author: LOTTINGER, Judge.

text:
    STATE of Louisiana v. Lonnie E. MILLER.
    No. 83 KA 0793.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 1984.
    Writ Denied June 1, 1984.

      William E. Woodward and William G. Carmichael, Asst. Dist. Attys., Clinton, for plaintiff-appellee.
    Richard C. Howell, Clinton, for defendant-appellant.
    Before COVINGTON, LOTTINGER and EDWARDS, JJ.
   LOTTINGER, Judge.

Defendant, Lonnie Miller, was indicted for aggravated rape on July 4, 1982, in violation of La.R.S. 14:42. Defendant pled not guilty and, after a jury trial, was found guilty as charged. He was sentenced to imprisonment at hard labor for life without benefit of probation, parole or suspension of sentence. He appeals his conviction, alleging six assignments of error.

FACTS

On the evening of July 3, 1982, defendant Lonnie Miller, was introduced to the victim in a bar in Jackson, Louisiana. After playing shuffle board, dancing and drinking at this bar, defendant and this woman left to go to other bars outside Jackson. After stopping at a couple of bars they headed back to Jackson. The victim testified that she thought defendant was taking her to her aunt’s house, where she was staying. Instead he drove to a secluded area and parked. She tried to get out of the car, but defendant pulled her hair and choked her. Defendant then went to the trunk, pulled out a cane knife about twenty inches long, and approached the passenger side of the car. The victim stated that defendant pulled her out of the car and forced her to get on the hood of the car. Then he ripped her shirt, took off her pants and started having oral sex with her. She testified he then had sexual intercourse. After completing the act, he drove her to his home and went inside, taking the victim’s pants. While he was inside the house, the victim, wearing only her torn shirt, escaped. After taking a bicycle from a yard, she rode around trying to find her aunt’s home. When she did get to the home, her aunt called the police and brought the woman to the hospital.

The coroner testified that he examined the victim and found no tears or lacerations to the vagina, nor any sperm present in the vagina. The acid phosphatase test, however, was positive, indicating there had been intercourse. The coroner did state that the intercourse could have occurred the previous day and still result in a positive test.

Defendant admitted parking in the area but testified that the woman consented to having oral sex. He stated he did not have sexual intercourse with her. He then drove to his home to get a shirt for her to wear, after the buttons came off her blouse while she was putting it back on. He testified that, on the way to his house, the victim asked him for a fifty dollar loan. She got angry when he refused to loan her the money. When they arrived at his house, defendant went inside alone. When he discovered the woman left the car, defendant assumed she walked to her aunt’s home which was nearby.

On rebuttal, the victim testified she did not ask defendant for money, nor did she consent to or ask him to have sex with her.

ASSIGNMENT OF ERROR NUMBERS 1 AND 2

By these assignments, defendant argues that the trial court erred in denying his motions for new trial based on the ground that there was insufficient evidence to convict.

The applicable standard of review to an allegation of this nature is, when viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the essential elements of the crime were proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 at 320, 99 S.Ct. 2781 at 2789, 61 L.Ed.2d 660 (1979); State v. Rogers, 428 So.2d 932 (La.App. 1st Cir.1983).

The victim testified that defendant drove to the secluded area, pulled her out of the car while holding a knife and forced her to have intercourse. At trial she stated there was penetration during this act. The coroner testified that the victim’s acid phosphatase test was positive, indicating that she had had intercourse up to forty-eight (48) hours before the test. Defendant contended that he did not have intercourse with the alleged victim and that she was lying about the incident because he refused to loan her fifty dollars. Also, defendant theorized that the victim had intercourse with another man, presumably the victim’s live-in boyfriend, before he met her.

When there is conflicting testimony as to a factual matter, the question of credibility of witnesses is within .the sound discretion of the trier of fact. Further, an appellate court will not reweigh credibility of witnesses under the Jackson v. Virginia standard. State v. Jacobs, 435 So.2d 1014, 1019 (La.App. 1st Cir.1983). Therefore, when the evidence is viewed in a light most favorable to the state, it is certainly reasonable that a rational juror could have concluded Miller was guilty of aggravated rape.

These assignments of error are without merit.

