed. The errors assigned are that the evidence is insufficient to support either of the convictions and that the sentences imposed constitute excessive punishment. Finding both contentions to be meritless, we affirm the convictions and sentences appealed. Facts

The testimony of the victim, officers, investigators, other witnesses, and physical evidence presented at trial established the following facts surrounding the commission of these offenses.

In the early evening hours of September 3, 1983, both the 17-year-old female victim and the defendant were present in a Tallu-lah bar which was hosting a political rally. They were previously acquainted with each other and briefly conversed on that occasion. The testimony is conflicting as to who approached whom, yet it is clear that a conversation took place in which the victim asked the defendant for a marijuana cigarette.

After the victim asked the defendant for a “joint”, Jackson told her to wait outside. Momentarily, he came out of the bar, felt his pockets, and stated that he must have left the marijuana at home. Jackson told her to meet him at the halfway point between the bar and his nearby residence. When the victim reached the halfway point, she observed Jackson standing on his porch and beckoning her to come into the house.

She entered and cautioned him not to try anything. Jackson rolled a marijuana cigarette which they smoked. Immediately af-terwards, Jackson picked up the victim, threw her on the bed, and tried to disrobe her. The victim strenuously resisted the defendant but he succeeded in disrobing her from the waist down and achieving penetration. The victim kicked the defendant off of her, fell from the bed, and rolled under it. As the defendant began to move the bed around the room the victim continued to roll under it until she became immobilized between the bed frame and the wall. Jackson armed himself with a hammer and began hitting her on the head. After receiving several blows to the skull, the victim lay still as if dead. The defendant wrapped his victim in sheets, dragged her from the house, and threw her in the back of his red pickup truck at which point he struck her two more times in the head with the hammer.

After the defendant had stopped at a nearby intersection approximately one block from his residence, when the truck began moving slowly, the victim jumped out of the truck and ran in the opposite direction. Calling for help as she ran, she collapsed after traveling a short distance. Several individuals responded to her cries for help,- found her lying semi-nude near the edge of the street, and witnessed a red pickup truck driven by the defendant pass by the location traveling down a one-way street in the wrong direction. The truck moved slowly until it neared the spot where the victim lay at which time it accelerated and sped past the location.

Approximately two hours later, the defendant was picked up by a local police officer three or four miles outside of Tallu-lah as he was walking down the middle of the highway toward town. Jackson’s truck, out of gas and with the key still in the ignition, was later located on a gravel road approximately six miles from Tallulah. A search of the defendant’s truck and his residence indicated that there had been a struggle in the house and that an injured person had bled while in the residence and while in the bed of the truck. Type 0 blood scrapings were taken from the floor of Jackson’s bedroom. The victim’s blood type is type 0. Jackson’s blood type is A+. Jackson suffered no injuries or loss of blood on the night in question.

When the victim arrived at the hospital, she was in shock and near death. She had multiple lacerations on her head in which bone fragments were visible, indicating that she had been severely beaten in the head.

Sufficiency of Evidence Argument

The defendant contends that his convictions are invalid under the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), because the evidence was insufficient to allow a rational trier of fact to conclude beyond a reasonable doubt that the defendant possessed the requisite criminal intent to attempt an aggravated rape or second degree murder. The weight of the evidence against the defendant is overwhelming and this assertion is without merit.

The essence of the defendant’s argument is that he was drugged prior to the commission of these offenses and, consequently, lacked the requisite specific intent to commit these crimes. He contends the trier of fact was irrational in concluding this element of the offenses had been proven beyond a reasonable doubt. Additionally, the defendant insinuates that he was “framed” for the commission of these offenses.

