author: BLANCHE, Justice.

text:
    STATE of Louisiana v. William S. JOHNSON.
    No. 80-KA-1653.
    Supreme Court of Louisiana.
    Sept. 2, 1983.
    Rehearing Denied Oct. 28, 1983.

      See also, 368 So.2d 684.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., John H. Crqft, Asst. Dist. Atty., for plaintiff-appellee.
    Plauche F. Villere, New Orleans, for defendant-appellant.
   BLANCHE, Justice.

William “Bill” Johnson and Kevin Seward were charged by grand jury indictment with first degree murder in violation of La.R.S. 14:30. A motion for severance was granted by the trial court. Thereafter, defendant Johnson filed a motion to suppress a confession given to police on the morning of his arrest. The trial court denied the motion and this court granted supervisory writs to review the suppression issue. We subsequently affirmed the trial court’s ruling denying the motion to suppress, State v. Johnson, 363 So.2d 684 (La.1978), and defendant Johnson stood trial for first degree murder. He was found guilty as charged, and, in accordance with the jury’s recommendation, was sentenced to life imprisonment at hard labor. Defendant now appeals his conviction and sentence, advancing nine arguments.

The evidence at trial revealed the following:

During the early evening hours of January 16,1978, a young man rang the doorbell at the Washington Avenue residence of Dr. and Mrs. Thomas Crumpler in Orleans Parish. When Dr. Crumpler opened the door he found Kevin Seward, a man unknown to him at the time, standing on the steps. Seward pulled out a gun, forced his way inside the house, and shot both Dr. and Mrs. Crumpler, seriously injuring Dr. Crumpler and killing Mrs. Crumpler.

Defendant William Johnson, Mrs. Crum-pler’s son, had long nursed an intense and abiding hatred of his mother. When told of her death, Johnson joyously announced: “The bitch is dead. This is the happiest day of my life. I’ll dance a jig on her grave.” Police investigation thus quickly focused on Johnson and his lover, Kevin Seward. Both Johnson and Seward were arrested by police on January 18,1978. During the course of interrogation, Johnson confessed to the murder of his mother — a confession admittedly false in its principal details. In an effort to conceal Seward’s identity as the actual assailant, Johnson told the police that a person named Brent Engles had helped him commit the murder. The authorities interviewed Engles, discounted him as a suspect and then returned to question Seward, who subsequently confessed to his role in the murder. Dr. Crumpler identified Seward as his assailant in a photographic line-up conducted at the hospital.

According to the State’s theory of the case, Johnson recruited Seward to kill his mother out of an unnatural hatred of her and fear that he might lose his inheritance. The defendant argued in rebuttal that Kevin Seward is a disturbed and violent individual who acted entirely on his own in killing Mrs. Crumpler. The jury rejected defendant’s argument and convicted him of first degree murder.

ARGUMENT NO. I

By this assignment, the defendant contends that the trial judge erred in denying his motion to sequester witnesses who were present in the courtroom during the voir dire examination.

At the outset of the voir dire examination, defense counsel requested the sequestration of all witnesses pursuant to La. C.Cr.P. art. 764. The trial judge denied the motion, stating that sequestration would be ordered “when we start the trial.” Apparently, the trial judge was of the opinion that La.C.Cr.P. art. 764 does not apply during voir dire and that whether or not the witnesses are to be sequestered at that point is a matter within the discretion of the trial court.

La.C.Cr.P. art. 764 provides the rule for the sequestration of witnesses:

Upon its own motion the court may, and upon request of the state or the defendant the court shall, order that the witnesses be excluded from the courtroom or from where they can see or hear the proceedings and refrain from discussing the facts of the case or the testimony of any witnesses with anyone other than the district attorney or defense counsel. The court may modify its order in the interest of justice.

The language of La.C.Cr.P. art. 764 is mandatory. Under that article, the trial judge has no discretion when an order of sequestration is requested either by the state or the defendant. He must grant the order subject only to his power to modify it at the time it is granted or thereafter “in the interest of justice.” State v. George, 346 So.2d 694 (La.1977); State v. Simpson, 259 La. 94, 249 So.2d 536 (1971). As explained by this court in the case of State v. Simp son, 249 So.2d 536 (La.1977): “While article 764 provides that the court may modify its order in the interest of justice, the issuance of the order in the first instance is mandatory.'’

The jurisprudence has made it clear that the mandatory direction in La.C.Cr.P. art. 764 is not governed by any particular time sequence and that the court is required to act with respect to a sequestration motion whenever in the course of trial the motion is made. State v. Tauzier, 397 So.2d 494 (La.1981); State v. George, 346 So.2d 694 (La.1977); State v. Simpson, 259 La. 94, 249 So.2d 536 (1971). In fact, defense counsel’s motion in the present case falls precisely within the time frame contemplated by this court in the case of State v. George, 346 So.2d 694, 699 (La.1977), wherein it was explained that “... defendant could have requested an order of sequestration at the commencement of voir dire examination.”

That sequestration is available during voir dire is evident from an examination of the language of La.C.Cr.P. art. 764. That article provides that upon request of the state or the defendant, witnesses shall be excluded from where they can see or hear the “proceedings,” and shall refrain from discussing “the facts of the case or the testimony of any witness.” The obvious evil which is sought to be avoided is that witnesses will hear certain facts or evidence which may either consciously or subconsciously affect their testimony.

While it is true that no evidence is taken or testimony given during the voir dire examination, it is equally true that certain facts about the crime and about the defendant may be revealed to prospective jurors in order to determine if there is any bias or prejudgment on their part. To the extent that witnesses may be influenced by the revelation of those facts, or that the presence of witnesses may unduly hamper a party’s constitutional right to a full voir dire examination, sequestration is appropriate.

Therefore, we conclude that when the defendant in the present case requested that the witnesses be sequestered during the voir dire examination, the trial judge had no choice but to grant the sequestration order, subject only to his power to modify it at that point or thereafter “in the interest of justice.”

However, the fact that the trial court erred in its refusal to grant defendant’s sequestration order does not automatically call for the reversal of defendant’s conviction. The often repeated purpose of sequestration is to prevent witnesses from being influenced by prior testimony and to strengthen the role of cross-examination in developing the facts. State v. Kimble, 407 So.2d 693 (La.1981); State v. Lewis, 367 So.2d 1155 (La.1979); State v. Williams, 346 So.2d 181 (La.1977). Where the purpose of sequestration is not thwarted by the presence of witnesses during voir dire, and where defendant cannot be shown to have been materially prejudiced thereby, the refusal of the trial court to order sequestration may be considered harmless error.

In the present case, defendant has pointed to nothing specific in the record, nor could anything be found which could possibly have influenced the testimony of a witness. In the absence of any showing that defendant suffered material prejudice as a result of the witnesses’ presence during voir dire examination, or that the exposure was sufficient to affect the witnesses’ testimony or to undermine the defendant’s ability to cross-examine, we must conclude that the failure of the trial court to timely order sequestration did not constitute reversible error.

ARGUMENT NO. II

The defendant maintains that the trial court erred in refusing to instruct the jury concerning the crime of negligent homicide.

At the completion of the presentation of evidence, the defendant filed a motion requesting a special jury charge including negligent homicide as a lesser included offense of first degree murder. The trial court denied defendant’s motion without comment.

La.C.Cr.P. art. 814 lists the only verdicts responsive to a first degree murder indictment: guilty; guilty of second degree murder; guilty of manslaughter; and not guilty. Instructions on these permissible verdicts are mandatory. State v. Toomer, 395 So.2d 1320 (La.1981).

Special requested charges are governed by La.C.Cr.P. art. 807 which provides that a special charge shall be given by the court if it does not require qualification, limitation or explanation, and if it is wholly pertinent and correct. State v. Lane, 414 So.2d 1223 (La.1982); State v. Toomer, 395 So.2d 1320 (La.1981); State v. Telford, 384 So.2d 347 (La.1980).

In addition, La.C.Cr.P. art. 802 obligates the trial judge to charge the jury as to the law applicable to the case. Under this rule, the trial court is required to charge the jury, when properly requested, as to the law applicable to any theory of defense which the jurors could reasonably infer from the evidence. State v. Telford, 384 So.2d 347 (La.1980); State v. Marse, 365 So.2d 1319 (La.1978). This charge must be supported by the evidence, however. State v. Telford, 384 So.2d 347 (La.1980); State v. Clement, 368 So.2d 1037 (La.1979). As the United States Supreme Court noted in Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 2053, 72 L.Ed.2d 367 (1982): “... due process requires that a lesser included offense instruction be given only when the evidence warrants such an instruction. The jury’s discretion is thus channelled so that it may convict a defendant of any crime fairly supported by the evidence.”

For purposes of the present case, the determination of whether the trial court erred in refusing defendant’s requested instruction on negligent homicide will depend upon whether the negligent homicide defense is fairly supported by the evidence.

Negligent homicide is the killing of a human being by criminal negligence. La. R.S. 14:32. In arguing for the instruction on negligent homicide, the defendant reasoned that by articulating his hatred for his mother in Kevin Seward’s presence, not knowing that Seward was a psychotic and violent personality who would act out his expressed desires, he was guilty of criminal negligence. In support of this contention the defendant presented a substantial amount of expert testimony regarding the psychiatric status of Seward. That testimony depicts Seward as a sexually conflicted, oedipally disturbed, urgent, angry and sadistic person who is quite narcissistic and clever in setting up others to trigger his fury for him in such a way that he does not feel responsible for its outcome. He is described as being fully capable of episodic violence and as being a genuine threat to other males and females, especially parent/authority figures.

While such evidence is certainly damaging to the character of Seward, it is clearly not probative of defendant’s alleged criminal negligence. Criminal negligence exists when there is such disregard of the interests 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. La.R.S. 14:12.

According to the defendant’s allegations, he did not know nor did he have reason to suspect Seward’s violent and psychotic propensities. In fact, expert psychological testimony revealed that Seward was able to present himself well and to disguise his psychotic tendencies. In the absence of any evidence that it was foreseeable to a reasonably careful man that defendant’s statements might produce a murderous reaction in Seward, no rational juror could have inferred that defendant’s conduct was such a “gross deviation” as to amount to criminal negligence. The defendant simply did not present any evidence which could fairly support a defense of negligent homicide. Consequently the trial court did not err in refusing to give a jury instruction on negligent homicide.