ASSIGNMENT OF ERROR NUMBER 3

Defendant contends the trial court erred in not permitting his witnesses to testify regarding the victim’s past sexual activity and general reputation for chastity. He argues that this testimony was relevant to determine the possibility or probability that someone other than defendant had had sexual intercourse with the victim and that the probative value of the testimony outweighs the prejudicial impact. Additionally, he contends La.R.S. 15:483 and 498, the Louisiana Rape Shield Law, are unconstitutional as applied in this case, because they conflict with defendant’s rights to present a defense and cross-examine witness.

Evidence of prior sexual conduct and reputation for chastity of a victim of rape or carnal knowledge shall not be admissible except for incidents arising out of the victim’s relationship with the accused. La. R.S. 15:498. Defense counsel cites State v. Langendorfer, 389 So.2d 1271 (La.1980), as authority for allowing the testimony. In that case the coroner testified that he could not identify the sperm retrieved from the victim. Defendant admitted he intended to argue that the sperm might have come from the spouse. When the victim was questioned by the state about how long it had been since she had had sexual intercourse with her husband, defendant objected. The Supreme Court held that this testimony was proper to rebut the possibility that the sperm was from her husband.

In the case sub judice, the testimony was not regarding the victim’s possible sexual relations with her boyfriend prior to the alleged rape; rather it was regarding her past sexual acts and general reputation for chastity. The trial judge did not abuse his wide discretion in determining that this testimony was irrelevant, and his ruling will not be overturned absent a clear abuse of that discretion. See, State v. Albert, 430 So.2d 1279 (La.App. 1st Cir.1983), cert. denied 433 Sp.2d 711 (La.1983).

Defendant also contends that the rape shield law, La.R.S. 15:498 is unconstitutional as applied in this case because it violates his right to make out a defense and confront witnesses.

Since defendant denied having sexual intercourse with the victim this testimony is not relevant to show her consent. Furthermore, since the testimony was not of the victim’s sexual conduct which occurred near the time in question it was not relevant to show that the positive acid phosphatase test resulted from sexual intercourse with some other man. Defendant sought to introduce this evidence solely to impeach the credibility of the victim.

The mere fact that a prosecutrix is unchaste usually is not pertinent to the inquiry of whether the defendant forced her to engage in sexual intercourse. Chastity per se has little or no relevance as a factor in judging the “credibility” of the prosecu-trix as a truthful witness, nor is this factor a reliable indication of a victim’s motivation to “frame” the defendant. See, Note, Louisiana’s Protection for Rape Victims: Too Much of a Good Thing? 40 La.L.Rev. 268 (1979).

The defendant has made no showing that the victim’s reputation for chastity was of any particular relevance and necessary to insure a fair trial. See, State v, Gatson, 434 So.2d 1315 (La.App. 3rd Cir.1983). There was no violation of defendant’s rights by the exclusion of this essentially irrelevant testimony. State v. Dawson, 392 So.2d 445 (La.1980).

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER 4

Defendant contends the trial court erred in not permitting two of defendant’s witnesses to testify that a man named Richard Stevens told them he was approached by the victim or her family and told that, if the victim was paid $1,000.00, she would not testify against defendant. Defense counsel stated at trial that Stevens was unable to be located for service of subpoena for trial. The trial court ruled that the witnesses’ testimony would be hearsay and inadmissible.

The witness can testify only as to facts within his knowledge, and neither as to any recital of facts heard by him, nor as to any impression or opinion that he may have. La.R.S. 15:463. Hearsay is an out-of-court statement introduced to prove the truth of its content and is inadmissible in criminal trials. La.R.S. 15:434; State v. Toomer, 395 So.2d 1320 (La.1981).

Defendant argues that, although this testimony would have been hearsay, it should have been admitted to give a “since (sic) of balance to the whole affair,” to give credence to defendant’s claim that the victim asked defendant for money the night of the alleged rape and to add perspective to the victim's story. It is clear that it is defendant’s contention that the testimony would have helped his case. Defendant, however, does not cite an exception to the hearsay rule nor any other legal reason for admitting this testimony. The trial court did not err in prohibiting this hearsay testimony.

Therefore, this assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER 5

Defendant contends the trial court erred in failing to grant a mistrial when the state brought two defense witnesses into the courtroom while still handcuffed, and then uncuffed them in the presence of the jury and the guard stood there ratcheting the cuffs.