The defendant testified that he told the victim inside the barroom that he did not smoke dope. He denied having any further dealings with the victim that night. Jackson testified that he noticed he was feeling funny after drinking only one beer and a Tom Collins at the bar. The defense insinuated that someone drugged the defendant by slipping something into his mixed drink while he was in the restroom. The defendant left the bar and walked toward his nearby residence. Jackson testified that when he opened the door to the house someone grabbed him and placed a rag smelling of either ammonia or ether over his face. He testified that he recalls nothing from that point in time until the time at which he awoke in a road ditch several miles outside of Tallulah. Jackson claims that he informed the arresting officer at the time he was picked up that his money and wallet were missing. The defendant claims to have been carrying approximately $700 in his wallet that night. There were several contradictions in details between Jackson’s earlier statements to the police and his testimony at trial, including Jackson’s earlier assertions that he did not know the victim and had no contact with her on the night in question. Other than his own testimony, the defendant presented no testimony or evidence to corroborate his story except the statement from a city employee that sometime in 1982 he found the defendant’s wallet in a trash can.

The commission of attempted aggravated rape and attempted second degree murder requires the presence of specific criminal intent. LSA-R.S. 14:27. Furthermore, LSA-R.S. 14:15(2) provides that “where the circumstances indicate that an intoxicated or drugged condition has precluded the presence of a specific criminal intent or of special knowledge required in a particular crime, this fact constitutes a defense to a prosecution for that crime.” The evidence presented in this case falls far short of creating any reasonable doubt as to the presence of specific criminal intent.

The evidence relating to whether or not the defendant was in a drugged condition sufficient to preclude the presence of specific criminal intent at the time of the commission of these offenses can be summarized as follows. The evidence shows that the defendant had one beer and one mixed drink at the bar shortly before the rape and murder attempts. Several individuals in contact with the defendant that night at the bar noticed nothing abnormal about his physical or mental condition prior to his leaving the bar. The defendant’s story concerning the ether or ammonia-filled rag is totally uncorroborated by the evidence. The evidence shows that the defendant and the victim shared a single marijuana cigarette immediately prior to the incident. At the time the defendant placed his victim’s body in the bed of the pickup truck, he had the presence of mind to deliver two additional hammer blows to her head, apparently in an attempt to insure her death. Two individuals observed the defendant driving his pickup immediately after the victim was found lying next to the street. Several individuals noticed the red pickup and that it was driving slowly until it approached the spot where the victim lay at which time it accelerated past the spot going up a one-way street the wrong way.

When the defendant was picked up by a local police officer approximately two hours later several miles out of town, he was not wearing a shirt, was very muddy, and appeared distraught. However, the defendant immediately recognized his arresting officer and called him by name. The officer testified that, while the defendant smelled of alcohol, his speech and physical movements appeared coherent and normal. The other officers who observed the defendant after his arrest and during his booking noted nothing abnormal in his speech or movement. The defendant himself testified in detail concerning the events which transpired for some time prior to the time that the police car picked him up and concerning the events which transpired during his subsequent booking. The defendant’s testimony leaves no room for doubt that he was coherent at the time of his arrest.

In sum, the only evidence tending to show that the defendant was drugged at the time these offenses were committed is his own unsubstantiated and uncorroborated statements which it is apparent that the trier of fact chose not to believe. The evidence is sufficient for a rational trier of fact to conclude that specific criminal intent was possessed by this defendant at the time he committed these offenses. Additionally, the defendant’s mere insinuation that he was “framed” in and of itself raises no reasonable doubt which could have prevented a rational trier of fact from concluding that he was the individual who perpetrated these crimes.

This assignment of error is without merit.

Excessive Sentence Argument

The defendant contends that the trial court failed to adequately consider and give appropriate weight to the mitigating factor of the defendant’s drugged condition in imposing sentence. Additionally, defendant contends that the sentences imposed are needless and purposeless impositions of pain and suffering. Both these contentions are meritless.

The record reveals that the trial judge specifically considered the presence or absence of mitigating factors in imposing sentence in this case. The trial judge found that the victim’s conduct in no way provoked the defendant’s attack and further found that there existed no mitigating circumstances in this case tending to justify the defendant’s behavior. The paltry evidentiary showing by the defendant concerning his allegedly drugged condition at the time these offenses were committed has been discussed in detail in disposing of the defendant’s insufficiency of the evidence argument. As noted previously, there is little or no evidence other than the defendant’s self-serving statements which tends to establish drug influence. The trier of fact rejected this specious and unsubstantiated claim. We find no abuse of discretion by the trial judge in the consideration and rejection of drug influence as a mitigating factor in this case. The evidence simply does not support the defendant’s claim of mitigation.