ARGUMENT NO. Ill

The defendant assigns as error the refusal of the trial court to order the production of a prior statement made by defendant’s brother, Tom Johnson. During defense counsel’s cross-examination of Tom Johnson, it was discovered that Johnson had given a written statement to police officers a few days after the murder. Defense counsel moved for production of that statement in order to determine if there were any inconsistencies between it and Johnson’s trial testimony. Johnson later revealed that he had a copy of the statement at the residence where he was staying and that he had used the statement to refresh his memory in preparation for trial. Defense counsel at this point requested issuance of an instanter subpoena, which request was denied by the trial court. Thereafter, at the conclusion of Johnson’s testimony, defense counsel filed a handwritten request for a subpoena duces tecum seeking production of the written statement. The trial court ordered production, but this order was subsequently quashed at the state’s request.

As a rule, the state is not required to produce for inspection a police report or a prior statement for use in cross-examination of a state witness for impeachment purposes unless:

(1) the witness has physical possession of the report on the stand and testified from it. State v. Latin, 412 So.2d 1357 (La.1982); State v. Perkins, 310 So.2d 591 (La.1975); or
(2) the witness testified exclusively from his past recollection recorded even though he does not have physical possession of the report on the stand. State v. Latin, 412 So.2d 1357 (La.1982); State v. Banks, 341 So.2d 394 (La.1976); or
(3) it is established that there is an inconsistency between the witness’ testimony at trial and his prior statement. State v. Breaux, 366 So.2d 1375 (La.1978); State v. Lovett, 359 So.2d 163 (La.1978).

In the present case, the testimony clearly indicates that Tom Johnson was relying on his memory refreshed by his prior statement. He did not have physical possession of his statement when he testified, nor did defense counsel make any showing that Johnson’s testimony differed from his prior statement. Accordingly, the statement was properly withheld from defense inspection.

ARGUMENT NO. IV

The defendant maintains that the trial court erred in admitting a hearsay statement made by Kevin Seward which implicated the defendant in the murder of his mother. The statement was made by Kevin Seward to John Carter, a former roommate of Seward’s when Seward visited Carter at his place of employment some four days prior to the murder in order to pick up some clothes he had left in Carter’s apartment. The statement which John Carter testified that Kevin Seward made was as follows: “He [Kevin] went on to say that he had a friend that lived uptown who had a two story mansion that really had it made, and he was going to pay him Two Thousand Dollars. He was going to give him a thousand dollars up front as good will, and another thousand dollars to kill his mother. He asked—Kevin asked to borrow a sport coat,—a suitcoat or jacket because they were on their way out to the horse track. He said that the gentleman who was waiting in the car was going to point out his mother and the other party, I guess his stepfather.” Carter identified the defendant as the gentleman who was waiting for Seward in the car. Carter also testified that Seward told him that the reason this man wanted his mother dead was that his grandmother was going to die and he feared his mother would receive the entire inheritance.

Carter’s testimony was clearly hearsay, as it was in-court testimony of an out-of-court statement offered to show the truth of the matter asserted therein and resting for its value upon the credibility of the out-of-court assertor (in this case, Kevin Seward). State v. Arbuthnot, 367 So.2d 296 (La.1979); State v. Martin, 356 So.2d 1370 (La.1978). Nevertheless, the trial court allowed the testimony into evidence pursuant to La.R.S. 15:455, the co-conspirator exception to the hearsay rule.

According to La.R.S. 15:455:

Each coconspirator is deemed to assent to or to commend whatever is said or done in furtherance of the common enterprise, and it is therefore of no moment that such act was done or such declaration was made out of the presence of the conspirator sought to be bound thereby, or whether the conspirator doing such act or making such declaration be or be not on trial with his codefendant. But to have this effect a prima facie case of conspiracy must have been established.

As explained in the case of State v. Dupree, 377 So.2d 328, 330 (La.1979):

Before a co-conspirator’s declaration may be introduced under this exception, a prima facie case of conspiracy must have been established and it must be shown that the declaration was made in furtherance of the common enterprise and during its continuation, [citations omitted] Introduction of a hearsay declaration without fulfillment of these requisites violates both the statute which prohibits the admission of hearsay evidence not falling within any exception to the rule, La.R.S. 15:434, and the constitutional guarantee of an accused’s right to confront and cross-examine the witnesses against him [citations omitted].

In order to determine whether a prima facie case of conspiracy has been established, it is necessary that we first define the crime of conspiracy. Criminal conspiracy is defined in La.R.S. 14:26 as the agreement or combination of two or more persons for the specific purpose of committing any crime, provided however, that such an agreement or combination shall not amount to a criminal conspiracy unless, in addition to such combination or agreement, one or more of the parties does an act in furtherance of the object of the agreement or combination.

Proof of a conspiracy may be made by direct or circumstantial evidence. State v. Brown, 398 So.2d 1381 (La.1981); State v. Clark, 387 So.2d 1124 (La.1980); State v. Sheppard, 350 So.2d 615 (La.1977); State v. Kaufman, 331 So.2d 16 (La.1976).

This court has held that a prima facie case of conspiracy is presented when the State introduces evidence which, if un-rebutted, would be sufficient to establish the fact of conspiracy. State v. Brown, 398 So.2d 1381 (La.1981); State v. Dupree, supra. For purposes of La.R.S. 15:455 however, the State cannot rely on the co-conspirator’s declaration itself to supply the prima facie case of conspiracy. The conspiracy must be established by separate admissible evidence. State v. Meredith, 403 So.2d 712 (La.1981); State v. Millet, 356 So.2d 1380 (La.1978).

In the instant case, considering only the evidence presented by the State, we find that there was a prima facie showing of conspiracy. The evidence adduced at trial reveals the following: Dr. Crumpler, the defendant’s stepfather and a victim of the shooting himself, identified Kevin Seward as the actual assailant of Mrs. Crumpler. Dr. Crumpler also testified that defendant Johnson had a long-standing, virulent hatred of his mother evidenced by previous threats on her life and by prior outbursts of violence towards her. Dr. Crumpler explained that one Sunday afternoon in 1971 as he and Mrs. Crumpler were leaving the home of Kitty Morris (defendant’s grandmother), the defendant approached the couple waving a gun at them. According to Dr. Crumpler, the defendant stated: “I’m going to get rid of both of you. I’m not going to do it myself. I’ve got lots of friends who’ll be quite willing to do it for a very small amount of money, and you can be sure when I do it, I’ll have a good alibi. I’ll either be off on a long trip or I’ll be in the company of other people when it happens, because I won’t be doing it myself.”

Dr. Crumpler also testified that on one occasion, when Mrs. Crumpler refused to give the defendant $5,000 with which to start a business, the defendant set off a tear gas bomb in the Crumpler house. Finally, Dr. Crumpler related another incident in North Carolina in which defendant and Mrs. Crumpler became involved in an argument. The defendant is reported to have struck Mrs. Crumpler, forcing her to call the police to have him physically evicted from the premises.

Tom Johnson, the defendant’s brother, also testified as to threats defendant had made against their mother’s life. According to Tom, in August and September of 1977, the defendant told him on at least three occasions that he wanted their mother dead. Apparently, the defendant was concerned over the fact that if his grandmother pre-deceased his mother, Mrs. Crumpler would inherit all of his grandmother’s money and then move to North Carolina in order to avoid Louisiana’s forced heirship rules. Tom testified that defendant told him that he was going to kill their mother and that “I’m going to hire someone to do it. I’m going to have the perfect alibi. When it happens, I’ll be here at Kitty’s. And, I’ll be watching TV, and I’ll then get him to come back and give me the news that it’s done.”

India Bradley, the defendant’s cousin, testified that she went to the defendant’s house the night of the murder to tell defendant of his mother’s death. She testified that Kevin Seward was present with defendant when she arrived. According to Ms. Bradley, when she told defendant that his mother was dead, both defendant and Kevin Seward reacted joyously. Defendant said: “The bitch is dead. And Tom [Dr. Crumpler], what about Tom? Is he going to make it?” Mrs. Bradley testified that she had not yet mentioned Dr. Crumpler or his condition at the time that defendant made this statement. After that, defendant is reported to have turned to Kevin Seward and handed him a tranquilizer, telling him: “Take it. You deserve it.”

The defendant’s former roommate, Allen Armstrong, also testified on behalf of the State. Armstrong stated that Kevin Seward had been living with defendant on and off for approximately two weeks prior to the murder. He corroborated Ms. Bradley’s version of the events of that evening and of the defendant’s reaction to the news of his mother’s death. Armstrong also added that the night of the murder defendant handed him some files concerning his grandmother’s estate and asked him to hide them from the other members of defendant’s family.

Other evidence presented by the State to link defendant to the murder of his mother included bullets found in a tree in the backyard of defendant’s residence. A ballistics expert from the police department testified that the bullets removed from the tree were fired from the same gun that was used to kill Mrs. Crumpler.

Finally, it was established that following the arrest of defendant and Kevin Seward, defendant told police that he was the one who shot Dr. and Mrs. Crumpler, and that Seward had nothing to do with the incident. This statement, which proved to be false, was obviously made in an effort to protect Seward.

The above facts, circumstances, and the permissible inferences which can be drawn therefrom, left unexplained, are sufficient to establish an agreement between Seward and defendant for the purpose of committing a crime. The recited facts — that defendant had personal and financial motives for wanting his mother dead, that he openly and repeatedly threatened her, that the murder occurred in the exact manner predicted by defendant in his threats, that Seward was the actual assailant, that defendant and Seward were living together, that the two were found together immediately after the murder, that Seward had no ostensible reason for wanting Mrs. Crum-pler dead, that bullets were discovered which connected defendant to the murder weapon, and that defendant himself confessed to the murder in an effort to protect Seward — provide a prima facie showing that defendant and Seward, by their words and actions, agreed and combined to kill Mrs. Crumpler.

The fact that defendant denies any complicity in the crime and maintains that Seward acted entirely on his own, does not detract from the facts and circumstances set forth above, which, if unexplained, establish a prima facie case that Seward committed the murder and that he did so at the request and under the direction of defendant.

Furthermore, consistent with the requirement in La.R.S. 15:455, it is apparent that Seward’s hearsay statement was made in furtherance of the common enterprise and during its continuation. State v. Dupree, 377 So.2d 328 (La.1979). At the time that Seward visited Carter, the conspiracy’s prime objective, the murder of Mrs. Crum-pler, had not yet been achieved. Therefore, Seward’s declaration was obviously made during the continuation of the conspiracy.

As to the requirement that the statement be made “in furtherance of the common enterprise,” that requirement has clearly been met. As Seward himself explained to Carter, the purpose of his visit with Carter was to obtain a sport coat to wear to the race track where he was going in order to learn the identity of his future victims. The fact of the conspiracy was revealed to Carter as part of Seward’s explanation of his need for the sport coat. Certainly, obtaining a coat in order to be appropriately dressed at the track and proceeding to the track in order to identify the prospective victims is an act in furtherance of the common enterprise. It is a direct step in the advancement of the conspiracy’s objective. Accordingly, Seward’s hearsay declaration was admissible under La.R.S. 15:455. McCormick on Evidence, § 267 (2d Ed. 1972).