The record indicates that these witnesses did not testify, nor did the jury know they were defense witnesses. Furthermore, as the trial judge stated, the jury did not even know the two men were connected with the present case. It is well settled that the record must clearly show that the occurrence complained of was prejudicial to the rights of the accused. State v. Clark, 340 So.2d 208 (La.1976), cert. denied 430 U.S. 936, 97 S.Ct. 1563, 51 L.Ed.2d 782 (1977). Under these circumstances, we do not find that the incident complained of prejudiced any rights of defendant.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER 6

Defendant contends the trial court erred in overruling his objection to the cross-examination of defendant regarding prior convictions. Defendant argues the state unnecessarily went into the details of the prior convictions. Defendant also argues that evidence of other crimes was used as proof of his guilt and not to impeach his credibility.

In impeaching the credibility of a defense witness, the State may not only establish prior convictions of the witness but may also cross-examine him in order to show the true nature of the offense. State v. Jackson, 307 So.2d 604 (La.1975). This rule also applies to defendants who testify in their own behalf. The extent to which an inquiry into prior convictions is permitted depends on the facts of each case, the trial court having great discretion to control the length and depth of the examination. State v. Neslo, 433 So.2d 73 (La.1983).

In the instant case, the nature and scope of the prosecutions’ questioning concerning the details of defendant’s prior convictions were well within allowable limits, and we cannot say the trial judge abused his discretion in overruling defendant’s objection.

This assignment of error lacks merit.

Therefore, the conviction and sentence are affirmed.

AFFIRMED.


source: Caselaw Access Project

author: BARRY, Judge.

license: Public Domain

text:
    Norman ALLEN and Ida Allen v. ROYALE “16”, INC., et al.
    Nos. CA-1263, CA-1264.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 6, 1984.

      Isaac M. Gregorie, Jr., Robert C. Lowe, Sessions, Fishman, Rosenson, Boisfontaine & Nathan, New Orleans, for plaintiffs-appellants.
    Cameron C. Gamble, New Orleans, for defendants-appellees.
    Before GULOTTA, GARRISON and BARRY, JJ.
   BARRY, Judge.

Plaintiffs appeal the dismissal of their consolidated cases which involve the purchase and sale of a hotel and its management through a closely held corporation.

In early August, 1980 plaintiff Norman Allen was approached by French Market Homestead (FMH) regarding the management or purchase of The Noble Arms Hotel in New Orleans. On August 14 FMH acquired the property at foreclosure and the next day Allen and the defendants, Sherri Dazet, Kathleen and Nuncion Falcone began managing the hotel. On September 9 these individuals incorporated Royale “16”, Inc. On September 15 the group purchased the hotel from FMH for $520,000 with $52,000 down paid equally by Allen, Dazet, and the Falcones and a note for the balance endorsed by all parties. On November 18 the group sold the hotel to Ro-yale “16”, Inc. By letter dated January 30, 1981 attorney Michael Ogden (drafter of Royale “16”, Inc.) informed Dazet and the Falcones that Allen had been issued all 1200 shares in Royale “16”, Inc. and recommended a meeting to clarify their interests. On March 11 the Board of Royale “16”, Inc. (composed of all the parties) reissued the stock: 400 shares to Allen, 400 shares to Dazet, and 400 shares to the Falcones. Allen and his wife were removed from the Board and he was ousted as President. Allen sued his associates to rescind the hotel sale to the corporation and asked for management fees, then sued to dissolve Royale “16”, Inc. and asked that a receiver be appointed. Defendants reconvened for attorney’s and accountant’s expenses for defense of the lawsuits. All demands were dismissed. We affirm.

RESCISSION OF THE SALE

Plaintiffs argue the trial court erred by refusing to rescind the sale due to Allen’s error as to the nature of the contract, LSA-C.C. Art. 1841, Becker and Assoc., Inc. v. Lou-Ark Equipment Rental Co., 331 So.2d 474 (La.1976). Allen claims the intent of all parties was for the hotel (and corporation) to be managed and operated by unanimous consent and incorporation was only intended to limit liability. He states shortly after the hotel was transferred to the corporation the defendants “conspired to gain control” and prevent him from participating in the management. Allen argues he erred as to the nature of the corporate articles (which provide for majority control): if the incorporation was invalid, then the hotel’s transfer was void.

