text:
    Mary R. HILDEBRAND and Charles Hildebrand v. Arthur C. SCHNELL, Watson Pierce, Virginia Cheramie, Barry J. Bordelon, Lumberman’s Mutual Casualty Insurance Co., Inc., Alabama Farm Bureau Mutual Insurance Co., Inc., Shelter Mutual Insurance Company, A/K/A MFA Mutual Insurance Company, Allstate Insurance Company, and State Farm Mutual Automobile Insurance Co.
    No. CA 0792.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 10, 1983.
    Thomas R. Blum, Kenneth R. Bowen, Simon, Peragine, Smith & Redfearn and Steven M. Lozes, Lozes & Lozes, New Orleans, for plaintiffs-appellees.

      Burt K. Carnahan, Sidney J. Angelle, Lobman & Carnahan, Metairie, for plaintiffs-appellees-respondents Mary Hildebrand and Charles Hildebrand State Farm Mut.
    R. Henry Sarpy, Jr., Earl A. Bridges, Jr., Jones, Walker, Waechter, Poitevent, Carr-ere & Denegre, New Orleans, for defendants-appellants Arthur C. Schell and Lumberman’s Mut.
    Charles E. Cabibi, Cabibi & Cabibi, New Orleans, for third party intervenor-appel-lant.
    Before SCHOTT, WARD and CIACCIO, JJ.
   SCHOTT, Judge.

This suit arose out of an accident involving five automobiles. Its date was February 18, 1981. The main demand was filed by Mr. and Mrs. Charles Hildebrand against the other four drivers and their insurers, including Watson Pierce and his insurer, Alabama Farm Bureau Mutual Casualty Insurance Company. The defendants filed re-conventional and third party demands against one another. On October 14, 1982, Mrs. Melonese Davis Pierce filed what she styled a “Third Party Petition” against the five drivers and their insurers alleging that she was a passenger in Pierce’s automobile and seeking damages for personal injuries. Four of the five sets of defendants (not Pierce and Alabama) responded with peremptory exceptions of no cause of action and prescription, LSA-C.C.P. Art. 927. The trial court overruled the exceptions of no cause of action but sustained the exceptions of prescription and dismissed Mrs. Pierce’s petition. She has appealed and all defendants-exceptors have answered the appeal re-urging their exceptions of no cause of action. The principal issues in the case are 1) whether Mrs. Pierce’s so called third party demand is in fact an intervention, C.C.P. Art. 1091 and 2) if so, whether C.C.P. Art. 1067 protects her claim from the one year prescription of C.C. Art. 3536.

Although styled a third party petition Mrs. Pierce’s claim is simply one for her own damages incurred in the accident. Since it is not a claim for contribution or indemnity in the event she is cast in judgment on the main demand it cannot be considered a third party demand. C.C.P. Art. 1111, Union Service & Maintenance v. Powell, 393 So.2d 94 (La.1980). However, Mrs. Pierce’s claim has the characteristics of an intervention, C.C.P. Art. 1091, viz., Mrs. Pierce is a third person to the action seeking to enforce a right related to or connected with the pending action by opposing both plaintiffs and defendants. Thus, we consider her action an intervention regardless of her erroneous classification of it as a third party demand. See Union Service & Maintenance v. Powell, supra.

We next consider whether Mrs. Pierce’s claim is barred by the one year prescription of C.C. Art. 3536. In support of her argument she relies first on this court’s application of C.C.P. Art. 1067 in Washington v. Goldate, 411 So.2d 1224 (La.App. 4th Cir.1982). The article provides as follows:

“An incidental demand is not barred by prescription or peremption if it was not barred at the time the main demand was filed and is filed within ninety days of date of service of main demand or in the case of a third party defendant within ninety days from service of process of the third party demand”

Washington involved these critical dates:

July 5, 1978 — Accident in which Cort’s two employees were respectively injured and killed.

July 3, 1979 — Damage suit filed by injured employee and decedent’s survivors against adverse driver and insurers.

July 10, 1979 Service on adverse insurers.

September 17, 1979 — Service on adverse driver.

December 14,1979 — Intervention by Cort to collect damage to its truck.

The court reasoned that an intervention is an incidental demand under C.C.P. Art. 1031, and, therefore, Cort’s intervention was not barred by prescription since it was filed within ninety days of service of the main demand on the adverse driver.

In Moraus v. State, through Dept. of Transp., 396 So.2d 596 (La.App. 3rd Cir.1981) the court was confronted with the same question. There the following chronology was pertinent:

December 5, 1978 — Accident in which Govie Moraus was injured while a guest passenger in his son’s truck.
July 19,1979 — Damage suit filed by Gov-ie Moraus against the Department of Transportation.
September 19, 1979 — Third party demand filed by Department against young Mo-raus and the other driver, Armstrong. Young Moraus served with third party petition.
September 25, 1979 — Armstrong served. December 21, 1979 — Reeonventional demand filed by Armstrong against the Department.
May 19,1980 — Intervention filed by Anne Marie Lacy a passenger in Armstrong’s car, against the Department for damages she sustained in the accident.

In considering exceptions of prescription filed by the Department against Armstrong and Lacy the court overruled the exception against Armstrong, reasoning that she filed her reeonventional demand within ninety days after the Department’s third party demand was served on her pursuant to C.C.P. Art. 1067. However, as to Lacy’s claim, the court stated as follows at page 598:

“This article, however, is not applicable to Ms. Lacy’s cause of action. By its plain terms it applies to a defendant or a third party defendant who files an incidental action in the suit within 90 days of the service on such party of a main demand or a third party demand. Ms. Lacy was not a party to the suit until her intervention was filed and, of course, was not served with any demand prior thereto. Therefore, neither the 90 day period nor the other provisions of the codal article have any relationship with her situation.”

We are convinced that this interpretation is correct. Art. 1067 is designed to enable a litigant who is brought into a suit after prescription would normally have run to assert his claim against the party who brought him in as well as other parties. But it is not designed to enable a virtual stranger to the litigation to enter the law suit and assert claims which are independent of those being litigated. This interpretation is consistent with the following language from Louviere v. Shell Oil Co., 440 So.2d 93 (La.1983):

“The filing by one party of a suit to recover his damages usually does not affect the running of prescription against other parties who sustained separate damages in the same accident .... ”
“However, when a suit by a second party states a different cause of action than the suit by the first party, although each cause of action is based in part on common facts, the first suit does not interrupt prescription as to the subsequent cause of action .... ”

We are aware that in the Moraus case, as was noted in Romero v. Richard, 425 So.2d 355 (La.App. 3rd Cir.1982), the court also made this observation following the language quoted above:

“Also, we might point out that under any interpretation of Article 1067, Ms. Lacy is unable to rely thereon as a bar to the one year prescription that accrued against her tort claim as her incidental action was not filed within 90 days of service of process of either the main or the third party demands on any party in this suit.”

Assuming for the sake of argument that a third party such as Mrs. Pierce could assert an independent cause of action under C.C.P. Art. 1067 her claim is nonetheless barred by the article’s limit of ninety days from service of the main demand or of the third party demands on any party in the suit. While plaintiffs, Mr. and Mrs. Hildebrand, did not effect service of their demand on Barry Bordelon, one of the drivers involved in the case, when Virginia Cheramie, another driver, and her insurer answered the Hildebrand petition, they filed a third party demand on Bordelon and had him served with a copy of the main demand in April, 1982. Thus, Mrs. Pierce’s, intervention filed in October, 1982, was not filed within ninety days of the date of service of the main demand or third party demand on any party. For this reason, our decision that Mrs. Pierce’s intervention is barred by prescription does not require an overruling of Washington v. Goldate, supra.

Appellant contends that R.S. 9:5801 supports her position by providing:

“All prescriptions affecting the cause of action therein sued upon are interrupted as to all defendants ... by the commencement of a civil action ...”

However, in Brown & Root v. Missouri Pac. R. Co., 381 So.2d 1255 (La.App. 4th Cir.1980) we stated that this statute “only saves a late-filer from prescription when the late-filer’s own cause of action has been sued upon in a timely-filed demand.” As in the cited case, this is not our situation in the instant case. Appellant’s damages were not sued for by any timely petition filed by the other parties to this litigation.

Finally, appellant’s reliance on Allstate Ins. Co. v. Theriot, 376 So.2d 950 (La.1979) is misplaced. There the court considered the question of prescription as to an intervention filed by Moore after the expiration of the prescriptive year in a timely-filed suit by his workmen’s compensation carrier in which the carrier was seeking to recover benefits it paid to Moore. Holding that Moore’s claim was not prescribed the court reasoned on page 954 that:

“... to interrupt prescription the first suit must not only be based upon the same factual occurrence as is the subsequent claim by amended petition or intervention; the subsequent claimant must also be closely connected in relationship and identity of interest with the original plaintiff.

Appellant is not closely connected in relationship and identity of interest with the other parties. She is a stranger seeking her own individual damages.

Because we have concluded that Mrs. Pierce’s claim had prescribed and was, therefore, correctly dismissed we need not consider the issue raised by appellees in their answer to the appeal as to whether the trial court correctly overruled appellees’ exceptions of no cause of action.

The judgment appealed from is affirmed.

AFFIRMED.


source: Caselaw Access Project

author: GARRISON, Judge.

license: Public Domain

text:
    Joyce E. BENCHABBAT and International Property Management, Inc. v. FIDELITY ACCEPTANCE CORPORATION d/b/a Courtesy Financial Services, Inc.
    No. CA 0806.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 10, 1983.

      Lanny R. Zatzkis and Lynne W. Wasser-man, Fawer, Brian, Hardy & Zatzkis, New Orleans, for plaintiffs-appellees.
    Richard J. Boutall, Metairie, Maurice E. Clark, Jr., New Orleans, for defendants-appellants.
    Before GARRISON, BARRY and BYRNES, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court rendered in accordance with a commissioner’s report, granting judgment in favor of plaintiff Joyce Elms Benchabbat and awarding damages in the amount of $5,850.00 plus legal interest and attorneys fees, due to a breach of a lease between plaintiff and defendant, Fidelity Acceptance Corporation d/b/a Courtesy Financial Services, Inc. From that judgment, which we affirm, defendant appeals.