ARGUMENT NO. V

The defendant contends that the trial court was guilty of instances of judicial misconduct sufficient to violate its duty of strict impartiality. More specifically, the defendant argues that the trial judge’s comments to defense counsel throughout the proceedings were calculated to discredit defense counsel in the eyes of the jury and had the effect of communicating the judge’s feeling that the defendant should be found guilty.

Essential to the concept of a fair trial is the requirement of complete neutrality on the part of the presiding judge, cf. State v. Williams, 375 So.2d 1379 (La.1979); State v. Hammler, 312 So.2d 306 (La.1975); La.C.Cr.P. arts. 772 and 806. A trial judge’s disparaging remarks or intemperate criticism of defense counsel may constitute reversible error when such remarks adversely influence and prejudice the jury against the defendant. State v. Hammler, 312 So.2d 306 (La.1975). In order to constitute reversible error, however, the effect of the improper comments must be such as to have influenced the jury and contributed to the verdict. State v. Gallow, 338 So.2d 920 (La.1976); State v. Hammler, 312 So.2d 306 (La.1975); State v. Simpson, 247 La. 883, 175 So.2d 255 (La.1975).

In the present case, the defendant cites numerous examples of antagonism between the trial judge and defense counsel which erupted during the course of voir dire examination. We have reviewed each of the challenged exchanges and conclude that the comments of the trial judge did not rise to so substantial a level as to adversely affect the availability of a fair and impartial trial or to prejudice defendant in any significant manner. In reaching this conclusion, we note that the scope of examination of prospective jurors is controlled by the trial court’s discretion. La.C.Cr.P. art. 786. The defendant has made no allegation that the trial judge’s statements amounted to an abuse of that discretion. Furthermore, defense counsel was given the opportunity during the voir dire examination to ask potential jurors if the exchanges between the judge and himself had affected their judgment or impartiality, thereby assuring that no prejudice resulted to defendant. Finally, it must be noted that the antagonism between defense counsel and the trial judge, much of which was provoked by impertinent and argumentative comments on the part of defense counsel, subsided dramatically during the actual presentation of evidence so as not to have deprived the defendant of a fair and impartial trial.

Accordingly, we find that the trial court’s comments do not constitute reversible error as they did not influence the jury or contribute to the verdict.

ARGUMENT NO. VI

The defendant contends that the trial court erred in refusing the jury’s request to rehear the testimony of certain witnesses. During its deliberations, the jury asked to rehear the testimony of India Bradley. The trial judge denied the request, relying on La.C.Cr.P. art. 793, the article governing the use of evidence in the jury deliberation room. La.C.Cr.P. art. 793 provides:

A juror must rely upon his memory in reaching a verdict. He shall not be permitted to refer to notes or to have access to any written evidence. Testimony shall not be repeated to the jury...

In interpreting this provision, we have repeatedly held that La.C.Cr.P. art. 793 absolutely prohibits the repetition of testimony to the jury. State v. Perkins, 423 So.2d 1103 (La.1982); State v. Gaston, 412 So.2d 574 (La.1982); State v. McCully, 310 So.2d 833 (La.1975). The general reason for this prohibition is a fear that the jurors might give undue weight to the limited portion of the verbal testimony thus emphasized. State v. McCully, 310 So.2d 833 (La.1975); State v. Freetime, 303 So.2d 487 (La.1974).

Although we recognize that a majority of jurisdictions permit testimony to be re-read to the jury upon its request, the enactment of La.C.Cr.P. art. 793 represents an express legislative choice in the matter. Accordingly, we conclude that under the express provisions of La.C.Cr.P. art. 793, the jury was not entitled to rehear the testimony of India Bradley. The trial court did not err in so ruling.

ARGUMENT NO. YII

By this assignment, the defendant complains that there was insufficient evidence to support his conviction.

In the case of State v. Graham, 422 So.2d 123, 129 (La.1982) we had occasion to consider the constitutional and statutory standards by which the sufficiency of evidence is to ne judged in this state. We observed that:

The Due Process Clause of the Fourteenth Amendment requires this court to review the evidence upon which a criminal conviction is based to determine whether it is minimally sufficient. A defendant has not been afforded due process, -and his conviction cannot stand, unless, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the state proved 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). Additionally, we are governed by our statutory rule as to circumstantial evidence: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence. R.S. 15:438.

In brief, the defendant argues that his conviction was based solely on circumstantial evidence and that such evidence did not exclude every reasonable hypothesis of innocence, as required by La.R.S. 15:438. Defendant maintains that the evidence used to convict him did not exclude the reasonable hypothesis that Seward was psychotically inclined to commit the crime, and when confronted with defendant’s hatred for his mother and desire to see her dead, acted out defendant’s desires on his own and for reasons known only to him.

Generally, direct evidence consists of testimony from a witness who actually saw or heard an occurrence, proof of the existence of which is at issue; whereas, circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Austin, 399 So.2d 158 (La.1981). Where there is direct evidence, the trier of fact weighs the credibility of the evidence and the reviewer under Jackson defers to that trier of fact, assuming the proven facts most favorable to the State. Where an essential element of the crime is not proven by direct evidence, La.R.S. 15:438 applies. That rule restrains the fact finder, as well as the reviewer on appeal, to accept as proven all that the evidence tends to prove and then to convict only if every reasonable hypothesis of innocence is excluded. State v. Shapiro, 431 So.2d 372 (La.1983), (on rehearing).

In the present case, the defendant was charged with first degree murder. The essential elements of that crime are: (1) the killing of a human being; (2) when the offender has the specific intent to kill and has offered or given anything of value for the killing. La.R.S. 14:30(4). Direct evidence offered by the State proved that: (1) Seward alone killed the victim; and (2) Seward told Carter that the defendant had hired him to kill the victim. Thus, direct evidence was offered to prove every essential element of the crime charged. As a result, the proper standard of review in this instance is that espoused by Jackson. La. R.S. 15:438 is not applicable.

Applying the Jackson standard to the facts of this case, we conclude that defendant was not denied due process of law and that his conviction is clearly based on evidence from which, when viewed in the light most favorable to the prosecution, a rational juror could find that the essential elements of defendant’s crime had been proved beyond a reasonable doubt. In reaching this conclusion, we note that the direct evidence offered by the State to prove its ease is also supported by circumstantial evidence. That evidence consisted largely of testimony demonstrating that defendant hated his mother and had threatened her in the past, that he reacted to news of his mother’s death with glee and inquired into the condition of his step-father before being told that his step-father had also been shot, that defendant discussed the method he would employ to kill his mother with his brother, that defendant was concerned that he would lose his inheritance if it came under his mother’s control, and that the same gun that killed his mother was used to fire a shot into a tree in defendant’s backyard. Viewing this evidence as a whole in accordance with the standard enunciated in Jackson, it is clear that the evidence is constitutionally sufficient to support the defendant’s conviction.

ARGUMENT NO. VIII

The defendant contends that the transcript of his trial is incomplete, edited, altered, and doctored so as to exclude perjury.

The portion of the transcript which defendant points to as missing is the argument of counsel on the issue of whether a prima facie case of conspiracy was proved prior to the introduction of John Carter’s hearsay statement. The argument was made out of the jury’s presence. Thus, there is no gap in recorded testimony — only the missing argument of counsel.

The remainder of defendant’s complaints center around allegations that the testimony of witnesses Tom Johnson and Detective Rodrigue has been edited and altered. These complaints are unsubstantiated beyond defendant’s mere allegations.

In State v. Ford, 338 So.2d 107, 110 (La.1976), this court stated:

A slight inaccuracy in a record or an inconsequential omission from it which is immaterial to a proper determination of the appeal would not cause us to reverse defendant’s conviction.

In the present case, the missing portion of the transcript consists not of testimony, but of the argument of counsel. Such argument is immaterial to an adequate review of the trial court’s ruling. Furthermore, a review of the remainder of defendant’s allegations reveals no inconsistencies, alteration, or editing on the face of the record. The defendant’s complaints, therefore, are immaterial, and unsubstantiated. For these reasons the assignment lacks merit.

ARGUMENT NO. IX

The defendant maintains that the trial court erred in admitting his confession into evidence because the State failed to meet its burden of proving beyond a reasonable doubt the free and voluntary nature of defendant’s statements. Defendant alleges that during the interrogation of Seward and himself at police headquarters, Seward, who was detained in a room down the hall from defendant, was beaten by police. Defendant maintains that, upon hearing the cries of his lover down the hallway, he falsely confessed to the crime in order to end the beating and to avoid similar treatment of himself.

These precise issues were raised and decided adversely to defendant in the earlier decision in State v. Johnson, 363 So.2d 684 (La.1978). In Johnson, the defendant had filed a pre-trial motion to suppress his confession and the trial court had denied that motion. On review, a majority of this court affirmed the denial of the suppression motion, concluding that the State had sufficiently rebutted Johnson’s allegations of coercion, intimidation, or any other undue influence. According to that majority opinion, the testimony of the interrogating officers at the suppression hearing directly contradicted all the testimony of Seward and Johnson and proved beyond a reasonable doubt that Johnson’s confession was freely and voluntarily given. See State v. Johnson, 363 So.2d 684 (La.1978).

In State v. Humphrey, 412 So.2d 507, 523 (La.1982) (on rehearing), we announced that, as a rule:

When this court considers questions of admissibility of evidence in advance of trial by granting a pre-trial application for supervisory writs (rather than deferring judgment until an appeal in the event of conviction), the determination of admissibility does not absolutely preclude a different decision on appeal, at which time the issues may have been more clearly framed by the evidence adduced at trial. Nevertheless, judicial efficiency demands that this court accord great deference to its pretrial decisions on admissibility, unless it is apparent, in light of the subsequent trial record, that the determination was patently erroneous and produced an unjust result.

In the present case, the voluntariness issue, already fully litigated in the pre-trial suppression hearing, was not re-litigated at trial, and the confession was read to the jury after a brief predicate. Defense counsel failed to present any new evidence or argument tending to show that this court’s pretrial decision on admissibility was patently erroneous and produced an unjust result. In the absence of such a showing, this court will not overturn its earlier decision denying defendant’s motion to suppress the confession.

DECREE

For the reasons assigned, the defendant’s conviction and sentence are affirmed.

DIXON, C.J., concurs, disagreeing with arguments 3 and 7.

CALOGERO, J., concurs, disagreeing with the treatment of Argument IY.

LEMMON, J., concurs.