Allen points to Ogden’s testimony which indicates the articles were “boiler plate” from a memory typewriter in the attorney’s office. He claims there was no discussion as to the corporate structure and the defendants’ testimony indicates there was no agreement as to majority versus unanimous control.

However, it is uncontested that the parties purchased equal ownership in the hotel and it was their intent (including Allen’s) that each would own one-third of the stock.

Ogden, who was Allen’s attorney, testified he did not recall an instruction from Allen to include a provision in the articles for unanimous consent. He stated the articles were drafted as he had done for Allen in the past and if there had been a request for unanimity it would have been provided.

The defendants’ testimony, as stated by the trial judge, is that a majority would control.

Agreements legally entered into have the effect of law on those who form them. LSA-C.C. Art. 1901. One who signs a contract is presumed to know its terms and cannot avoid its provisions, absent fraud or error, simply because he fails to read or understand it. Watson v. Planters Bank, 22 La.Ann. 14 (La.1870), Leny v. Friedman, 372 So.2d 721 (La.App. 4th Cir. 1979).

There is no allegation of fraud. The articles were signed by Allen and drafted at his request. The party alleging error, a vice of consent, bears the burden of proving it. Campesi v. Margaret Plantation, 417 So.2d 1265 (La.App. 1st Cir. 1982). The articles were executed on September 9, 1980 and Allen did not raise any question until January, 1981. Apparently the articles were drafted hastily, but there was adequate time between their execution and the sale by the individuals to the corporation (November 18, 1980) for Allen to read and make any necessary changes or correct errors.

Any change in the Charter must conform to the Louisiana Corporation Law, LSA-R.S. 12:31. Shareholders and others dealing with the corporation must rely on the articles as they appear in the Charter Books of the State. Otherwise one could not enter an act of sale or deal with the corporation for fear that a minority shareholder could have the transaction rescinded by claiming the articles are invalid.

The articles clearly provide for majority control. Plaintiffs’ allegations of error are unsupported and the trial judge properly refused to rescind the sale.

INVOLUNTARY DISSOLUTION

Plaintiffs complain the trial court erred by refusing to order the involuntary dissolution of the corporation.

LSA-R.S. 12:143 provides in part:

A. The court may entertain a proceeding for involuntary dissolution under its supervision when it is made to appear that:
(1) The corporate assets are insufficient to pay all just demands for which the corporation is liable, or to afford reasonable security to those who may deal with it; or
(2) The objects of the corporation have wholly failed, or are entirely abandoned, or their accomplishment is impracticable; or
(3) It is beneficial to the interests of the shareholders that the corporation should be liquidated and dissolved, or
* * * 4s * ⅜
(7) The corporation has been guilty of gross and persistent ultra vires acts;

Plaintiffs claim the corporation was several months behind in paying its hotel-motel taxes and had overdrawn its bank account four or five times during 1982. “The objects of the corporation have wholly failed, or are entirely abandoned or their accomplishment is impracticable” because the corporation never made a profit and Allen never received funds from the corporation. Allen argues it would be “beneficial to the interests of the shareholders that the corporation [be] liquidated and dissolved” because the accounting procedures used by the corporation are inadequate and improper and are endangering the interests of the shareholders. Plaintiffs allege the following deficiencies in the corporation’s bookkeeping practices:

—The bookeeper was six months behind in posting cash receipts.
—No quarterly statements were prepared and loans were not on the corporation’s balance sheet.
—The bank statements were not reconciled.
—Bank account overdrafts cost penalties.
—Tax returns were filed late resulting in penalties.
—16% of the room cards, were missing. —There was minimum internal control over cash and no separation of duties regarding receiving and accounting for cash.
—There was no listing of capital purchases and no way to calculate depreciation.
—Room deposits were not accounted for.

Plaintiffs also claim “the corporation has been guilty of gross and persistent ultra vires acts” citing Gooding v. Millet, 430 So.2d 742 (La.App. 5th Cir.1983). As in Gooding, Allen asserts there have been no shareholder or board meetings since March, 1981. He alleges the corporation failed to give him annual reports, refused to allow inspection of the books and records contrary to LSA-R.S. 12:103, and Dazet resided in the hotel for five weeks.