On March 22, 1979 plaintiff and defendant entered into a lease commencing April 1, 1979 and terminating March 31, 1980 for the sum of $450.00 a month for the leased premises at 4305 Canal Street, New Orleans. The lease further contained the following typewritten addition:

“165 Lessor hereby grants Lessee an option to renew this lease
166 for an additional one (1) year period under the same terms
167 and conditions as stated herein. Said renewal shall be
168 automatic unless Lessee notifies Lessor in writing and by
169 certified mail of its intent ninety (90) days prior to the
170 expiration of the primary lease term.”

Ronald West, the manager of Fidelity, testified that he had mailed written certified notice of lessee’s intent not to renew the lease on the last day of December of the preceding year; however, he was unable to produce either a copy of the letter or a certified mail receipt. Mr. West did produce letters and receipts for similar correspondence dated January 28, 1980 and February 4, 1980. Those letters, however, are not timely under the lease provisions. The commissioner found that due to the lack of timely notice the lease had been automatically renewed for the term April 1, 1980— March 31, 1981 and awarded $450.00/month rent for that period plus $450.00 rent for the month of March 1-31, 1980, which rent had not been paid.

Appellant further argues that the trial court erred in finding that the lease was renewed because it failed to apply the rule of construction construing the clause in favor of the lessee. We do not agree with this argument. The rule applies where there is an ambiguity in the clause at issue. In the instant case, there is no ambiguity in dispute; the instant case deals solely with the question of proof and evidence presented at trial. Defendant just failed to prove timely notice.

Lastly, defendants argue that the commissioner “sat” on his report for a year and a half and that defendant should not have to pay a year and a half’s legal interest due to the commissioner’s lack of diligence. The record in the instant appeal indicates the date of the hearing as March 30,1981, the date the commissioner’s report was issued as July 23, 1982, and the date the judgment was rendered as October 15, 1982. The record does not indicate, however, any reasons for the delay or whether the delay in question is a normal one. This court feels that in the instant case such evidence would be necessary.

The court notes that it is the general custom of the Civil District Court for the Parish of Orleans to assign to a commissioner complex multi-party litigation requiring a great deal of trial time. The instant case, however, required only one day in which to present all testimony. There may be, however, another reason why Commissioner Ve-sich was assigned in the instant case — perhaps there was an illness or vacancy on the bench at that time. The point is that this court simply does not know and has no evidence pertaining thereto.

Defendant’s remedy on this argument lies not in the instant appeal, but rather defendant has the option of filing a misfeasance/malfeasance action against the commissioner or of bringing this matter to the attention of the Judiciary Commission or other appropriate state or federal authorities.

For the reasons discussed, the judgment of the district court is affirmed.

AFFIRMED.


author: KLEES, Judge.

text:
    STATE of Louisiana v. Eugene TOBIAS, and John Wayne Simmons.
    No. KA-0813.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 10, 1983.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William R. Campbell, Jr., Asst. Dist. Atty., New Orleans, for plaintiff-appellee State of Louisiana.
    Harriette R. Merrell, Slidell, for defendant-appellant John Wayne Simmons.
    Tristan Junius, New Orleans, for defendant-appellant Eugene Tobias.
    Before REDMANN, C.J., and KLEES and BYRNES, JJ.
   KLEES, Judge.

STATEMENT OF THE CASE

The defendants, Eugene Tobias and John W. Simmons, were indicted by a grand jury on December 3, 1981, for the second degree murder of Michael Henry. They were tried on June 15 and 16,1982, and found guilty as charged by a unanimous vote of the twelve member jury. Defendants were sentenced to life imprisonment, without benefit of probation, parole or suspension of sentence, on June 30, 1982. Oral motions for appeal were entered on that date and supplemented by written motions filed July 2, 1982.

STATEMENT OF FACTS

On September 19, 1981, at about 4:00 P.M., Michael Henry was shot outside of Marie’s Bar on the corner of Felicity and Magnolia. He was transported to Charity Hospital where he died at approximately 5:20 a.m.

The initial police investigation failed to turn up any eyewitness to the shooting. However, a subsequent contact from Tyrone Doyle, a cousin of the victim, provided the names of the defendants as suspects and also the identity of an eyewitness, Percy Taylor. The defendants were identified by the street names of “Craft” (John Simmons) and “Gene” (Eugene Tobias), and were picked from a photographic line-up by Taylor.

Veronica Day, an employee of Marie’s Bar, testified that she had arrived at work at seven minutes to 2:00. She saw the victim, whom she did not know, in the company of “Craft” and “Gene”. She then identified the defendant, John Simmons, as “Craft” and Eugene Tobias as “Gene”. At that time, the three were standing on the Magnolia Street side of the barroom and the victim was arguing with the two defendants.

Marie Jackson, the owner of Marie’s Bar, was inside at the time of the shooting. She went to the door and saw who was shot. She had seen the victim earlier inside the bar with the two defendants, who were regular customers.

Percy Taylor testified that he was driving his cab and stopped for a break outside of Marie’s Bar. He was talking with the people outside when he saw Scott being chased down the street by “Craft” and “Gene”. He then received a phone call inside the bar; it was Phillip Scott asking Taylor to come get him because “Craft” and “Gene” were after him. Taylor went back outside and resumed his conversation. “Craft” and “Gene” returned and went around the side of the bar. Taylor then heard an argument and, looking around the corner, saw “Craft”, “Gene” and the victim fussing. Someone named Jacob attempted to intervene. The argument had eased up when “Gene” took a wine bottle and faked it at the victim, who threw up his hands. “Gene” then taunted him about being scared. The bystanders decided the argument was fading, and Taylor got in his cab to leave. “Craft” pulled a pistol, threw it to his face and said, “Now, run your head now, bitch.” “Gene” said, “Keep on talking, you’re going to die, bitch.” Jacob hollered, “Bro, that ain’t called for. You don’t have to do none of that.” Then “Craft” shot the victim. The defendants backed up down the street with the gun pointed and the onlookers left quickly. Taylor then left, picked up Phillip Scott and returned to the scene. Scott was then confronted by “Craft” and “Gene” who had changed clothes and come back. Scott backed towards the police and everyone assumed he was going to tell the police what happened. Taylor then left. The witness identified the two defendants in the courtroom and named “Craft” — John Simmons — as the one who shot the victim.

John Simmons testified in his own defense that he was at Marie’s from 10:00 to 11:00. He and Eugene then left, picked up two quarts of beer and went into the project to finish working on their parade equipment for the Young Men Olympics Social Aid Club. This took place at Eugene’s house, where Eugene lived with his mother, father, sister and niece. They later heard a shot and decided to walk around the corner and see what had happened. After about twenty minutes, they returned to Eugene’s house and Simmons left to go home. The defendant admitted to pleading guilty to simple battery in 1976 and possession of stolen property in 1979. He denied ever owning a gun and never saw Eugene with one. He denied ever telling a girl named Debra that he would pay $500 to anybody who would say he wasn’t there.

SUFFICIENCY OF EVIDENCE

The defendants were convicted of second degree murder which is defined in LSA-R.S. 14:30.1 as: The killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm. Evidence presented at the trial established that Michael Henry died from a gunshot wound to the head which was fired at close range. Two witnesses testified that Henry was seen in the company of the defendants several hours before he was murdered. An eyewitness testified that he saw the actual shooting, that both defendants were harassing the victim and that defendant, Simmons, fired the fatal shot.

Under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), any rational trier of facts, viewing the evidence in the light most favorable to the prosecution, could have found in this case that the state proved the essential elements of the crime beyond a reasonable doubt. See State v. Fuller, 414 So.2d 306 (La.1982).

ASSIGNMENT OF ERROR NO. 1

Assignment of Error No. 1 was neither briefed, nor argued, accordingly we consider it abandoned.

ASSIGNMENT OF ERROR NO. 2

Defendants contend that the trial judge erred in overruling defense objections to the prosecutor’s questioning the defendant as to alleged attempts to bribe witnesses when there was no showing that any such attempts took place.

While an attempt by an accused to induce a witness to testify falsely or to fabricate testimony may be introduced in evidence against the defendant, there must be some evidence to connect the accused therewith or to show that the attempt by a third person was made with the authorization of the accused. State v. Graves, 301 So.2d 864 (La.1974). In the instant case, outside of some vague allusions to witnesses being afraid of the defendants, there was no testimony introduced to show any attempt at bribery and/or intimidation. The prosecutor’s questions were unsubstantiated and alluded to a person who never appeared at the trial. We find that the prosecutor’s questions were improper and the trial court should not have permitted them, however, they still would not constitute grounds for reversal. The objectionable exchange was very limited and, in view of the eyewitness’ testimony to the crime, it is unlikely to have influenced the jury in reaching its verdict.

ASSIGNMENTS OF ERRORS 3 AND 4

Defendants contend that the trial court erred in permitting the prosecutor to question the defendant, Simmons, about the circumstances surrounding his prior convictions and to question the defendant’s mother as to prior charges against the defendants. It is well established that the state may cross-examine a witness (including a defendant testifying on his own behalf) as to the details of a prior offense for which the witness was convicted. State v. Jackson, 307 So.2d 604 (La.1975); State v. Brown, 371 So.2d 746 (La.1979). Such inquiry, however, should be limited to questioning relative to prior convictions and does not create a standard for questioning a witness about prior arrests or charges. State v. Connor, 403 So.2d 678 (La.1981). The questions posed by the prosecutor tended to extend beyond the range of the trial court’s permissible discretion. Defense counsel’s objection should have been sustained.

This improper questioning does not mandate reversal, however, as the record reveals overwhelming evidence of the defendant’s guilt and there is no reason to find that the improper questioning was a decisive factor in the jury’s deliberation.