      . Although listed, assignments of error numbers 1, 2, 4, 7, 8, 11-19, 24, 25, 26, 29, 30, 31, 33-47, 50, 51, and 52 were neither briefed nor argued. Therefore, they are deemed abandoned. State v. Dewey, 408 So.2d 1255 (La.1982); State v. Matheson, 407 So.2d 1150 (La.1981).

      . In reaching this conclusion we are careful to distinguish the facts of the instant case from those presented in State v. Simpson, 259 La. 94, 249 So.2d 536 (La.1971). In Simpson, the request for sequestration was made after the case was “half over.” The trial judge denied the request on the grounds that it came too late. Consequently, no sequestration was ordered at all. Witnesses were present during the entire course of the proceedings. In ordering a reversal of Simpson’s conviction, a majority of this court noted: “We could not examine the entire record in the instant case to determine whether the error is harmless. The transcript of testimony is not included in the record as made up ... Since a statutory right accorded the defendant was clearly violated, we cannot presume that the defendant was not prejudiced.” State v. Simpson, supra at 539.
      In the present case we are hampered by no such impediment. We have before us a complete record of the proceedings, including a full transcript of the voir dire examination. Furthermore, the defendant in this case was not totally deprived of his statutory right. Sequestration was ordered before opening arguments commenced.

      . This position is consistent with our holding in State v. Williams, 346 So.2d 181 (La.1977), wherein we ruled that the presence of a witness during voir dire and at each stage of the proceeding could be considered harmless error.

      . To hold otherwise would produce the anomalous consequence that anyone who inadvertently verbalized a hatred of a third party and desire to see that party dead would be guilty of criminal negligence if in fact that third party was subsequently killed by the person to whom this hatred was expressed. While such conduct on the part of an individual may be morally reprehensible, it is certainly not criminal within the meaning of La.R.S. 14:32. A person is under no “duty” to refrain from expressing his opinion of another, however undeserved.

      . Prima facie evidence of conspiracy has been found where the defendant and another individual are shown to have been together both prior to and following the commission of an offense to which the defendant has been circumstantially linked. State v. Gutter, 393 So.2d 700 (La.1981); State v. Kaufman, 331 So.2d 16 (La.1976); State v. Clark, 387 So.2d 1124 (La.1980).

      . It is significant to note that defendant points to no instance in which the trial court’s remarks could be construed as comments upon the evidence, intended to impress the jurors with the court’s opinion as to the defendant’s guilt or innocence. La.C.Cr.P. art. 772.

      . In State v. Graham, 422 So.2d 123, 129-130 (La.1982), the distinction between direct and circumstantial evidence was described as follows:
      The characterization of evidence as “direct” or “circumstantial” points to the kind of inference which is sought to be drawn from the evidence to the truth of the proposition for which it is offered. If the inference sought is merely that certain facts are true because a witness reported his observation and the assumption that witnesses are worthy of belief, the evidence is direct. When, however, the evidence is offered also for some further proposition based upon some inference other than merely the inference from assertion to the truth of the fact asserted, then the evidence is circumstantial evidence of this further fact-to-be-inferred. McCormick, § 185 p. 435.

      . This argument in the same or similar form has been presented to this court before. State ex rel Johnson v. Louisiana, 400 So.2d 673 (writ denied 1980); State ex rel. Johnson v. Louisiana, 404 So.2d 276 (writ denied 1981); State ex rel Johnson v. Louisiana, 412 So.2d 95 (writ denied, 1982).

      . In a brief filed in this court, defendant raises the argument that the signature on the transcript of confession is not his, but a forgery. Defendant has never raised this ground for suppression before in any form. Nevertheless, the argument is clearly without merit. Two police officers testified that they observed defendant sign the confession and a rights of arrestee form. Furthermore, defendant himself testified at the suppression hearing that he signed the confession in a manner different from his normal signature so that he could contest the matter when it came up later.


source: Caselaw Access Project

author: PER CURIAM. LEMMON, Justice,

license: Public Domain

text:
    STATE of Louisiana v. William TANNER.
    No. 83-KK-1437.
    Supreme Court of Louisiana.
    Oct. 6, 1983.
   PER CURIAM.

A pretrial hearing was held on defendant’s motion to suppress results from an auto-intoximeter breath test. The state did not object to the hearing. The trial judge found that the Louisiana Department of Public Safety Regulations setting forth the guidelines to insure the accuracy of the auto-intoximeter’s test results were not in accordance with the applicable jurisprudence of the state of Louisiana. Cf. State v. Goetz, 374 So.2d 1219 (La., 1979). Specifically, according to the trial court, the state failed “... to bear affirmative and detailed proof that the known alcohol standard used to calibrate the auto-intoximeter was pure and unadulterated ...” (Tr. 22-23). When the ruling was appealed to the Court of Appeal, Third Circuit, that court did not address the issue decided by the trial court, but reversed on other grounds and remanded to the trial court. Accordingly, the writ is granted with the following order:

IT IS ORDERED that the opinion and order of the Court of Appeal, dated May 25, 1983, 432 So.2d 1186, be set aside insofar as it remands the case to the trial court. It is further ordered that this case be remanded to the Court of Appeal, Third Circuit, with direction to specifically address and decide the issue upon which the motion to suppress was granted by the trial court.

LEMMON, J., concurs and assigns reasons.

LEMMON, Justice,

concurring.

I concur in remanding the matter to the court of appeal to address the merits of the issue raised by the state’s application for supervisory writs.

La.C.Cr.P. Art. 703 requires the trial court, on defendant’s timely motion alleging adequate facts, to conduct a pretrial hearing on the admissibility of evidence which allegedly was unconstitutionally obtained. However, under La.C.Cr.P. Art. 3, the trial court has the discretion to conduct, on motion of either side establishing good cause therefor, a pretrial hearing on the admissibility of any evidence. See State v. Boettcher, 338 So.2d 1356 (La.1976); State v. Eros Cinema, 262 La. 706, 264 So.2d 615 (1972); State v. Wilkerson, 261 La. 342, 259 So.2d 871 (1972).

      . In some instances, the admissibility of the evidence must be challenged by a pretrial motion to suppress, in the sense that failure to file a pretrial motion precludes the defendant from raising the issue at trial. State v. Kimbrough, 432 So.2d 833 (La.1980); La.C.Cr.P. Art. 703 F.

      . Such a procedure is highly advantageous to the state, because the district attorney, in the event of an adverse ruling, can then seek appellate review of a decision (as the present one) which excludes evidence. The state usually faces great practical difficulty in seeking review of evidence excluded during trial.


author: DIXON, C.J.,

text:
    GRONER APARTMENTS v. CONTROLLED BUILDING SYSTEMS and C’Est La Place.
    No. 83-C-1449.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In Re: C’Est La Place applying for Cer-tiorari or Writ of Review, to the Court of Appeal, Third Circuit, No. 83-30; from the 16th Judicial District Court, Parish of Iberia, No. 48, 246.

Denied.

DIXON, C.J.,

concurs in the denial. C’est La Place was a named defendant, was served (then a default judgment was entered and confirmed against CBS), answered and another trial was held. Therefore the result is correct, La.App., 432 So.2d 1142.

CALOGERO and BLANCHE, JJ., would grant the writ.


author: CALOGERO, J.,

text:
    Helen Catoire Delhommer Wife of Joseph P. DELHOMMER v. BOH BROTHERS CONSTRUCTION COMPANY and Gray & Company, Inc.
    No. 83-C-1519.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In Re: Boh Brothers Construction Company, Inc., applying for Writ of Certiorari, to the Court of Appeal, Fifth Circuit, No. 83-CA-290; Parish of St. John the Baptist, Twenty-Ninth Judicial District Court, No. 12,714.

Denied. La.App., 435 So.2d 1036. The result is correct.

CALOGERO, J.,

concurs. The appeal court’s quotation regarding “possible employment involvement” re final heart failure and “could have or might be” the results of possible employment involvement is not a quotation from Guidry v. Sline Industrial Painters, Inc., 418 So.2d 626 (La.1982), as might be concluded from the opinion’s placing this citation'immediately succeeding the quotation, but rather a quote from the trial judge who referred to Larsen’s Workmen’s Compensation Law, Vol. 2, § 80.32, page 322.

BLANCHE and LEMMON, JJ., would grant the writ.


author: LEMMON, Justice,

text:
    Krisan Wismer RALLS v. Julius Garrett RALLS, Jr.
    No. 83-CC-1609.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In Re: Julius Garrett Ralls, Jr., applying for Writ of Certiorari, Mandamus and Review, to the Court of Appeal Third Circuit, Number 83-612; from the Fifteenth Judicial District Court, Parish of Lafayette, Number 83-1297.

Denied.

LEMMON, Justice,

concurs.

The district court had jurisdiction over the person pursuant to La.R.S. 13:3201(f). Although service should have been made according to La.R.S. 13:3204, a certified copy of the citation and petition apparently was “actually delivered” to defendant by the attorney appointed to represent him.


author: LEMMON, J.,

text:
    Victor GOULD v. STATE of Louisiana, Through the LOUISIANA DEPARTMENT OF CORRECTIONS.
    No. 83-C-1656.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In Re: Victor Gould, applying for writ of Certiorari and review to the First Circuit Court of Appeal, 435 So.2d 540. Parish of East Baton Rouge, to the Nineteenth Judicial District Court, Number 200,017.

Denied.

LEMMON, J.,

concurs, disagreeing with the standard of appellate review enunciated by the Court of Appeal, 435 So.2d 540.

DIXON, C.J., and CALOGERO, J., would grant the writ.


author: CALOGERO and LEMMON, JJ.,

text:
    Joseph L. RICHARD, Jr. v. Benjamin N. MORGAN, Safeco Insurance Company of America, and Government Employees Insurance Company.
    No. 83-C-1705.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In Re: JOSEPH L. RICHARD, JR., applying for Certiorari, or writ of review, to the Court of Appeal First Circuit, Parish of East Baton Rouge, Number 82-CA-0673, 433 So.2d 263, from the Nineteenth Judicial District Court, Number 251,301, Division “L”.

Denied.

CALOGERO and LEMMON, JJ.,

concur. Relator may offer evidence as to the excluded item of damages by means of a proffer, and this Court may consider the issue on appeal, if relator does not recover his total damages caused by the accident.


text:
    ACME MORTGAGE COMPANY, INC. v. Eva Carolyn (Also Known as Carolyn E.) Cross, Divorced Wife By First Marriage of Robert E. Bounds, Divorced Wife By Second Marriage of Carl Gwinn Smith and Thirdly Married to Theodore Victor DEAGANO.
    No. 83-CC-2076.
    Supreme Court of Louisiana.
    Oct. 12, 1983.
   In Re: EVA CAROLYN CROSS DEAG-ANO, applying for Supervisory Writs and/or Certiorari and Review and STAY ORDER to the Fourth Circuit Court of Appeal, Numbers C-1077 & C-1401; Civil District Court, Parish of Orleans, Number 81-4952.