The defendant’s claim that the sentences imposed are needless and purposeless impositions of pain and suffering is also without merit. The record reveals that these offenses were committed in a particularly brutal and heinous manner. This defendant has an extensive history of criminal activity. As a juvenile, Jackson committed an offense similar in nature to the instant crimes. Jackson’s adult criminal record contains several felony convictions. At the time of sentencing, several charges were currently pending against the defendant. The trial judge correctly noted there are no mitigating factors in operation in this instance. In light of these facts, the defendant’s argument that he should have received a suspended sentence and probation is obviously meritless.

The 37V2-year concurrent sentences imposed in the instant case were well within statutory limits. The maximum period of imprisonment which could have been imposed in this case is 50 years on each offense. LSA-R.S. 14:27, 14:30.1, and 14:42.

The trial judge is given a wide discretion in the imposition of sentences within statutory limits, and the sentence imposed should not be set aside as excessive in the absence of an abuse of discretion. State v. McClinton, 399 So.2d 178 (La.1981). The role of the appellate court in reviewing allegedly excessive sentences is not to substitute its judgment for that of the trial court, but rather to correct manifest abuses of discretion. State v. Douglas, 389 So.2d 1263 (La.1980).

Given the operative facts of this case and this defendant’s extensive criminal record, the trial judge committed no abuse of discretion in imposing the concurrent 37V2 -year sentences handed down in this case.

This assignment of error is without merit.

Decree

The defendant’s convictions and sentences are affirmed.

Affirmed.


author: SEXTON, Judge.

text:
    STATE of Louisiana, Appellee, v. Patric P. HUSTON, Appellant.
    No. 15,758-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 1984.
    McConnell, Harris & Associates by Charles E. McConnell, Springhill, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, Henry N. Brown, Jr., Dist. Atty., Benton, Randy D. Elkins, James M. Johnson, Asst. Dist. Attys., Minden, for appel-lee.
    Before JASPER E. JONES, FRED W. JONES, Jr. and SEXTON, JJ.
   SEXTON, Judge.

The defendant prosecutes this appeal subsequent to a “Crosby plea” to the offense of Possession of Schedule II Controlled Dangerous Substances. We reverse.

Subsequent to entering the guilty plea and reserving the right to appeal the ruling of the trial court on the motion to suppress, the defendant was sentenced to two years at hard labor. This sentence was suspended and the defendant was placed on active probation, and was fined $1,000.

On April 20, 1982, the defendant was traveling east on Interstate 20. He stopped on the shoulder for some unexplained reason and became stuck in the soft right shoulder of the road. A state trooper, William E. Bobbitt, summoned by calls on the “CB” that a truck was on fire, arrived at the scene. The defendant, with the aid of two other truck drivers from his company, was in the process of trying to get the truck back on the Interstate when the state trooper arrived. Apparently in the process of trying to extricate the truck, the tires on the pavement section of the shoulder had burned to the cords.

The officer approached the truck and noted the glassy-eyed appearance of the driver. He asked the defendant to get out of the truck. The defendant stumbled down from the truck and the trooper noted a strong odor of alcohol on his breath. The defendant performed very poorly on the field sobriety test and was arrested for DWI. The defendant was placed in the back of Trooper Bobbitt’s car and a wrecker was summoned. Officer Bobbitt entered the cab of the truck and completed a brief inventory. In the process thereof he noted on the “inventory report” the presence of a suitcase in the sleeper section of the cab and two briefcases on the right seat of the cab.

Trooper Bobbitt was joined on the scene by his shift supervisor, Lt. Billy J. Wiggins, who upon being appraised of the situation told Bobbitt to take the defendant to the police station in Minden to run a breath test for an alcohol level. Lt. Wiggins stayed at the scene to wait for the wrecker. At the trial of the motion to suppress, Lt. Wiggins stated that he entered the cab of the truck and located the log book folder on the console between the seats. He stated that upon opening the log book he found a package of yellow capsules in the cover of the book.