Accordingly, the defendants’ convictions and sentences are hereby affirmed.

AFFIRMED.


author: BYRNES, Judge.

text:
    STATE of Louisiana v. Willie PETERS.
    No. KA 0544.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 10, 1983.

      Harry F. Connick, Dist. Atty., Orleans Parish, John H. Craft, Asst. Dist. Atty., New Orleans, for plaintiff-appellee.
    Philip E. O’Neill, Gretna, for defendant-appellant.
    Before BYRNES, GULOTTA and WARD, JJ.
   BYRNES, Judge.

Defendant Willie Peters appeals his conviction on a charge of simple rape, a violation of L.A.R.S. 14:43, urging seven assignments of error. We find no merit in any of these assignments and affirm his conviction.

FACTS

The victim in this case is a 29 year old mentally retarded female who functions at-a mental age of about six or seven. At approximately 7 P.M. on Feb. 17, 1982, the victim was found by her brother-in-law near some railroad tracks by her home. She had been missing for about an hour and a half. When she was found the victim was somewhat nervous and had scratches on her left elbow and knee and on her lower back. Her undergarments and sanitary napkin were hanging from a nearby tree.

Upon returning to a neighbors home the victim became more agitated and indicated that she had been raped. The police were summoned and the victim, accompanied by her mother and brother-in-law, was taken to headquarters where a photographic lineup was conducted. At this line-up the victim identified a picture of the defendant as the man who had raped her. On the basis of this identification the police obtained a warrant and arrested the defendant.

That same evening the victim was taken to Charity Hospital where a medical examination revealed evidence of trauma from the scratches on the victim’s elbow and back, but no laceration within the genital area. The victim was menstruating at the time of the incident and as a result tests for seminal fluid and spermatazoa were negative.

At trial the officers who investigated the case testified the victim was emotionally upset but identified the defendant in the photographic line up. They also gave testimony concerning their investigation of the incident. The victim’s mother and brother-in-law testified as to the sequence of events leading to the incident. The victim testified on her own behalf. Because of her mental condition the trial judge first allowed her to give testimony and then examined her outside the presence of the jury to determine her competency. After ruling that the victim was competent, the judge put her under oath so that her previous testimony would be sworn. A six man jury returned a unanimous verdict of guilty at the conclusion of the trial.

ASSIGNMENT OF ERROR 1

Defendant’s first assignment of error relates to statements made by the assistant district attorney during the voir dire examination. The statement complained of reads as follows:

After you are selected as jurors the only one you can ask question of is the judge. So therefore at this time we will speak to each other. This charge is simple rape. It is a simple rape because the victim in this matter is a mentally retarded girl. The law states that because of her condition, intercourse proven beyond a reasonable doubt to you, is a crime against her because she does not have the mental ability to reject—

Following an objection by defense counsel the trial judge ruled as follows:

She’s not testifying, counsel. I believe [she] is attempting to explain to the jury what law is involved. Of course, the jury must be instructed at this point that they will take their law only from the court, and not from counsel. Counsel may counsel on what they think the law is, but the — -if you are selected as jurors you are not to take your law from any place but the court at the conclusion of this trial, proceed.

The defense argues that this exchange prejudiced the jury against the defendant. We do not agree.

The trial judge is given wide discretion in ruling on the conduct of a voir dire examination and his ruling should not be disturbed unless there is an abuse of that discretion. State v. Straughter, 406 So.2d 221 (La.1981), State v. Sylvester, 388 So.2d 1155, 1158 (La.1980).

Counsel when questioning jurors, should not assume as true any facts that will obviously be in issue, as in the instant case when the Assistant District Attorney told the jury that the victim is retarded and that she did not have the mental capacity to consent to intercourse. While the Assistant District Attorney’s comments before questioning jurors far exceeded permissible introductory remarks, we do not believe it was reversible error. Considering the voir dire as a whole, the jurors could only conclude that the statements made by the Assistant District Attorney were merely expressions of what she hoped to prove and not statements of established fact. Under these circumstances, we do not feel the trial judge’s ruling constituted reversible error.

ASSIGNMENT OF ERROR 2

Defendant next objects to the photographs used in the line up in which the victim identified him. In State v. Stewart, 389 So.2d 1321 (La.1980), the Supreme Court set out five factors to be considered when evaluating the reliability of such an identification. These factors are:

1.) The opportunity of the witness to view the criminal at the time of the crime;
2.) The witnesse’s degree of attention;
3.) The accuracy of the prior description;
4.) The level of certainty demonstrated at the confrontation;
5.) The time between the crime and the confrontation.

In this case the victim had ample opportunity to observe the defendant both before and during the commission of the crime. At the time of the line up she was very definite about her identification of the defendant. The identification occurred within hours of the commission of the crime. Moreover,, there was no evidence presented to indicate that the line up was unduly suggestive or conducted in an improper manner. The officers who conducted the line up testified that the photos were arranged in two rows of three. The victim was instructed not to pay attention to how the photos were arranged but to concentrate on whether or not any of the photos were of her attacker. Under these circumstances we can see no error in the admission of these photographs.

ASSIGNMENT OF ERROR 3

In this assignment defendant contends that it was error to admit the perpetuated testimony of Dr. Tue Nguyen, the physician-who treated the victim at Charity Hospital on the night of the crime. Defendant argues that in the absence of a showing by the State that Dr. Nguyen was unavailable in spite of diligent efforts to obtain his presence the perpetuated testimony should not have been admitted. There is some merit to this contention.

The record reveals that the efforts made by the State to locate the Doctor fell far short of the diligent effort required by both Federal and State jurisprudence. Apparently two phone calls were the only efforts made by the State to locate Dr. Nguyen. When those calls produced no results the State made no further effort to locate him.

The right of a defendant to confront the witnesses against him is constitutionally guaranteed. The confrontation clauses of both the Federal and State constitution prohibit the introduction of transcribed testimony from a former proceeding unless the State proves that the witness is not available for trial despite good faith, diligent efforts to locate him. United States Constitution, Sixth Amendment; Louisiana Constitution of 1974, Art. 1. Section 17. State v. Robinson, 423 So.2d 1053 (La.1982). The purpose served by the confrontation requirements have been summarized as follows:

“Confrontation (1) insures that the witness will give his statements under oath-thus impressing him with seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury; (2) forces the witness to submit to cross examination, the ‘greatest legal engine ever invented for the discovery of truth’; (3) permits the jury that is to decide the defendants fate to observe the demeanor of the witness in making his statement, thus aiding the jury in assessing his credibility.”

California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970).

While we do not question the principle underlying the confrontation requirement or the importance of that right to our system of criminal justice, we feel that the unique circumstances of this case do not present reversible error.

Dr. Nguyen’s testimony was so inconclusive that it has almost no probative value. The Doctor was unable to determine if any sexual activity had taken place, nor did he express an opinion as to how or where the scratches on the victim’s elbow, knee and back had occurred. In fact, he testified that the scratches could have been caused by any number of things and could not say how they were incurred. He did not make an evaluation of the victim’s mental capacity nor did he express an opinion as to the truth or the falsity of her statements concerning the incident.

Moreover, in arguing that the evidence was not sufficient to convict, defense counsel relies on Dr. Nguyen’s testimony as showing that the victim was not raped. This reliance by the defense on the incon-elusiveness of the Doctor’s testimony reinforces our belief that the defendant was not prejudiced by its admission. We do not mean to imply that admission of perpetuated testimony is always harmless error. However, in the unique circumstances presented by this case we cannot see how the defendant was prejudiced by the admission of Dr. Nguyens testimony. Thus we conclude that this assignment of error is without merit.

ASSIGNMENT OF ERROR NO’S 5 & 6

These assignments both deal with what is essentially one issue: the competency of the victim to testify. Defendant objects first to the fact that the victim was not placed under oath before she testified. He then objects to the trial judge having held a competency hearing outside the presence of the jury, and to his conclusion that the victim was competent to testify.

As to the first objection we note that the victim in this case is in essence a child. While her physical age is 29 the evidence establishes that her mental age appears to be six or seven. In State v. Pace, 301 So.2d 323 (La.1974), the court held that a formal oath is not always a prerequisite to the receipt of testimony by young children. Much discretion is left to the trial judge in such cases. The policy underlying the requirement that testimony be given under oath is to impress upon the witness the seriousness of the matter on which he is testifying. When dealing with a child or an individual such as the victim in this case the concept of an oath may be incomprehensible. However, an appreciation of what it is to lie and what consequences result from a lie serves the same purpose as an oath; to impress upon the witness the importance of telling the truth.

In this case the State conducted a lengthy examination of the victim in an attempt to establish that she knew the difference between the. truth and a lie. Because of the victim’s mental handicap it was difficult to establish her appreciation of these concepts. However, the trial judge, who himself questioned the victim and observed her demean- or, was satisfied that she knew the difference between the truth and a lie and would tell the truth. When asked if she had spoken the truth the victim replied affirmatively. Article 14(B) of the Louisiana Code of Criminal Procedure provides that:

“Every witness shall be sworn or affirmed to speak the truth and nothing but the truth.”

We feel that the victim’s responses to questions concerning the truth of her statements were sufficient to constitute an affirmation under this article. See State v. Pace, supra.

As to the defendant’s contention that the trial judge erred by conducting a competency examination outside the presence of the jury, we note that such a determination is a question of law and not a factual matter which a jury must decide. La.-R.S. 15:469. A ruling by the trial judge that a person is competent to testify will not be disturbed in the absence of manifest error. State v. Arnaud, 412 So.2d 1018 (La.1982). The trial judge questioned the victim as did the assistant district attorney in charge of the case. While the victim’s answers were not always responsive, we conclude that, taking her answers together, the trial judge was correct in ruling that she was competent to testify as to what had taken place on the night in question. Moreover, defense counsel did not attempt to cross examine the victim. While this may be a matter of trial strategy, the record shows that the defense did not demonstrate that the victim was incompetent to testify.