Denied.

CALOGERO and LEMMON, JJ.,

concur in the denial for the following reasons.

Contrary to the Court of Appeal’s position, supervisory writs are appropriate to seek immediate review of the trial court’s denial of a preliminary injunction which seeks to enjoin a judicial sale in an executo-ry proceeding, when the party seeking the injunction could not furnish security for a suspensive appeal from'the order of seizure and sale and involuntarily chooses to seek injunctive relief as the only other alternative.

The purpose of the requested preliminary injunction was to preserve the status quo, and meaningful review of the trial court’s denial must come now or never. The Court of Appeal erred in relegating relators to a meaningless remedy by appeal, since the judicial sale will render moot the question of maintaining the status quo.

While in a different situation we might be inclined to remand the case to the Court of Appeal to review the application on its merits, we think it more in the interest of orderly proceedings and in keeping with this Court’s supervisory jurisdiction to review relator’s assignments of error relative to his eleven points of law.

We have done so and find that there is no merit.in any of the arguments which the relator urges in support of his contentions that the trial judge erred when he refused to grant a preliminary injunction to enjoin the sheriff’s sale. Consequently we concur in denial of this writ application.


text:
    STATE of Louisiana v. Kenneth LaSALLE.
    No. 83-KK-1727.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
   In Re: Kenneth LaSalle, applying for Writ of Certiorari and Prohibition, to the Criminal District Court, No. 295-446; Parish of Orleans, Fourth Circuit Court of Appeal, No. KA-1072.

Granted. The judgment of the Court of Appeal is reversed. The case is remanded to the Court of Appeal to hear argument and render an opinion.

LEMMON, Justice,

concurs.

Rules 4-6 and 4r-7 of the Uniform Rules of the Courts of Appeal require the court, when granting a writ, to fix a date for submission of the case, presumably to afford both sides an opportunity for expansive briefing of a case that the court is seriously considering reversing. There must be a period between the granting of the writ and the submission of the case, unless exigent circumstances require immediate disposition. No exigent circumstances appear in this case, and the court rules should have been followed.


author: DENNIS, Justice,

text:
    STATE of Louisiana v. Darryl WILLIAMS.
    No. 80-KA-2662.
    Supreme Court of Louisiana.
    Oct. 25, 1983.
   For majority opinion of the Court, see La., 418 So.2d 562.

DENNIS, Justice,

dissenting.

I respectfully dissent for the reasons assigned by Justice Calogero. 418 So.2d at 566.


text:
    STATE of Louisiana v. Gilbert L. COLLAR.
    No. 81-KA-2838.
    Supreme Court of Louisiana.
    Oct. 26, 1983.
   For majority opinion of the Court, see La., 416 So.2d 85.

DENNIS, Justice,

dissenting.

I respectfully dissent.

Collar was convicted of attempted forcible rape. The evidence against Collar consisted of evidence of seminal fluid on the couch of the victim’s apartment, testimony of a neighbor that she had been struggling with Collar, and victim’s own testimony.

Collar attempted at trial to impeach the victim’s testimony by showing that she and her family had a bias against defendant which could have impelled them to institute this suit unwarrantedly. In 1975, her Uncle Ferdinand had been convicted of armed robbery. One of the main witnesses for the prosecution in that case was Gilbert Collar, defendant herein. Collar wished to establish at trial that his involvement in Ferdinand’s conviction provided an impetus for this suit. He was prevented by the judge. The majority opinion upheld the judge’s ruling, finding that the victim had no knowledge of her uncle’s incarceration.

La.R.S. 15:492 specifically provides that

When the purpose is to show that in the special case on trial the witness is biased, has an interest, or has been corrupted, it is competent to question him as to any particular fact showing or tending to show such bias, interest or corruption, and unless he distinctly admit such fact, any other witness may be examined to establish the same.

Thus an accepted method of impeaching the credibility of a witness is by showing that the witness is biased or interested in the particular case on trial because of partiality as manifested by any acts, relationships, or motives reasonably likely to produce it. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); 3A Wigmore, Evidence, § 950 (Chadbourn rev. 1970). Wig-more further asserts that the scope of cross-examination in determining bias be the “largest possible”. 3A Wigmore, Evidence § 944 (Chadbo.urn rev. 1970).

In the instant case defendant was attempting to show that his arrest and prosecution was the result of malice towards him from the victim, her father and perhaps her uncle based upon an incident which occurred in 1975. The malice is direct and personal to the defendant and could be construed to influence or color the testimony of the witnesses. State v. Lewis, 328 So.2d 75 (La.1976).

The majority holds that this is not reversible error because the victim was not aware that her uncle had been incarcerated. The majority derives this opinion from the one statement in the record by the victim that she was not aware of the incarceration. This is insufficient. It is not sufficient that the word of one witness be accepted to establish that that witness not be examined to determine whether the witness is biased. The witness’s assertion that she is not aware of the potentially biassing circumstance, standing alone, should not be allowed to prohibit defendants from investigating a potentially biassing circumstance.


author: DENNIS, Justice.

text:
    STATE of Louisiana v. David M. WARREN.
    No. 83-KA-0288.
    Supreme Court of Louisiana.
    Oct. 26, 1983.
   For majority opinion of the Court, see La., 437 So.2d 836.

DENNIS, Justice.

I respectfully dissent.

The excluded witness, William Jackson, is the defendant’s uncle. Naturally there is some suspicion that an accused’s relative, called as a defense witness, is not as reliable as an independent witness. However, this suspicion does not empower an appellate court to classify an erroneous disqualification as harmless error. This does violence to the standard of review this court approved in State v. Jones, 354 So.2d 530 (La.1978) and State v. Boutte, 384 So.2d 773 (La.1980) and essentially strips the trier of fact of its inherent power and duty to weigh evidence and judge the credibility of a witness.


text:
    Joseph W. BARHAM v. DEPARTMENT OF HIGHWAYS (a/k/a Transportation & Development Department, Division of Administration).
    No. 83-C-1551.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re Department of Highways (a/k/a Transportation & Development Department, Division of Administration), applying for certiorari, or writ of review. Second Circuit Court of Appeal. Richland Parish, Fifth Judicial District Court. No. 21519. 431 So.2d 899.

Denied.


text:
    Byron Patrick JORDAN v. Lula Mae Staples, Wife of Byron Patrick JORDAN.
    No. 83-C-1557.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re Byron Patrick Jordan, applying for writ of certiorari or review. Court of Appeal, Fifth Circuit. Parish of Jefferson, Twenty-Fourth Judicial District Court. No. 166-692. 432 So.2d 314.

Denied.


text:
    Mr. & Mrs. Robert CLIFFORD v. John BAKER d/b/a Oasis Pools.
    No. 83-C-1574.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re Mr. & Mrs. Robert Clifford, applying for writ of certiorari and review. Court of Appeal, Fifth Circuit. Twenty-Fourth Judicial District Court, Parish of Jefferson. No. 253-265. 431 So.2d 1072.

Denied.

DIXON, C.J., and CALOGERO and DENNIS, JJ., would grant the writ.


text:
    In the Matter of the Interdiction of John M. AARON.
    No. 83-C-1561.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re John M. Aaron, applying for writ of certiorari. Court of Appeal, Third Circuit. Parish of Natchitoches, Tenth Judicial District Court. No. 37535. 434 So.2d 624.

Denied.


text:
    STATE of Louisiana v. James Allen STATON.
    No. 83-K-1569.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re James Allen Staton, applying for writ of certiorari. Parish of East Baton Rouge. First Circuit Court of Appeal. Nineteenth Judicial District Court. No. 8-81-40. 433 So.2d 222.

Denied.


text:
    STATE of Louisiana v. Terrance D. RUSSELL.
    No. 83-K-1571.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re Terrance D. Russell, applying for writ of review. Court of Appeal, Second Circuit. Parish of Winn, Eighth Judicial District Court. No. 26155. 434 So.2d 460.

Denied.


text:
    STATE of Louisiana v. Clarence CUNNINGHAM.
    No. 83-K-1573.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re Clarence Cunningham, applying for writ of certiorari and review. Second Circuit Court of Appeal. First Judicial District Court, Parish of Caddo. No. 120158. 431 So.2d 854.

Denied.


text:
    William ROBINSON v. ESTATE OF Donald W. HAYNES, et al. Consolidated With Kim ROBINSON, et al. v. William L. MILLER, et al. Consolidated With Barbara WASHINGTON, v. LOUISIANA DEPT. OF TRANSPORTATION & DEVELOPMENT, et al. Consolidated With Phillip DOMIANO v. SUCCESSION OF Donald HAYNES, et al.
    No. 83-C-1583.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re Ragusa Brothers, Inc., Nolan Spring, and Hanover Insurance Company, applying for certiorari, or writ of review. Court of Appeal, First Circuit. Parish of Tangipahoa, Twenty-First Judicial District Court. Nos. 61652, 59610, 59972 and 60011. 433 So.2d 294.

Denied.


text:
    STATE of Louisiana, ex rel. Eddie JOHNSON v. STATE of Louisiana.
    No. 83-KH-1834.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re Eddie Johnson, applying for remedial writs. Parish of East Baton Rouge.

Writ granted. In view of this Court’s judgment in State v. Johnson, 432 So.2d 815 (La.1983) vacating relator’s sentence, Johnson should be returned to the custody of the Sheriff of East Baton Rouge Parish to await sentencing by the trial court. Accordingly, it is ordered that the Department of Corrections deliver relator into the custody of the Sheriff of East Baton Rouge Parish forthwith.


text:
    Robert E. BEYER, Jr., William J. Bravender, Jr., Ellis W. Adams, Ronald L. Passons, John A. Liljebert, Jr., and Oscar J. Autin v. DAUL INSURANCE AGENCY, INC., and Michael B. Daul, Jr.
    No. 83-CC-1997.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re Daul Insurance Agency, Inc., applying for writ of certiorari or review. Twenty-fourth Judicial District Court, Parish of Jefferson. Court of Appeal, Fifth Circuit. No. 83-C-607.

Stay order denied. Writ denied.


text:
    STATE of Louisiana, ex rel. Calvin James LANDRY v. HONORABLE PRESIDING JUDGE CRIMINAL DISTRICT COURT PARISH OF LAFAYETTE.
    No. 83-KH-1099.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In re Calvin James Landry, applying for writ of review. Parish of Lafayette. Nos. 44811, 44847, 44898, 44820.