The only fact in contention in this case is the location of the log book and pills. Trooper Bobbitt testified he did not notice the log book on the console, while the defendant testified that he always kept the log book in a holder in the driver’s door. He also stated that the pills were in his briefcase and not in the log book.

In denying the defendant’s motion to suppress, the trial court found the search involved was incidental to a lawful arrest. We have not been favored with a brief from the State at this juncture but we note that in argument to the trial court, the Assistant District Attorney conceded that the search and seizure could not be sustained.on the basis of having resulted from an inventory, and rather relied on the “plain view” exception.

The search and seizure here cannot be sustained as being a search incident to a lawful arrest. While the United States Supreme Court held in New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), that the police may search the passenger compartment of a vehicle, including the contents of containers therein, contemporaneous to an arrest, the Louisiana Supreme Court has specifically stated in State v. Hernandez, 410 So.2d 1381 (La.1982) that Belton does not apply where the defendant has been removed from the scene.

Thus, only if the seizure is valid as a plain view exception may it be sustained. In order for a plain view seizure to be sustained, the intrusion must first of all be lawful — i.e., the officer must lawfully be in a position from which he can view a particular area. Secondly, incriminating evidence must be inadvertently discovered— i.e., the officer must not know in advance of the location of the evidence nor have formulated an intent to seize it. Finally, there must be a reasonable probability that the item viewed is incriminating evidence or contraband. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Texas v. Brown, U.S. -, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983).

It is clear in this case that the second and third criteria for the “plain view” exception are not at issue, if the testimony of Lt. Wiggins is accepted. While the trial judge did not specifically so state, the tenor of his reasons for judgment seem to imply that he was operating from the version of events as related by Lt. Wiggins. In any event, we accept that version as the most plausible. The defendant was obviously not in control of his faculties at the time of his arrest. Furthermore, he denied on initial questioning at the motion to suppress that the pills even existed. It was only after a conference with his counsel that he stated that they were in the truck. Also, there were two drivers from the same company at the scene when Trooper Bobbitt arrived. The defendant, in our view, was evasive when queried about their identity, stating that the company had approximately 100 drivers and that he did not know all of their names. He certainly had more than an ample opportunity to ascertain their names from the time of his arrest to the date of this hearing.

Therefore, we determine that the pills were inadvertently discovered by Lt. Wiggins in his examination of the log book. Obviously, it was readily apparent that the pills were contraband. The dispositive issue, then, is the threshold criteria of the “plain view” exception. Was the intrusion lawful and was Lt. Wiggins in a place where he had a right to be? More simply stated — was his examination of the log book appropriate under the circumstances?

Lt. Wiggins testified that he examined the log book in an effort to obtain some explanation for the defendant’s erratic behavior. He was interested in what distances the defendant had been driving over what period of time.

The log book, which is maintained by the driver, is required by federal regulation of the Interstate Commerce Commission. 49 CFR, § 395.8 (1983). The ICC sets by regulation the number of hours a driver can safely operate his vehicle without a break. 49 CFR, § 393 (1983). The log sheets are filed regularly with the driver's home terminal, and then forwarded to the carrier’s principle place of business. The records must be retained for 12 months and are subject to inspection by the designated agents of the Commission. 49 U.S.C. § 11144 (1982).

Since a warrantless search and seizure occurred in this case, the burden is on the State to show that this action was justified under an exception to the warrant requirement of the Fourth Amendment of the United States Constitution, and Art. 1, § 5 of the Louisiana State Constitution. State v. Hatfield, 364 So.2d 578 (La.1978). In this case the State argued at the motion to suppress that the defendant had no expectation of privacy in the log book and contended that the log book was kept for the purpose of law enforcement officer’s inspection. The State put on no evidence that justifies this statement, and as we previously noted, has not favored us with a brief to expound on this argument or cite authority showing the State officer’s right to examine the log book under these circumstances.

Our research has revealed little jurisprudence on the subject. We are aware of Midwest Growers Co-Op Corporation v. Kirkemo, 533 F.2d 455 (9th Cir.1976), which holds that for the Commission to enforce its statutory right to inspect these records it must seek mandatory injunction in the district court. Midwest Growers thus holds that the Commission has no statutory authority to issue an administrative search warrant.