We conclude that it was not error for the trial judge to forego the administering an oath to the victim. We further conclude that he was correct in finding that she was competent to testify.

ASSIGNMENTS OF ERROR 7 & 8

By these assignments defendant argues that the evidence presented at trial was not sufficient to support a conviction. We disagree.

On appeal defendant argues that there was no medical or scientific evidence which would indicate that a rape took place. As discussed earlier, the testimony of the examining physician was inconclusive. The samples taken from the victim on the night of the rape proved to be negative. However, the lab technician who conducted these tests testified that such a result was not unusual in females such as the victim, who were menstruating at the time the samples were taken.

The defendant further argues that he was falsely identified by the victim’s use of the name Ronnie. It appears from the record that the victim uses the name Ronnie as a trade name for men in general. Counsel for defendant attaches great significance to this fact and argues that the defendant has therefore not been identified. We do not agree. On the night of the incident the victim clearly identified the defendant in a photographic line up. See the discussion under assignment of error # 2 above.

Defendant next argues that because the victim was found competent to testify she was also capable of understanding the nature of the sexual act and therefore one of the essential elements of the crime of simple rape was not established. This argument is totally without merit. La.-R.S. 14:43 defines simple rape and reads in pertinent part:

Simple rape is a rape committed where the anal or vaginal sexual intercourse is deemed to be without the lawful consent of the victim because it is committed under one or more of the following circumstances: ... (2) Where the victim is incapable, through unsoundness of mind, whether temporary or permanent, of understanding the nature of the act; and the offender knew or should have known of the victim’s incapacity; or ...

It seems beyond question that competency to testify is not the same as the capacity to understand the nature of the sexual act. There is a vast difference between understanding the distinction between the truth and a lie and understanding the nature and consequences of a sexual assault.

The lack of medical evidence of rape is not dispositive of the question of sufficiency of evidence. La.R.S. 14:41 defines the crime of rape and states that any sexual penetration, however slight, is sufficient to complete the crime. In this case the evidence of penetration consisted entirely of the testimony of the victim. The record reveals the victim testified that her attacker “Put thing in me” (indicating her vagina) and that she told him “I want go home” while he was “Sticking me right in here”. The jury apparently found this testimony to be credible since a unanimous verdict of guilty was returned.

In reviewing the record for sufficiency of evidence this court views the evidence in the light most favorable to the prosecution to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). We have concluded that the evidence presented was sufficient to allow a rational trier of fact to find the essential elements of the crime as charged.

For the foregoing reasons the defendant’s conviction is affirmed.

AFFIRMED.


author: CIACCIO, Judge.

text:
    Robert L. BROWN v. RUDY SMITH SERVICE, INC., a/k/a Rudy Smith Wrecking Service Company.
    No. CA-0743.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 10, 1983.

      Michael A. Britt, Leon A. Crist, Leach & Paysse, New Orleans, for defendant-appellant.
    Ronald P. Nabonne, New Orleans, for plaintiff-appellee.
    Before SCHOTT, CIACCIO and WARD, JJ.
   CIACCIO, Judge.

Defendant-appellant, Rudy Smith Service, Inc., was held responsible by the trial court for damages to a 1973 Chevrolet Corvette owned by plaintiff-appellee, Robert L. Brown. Plaintiff alleged the damages were caused by defendant’s improper towing of the vehicle. The trial court agreed and awarded $2,433.02 to plaintiff as compensation for damages to the vehicle, inconvenience and loss of use.

Defendant has appealed suspensively from the judgment of the trial court. On appeal, three issues have been raised by defendant: (1) Did the trial court err by not accepting three of defendant’s witnesses as experts in the field of automobile towing? (2) Did the evidence support the trial court’s finding that the towing was improper? (3) Is there sufficient evidence to justify the amount of the trial court judgment? Finding merit in defendant’s arguments, we reverse and render judgment in favor of defendant, dismissing plaintiff’s suit.

Trial testimony established the following facts. In 1973, plaintiff purchased a new 1973 model Chevrolet Corvette. In December, 1979, plaintiff brought this car to Charles Copien, an automobile mechanic, for repairs. Mr. Copien testified at trial and was accepted by the court as an expert automobile mechanic.

Mr. Copien testified that when he saw the car in December, 1979, it was in deplorable condition. According to Mr. Copien, the car’s mechanical workings (the condition of the engine was not discussed), the body, and the interior were all in need of repair. Plaintiff intended to restore the car despite Mr. Coplen’s advice that if the car were his, he would try to sell it rather than repair it.

Toward this goal, plaintiff had Mr. Co-pien completely restore the body. This work cost approximately $3,000.00. Plaintiff testified that upon completion of the body work, he drove his car from Mr. Co-plen’s shop to his house where he parked it in his driveway. In contradiction of Mr. Coplen’s testimony, plaintiff testified that after the body work was completed, the rest of the car was in good condition requiring only minor repairs.

In January of 1980 (according to plaintiff only two days after he retrieved his car from Mr. Copien), in connection with an unrelated matter, the Constable for First City Court of The City of New Orleans effected a seizure of plaintiff’s Corvette. At the request of the Constable, defendant towed the automobile from plaintiff’s driveway to defendant’s storage warehouse. The car remained in defendant’s warehouse, undisturbed, until plaintiff picked it up.

Two of defendant’s tow truck drivers participated in towing plaintiff’s car. Both drivers testified concerning the procedures they followed when towing plaintiff’s car. A deputy constable.also testified to what he observed when the car was towed from plaintiff’s residence.

Plaintiff’s car had been backed into his driveway and was parked facing the street. The tow truck drivers unlocked the car, then disengaged the transmission linkage allowing the transmission to be shifted from “park” to “neutral.” One of the trucks then towed the car by its front end, out of the driveway, into the street. Once in the street, the other tow truck then towed the car by its rear end from plaintiff’s residence to defendant’s warehouse.

The front wheels of plaintiff’s vehicle were locked in a slightly turned position. Both truck drivers and the deputy constable testified that this condition did not create any problems in towing but did cause the car to ride slightly off center-line with the towing truck. (Not so much off center, however, as to be outside of the truck or into another lane of traffic.) One tow truck followed the other as it towed the car to the warehouse. In this manner the car was towed without observable mishap.

Before the end of January, plaintiff had secured a release for his car from the Constable. He then went to defendant’s warehouse to get his car. Plaintiff testified that he was not allowed to see his car before signing the release. Defendant s president, however, testified that plaintiff was allowed to and did in fact inspect his car prior to signing the release. Nevertheless, plaintiff did sign a release, without any comment or reservations, which stated that he was receiving the car in the same condition as when it was seized. Plaintiff then removed the car from defendant’s premises.

Plaintiff testified that he could not drive the car from defendant’s warehouse because the steering was malfunctioning, so he pushed the car to a nearby area and in the process damaged the fender. Plaintiff then hailed a passing tow truck and had the car towed to Mr. Coplen’s shop. Defendant’s president testified that he observed this tow truck, but did not pay close attention to it. His recollection at trial was that it was not a conventional tow truck and may have been an old A-frame model tow truck.

Mr. Copien confirmed that the car was towed to his shop. He did not participate in the towing operation, however, and could not provide any information about the tow truck or the towing methods employed. Plaintiff testified that a dolly was placed under the front end before the car was towed this second time. Placement of the dolly was accomplished by jacking up one side of the car and positioning the dolly, then jacking up the other side and completing the task.

The next day Mr. Copien put the car up on the rack and following an inspection, provided plaintiff with an estimate of the repairs which would be needed to restore the car to its original factory condition. Plaintiff took some photographs of the condition of the car as it appeared upon the rack. These photographs were introduced at trial.

In his judgment the trial court concluded “that at least a portion of the damage to the structural frame of plaintiff’s vehicle was a direct result of the manner in which it was being towed.” He based this conclusion on “this court’s belief that front wheel assemblies are not designed to be towed for several miles ... in a canted position.”

Plaintiff claims that his car was damaged because defendant negligently towed the car. Plaintiff has the burden of proving his claim by a preponderance of the evidence. This means that the evidence produced at trial must prove that more probably than not plaintiffs car was damaged while being towed by defendant because of the negligent manner in which defendant towed the car. Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151 (1971); Fallon v. Dorsett, 344 So.2d 434 (La.App. 1st Cir.1977); Dimitry v. Bressler, 343 So.2d 358 (La.App. 4th Cir.1977).

The trial judge found that plaintiff’s car was damaged by the negligent manner in which defendant towed the car. The standard of review by an appellate court of such a finding is that the appellate court should not disturb the finding of the trial court unless it is clearly wrong. The appellate review of facts is not completed by reading so much of the record as will reveal a reasonable factual basis for the finding in the trial court; there must be a further determination that the record establishes that the finding is not clearly wrong. A finding may be clearly wrong in spite of the presence of some evidence in the record which, if believed, would support the finding. The appellate court should determine whether the district court judgment is clearly wrong considering all the evidence. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Here, the trial judge was clearly wrong. The evidence does not support the findings that more probably than not the car was damaged when towed by defendant or that defendant towed the ear in a negligent manner. The record supports the conclusion that at the time defendant towed plaintiffs car, it had approximately 80,000 miles on it, and, according to a qualified expert auto mechanic, the car was mechanically in a worn-out, deplorable condition. This same expert mechanic inspected the car shortly after plaintiff retrieved it from defendant, but after the car had been towed again by some unknown towman with an unknown type of tow truck. Nevertheless, the testimony of this expert is noticeably devoid of any comment that the condition of the car after the seizure was any different from its condition prior to the seizure.

Mr. Copien, the expert, was also unable to state which, if any, of the needed repairs were necessitated more probably than not as the result of any improper tow. The best he could do was describe which areas of disrepair could possibly result if the car had been improperly towed. He could not state whether the car had been improperly towed, nor could he state, assuming some towing damage, whether the tow by defendant or the subsequent tow to his shop had caused the damage. Further, those areas which could possibly be damaged by towing could not have all been damaged by a single tow, i.e., some might happen if the car was towed from the front, others if the car was towed from the rear. Both times the car was towed, it was towed from the rear, except for the 30 or so feet it was towed out of the driveway. The thrust of Mr. Coplen’s testimony concerning the condition of the car was that mechanically the car was worn out.