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


text:
    STATE of Louisiana ex rel. Floyd CURLEY v. Ross MAGGIO, Warden Louisiana State Penitentiary.
    No. 83-KH-1124.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In re Floyd Curley, applying for remedial writs. Parish of Orleans. No. 236-695.

Granted. District court is ordered to rule on relator’s application by October 17, 1983.


text:
    Gladys Virginia OWENS, Karen Lee Owens and Linda Ruth Owens v. Bob MARTIN, George Baker, Otto Sherman, A.G. Root, and XYZ Executive Officers of Crown Zellerbach Corporation, Bougalusa, Louisiana.
    No. 83-C-1347.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In re Bob Martin et al., applying for writ of certiorari and review. First Circuit Court of- Appeal. Twenty-Second Judicial District Court, Parish of Washington. No. 49337, Division “A”.

Granted.


text:
    STATE of Louisiana, ex rel. David WINFIELD v. Honorable Edwin LOMBARD, Clerk of Court Parish of Orleans.
    No. 83-KH-1503.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In re David Winfield, applying for writ of mandamus. Parish of Orleans. No. 252-371.

Granted. The district court is ordered to furnish relator the Boykin transcript he seeks.


text:
    Paul WALDROP v. UNIROYAL, INC.
    No. 83-CC-1657.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
    Reconsideration Denied Nov. 4,1983.
   In re Uniroyal, Inc., applying for writ of certiorari, mandamus and review. First Circuit Court of Appeal. Nineteenth Judicial District Court, Parish of East Baton Rouge. No. 224836, Division “I”.

Granted. The judgment of the Court of Appeal is set aside and the judgment of the district court is reinstated.


text:
    STATE of Louisiana, ex rel. Vincent GAUTREAUX v. Ross MAGGIO, Jr. Warden Louisiana State Penitentiary.
    No. 82-KH-2769.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In re Vincent Gautreaux, applying for writ of habeas corpus. Parish of Lafayette. No. 42738-B.

Denied.


text:
    STATE of Louisiana ex rel. Eugene JOHNSON v. FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO.
    No. 83-KH-0687.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In re Eugene Johnson, applying for writ of mandamus. Parish of Caddo. No. 109998.

Denied. Moot.


text:
    STATE of Louisiana, ex rel. Josie LOWE v. Honorable Mariam WALTZER, Judge, Criminal District Court, Section “A”, Parish of Orleans, New Orleans, Louisiana.
    No. 83-KH-0689.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In re Josie Lowe, applying for writ of mandamus. Parish of Orleans. No. 244-259.

Denied. Moot.


text:
    STATE of Louisiana ex rel., Donald Ray THOMPSON v. Honorable Richard E. LEE, Judge, 9th Judicial District Court, Parish of Rapides.
    No. 83-KH-0784.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In re Donald Ray Thompson, applying for writ of mandamus. Parish of Rapides. Ninth Judicial District Court. No. 203515.

Denied. Moot.


text:
    STATE of Louisiana v. David E. EVANS.
    No. 83-KH-0804.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In re David E. Evans, applying for remedial writ. Ninth Judicial District Court. Parish of Rapides. No. 203210.

Denied.


text:
    STATE of Louisiana, ex rel. Gerald ALLEN v. Freddie PITRE, Sr., Criminal Sheriff, Parish of Iberville, Plaquemine, Louisiana.
    No. 83-KH-0838.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In re Gerald Allen, applying for writ of mandamus. Eighteenth Judicial District Court. Parish of Iberville. Nos. 211-79 and 702-82.

Denied. Moot.


text:
    STATE of Louisiana, ex rel. Raymond E. STONE v. Ross MAGGIO, Jr.
    No. 83-KH-0857.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In re Raymond E. Stone, applying for writ of mandamus. Parish of Bossier. No. 58993.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Leroy M. SMITH v. Honorable Matthew S. BRANIFF, Judge and Clerk of Court, et al.
    No. 83-KH-0858.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In re Leroy M. Smith, applying for writ of mandamus. Parish of Orleans. No. 282-967. •

Denied. Moot.


text:
    STATE of Louisiana ex rel. Tommy JARREAU v. STATE of Louisiana.
    No. 83-KH-0897.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In re Tommy Jarreau, applying for writ of mandamus. Parish of East Baton Rouge. No. 94573.

Denied.


text:
    STATE of Louisiana ex rel. Larry TURNER v. CRIMINAL DISTRICT COURT NEW ORLEANS, Louisiana Criminal Sheriff, Charles Foti.
    No. 83-KH-0949.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In re Larry Turner, applying for writ of habeas corpus. Parish of Orleans. No. 293-126.

Denied.


text:
    STATE of Louisiana, ex rel. Bennie Ray CAIN v. Honorable Charles R. SCOTT, Judge, First Judicial District Court, Parish of Caddo.
    No. 83-KH-0950.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In re Bennie Ray Cain, applying for writ of mandamus. First Judicial District Court. Parish of Caddo. No. 110484-A.

Denied. Moot.


text:
    STATE of Louisiana, ex rel. Henry Lee TAYLOR v. 26TH JUDICIAL DISTRICT COURT PARISH OF BOSSIER State of Louisiana.
    No. 83-KH-1050.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In re Henry Lee Taylor, applying for writ of mandamus. Parish of Bossier. No. 58944.

Denied.


text:
    STATE of Louisiana ex rel., Warren BROOKS v. Honorable Frank MARULLO, Jr., Judge Orleans Parish Criminal District Court Parish of Orleans, State of Louisiana New Orleans, Louisiana.
    No. 83-KH-1057.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In re Warren Brooks, applying for writ of mandamus. Parish of Orleans. No. 287-332.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Edward GREEN, Jr. v. Honorable Edwin A. LOMBARD, Clerk and Honorable Judge Waldron, Criminal District Court, Section F.
    No. 83-KH-1073.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In re Edward Green, Jr., applying for writs of certiorari, prohibition and mandamus. Parish of Orleans. No. 275-874.

Denied.


text:
    STATE of Louisiana ex rel. Jewel SPOTVILLE v. Ross MAGGIO, Jr., Warden Louisiana State Penitentiary.
    No. 83-KH-1074.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In re Jewel Spotville, applying for writ of mandamus. Parish of Orleans. Criminal District Court. No. 233-945 and 291-620.

Denied.


text:
    STATE ex rel. Willie THOMAS v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 83-KH-0035.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In re Willie Thomas, applying for writ of certiorari, prohibition, mandamus or habeas corpus. Twenty fourth Judicial District Court, Division “C”. Parish of Jefferson. No. 75-1195.

Denied. Withdrawn at relator’s request.


text:
    STATE of Louisiana ex rel. Alvin C. CONALER v. HONORABLE PRESIDING JUDGES, 24TH JUDICIAL DISTRICT COURT DIVISION “J”, CLERK OF COURT, et al.
    No. 83-KH-0631.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In re Alvin C. Conaler, applying for writ of mandamus. Parish of Jefferson. Twenty fourth Judicial District Court. Nos. 79261, 80351 and 782737.

Denied. Moot.


author: JASPER E. JONES, Judge.

text:
    Freddie Lee WILSON, Plaintiff-Appellant, v. L.C. JACOBS, et al., Defendants-Appellees.
    No. 15626-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 1983.
    Rehearing Denied Oct. 20, 1983.
    Writs Denied Dec. 9,1983.

      Brittain & Williams by Joe Payne Williams, Natchitoches, for plaintiff-appellant.
    Culpepper, Teat & Caldwell by Bobby L. Culpepper, Jonesboro, for Mrs. E.L. Mobley, Bruce Allen Pulpwood, and Southern Cas. Ins. Co.
    D.G. Brunson, Jonesboro, for James Lowe, et ux.
    Before MARVIN, JASPER E. JONES, and FRED W. JONES, JJ.
   JASPER E. JONES, Judge.

Freddie Lee Wilson, the plaintiff in this action for workers’ compensation benefits, medical expenses, penalties, interest and attorney’s fees, appeals a judgment, rendered after a trial on the merits, rejecting his demands against James Lowe, d/b/a Lowe Manufacturing, Allen Pulpwood, Inc., Southern Casualty Insurance Company and Mrs. E.L. Mobley. We affirm in part and reverse in part and amend to award plaintiff medical benefits and weekly compensation from Allen Pulpwood and Southern.

The following facts were stipulated before trial. Freddie Lee Wilson was the direct employee of L.C. Jacobs on August 19, 1980. On that date, while cutting timber on a tract owned by defendant Mobley, Wilson was serious injured by a falling tree. Due to those injuries Freddie Lee Wilson is totally and permanently disabled. It was also stipulated that Allen Pulpwood was insured against claims for workers’ compensation benefits by Southern Casualty.

This appeal poses the following primary issues:

1) what type of tree injured the plaintiff;
2) was Wilson a statutory employee of either Lowe or Allen Pulpwood; and
3) was Wilson a statutory employee of Mobley.

Issue # 1

Wilson, who had worked for Jacobs as a cutter for about a year, was injured in the following manner. He was cutting down a tree with a gasoline chain saw when it ran out of gas and became stuck in the tree. Wilson, with the help of Jacobs, removed the saw from the tree and went to the truck, parked nearby, to refuel his saw. While he was doing so, a gust of wind toppled the partially sawed tree and it struck him. Jacobs obtained assistance from three other men who were working in the area and together they freed Wilson from the fallen tree and Jacobs then drove him to a hospital.

The type of tree which injured Wilson is important because of Jacobs’ relationship with defendants Allen Pulpwood and Lowe. Jacobs sold all the pine and some of the hardwood he produced to Allen Pulpwood and he sold the remaining hardwood he produced to Lowe. Thus, the type of tree involved determines which of the two defendants might have been plaintiff’s statutory employer.

The testimony on this issue was conflicting. Wilson and Jacobs testified that the tree was a pine but the trial judge found their credibility “unacceptable” and further found that the tree was a hardwood. The crux of this issue is whether the trial judge’s determination as to the credibility of Wilson and Jacobs was proper.

An appellate court cannot disturb the trial judge’s reasonable evaluations of credibility and reasonable inferences of fact. Pierre v. Landry, 341 So.2d 891 (La.1977). The trial judge’s findings as to the credibility of witnesses and his findings of fact cannot be disturbed unless clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Steib v. Schwegmann Bros. Giant Supermarkets, 396 So.2d 464 (La.App. 4th Cir.1981).

Wilson and Jacobs were the only witnesses to the accident. Their testimony was contradicted by that of Luther Walker, Mobley’s land manager. The trial judge’s written reasons for judgment do not refer to any basis for his findings of credibility but apparently he preferred the testimony of Walker and found Wilson and Jacobs incredible because their testimony conflicted with his.