Obviously this jurisprudence is of little assistance. Since the burden is on the State to establish a valid exception to the warrant requirement and since it has not done so either evidentiarily or jurispruden-tially, we have no recourse but to reverse the judgment of the trial court.

For the reasons aforesaid, the ruling of the trial court on the motion to suppress is reversed. Accordingly, the conviction and sentence are likewise reversed and this cause is remanded to the district court for further proceedings not inconsistent herewith.

REVERSED and REMANDED.

      . State v. Crosby, 338 So.2d 584 (La.1976) allows the entering of a plea of guilty and the reservation of the right to appeal the overruling of a motion to suppress.

      . Prior to Texas v. Brown, the third requirement was generally considered to be that it be "readily apparent" that the item seized was either evidence or contraband. Texas v. Brown modified this requirement. However, from our reading of that opinion, we are unable to find a ready label for the third requirement. Thus, the characterization of that requirement as a "reasonable probability" is the author’s interpretation of Texas v. Brown.


author: PRICE, Judge.

text:
    Rebecca L. CAMPBELL, et al., Respondents, v. CONTINENTAL-EMSCO COMPANY, et al., Scott Insurance Agency, Inc., Relators.
    No. 15791-CW.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 1984.
    Writ Denied March 16, 1984.

      Lunn, Irion, Switzer, Johnson & Salley by Charles W. Salley, Michael S. Hubley, Shreveport, for relator Scott Ins. Agency, Inc.
    Brumfield & Brumfield by William P. Brumfield, H. Alva Brumfield, III, Baton Rouge, for respondents Rebecca L. Campbell, et al.
    John Hill, Jr., Lafayette, for defendant Continental-Emsco Co., et al.
    Before PRICE, HALL and JASPER E. JONES, JJ.
   PRICE, Judge.

This case arises in connection with the wrongful death and survival action brought by plaintiff as a consequence of her husband’s death in an accident on an oil rig. Among the numerous defendants named by plaintiff are Ouachita Machine Works, Inc., Employers Fire and Marine Ins. Co., liability insurer of Ouachita, Scott Insurance Agency, and Scott’s errors and omissions insurer. Employers and Scott were added by supplemental and amending petition. Employers denied coverage of the accident based on a policy exclusion and was dismissed as a defendant by the trial court. Scott filed an exception of no cause of action which was overruled by the trial court. This court granted Scott’s application for a supervisory writ to consider the correctness of the trial court’s ruling on the exception of no cause of action.

In order to determine whether the plaintiff has stated a cause of action against a particular defendant, the factual allegations of the petition must be accepted as true. La.C.C.P. Article 927(4); Ruffin v. Strange, 434 So.2d 1200 (La.App. 1st Cir.1983). The facts of this case as established by plaintiffs’ allegations are as .follows.

Plaintiffs’ decedent was struck and killed by a pop-off relief valve and mud pump which suddenly shot from the landbased oil rig on which he was working. Ouachita Machine Works had installed, made up, welded and/or sweated the pump and relief valve to the rig and its negligence in performing this job was the cause of the accident.

Ouachita had engaged Scott Insurance Agency to procure liability insurance for the business. Scott placed this insurance with Employers which issued a liability policy containing an endorsement excluding coverage for completed operations and products hazards. There is thus no coverage under the policy for Ouachita’s negligence in the installation of the relief valve and mud pump which struck and killed plaintiff’s decedent.

Plaintiff contends defendant Scott was negligent in securing for Ouachita a liability policy which excluded coverage for completed operations and that she has been damaged by the failure to provide proper coverage. She further claims the right to proceed directly against Scott’s errors and omissions insurer under the direct action statute. Thus the issue for our resolution is whether an injured tort victim has a cause of action against the insurance agent of the tortfeasor who injures him for the negligent failure to procure full liability insurance coverage.