This evidence is insufficient to support plaintiff’s claim in at least two respects. First, the evidence fails to establish with the appropriate degree of probability, that the car suffered any damage during its seizure. Secondly, the evidence fails to establish, even assuming damage, that the damage was probably caused by defendant rather than during the second tow or simply because some of the parts were worn out or for any other reason.

Further, the evidence does not support a conclusion that defendant was negligent or did anything improper. The single basis of negligence relied upon by the trial judge was that defendant towed the car while the front wheels were locked in a slightly turned position. The only evidence concerning the effect of towing a car in this manner came from three of defendant’s witnesses. These witnesses, with a combined total of approximately 70 years towing experience, testified that towing a car with the wheels slightly turned does not cause damage to the car.

There is no evidence to support the trial judge’s “belief” that such a towing procedure amounted to negligence or could in any way cause damage to the car. Determinations of negligence must be based on the evidence. The trier of fact may not indulge in mere possibilities. Fallon v. Dorsett, supra; Stelly v. Quick Manufacturing Company, 246 So.2d 302 (La.App. 3d Cir.1971), writ refused 258 La. 767, 247 So.2d 864 (La.1971), cert. denied 404 U.S. 957, 92 S.Ct. 323, 30 L.Ed.2d 273 (1971). The trial judge, in essence, took judicial notice that cars should not be towed with the front wheels locked in a slightly turned position. The resolution of material issues of disputed fact by judicial notice is improper. Pierce v. Board of Supervisors of Louisiana State University, 392 So.2d 460 (La.App. 1st Cir.1980); Acadia-Vermilion Rice Irrigating Company v. Broussard, 185 So.2d 908 (La.App. 3d Cir.1966).

Having rejected the trial court’s basis for a finding of liability on the part of defendant, we will render herein such judgment as we conclude is just, legal and proper upon the record. La.C.C.P. art. 2164. A review of all the evidence convinces us that plaintiff did not carry his burden of proving more probably than not, that defendant damaged plaintiff’s car by negligently towing the car. Accordingly, the judgment of the trial court must be reversed, and we must enter judgment in favor of defendant dismissing plaintiff’s suit.

Having reached the above conclusion, it is unnecessary for us to consider the other two arguments of defendant-appellant, viz, whether three of defendant’s witnesses should have béen qualified as experts and whether the evidence supported the amount awarded for damages.

For the reasons stated, the judgment of the trial court is reversed. Judgment is hereby rendered in favor of defendant, dismissing plaintiff’s suit. All costs are to be paid by plaintiff-appellee,

REVERSED


text:
    Catherine P. ANDERSON v. Gerald F. ANDERSON.
    No. CA-0677.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 10, 1983.

      Bettyanne Lambert-Bussoff, New Orleans, for appellant.
    Philip R. Riegel, Jr., Parlongue & Riegel, New Orleans, for appellee.
    Before SCHOTT, CIACCIO and WARD, JJ.
   CIACCIO, Judge.

On October 7, 1982, the district court awarded the parties a divorce and ordered Gerald Anderson to pay child support in the amount of $800.00 per month and alimony in the amount of $1,050.00 per month from the date of the trial. Additionally, Mr. Anderson was ordered to retain his children on his employment insurance policies and to continue his former wife’s automobile insurance coverage. Gerald Anderson appeals this judgment complaining of the amount, computation, and effective date of the alimony award. We affirm the judgment of the district court.

The issues presented for our review are as follows: (1) Did the trial judge err in awarding $1,050.00 in permanent alimony? (2) Did the trial judge err in failing to consider the fixed monthly award of child support in calculating alimony? (8) Did the trial judge err in calculating alimony based upon net income? (4) Did the trial judge err in refusing to make the alimony award retroactive to the date of the filing of the divorce petition?

(1) Amount of Permanent Alimony

Appellant complains that this award of alimony after divorce is excessive and that the award took into account certain impermissible expenses.

The trial court is vested with much discretion in fixing the amount of alimony, and such awards will not be disturbed on review absent a clear abuse of discretion. Gabriel v. Gabriel, 419 So.2d 538 (La.App., 5th Cir.1982); Hyams v. Hyams, 365 So.2d 527 (La.App., 3rd Cir.1979). Accordingly, such decisions by the trial court are entitled to great weight. Gabriel v. Gabriel, supra.

An award of alimony after divorce is controlled by Civil Code Article 160, which provides in pertinent part:

When a spouse has not been at fault and has not sufficient means for support, the court may allow that spouse, out of the property and earnings of the other spouse, alimony which shall not exceed one-third of his or her income.
In determining the entitlement and amount of alimony after divorce, the court shall consider the income, means, and assets of the spouses; the liquidity of such assets; the financial obligations of the spouses, including their earning capacity; the effect of custody of children of the marriage upon the spouse’s earning capacity; the time necessary for the recipient to acquire appropriate education, training, or employment; the health and age of the parties and their obligations to support or care for dependent children; any other circumstances that the court deems relevant.

Alimony after divorce shall be awarded only when the requesting party is without fault and has insufficient means for support. C.C. Art. 160. Volker v. Volker, 398 So.2d 134 (La.App. 3rd Cir.1981).

The standard applied for an award of alimony after divorce differs from that which is applied for an award of alimony pendente lite. Broussard v. Menard, 316 So.2d 485 (La.App., 3rd Cir.1975). Alimony after divorce is in the nature of a pension to provide for the basic necessities of the recipient spouse, not to exceed one-third of the income of the contributing spouse. C.C. Art. 160. Wasson v. Wasson, 402 So.2d 718 (La.App., 1st Cir.1980). Wood v. Wood, 289 So.2d 211 (La.App., 1st Cir.1973). Alimony pendente lite is based upon the standard of support which existed during the marriage. Wasson v. Wasson, supra. Alimony after divorce is intended to provide the basic necessities of life, such as food, clothing, and shelter. Volker v. Volker, supra. It has also been interpreted to include reasonable transportation expense, utilities, household expenses and medical expenses. Vorisek v. Vorisek, 423 So.2d 758 (La.App., 4th Cir.1982). It does not however include expenditures for newspapers, gifts, children’s allowance, dog care, maid service, recreation, vacation, church tithes or life insurance. Vorisek v. Vorisek, supra.

Mr. Anderson alleges that the permanent alimony award was excessive. He first argues that the expense figures submitted by his wife were exaggerated in amount. In support of his contention, he points to the fact that the award of alimony pendente lite was $1,200 while the permanent alimony award is $1,050.

At the outset, it is to be noted that the award of alimony pendente lite was the result of an agreement between the parties, while the award of permanent alimony resulted from a trial on the merits. Moreover, appellant has failed to demonstrate a factual basis for his contention that the figures presented at the hearing on permanent alimony are exaggerated, and our review of the record does not convince us that this is the case.

At the hearing on the issue of permanent alimony, Mrs. Anderson submitted a list of her monthly expenses. [Exhibit “Mrs. Anderson # 2”]. She testified that she arrived at the monthly expense figure of $2,896.39 by dividing the total annual expenses for herself and her children by twelve. She further testified that, with certain specified exceptions, the expense items which she submitted would have to be divided by three (namely, herself and two children) in order to arrive at a figure which represented her personal monthly expenses. The house note of $1,077.11 was mostly attributable to Mrs. Anderson, as it is not an obligation of the children. Therefore, considering the listed expenditures submitted in evidence on October 4, 1982, and the testimony of Mrs. Anderson concerning these expenses, it is clear that the alimony award of $1,050 per month was considerably lower than the amount which would have been estimated by the plaintiff as her monthly needs. Moreover, the award of $1,050 per month was considerably lower than the maximum alimony award of $1,333 per month which could have been granted in accord with Civil Code Article 160. Since Mrs. Anderson must pay $1,077.11 per month for the house note, which is a community obligation, the actual spendable income for her and her two children is only $750.00 per month. Accordingly, we find no abuse of discretion by the trial judge in awarding Mrs. Anderson $1,050 per month in alimony after divorce.

Appellant next argues that the trial court erred in considering the legally impermissible expense items of vacations, church tithes, alarm system expenses, and unspecified cash expenses in arriving at an award for alimony after divorce.

The document which contains these expenditures is dated October 2,1981, and was submitted into evidence at a hearing on a rule to fix child support which was heard on that date. The only itemized expense document submitted into evidence by Mrs. Anderson on the hearing for. permanent alimony, which was conducted on October 4,1982, was Exhibit “Mrs. Anderson # 2” which reflects the combined expenses of the plaintiff and the children of the marriage. It does not contain any objectionable expenditures except one item: “Church and Charities $9.33.” Since the other impermissible expenses were not properly before the court on' the hearing on permanent alimony, we can safely assume that they played no part in. the trial court’s decision regarding the amount of permanent alimony. Furthermore, considering the amount of the award for permanent alimony, it would appear that the church expense which did appear on the itemization presented to the court at the hearing on permanent alimony was not considered in the court’s computation of the award. Accordingly, we find no error in this regard.

(2) Consideration of Child Support

Appellant contends that the trial judge erred in failing to consider the fixed monthly obligation of $800.00 child support in calculating alimony.

The Louisiana Supreme Court, in Lewis v. Lewis stated, “In fact, the obligation of the parents to support their dependent children is one of the circumstances which the court must consider in determining the entitlement and amount of alimony after divorce.” 404 So.2d 1230 at 1234 (La., 1981).

It would appear that the trial Judge was cognizant of the child support award when he ruled on the amount of alimony after divorce. Immediately after discussing various aspects of the alimony award, the court stated:

“On the basis of the income and expenses as reported the court determines that the child support shall remain the same because it was not one of the considerations established in this rule, and it remains at eight hundred dollars.” [tr. 137].