Wilson stated that the tree was a pine. However, his testimony is rambling and confused. He admitted that his ‘memory had been damages by his head injuries.

Jacobs also testified that the tree which fell on Wilson was a pine. Jacobs is the only unimpaired witness who actually observed the accident. His testimony as to the number of loads of pine produced from the Mobley tract is contradicted slightly by the testimony of Bruce Allen, owner of Allen Pulpwood. Though Jacobs was a defendant in this action his interest in it at the time of trial was minimal as the judgment by default against him was already final.

Walker was not present when this accident occurred. He never went to the exact site of the accident and he admitted at trial he had no personal knowledge of the accident.

However, Walker testified at trial that the tree which injured Wilson was not a pine because no pines were cut from the Mobley tract until after the date upon which Wilson was injured. When deposed prior to trial Walker testified that the tree which injured Wilson was not a pine because all pines which were cut from the Mobley tract were cut before the date upon which Wilson was injured. Finally, we note that Walker is the father-in-law of counsel for Mobley, Allen Pulpwood and Southern Casualty.

The three other men who were also working on the Mobley tract on the day of the accident also testified at trial. W.D. Daniel, Obie Blankenship and Nobie Blankenship arrived on the scene shortly after the accident when summoned by Jacobs. Daniel and Obie Blankenship testified that there was both a pine and a gum (hardwood) top on Wilson. Nobie Blankenship recalled only hardwood limbs on Wilson.

While we owe great deference to the trial judge’s conclusions as to credibility and facts, we are not required to accept his unreasoned and unreasonable findings as to either. Walker had no knowledge of the facts of the accident and the sincerity of his conclusion that it was not a pine tree that injured Wilson is placed in grave doubt by his totally inconsistent testimony at deposition and trial and his relationship to the interests of Allen Pulpwood and Southern Casualty. The testimony of Jacobs is based on personal knowledge and is corroborated by that of Obie Blankenship, Daniel and Wilson.

We hold that the trial judge was clearly wrong in accepting the testimony of a witness who had no personal knowledge and who had given totally inconsistent sworn testimony over the cogent and corroborated testimony of a witness who actually observed the accident. The trial judge’s conclusion that the tree which injured Wilson was a hardwood is not supported by substantial evidence and is clearly wrong. We find that the tree involved was a pine.

Issue # 2

As we have determined that the tree which injured Freddie Wilson was a pine, our inquiry is now whether he was a statutory employee of Allen Pulpwood under R.S. 23:1061. Allen Pulpwood contends that its only relationship with Jacobs, Wilson’s direct employer, was buyer-seller and that, as such, it is not liable for compensation benefits to Jacobs’ employees. Wilson argues that the relationship between Allen Pulpwood and Jacobs was one of principal-contractor and that, therefore, he is a statutory employee of Allen Pulpwood.

We have reviewed the numerous authorities cited by the parties on this issue and find the controlling principles to be those set out by our supreme court in Hart v. Richardson, 272 So.2d 316 (La.1973), Bellard v. Tri-State Insurance Company, 282 So.2d 453 (La.1973) and Woodard v. Southern Casualty Insurance Co., 305 So.2d 528 (La.1974). See Malone and Johnson, Workers' Compensation § 123 for a full discussion of the evolution of the law on the issue of buyer-seller relationships.

A party whose only relationship to the injured worker is that of buyer or vendee of the product he produces is not liable to him for workers’ compensation benefits, however, if the requirements for coverage are present the mere fact that the relationship also contains the elements of a sale will not defeat recovery. Hart v. Richardson, supra.

In a continuing timber producing arrangement the determinative issue is whether the producer who cuts, hauls and delivers the timber to the dealer is processing the timber for the open market or is instead doing so on behalf of the dealer as part of the latter’s trade, business or occupation. Woodard v. Southern Casualty Insurance Co., supra.

Absent evidence clearly showing that the contractor was producing for the open market rather than primarily for the principal, a long-continuing relationship whereby the contractor processes timber products primarily for the principal, or a relationship where the principal provides equipment, even in the form of a credit sale, to the contractor, are indicia that the contractor is employed in the principal’s business while processing timber products. Bellard v. Tri-State Insurance Company, supra.

In the instant case Jacobs produced pine pulpwood exclusively for Allen Pulpwood from February, 1980, through October, 1980. The tree which injured Wilson was hauled to Allen Pulpwood. Further, Allen Pulpwood provided Jacobs with chain saw parts and made loans and advances to him. The admitted purpose of these practices was to insure that Jacobs would continue his relationship with Allen Pulpwood.

These facts show that the relationship between Allen Pulpwood and Jacobs was not simply one of buyer-seller but was instead one of principal-contractor and that Jacobs and his employee, Wilson, were engaged in activities which were part of the trade or business of Allen Pulpwood. Thus, Wilson is entitled to workers’ compensation benefits from Allen Pulpwood and its insurer. R.S. 23:1061.

Issue # 3

We now consider whether the landowner, Mobley, is also liable to Wilson for workers’ compensation benefits. Wilson contends that he was a statutory employee of Mob-ley.

Jacobs approached Walker, Mobley’s manager, and inquired whether there was any timber he could buy. It was agreed that Jacobs could buy hardwood from the Mobley tract at a price of five dollars per cord and that he could buy a limited number of pine trees, those which were dead, damaged or undesirable, at a price of twelve dollars per cord.

Mobley did not control Jacobs’ operations on her land. Her only continuing involvement was through Walker who checked to see that Jacobs cut only what had been agreed upon and by receipt of checks for the price of timber removed from her property as it was delivered to dealers by Jacobs. She supplied no equipment to Jacobs, she made no loans to him and she did not control who he hired to assist him.

This circuit has recognized that where a landowner who sells timber supervises and controls the activities of the buyer, including who is hired by the buyer, in cutting and removing the timber, the seller-landowner can be held liable to the buyer’s employees for workers’ compensation benefits. See Hatten v. Olin Mathieson Chemical Corp., 112 So.2d 135 (La.App. 2d Cir.1959). However, the facts of this case do not support landowner liability.

Mobley sold certain timber to Jacobs at a set price. Her relationship with him continued only for as long as it took him to cut the timber from her land. She had no relationship to Jacobs other than as vendor of the timber. Under these circumstances Mobley’s relationship with Jacobs was purely buyer-seller and Wilson was not her statutory employee. His demands against Mob-ley were properly rejected.

Penalties and Attorney’s Fees

Wilson also seeks an award of penalties and attorney’s fees.

Penalties and attorney’s fees are allowable when the insurer’s failure to pay is arbitrary, capricious or without probable cause. R.S. 22:658. See Wiley v. Southern Cas. Ins. Co., 380 So.2d 214 (La. App. 3d Cir.1980) (penalties and attorney’s fees may not be allowed against an employer who is insured and the award must be made against the insurer alone). The failure to pay workers’ compensation benefits does not expose the insurer to an award of penalties and attorney’s fees when the refusal is based on substantial factual contentions. Saia v. Hartford Accident & Indemnity Company, 214 So.2d 173 (La.App. 4th Cir.1968).

Here there was a legitimate factual dispute as to whether Wilson was Allen Pulpwood’s statutory employee. The insurer was not arbitrary or capricious in demanding a judicial determination of that question. An award of penalties and attorney’s fees is not appropriate in this case.

Calculation of Benefits

The lack of evidence in the record renders it impossible to calculate Wilson’s wages in accord with R.S. 23:1021(7). The testimony reveals that neither plaintiff nor Jacobs has any records from which the necessary evidence could be obtained.

The totality of the evidence indicates that Wilson’s wages were low and that the benefit to which he is entitled probably does not greatly exceed the statutory minimum. As Wilson has not presented evidence to prove the amount of his earnings and as it appears a remand would be useless we fix Wilson’s benefits at the minimum allowed under R.S. 23:1202, forty-five dollars per week.

The record shows that the plaintiff has incurred medical expenses in the amount of $35,011.35. He is entitled to an award for this amount. R.S. 23:1203.

The judgment is reversed insofar as it rejects plaintiff’s demands against Allen Pulpwood, Inc., and Southern Casualty Insurance Company, and judgment is granted in favor of the plaintiff, Freddie Lee Wilson, and against the defendants, Allen Pulpwood, Inc., and Southern Casualty Insurance Company, for medical expenses in the amount of $35,011.35 with legal interest from date due until paid, for workers’ compensation benefits for total and permanent disability in the amount of $45.00 per week from August 19, 1980, with legal interest from date due until paid and for all costs of this proceeding.

AS AMENDED the judgment IS AFFIRMED.

      . We find the recoverable items of medical expenses to be:
      St. Francis Medical Center $11,560.90
      Anesthesiologist 420.00
      Neurologist 1,645.00
      Pathologist $ 143,25
      Radiologist 724.00
      E. A. Conway Hospital 3,292.86
      Jackson Parish Hospital 16,048.34
      Dr. A. E. McKiethen 1,177.00
      $35,011.35


author: HALL, Judge.

text:
    William D. THOMPSON, Plaintiff-Appellant, v. Lamar HEMPHILL, Defendant-Appellee.
    No. 15590-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 1983.

      C. Joseph Roberts, III, West Monroe, for plaintiff-appellant.
    Blackwell, Chambliss, Hobbs & Henry by Larry Arbour, West Monroe, for defendant-appellee.
    Before PRICE, HALL and SEXTON, JJ.
   HALL, Judge.

This dispute between brothers-in-law involves certain structures located on adjoining tracts of land on Smith Street in West Monroe. A schematic diagram of the property involved is reproduced below:

Tracts Nos. 1 and 2 were previously owned as community property by L.H. and Alice Hemphill, defendant’s parents and plaintiffs in-laws. Upon the Hemphills’ divorce, as part of the community property settlement, L.H. Hemphill acquired Tract No. 1 and Alice Hemphill acquired Tract No. 2. A store building was located on each of the tracts, with a common wall between the buildings located on the property line. Gas pumps were located on Tract No. 1 and gas storage tanks servicing the pumps were located on Tract No. 2. Plaintiff-appellant, William D. Thompson, purchased Tract No. 1 from L.H. Hemphill in 1976. Defendant-appellee, Lamar Hemphill, purchased Tract No. 2 from Alice Hemphill in 1978. Plaintiff acquired Tract No. 3 in 1979 from a Mrs. Gresham.