It has long been the recognized public policy of this state that a policy of liability insurance is issued for the protection of the general public as well as for the security of the insured. Hughes v. Southeastern Fidelity Insurance Co., 340 So.2d 293 (La.1976); West v. Monroe Bakery, 46 So.2d 122 (La.1950). The Louisiana Civil Code provides in Article 1890 that a person may, in his own name, make some advantage for a third person the condition or consideration of a contract, and the contract cannot be revoked if the third person consents to avail himself of the advantage stipulated in his favor. A liability insurance contract is recognized as a stipulation by the insured in favor of a party injured due to the fault of the insured. Dixon v. Shockley, 356 So.2d 96 (La.App. 1st Cir.1978), writ ref. 358 So.2d 642 (La.1978).

Plaintiff cites numerous eases concerning agreements containing stipulations in favor of third parties, but none in which the relationships between the parties correlate to the instant situation. Substantial reliance is placed on the case of Sturcke v. Clark, 261 So.2d 717 (La.App. 4th Cir.1971). In Sturcke, the subrogee of a plaintiff in a tort action was allowed to recover from an insurance agent who had collected a premium for liability as well as collision insurance and had, through clerical error, failed to procure the liability coverage. The court there found the agent undertook an obligation for the benefit of third parties citing La.C.C. Art. 1890 and found plaintiff had a right of action. We are not in accord with the holding in Sturcke and do not feel it is controlling on the issue before us.

Also defendant cites Evans v. Evans, 410 So.2d 729 (La.1982); State of Louisiana ex rel. Guste v. Simoni, Heck & Associates, 331 So.2d 478 (La.1976); Succession of Killingsworth, 292 So.2d 536 (La.1973). Those cases involved contracts securing specific benefits to be conferred upon specific persons or classes of persons in the event of a particular occurrence. The alleged agreement relied upon here was a contract between the Scott agency, as agent and/or broker, and its client, Oua-chita, for the purpose of securing general liability insurance to protect the client. While the performance of this contract would ultimately and indirectly be to the benefit of others who received a benefit from the insurance contract itself, such a result is remote from the formation of the agency contract.

Such a contract for services imposed an obligation upon defendant Scott to act as a reasonable and prudent insurance agent in procuring the insurance desired by the client. It exists separate and apart from the contract of insurance procured pursuant to it and is not governed by the same public policy considerations surrounding liability insurance.

Plaintiff contends she was injured as a result of Scott’s breach of duty to Ouachita. However, since Scott’s duty to use due care in procuring proper insurance for Ouachita is a creation of the agreement between them, it is our view that this duty does not encompass the risk of harm to this plaintiff in the manner alleged in her petition. See Hill v. Lundin & Assoc., Inc., 260 La. 542, 256 So.2d 620 (La.1972). This is an obligation owed directly to the client whose interest in seeking general liability insurance is to protect its business from conceivable financial loss due to claims against it. It does not extend to include a duty to protect the general public from the risk of harm by Ouachita for which there is no coverage and for which Ouachita might be unable to respond in damages.

We note, as an aside, that plaintiff does not allege Ouachita’s inability to pay, which must be shown in order to prove the alleged harm. However, an allegation of this nature would not affect the outcome in the instant case. We do not perceive the contractual relationship between defendant and Ouachita as one for the benefit of this plaintiff since it creates no obligation owed by the defendant to the plaintiff. It affects only the parties to that contract and is enforceable by them alone. La.C.C. Articles 1889, 1901.

The errors and omissions insurance policy sued upon here was issued to compensate the agency’s clients in the event of a breach of its professional duty to them. Scott’s clients, those who might foresee-ably be harmed by a breach of that duty, are the third party beneficiaries of that insurance contract. While Ouachita might have a claim under this policy for any damages sustained by it arising from Scott’s alleged professional negligence, the plaintiff who is neither a party nor a third party beneficiary has no such claim. La. C.C. Articles 1889, 1901, and 1902.

We therefore find the plaintiff’s petition fails to state a cause of action against defendant Scott.

For the reasons assigned, the writ granted is made peremptory and the trial court’s ruling herein under review is reversed and the exception of no cause of action filed by defendant Scott Insurance Agency is sustained and plaintiff’s demands against it are dismissed with prejudice. Costs of this review are assessed to plaintiff.

REVERSED.