(3) Income Basis

Appellant contends that the trial court erred in failing to calculate the alimony award on the basis of his net income. In Vorisek v. Vorisek, supra, this Court stated that gross pay is the proper figure to be considered for purposes of alimony.

It is clear in this case that the trial judge took into consideration both the gross and net income of the defendant:

This is a case in which the plaintiff in rule, the defendant in the case, Gerald Anderson, has admitted a gross monthly income of four thousand dollars and a purported net monthly income of twenty-two ninety-eight [tr 134].

Since the trial judge took into account the defendant’s gross income and net income we find no error in his approach. See: Super v. Super, 397 So.2d 1084 (La.App., 4th Cir., 1981), writ denied, 397 So.2d 583 (La., 1981).

Further, it is apparent the trial judge concluded that appellant’s net monthly income exceeded the $2,298.00 claimed by defendant.

(4) Effective Date of the Award

Appellant contends that the trial court erred in refusing to make the alimony award retroactive to the filing of the petition for divorce. Thus, he argues that the appellee was able to utilize dilatory tactics and thus received alimony pendente lite for four additional months.

The trial judge has discretion in setting the effective date of an alimony award depending upon the particular circumstances of the case. Oliver v. Oliver, 417 So.2d 1278 (La.App., 1st Cir.1982); writ denied 397 So.2d 1358 (La., 1981). Dubourg v. Dubourg, 291 So.2d 441 (La.App., 4th Cir.1974).

The trial judge found that the extensions of time granted in this case were proper, and there has been no showing that the trial judge abused his discretion in making his alimony award effective from the date of judgment.

For the reasons assigned, the judgment of the trial court is affirmed at appellant’s cost.

AFFIRMED.

      . The child support award was a ratification of a child support judgment rendered in the earlier separation proceedings.


author: WARD, Judge.

text:
    BUILDING ENGINEERING SERVICES CO., INC. v. The STATE of Louisiana and the Louisiana Stadium and Exposition District and Union Service and Maintenance Company, Inc.
    No. CA-0734.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 10, 1983.

      Patrick C. Leitz, Metairie, for plaintiff-appellee, Building Engineering Services Co., Inc.
    William J. Guste, Jr., Atty. Gen., Warren E. Mouledoux, First Asst. Atty. Gen., Robert E. Redmann, Ann B. Steinhardt, Asst. Attys. Gen., La. Dept, of Justice, New Orleans, for defendants-appellees, State of La. and La. Stadium and Exposition Dist.
    Peter Frank Liberto, Atty. at Law, New Orleans, for intervenor-appellant, Union Service and Maintenance Co., Inc.
    Before WARD, GULOTTA and BYRNES, JJ.
   WARD, Judge.

This appeal is concerned only with the intervention and claims of Union Service and Maintenance Company, Inc. (Union) in a suit filed by Building Engineering Services Co., Inc. (BESCO), against the State of Louisiana and the Louisiana Stadium and Exposition District (Stadium District).

In 1974, the Stadium District, operator of the Louisiana Superdome, awarded a contract for the maintenance of the heating, ventilation, and air conditioning system in the Superdome to BESCO. The contract was cancelled by the State in 1978, and BESCO filed this suit against the State and the Stadium District in Orleans Parish. Union intervened, claiming damages from BESCO and the profits derived from the contract.

BESCO, the State, and the Stadium District have compromised and settled the original claim, and only Union’s intervention remained until it was dismissed by the Trial Judge. Union has appealed that judgment dismissing its intervention. We affirm for the following reasons.

Union had earlier filed suit in Jefferson Parish against both BESCO and its owners, Reid Powell and Glenn Teel, and against the Stadium District, asking for damages from BESCO, Powell and Teel, and by supplemental petition for an injunction against the Stadium District. At the time Union filed this intervention, although its suit in Jefferson had not been decided, an exception of lis pendens in Orleans was overruled, and Union was allowed to intervene. Subsequently, the Trial Court in Jefferson rendered a summary judgment as to all defendants against Union, and Union did not appeal those judgments. An exception of res judicata was maintained by the Trial Judge in Orleans Parish.

Union argues that res judicata does not apply because, although the petition in Jefferson was against BESCO and the Stadium authorities who are parties to Union’s intervention in Orleans, there were two defendants in Jefferson who are not parties in the intervention. Next Union argues res judi-cata does not apply because its petition in Jefferson did not ask for the same relief as its intervention sought in Orleans and because Union alleged a different cause of action in the petition from that in the intervention.

The following facts are alleged by Union both in its suit in Jefferson and in this intervention in Orleans. BESCO, owned entirely by Powell and Teel, was incorporated for the sole purpose of bidding on the maintenance contract. After incorporation, Powell and Teel had decided BESCO could not obtain .the contract since BESCO was without either proven experience, adequate capital, or the ability to obtain a performance bond. Powell and Teel decided to seek Union’s help, and in August, 1973, Powell and Teel, acting in their capacity as the incorporators of BESCO, approached Raymond Walters, the president of Union, and they advised Walters that they, Powell, Teel, and Walters, may have an opportunity to procure the heating, ventilation and air conditioning contract from the Stadium Authority. At this time, Powell was the Secretary of Union and owned forty-nine percent of the stock. Walters owned fifty-one percent. Powell and Teel requested Walters’ help and permission to use the name of Union to bid on the contract. Walters agreed, and Teel was elected vice-president for the sole purpose of procuring the Super-dome contract. Additionally, Powell and Teel were permitted to use Union’s facilities and expense account. Shortly thereafter, Powell and Teel, representing Union, bid for and ultimately obtained the contract from the Stadium District. They later, however, approached Walters and persuaded him to assign Union’s contract to BESCO. In exchange for the assignment, Powell and Teel promised that Union would get prime consideration for all subcontract work and that Powesll would remain with Union. In November, 1973, the Board of Directors of Union assigned the maintenance contract to BESCO.

Although the Stadium District first awarded the contract to Union, after the assignment, the Stadium District awarded the contract to BESCO, who was identified in the contract as “formerly Union Service and Maintenance Co., Inc.” Although this contract was not approved by the State Commissioner of Administration, a similar contract, which was ultimately ratified by the Louisiana Legislature, also referred to BESCO as “formerly Union Service and Maintenance Co., Inc.” In July, 1974, Teel met with the general counsel for the Stadium District and requested him to strike the phrase “formerly Union Service and Maintenance Co., Inc.”. The general counsel agreed, but only if Union Service would act as BESCO’s surety for performance of the contract. After Powell and Teel again promised Walters that Union would receive prime consideration for all subcontract work and that Powell would remain with Union, Union agreed to act as BESCO’s surety.

The gravamen of Union’s complaint in both the petition and intervention is breach of contract, and it claims damages because it was never given an opportunity to bid for any subcontract, and Powell not only failed to devote his full time to Union, he resigned as Secretary of Union shortly after it agreed to act as surety. Also, in both the petition and intervention, Union asks for a judgment that would rescind its assignment to BESCO, and Union asks for all of BES-CO’s profits from the contract with the Stadium District. Union also sought an award for unjust enrichment for the fair market value of a performance bond in both eases.

There are, however, differences between the petition filed in Jefferson and the intervention filed in Orleans. In the petition, Union asked for a judgment against Powell and Teel in addition to BESCO, alleging Powell and Teel were acting for their own benefit and as well as in their capacity as stockholders and officers of BESCO. Additionally, the petition in Jefferson asked for damages from Powell and Teel for breaching their fiduciary duty as executive officers of Union. ’ In the intervention, Powell and Teel are not made defendants to the lawsuit.

After the filing of Union’s petition in Jefferson, the Stadium District began negotiating with BESCO to buy out its contract, and Union amended its original petition seeking to enjoin the District and BESCO from continuing the negotiations. Thus, there are apparently differences in parties and differences in the relief sought. We, however, believe these differences are more apparent than real, and are not sufficient to defeat the exception of res judicata.

Louisiana Civil Code Article 2286 provides, “The authority of the thing adjudged takes place only with respect to what was the object of the judgment. The thing demanded must be the same; the demand must be founded on the same cause of action; the demand must be between the same parties, and formed by them against each other in the same quality.” The theory of civilian res judicata is that matters litigated and finally adjudged are presumed correct and should not be contradicted in a subsequent suit. Dixon, Booksh, Zimmer-ing, “Res Judicata in Louisiana since Hope v. Madison”, 51 Tul.Law Review 611, 617 (1977). Summary judgment is a definitive judgment and will support a plea of res judicata where other requirements are met. Snipes v. Southern Baptist Hospital, 243 So.2d 298 (La.App. 4th Cir.1971).

Union first argues that the requirement of C.C. Art. 2286, the same identity of the parties, is not fulfilled, pointing out that Reid Powell and Glenn Teel were defendants in Jefferson but were not in the Orleans intervention and that the State is a defendant in the Orleans intervention but not in Jefferson. The Louisiana Stadium and Exposition District and BESCO, however, were defendants in both actions.

In Johnson v. Lemons, 157 So.2d 752 (La.App. 2nd Cir.1963), that Court held that the plaintiff could not, by merely adding parties, diminish the force and effect of a peremptory exception of res judicata against all parties with whom he had litigated issues to final judgment. Although Johnson v. Lemons involved the addition of other parties in the second lawsuit, the rationale of that case is applicable. The crucial inquiry is whether the parties in the second suit had fully litigated the issues in the first case. If so, res judicata applies to those parties if the addition or omission of defendants in the second suit was not critical to the resolution of issues between the parties in the first suit. In the instant case, the fact that some defendants are present in the first suit but absent in the second is not significant. Following the rationale of Johnson v. Lemons, supra, we hold that the absence of Teel and Powell as defendants in the intervention is not fatal to the plea of res judicata. For the same reasons, we do not believe the presence of the State as a defendant in this intervention and the absence of the State as a defendant in the petition is critical to BESCO’s and the Stadium District’s exception of res judicata.