Friction arose between plaintiff and defendant in July 1980 over plaintiff’s continued use of the underground gasoline storage tanks located on Tract No. 2. A survey revealed that Hemphill’s store building encroached slightly onto Thompson’s Tract No. 3. A signpost set in concrete related to Hemphill’s store was determined to be located on Tract No. 3. A truck body or trailer which Hemphill placed on a concrete slab or concrete blocks in 1978 and which he used as a workshop was found to encroach on Tract No. 3.

On August 1, 1980 plaintiff filed suit seeking injunctive relief, removal of the encroachments, and damages for trespass and loss of business revenue. A temporary restraining order restraining Hemphill from interfering with Thompson’s use of the gasoline storage tanks was issued, but lapsed when the rule for a preliminary injunction was continued and not tried. Plaintiff abandoned his claim for injunctive relief after building new storage tanks on his own property.

After trial on the merits, pursuant to written reasons for judgment, the trial court rendered judgment (1) granting defendant a predial servitude for that part of his permanent building and trailer which encroaches on plaintiff s property, Tract No. 3; (2) awarding plaintiff compensation in the amount of $150 for the servitude granted to defendant; (3) awarding plaintiff $500 for gasoline belonging to him which defendant would not let plaintiff remove from the underground storage tanks, provided however that defendant could relieve himself of the payment of the $500 by allowing plaintiff to remove the gasoline; (4) awarding defendant $250 as damages for his attorney fees incurred in connection with the temporary restraining order which the court found to be wrongfully issued; and (5) ordering defendant to remove all litter, debris, and other objects surrounding the trailer. Although not expressly mentioned in the judgment, plaintiff’s demand for damages to a fence torn down by the defendant was rejected, as was his demand for damages in the form of lost revenue allegedly caused by defendant’s refusal to let him obtain gasoline from the gasoline storage tanks.

The plaintiff appealed, specifying that the trial court erred in granting the predial servitude for the encroachment of the trailer, in awarding an insufficient sum as compensation for the servitude, in failing to award damages for the destruction of the fence, in failing to award plaintiff damages for lost revenue, in awarding attorney fees for the wrongful issuance of the temporary restraining order, in failing to render judgment establishing the boundary between Tracts Nos. 1 and 2, and in failing to grant a new trial. The defendant did not appeal or answer the appeal.

Servitude for Encroachment

Plaintiff does not question the servitude granted by the trial court insofar as it concerns the building located on Tract No. 2 which encroaches slightly onto Tract No. 3. However, plaintiff contends there is no authority for the trial court’s action in granting a servitude for the encroachment of the trailer because the trailer is not a “building” for which an encroachment servitude may be granted by the court under LSA-C.C. Art. 670 The defendant argues, on the other hand, that the truck trailer placed on a concrete slab and used as a workshop is a building or an “other construction” under LSA-C.C. Art. 463 for which an encroachment servitude may be granted under LSA-C.C. Art. 670 or the general equitable principles of LSA-C.C. Art. 21.

Regardless of whether this particular structure can be classified as a building for which an encroachment servitude may be granted under LSA-C.C. Art. 670, it is our view that the trial court abused its discretion in granting the servitude for the trailer encroachment.

Prior to the revision of the Civil Code articles on predial servitudes in 1978, effective January 1, 1979, the Civil Code provided no express remedy for the situation where a landowner in good faith constructed a building or other structure of a permanent nature which encroached upon adjoining property. Recognizing the sometimes harsh and inequitable result of requiring a landowner in good faith to demolish or remove a structure in such a situation, the courts on occasion turned to LSA-C.C. Art. 21 in seeking an equitable solution to the problem. See Morehead v. Smith, 225 So.2d 729 (La.App. 2d Cir.1969); Porterfield v. Spurgeon, 379 So.2d 56 (La.App. 3d Cir.1979). In the revision of the Civil Code articles, LSA-C.C. Art. 670 was designed to grant to the courts express discretionary authority to reach an equitable solution by granting a predial servitude for the encroachment with payment of compensation to the adjoining landowner whose property is burdened by the servitude. Article 670 allows a court, in the sound exercise of its discretion, to avoid a situation in which a good faith landowner, in order to remove an encroachment, would be required to demolish or destroy the utility of a building which encroaches, perhaps only slightly, onto adjoining property.

Here, the structure involved, whether or not it be considered a building, is an old truck body placed on a concrete slab or blocks. The structure encroaches substantially onto the adjoining property in that at least one-half of it is located on the adjoining property. There is no evidence that the trailer is attached in any permanent manner to the concrete on which it rests. There is ample space on the defendant’s property to relocate the trailer without encroachment onto the plaintiff’s property. There is no reason why the trailer could not be moved off of the plaintiff’s property without undue expense and without impairing the utility of the structure. Under these circumstances the grant of a servitude, thereby encumbering the adjoining landowner’s property in a substantial manner for an indefinite period of time, is not warranted. The granting of the servitude was an abuse of the court’s discretion. The judgment will be reversed and set aside insofar as it grants a predial servitude for the eiicroachment of the trailer and judgment will be rendered ordering the defendant to remove the trailer from the plaintiff’s property.

Compensation for Servitude

Plaintiff-appellant contends that the amount awarded for the encroachment servitude, $150, is insufficient. The thrust of this contention is diminished by the fact that the extent of the servitude is reduced substantially in accordance with the conclusions reached in the previous section of this opinion. The $150 award seems reasonable for the slight encroachment of the store building on plaintiff’s property, and will not be disturbed.

Ownership of gasoline storage tanks — Damages caused by defendant’s refusal to allow plaintiff to use the tanks — Validity of restraining order restraining defendant from interfering with plaintiff’s use of the tanks

The plaintiff contends that he is the owner of the underground gasoline storage tanks located on the defendant’s property by virtue of his acquisition of Tract No. 1 and the improvements thereon and appurtenances thereto, it being plaintiff’s contention that the storage tanks are appurtenances to the store building and gasoline pumps located on Tract No. 1. Plaintiff contends that since he is the owner of the storage tanks he is entitled to recover damages resulting from a loss of revenue caused by defendant’s refusal to allow him to draw gasoline from the tanks for sale to his customers. Plaintiff further contends that because of his ownership of the tanks he was entitled to the temporary restraining order restraining defendant from interfering with his use of the tanks, and that the trial court erred in finding that the temporary restraining order was wrongfully issued and in awarding damages for the wrongful issuance thereof.

Plaintiff’s contention that he acquired ownership of the storage tanks located on Tract No. 2 when he acquired ownership of Tract No. 1 is without merit. In the 1972 community property settlement, L.H. Hemphill conveyed all of his interest in Tract No. 2 to Alice Hemphill. That conveyance necessarily carried with it ownership of the permanently installed underground storage tanks located on Tract No. 2. Although L.H. Hemphill and later plaintiff continued to use the storage tanks to supply gasoline to the pumps located on Tract No. 1, it was by sufferance or agreement with the owner of Tract No. 2, Alice Hemphill and later the defendant, and not through right of ownership or contractually granted servitude. When L.H. Hemphill conveyed Tract No. 1 to plaintiff in 1976 he had no rights of ownership in Tract No. 2 or the storage tanks located thereon and could not have conveyed any such rights to the plaintiff.

Since the tanks were owned by the defendant and not by plaintiff, it follows that plaintiff is not entitled to recover damages from the defendant because of the defendant’s refusal to continue to allow the plaintiff to use the tanks. It also follows that the plaintiff was not entitled to a temporary restraining order restraining the defendant from interfering with his use of the tanks. Plaintiff’s demands for recovery of lost revenue were properly rejected and the defendant was properly awarded attorney fees of $250 billed to him by his attorney for services rendered in connection with the temporary restraining order and preliminary injunction rule as damages for wrongful issuance of the temporary restraining order. LSA-C.C.P. Art. 3608.

Recovery for damage to fence

Plaintiff contends that the trial court erred in failing to award damages caused by defendant’s destruction of a fence erected by the plaintiff along the property line between Tract No. 1 and Tract No. 2. Plaintiff’s claim was rejected by the trial court because of an insufficiency of evidence as to the amount of damages.

Plaintiff testified and defendant admitted that the defendant tore down several of the poles of the fence constructed by the plaintiff. Plaintiff testified that he bought $12 worth of concrete in which the poles were set and that he used metal poles and wire that he had on hand in building the fence. Plaintiff estimated that it would have cost him $400 to build the fence if he had had to pay for the labor and materials.

Although the precise amount of plaintiff’s damages was not established, it is apparent that he sustained damage by reason of defendant’s action in tearing down his fence, and the evidence is sufficient to calculate a reasonable award, which we fix at $200. The judgment will be amended accordingly.

Boundary judgment

Plaintiff contends that the trial court erred in failing to render judgment establishing the boundary between Tracts Nos. 1 and 2. This contention is without merit.

Plaintiff’s petition does'not contain any allegations concerning the location of the boundary between the tracts, nor does the petition pray for judgment establishing the boundary between the two tracts. This is not a boundary action as established by LSA-C.C.P. Arts. 3691, et seq. Formal establishment of the boundary line between the tracts was not at issue in this proceeding. Although a survey was offered into evidence and it was necessary for the trial court to make a determination as to the boundary in order to determine the extent of the encroachments, the formal establishment of the boundary was not prayed for and properly was not made a part of the judgment in this proceeding.

Motion for new trial

Plaintiff contends that the trial court erred in overruling his motion for a new trial, and specifically in failing to amend the part of the judgment relating to the gasoline remaining in the storage tanks in view of plaintiff’s allegation that less than 500 gallons were actually retrieved from the tanks after the original judgment was rendered in this case.

The motion for new trial was considered by a judge other than the judge who rendered the original judgment some year and one-half after the original judgment was rendered. No peremptory grounds for granting the new trial were presented and the trial court properly exercised its discretion in denying the new trial.

Decree

For the reasons assigned, the judgment of the district court is reversed insofar as it grants to the defendant a predial servitude for that part of the trailer which encroaches on plaintiff’s property and the judgment is amended to strike the words “and trailer” in the fourth adjudicating paragraph of the judgment. The judgment is further amended to provide that there be judgment herein in favor of the plaintiff, William B. Thompson, against the defendant, Lamar Hemphill, for the full sum of $200, together with legal interest thereon from the date of judicial demand until paid.

As amended the judgment is otherwise affirmed. Costs of the appeal are assessed one-half to the plaintiff and one-half to the defendant.

      . LSA-C.C. Art. 670:
      “When a landowner constructs in good faith a building that encroaches on an adjacent estate and the owner of that estate does not complain within a reasonable time after he knew or should have known of the encroachment, or in any event complains only after the construction is substantially completed the court may allow the building to remain. The owner of the building acquires a predial servitude on the land occupied by the building upon payment of compensation for the value of the servitude taken and for any other damage that the neighbor has suffered.”