Because the State was not a defendant in the earlier suit, the summary judgments rendered in that suit would not be res judicata as to the State. We note, however, that Union’s intervention does not allege a cause of action against the State. In Union’s intervention, it asks that the agreement between Union and BESCO be rescinded and the profits derived therefrom be awarded to Union, or that Union be awarded damages from BESCO either for breach of contract or unjust enrichment. Nowhere does Union allege any obligation or duty on behalf of the State to Union arising out of the alleged breaches of contract by BESCO. Thus, the State of Louisiana is entitled to a judgment of dismissal for Union Service’s failure to state a cause of action in its Petition of Intervention. The State was not a proper defendant in Union’s intervention, and the presence of the State as a proper defendant in BESCO’s suit will not justify a finding of lack of identity nor will it defeat the exception.

The second requirement of C.C.Art. 2286 is that the thing demanded must be the same in each suit. Both the petition in Jefferson and the intervention in Orleans were claims for damages from BESCO for breach of contract, and alternatively, claims of unjust enrichment. Union points out, however, that monetary damages were not sought from the Stadium District in the Jefferson action and that the only relief sought against the Stadium District in Jefferson was an injunction. In that suit, the Stadium District filed a motion for summary judgment on the grounds that an injunction would be improper because Union failed to show that injury, if any, could not be compensated in monetary damages and that, even if all of the allegations of Union’s petition were true, the State would not be liable should Union seek monetary damages. The Trial Court ruled in favor of the Stadium District and ordered that the complaint directed against the Stadium District be dismissed. Considering the argument upon which that holding was based, we believe it represents a judicial resolution of Union’s claim against the Stadium District and, as such, is res judicata as to Union’s intervention.

The third of the requirements of C.C.Art. 2286 is that the demand must be founded on the same cause of action. In R.G. Claitor’s Realty v. Juban, 391 So.2d 394 (La.1980) the Supreme Court held that the term “the same cause of action” in Art. 2286 is a mistranslation; the Article should read “the same cause.” The proper interpretation of Art. 2286 requires a consideration of the civil law concept of “cause” rather than the common law “cause of action”. In Nicholson v. Holloway Planting Co., Inc., 268 So.2d 74 (La.App. 1st Cir.1972) affirmed in part, reversed in part on other grounds 284 So.2d 898 (La.1973), the Court held that the term “cause of action” as used in Art. 2286 refers to the facts which give rise to the judicial relief sought. After reviewing the allegations of the petition in Jefferson and those of the intervention in Orleans, we conclude that the allegations are virtually identical; each describes the method by which the contract was obtained and fulfilled. We hold that the third requirement of Art. 2286 is satisfied.

Union also argues that the District Judge erred in granting the exception of res judicata after having dismissed an exception of lis pendens. The issue of whether the Trial Court correctly dismissed the exception of lis pendens is not raised in this appeal, and we do not believe that ruling affects the validity of the maintenance of the exception of res judicata because the overruling of a peremptory exception is an interlocutory order, and under the C.C.P. Art. 928 and Art. 1152, the Trial Court has the right at any stage of the proceeding to set aside that decree. In R.G. Claitor’s Realty v. Jaban, supra, the Supreme Court held that the overruling of defendant’s exception of res judicata did not preclude the Trial Judge from later reversing himself and sustaining the exception. Accordingly, we hold that the Trial Judge’s denial of the exception of lis pen-dens does not preclude him from later maintaining an exception of res judicata.

Union’s final assignment of error alleges the District Court failed to give proper notice that the exception of res judi-cata was to be heard on April 6, 1981. The order setting the hearing on the exceptions of prescription and no cause of action contained a handwritten notation that the order included “all other motions, exceptions or rules not yet brought before the court.” Counsel for Union alleges that this was inadequate notice that the res judicata exception would be heard because that exception had been filed approximately seven months earlier. Because the exception of res judicata was clearly included in “all other motions, exceptions or rules not yet brought before the court,” we conclude that the handwritten notation on the order gave adequate notice that the exception of res judicata was to be heard.

In summary, the presence of Teel and Powell as defendants in Union’s lawsuit filed in Jefferson Parish, while they were not defendants in the lawsuit in Orleans Parish, does not preclude a finding of res judicata as to those parties who were defendants in both actions, BESCO and the Stadium District. Likewise, the presence of the State of Louisiana in the lawsuit in Orleans Parish does not preclude a finding of res judicata as to BESCO and the Stadium District. Although the summary judgments in the Jefferson action are not res judicata as to the State, we note that the intervention does not state a cause of action against the State. The summary judgments in favor of BESCO and the Stadium District in Jefferson Parish holding that Union is not entitled to relief are res judica-ta as to those defendants and bar Union’s intervention against them.

We hold that the requirements of C.C. Art. 2286 were met, and thus, the trial court did not err in maintaining the exception of res judicata and dismissing the intervention of Union.

Affirmed. Union Service and Maintenance Company, Inc. must pay all cost of trial attributable to its intervention and all costs of this appeal.

AFFIRMED.


text:
    STATE of Louisiana v. Edward JONES.
    No. KA-0949.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 10, 1983.
    Writ Denied Jan. 6, 1984.
    Calvin Johnson, Clyde Merritt, Supervising Attorneys, Robert D. Northey, Student Practitioner, New Orleans, for defendant, appellant, Edward Jones.
    Harry F. Connick, Dist. Atty. of Orleans Parish, William R. Campbell, Jr., Asst. Dist. Atty. of Orleans Parish, New Orleans, for plaintiff, appellee, State of Louisiana.
    Before WARD, SCHOTT and CIACCIO, JJ.
   WARD, Judge.

On November 30, 1981, Edward Jones was arrested by New Orleans police officers for simple theft. During a search incident to arrest, the officers discovered a disposable syringe containing a liquid later identified as pentazocine, commonly known as Talwin. On July 9, 1982, Jones pled guilty to a violation of La.R.S. 40:967, possession of pentazocine. After being adjudicated as a second felony offender, Jones was sentenced to serve five years at hard labor in the custody of the Department of Corrections for the State of Louisiana.

On appeal, Jones argues that the Trial Judge erred in not considering placement of the defendant on probation with participation in a drug dependency treatment program pursuant to Louisiana Code of Criminal Procedure Article 893(B). Jones also argues that the. five year sentence imposed is excessive under Louisiana Code of Criminal Procedure Article 894.1 and Article I, Section 20 of the Louisiana Constitution of 1974.

Probation, conditioned upon treatment for an addiction, was a permissible alternative within the discretion of the Trial Judge. Louisiana Code of Criminal Procedure Article 893(B) states that when it is in the best interest of the public and the defendant, a judge may suspend the execution of the sentence of a multiple offender who has been convicted in the instant offense of a violation of the Controlled Dangerous Substance Law and place the defendant on probation if he intends to participate in an authorized drug rehabilitation program. At his sentencing hearing, Jones introduced evidence that, at some undetermined earlier date, Jones had written a letter to the Veterans Administration Drug Dependency Program to request help with his drug problem. A worker with the Program testified that the Program would accept Jones for drug abuse therapy. The trial judge regarded the evidence as irrelevant because the date of Jones’ letter was not established.

The decision of whether to suspend a multiple offender’s jail sentence and allow him to participate in a drug rehabilitation program is within the trial court’s discretion. State v. Cain, 382 So.2d 936 (La.1980); See State v. Schaeffer, 414 So.2d 730 (La.1982). Although Jones had indicated a willingness to participate in a drug program by writing to the Veterans Administration Drug Dependency Program, the date of that letter was not established, leaving open the possibility that the letter was written long before the arrest on the instant charge and that Jones failed to act on the information that he would be accepted in the program. The Trial Judge indicated that had Jones gone beyond merely writing the letter and had he taken substantial steps toward helping himself with his drug problem, the Court might have considered probation. The Trial Judge was not convinced he did more, and he declined to give a probationary sentence. Nonetheless, he did consider the alternative of placing Jones on probation. A decision to deny it was within the discretion afforded the Trial Judge, and Jones has not shown abuse of it or error.

We now address Jones’ argument that his sentence is excessive under Louisiana Code of Criminal Procedure Article 894.1 and Article 1, Section 20 of the Louisiana Constitution of 1974. The maximum penalty for possession of pentazocine is five years with or without hard labor and a fine of $5,000. R.S. 40:967. As a second felony offender, however, Jones may be sentenced to a term of not less than twenty months nor more than ten years. R.S. 15:529.-1(A)(1). In State v. Sepulvado, 367 So.2d 762 (La.1979), the Supreme Court held that a sentence may be excessive even though it is within the statutory limits. The Court also recognized that the statutory criteria legislatively provided by Code of Criminal Procedure Article 894.1 are the appropriate criteria by which to measure whether a sentence within statutory limits is nevertheless excessive. The guidelines in the statute were designed to guide and assist the Trial Courts in exercising their sentencing discretion, as well as to assist the appellate court in reviewing the exercise of that discretion. If the Trial Judge imposes a sentence without adequate compliance with 894.1, he must state the considerations and factual basis for his sentence. State v. Cox, 369 So.2d 118 (La.1979).

In the instant case, the Trial Judge failed to comply with 894.1, and did not state any factual basis for the length of the sentence imposed. The Supreme Court has indicated, however, that a remand for a more complete compliance with Article 894.1 is not necessary when the sentence imposed is not apparently severe nor grossly out of proportion to the crime. State v. Russel, 397 So.2d 1319 (La.1981); State v. Jones, 381 So.2d 416 (La.1980); State v. Day, 391 So.2d 1147 (La.1980). Considering that the range of a permissible sentence in this case is from twenty months to ten years, we are unable to find that the imposition of a five year sentence is apparently severe.

Accordingly, a remand for compliance with 894.1 is not necessary and the defendant’s sentence is affirmed.


author: HALL, Judge.

text:
    STATE of Louisiana, Appellee, v. Jerome RANSOME, Appellant.
    No. 15565-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 29, 1983.

      Raymond L. Cannon, Tallulah, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, James D. Caldwell, Dist. Atty., Felicia Toney Williams, Asst. Dist. Atty., Tallu-lah, for appellee.
    Before PRICE, HALL and NORRIS, JJ.
   HALL, Judge.

After trial by jury the defendant, Jerome Ransome, was found guilty of the crime of negligent homicide, a violation of LSA-R.S. 14:32. The defendant’s motion for a post-verdict judgment of acquittal or alternatively for a new trial was denied. He was sentenced to serve five years imprisonment at hard labor, the maximum sentence for negligent homicide.

Defendant’s appeal presents two assignments of error: (1) The trial court erred in denying the post-verdict judgment of acquittal because the evidence was insufficient to meet the Jackson v. Virginia standard, and alternatively, erred in refusing to grant a new trial because of newly discovered evidence; (2) the five-year maximum sentence was unconstitutionally excessive. Facts

During the morning of May 16, 1981, the defendant was driving his automobile southbound on U.S. Highway 65, a four-lane highway in Tallulah, Louisiana, with his three-year-old nephew riding as a passenger in the front seat. It was raining and the highway surface was wet. Defendant’s automobile crossed the yellow center line and collided with an automobile being driven northbound in the outside or easternmost lane by Mrs. Maggie Hanson, with Mrs. Beulah Laird riding in the front seat as a passenger. Mrs. Hanson and the defendant’s nephew were both killed. A blood test conducted after the accident revealed that the defendant’s blood alcohol content was .21 percent.

Assignment of Error No. 1: Denial of Motion for Post-Verdict Judgment of Acquittal and Alternatively for a New Trial

A. Sufficiency of the evidence.

Defendant argues that the evidence does not meet the standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in that the evidence was not sufficient for a reasonable trier of fact to have found beyond a reasonable doubt that the defendant’s conduct evidenced such disregard of the interest of others that his conduct was a gross deviation below the standard of care expected to be maintained under like circumstances by a reasonably careful man. The defendant argues that he drank only one beer the morning of the accident, that he was driving carefully, that as he approached the victim’s automobile it was crowding the center line of the highway, and that his automobile spun out of control when he tapped the brakes while attempting to move over into the right-hand northbound lane. The defendant essentially argues the version of the events as related by him at the trial of the case.

Contrary to the defendant’s argument, there was substantial evidence presented by the prosecution upon which a reasonable juror could have found that all of the elements of the crime of negligent homicide were proven beyond a reasonable doubt.

Negligent homicide is the killing of a human being by criminal negligence. LSA-R.S. 14:32. Criminal negligence exists when, although neither specific nor general criminal intent is present, there is such disregard of the interest of others that the offender’s conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances. LSA-R.S. 14:12.

There- was substantial evidence from which the jury could have concluded that the defendant was driving while under the influence of alcohol to a significant degree. The blood alcohol test showed that defendant’s blood contained .21 percent alcohol. There was explanatory testimony by a criminologist concerning the blood test. An investigating officer and the coroner, who drew blood from the defendant shortly after the accident, both testified that the defendant appeared disoriented, although neither witness would-attribute his disorientation specifically to drinking as distinguished from the effects of the accident. The investigating officers testified that they smelled alcohol on the defendant’s breath. The defendant himself admitted to drinking at least five beers between 4:00 p.m. the afternoon before the accident and 2:30 a.m. the morning of the accident and one can of beer shortly before the accident. Based on the blood alcohol test the jury could have reasonably concluded that the defendant was not being truthful about the quantity of beer which he consumed prior to the accident.

The passenger in the victim’s automobile testified that when the accident occurred the victim was driving in the right-hand northbound lane. The investigating officers testified that they found gouge marks and other physical evidence indicating that the impact was in the right-hand northbound lane. From this evidence the jury could have reasonably concluded that the defendant’s version of the accident was not credible and that his automobile traveled across the center line and the empty inside northbound lane before striking the victim’s automobile in the outside northbound lane.

The testimony of witnesses and photographs in evidence show that the impact was severe. The defendant’s car came to rest off of the east side of the highway and the victim’s car was halfway in the street and halfway on the curb on the east side. The testimony of the passenger in the victim’s car was that the victim was not driving fast. From this evidence the jury could have reasonably concluded that the defendant was traveling at an excessive rate of speed under the conditions prevailing at the time of the accident.

Viewing the evidence in the light most favorable to the prosecution, it was established that the defendant was driving while intoxicated to a significant degree, that he was driving at an excessive rate of speed under the circumstances, that he lost control of his vehicle, and that he traveled across the inside lane of the northbound side of the highway before his vehicle collided with the victim’s vehicle in the outside northbound lane with substantial force. The defendant’s conduct amounted to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances. The essential elements of the crime of negligent homicide were proven beyond a reasonable doubt.

B. Newly discovered evidence.

At the hearing on the motion for a new trial defendant presented three witnesses who testified they heard Mrs. Hanson, the victim who was driving the car with which defendant’s car collided, comment shortly before the accident that she was not feeling well and did not feel like driving. The defendant testified he learned of these witnesses and their testimony only after the trial and verdict in this case.

A new trial shall be granted whenever new and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty. LSA-C. Cr.P. Art. 851.

We are unable to perceive how the testimony of the witnesses that the driver of the other vehicle was not feeling well has any probative value in this case or any reason why the testimony would have influenced or changed the jury’s guilty verdict. The trial court’s discretion was soundly exercised in denying the motion for new trial.

The defendant’s Assignment of Error No. 1 is without merit.

Assignment of Error No. 2: Excessive Sentence

The penalty for negligent homicide is imprisonment with or without hard labor for not more than five years. The district court imposed the maximum sentence of imprisonment with hard labor for five years.

La. Const. Art. 1, § 20 prohibits the imposition of excessive punishment. A sentence is excessive if it is grossly out of proportion to the severity of the crime or if it is nothing more than a purposeless and needless imposition of pain and suffering. State v. Willis, 420 So.2d 962 (La.1982). Imposition of a sentence, although within the statutory limit, may violate a defendant’s constitutional right against excessive punishment. State v. Daranda, 398 So.2d 1053 (La.1981). Sentences must be individualized to be compatible with the offenders as well as the offenses. In deciding whether to confine a defendant or to grant him probation, and in deciding on the length of the sentence, the trial court must consider certain factors enumerated in LSA-C.Cr.P. Art. 894.1. The court must state for the record the considerations taken into account and the factual basis therefor. State v. Jones, 398 So.2d 1049 (La.1981).

Maximum sentences are appropriately imposed in cases involving the most serious violations of the described offense, and for the worst kind of offender. Nothing else will justify the great sentencing discretion given the trial judge in Louisiana. State v. Jones, supra. The imposition of a maximum possible sentence usually can only be justified in extreme cases — classified as such by the factual circumstances of the offense and the apparent dangerous proclivities of the defendant. State v. Davis, 430 So.2d 680 (La.App. 2d Cir.1983).

The facts of this case do not reveal defendant’s actions to constitute the most serious type commission of the crime of negligent homicide or that the defendant is the worst kind of offender with dangerous proclivities.

At the sentencing hearing in this case the trial court commented on the proven criminal conduct committed by the defendant which established an utter disregard of the interest of others, amounted to a gross deviation below the standard of care expected of a reasonably careful person, and which brought death to another person. The court stated that to drink alcoholic beverages and operate a vehicle is serious and must be dealt with seriously. Although stating that it is difficult to predict the probability of the defendant committing other crimes, the court expressed the opinion that the defendant was in need of correctional treatment that can best be provided by commitment to an institution. The court noted that although the defendant was a first offender the serious harm he caused precludes a lesser sentence than the one imposed.

The reasons given for imposing the maximum sentence are insufficient to comply with the sentencing guidelines of LSA-C. Cr.P. Art. 894.1. The trial court’s emphasis was directed almost entirely toward the seriousness of the crime and failed to particularize the sentence to this particular defendant.

Considering the factors related to the offense, it is noted that every negligent homicide case necessarily involves criminal negligence and the death of another person. The elements that would maximize the offense would be the degree of criminal negligence and the seriousness of the consequences of that negligence. Here the consequences were maximum — the death of two persons. The degree of criminal negligence appears to be somewhat less than maximum. The defendant drove while intoxicated to a significant degree, but several witnesses who saw him shortly before the accident, including the parent of the nephew who was killed, said he did not appear to be drunk. Driving while intoxicated and losing control of his vehicle amounted to criminal negligence, but it does not appear that defendant was driving in a totally or wantonly reckless manner prior to the time his vehicle went out of control. This was a serious offense, with tragic consequences, and calls for a substantial sentence that will not deprecate the seriousness -of the offense, but not the maximum.

Particularizing the sentence to the offender, the circumstances related to this particular offender are near the minimum, not the maximum. He has no prior offenses of any kind and particularly no offenses related to drinking or operating a vehicle. He only had the automobile involved in this accident for three weeks, did not have a driver’s license and apparently never had one, and at the time of sentencing had no vehicle and no license. He has had steady employment as a farmhand. Police officers who know him say he is not a troublemaker. Nothing in the record indicates any reasonable probability that the offense will be repeated. The 29-year-old defendant appears remorseful. There is no reason to believe that lengthy incarceration will aid in his rehabilitation.

The maximum sentence of five years at hard labor imposed by the trial court is unconstitutionally excessive. The sentence will be set aside and the case remanded to the district court for resentencing.

Decree

For the reasons assigned, the defendant’s conviction of negligent homicide is affirmed. The sentence imposed is set aside and the case is remanded to the district court for resentencing, including reconsideration of the Article 894.1 factors in determining the length of the sentence and whether suspension of sentence and probation is appropriate. Upon resentencing the factors taken into consideration by the district court should be articulated in detail as required by Article 894.1 C.

Conviction affirmed; sentence set aside; and case remanded for resentencing.