Louisiana courts are reluctant to apply the drastic remedy of involuntary dissolution and the statutory grounds are limited and specific. Streb v. Abramson-Caro Clinic, 401 So.2d 410 (La.App. 1st Cir. 1981).

The evidence does not prove that the assets are insufficient to pay the debts and the corporation is insolvent. The first mortgage was current. According to Mrs. Falcone and Ms. Dazet the corporation was meeting its obligations. The testimony of a CPA concerning the corporation’s inability to pay its debts was based on its 1981 tax return. Ms. Dazet explained that a large amount of the loss was due to scheduled depreciation on the property. She testified the corporation would break even in 1982 and stated the only borrowed money in 1982 was $1300 which was loaned by her and the Falcones.

The evidence also does not show that the “objects of the corporation have wholly failed, or are entirely abandoned, or their accomplishment is impracticable.” The corporation at the time of trial was only two years old. When the parties took over the hotel it was failing. Ms. Dazet testified that initially she and Mrs. Falcone took care of everything, from housekeeping to bookkeeping. In 1981 they loaned the corporation $15,000 and in 1982 the additional $1300 was required. They were not paid for their work.

Lack of profit is a consideration to determine if the objects of a corporation have failed, but it is not determinative here. The hotel's operation is improving and defendants appear to be making the business profitable.

We do not believe dissolution would be beneficial to the shareholders. The litany of accounting deficiencies cited by plaintiff are not persuasive.

—The daily cash ledger was posted daily and current;
—Bank statements were reconciled monthly;
—Overdrafts did occur but infrequently;
—The tax returns were filed late due to a mix-up with the accountant. Defendants have since engaged another accounting firm.

Plaintiffs’ CPA was most concerned with the missing room cards which he felt reflected inadequate internal controls and could represent missing cash. Ms. Dazet testified (and this was confirmed by the CPA) that she had not been asked to explain or locate the missing cards and there was no indication this was a problem. The CPA was unable to state that any cash was missing. He testified the books and records were in “fairly” good order but could not say the management and bookkeeping procedures constituted gross mismanagement.

We do not find that the defendants/majority shareholders and the board are guilty of ultra vires acts. In Gruenberg v. Goldmine Plantation, Inc., 360 So.2d 884 (La.App. 4th Cir.1978) we quoted 58 Fletcher Cyclopedia Corporations 5821:

Unless it clearly appears that the act is an abuse of discretion, intra vires, legal and good faith acts of the board of directors, other corporate officers, or the majority stockholders, i.e., acts pertaining to the internal management, of the corporation, where they are not fraudulent or unfair to minority stockholders, will not be interfered with or remedied at the instance of minority stockholders, regardless of whether such acts are wise or expedient. In other words, to warrant the interposition of a court in favor of the minority shareholders in a corporation, as against the contemplated action of the majority, where such action is within the corporate powers, a case must be made out which plainly shows that such action is so far opposed to the true interests of the corporation itself as to lead to the clear inference that no one thus acting could have been influenced by any honest desire to secure such interests, but that he must have acted with an intent to subserve some outside purpose, regardless of the consequences to the company and in a manner inconsistent with its interests. This is the unavoidable result of the fundamental principle that the majority can regulate and control the lawful exercise of the powers conferred upon a corporation by its character. * * * The wisdom of the action taken or threatened will not be considered. It is only when the corporate acts are so unjust as to be evidence of fraud and intentional wrong that the internal management will be interfered with. Courts cannot compel corporate officers to act wisely but they can compel them to act honestly.

Plaintiff’s reliance on Gooding, supra, is misplaced. The situation in Gooding was longstanding (approximately ten years) and corporate formalities were totally disregarded. The Fifth Circuit commented:

To hold otherwise would be to condone the way the Saints Oil Corporation has been managed and, more significantly, to allow the majority stockholders to come to court virtually empty-handed with regard to corporate records and contend that the acts complained of were not ultra vires.

Gooding is not remotely similar to this case. Admittedly, no meetings were held since March, 1981, but suit was filed May 18, 1981 and the parties have been at odds since. There were several meetings between September, 1980 and March, 1981.

Allen’s allegation that the defendants refused to allow inspection of the records is also unfounded.

The fact that the majority of the shareholders (defendants) removed Allen from the Board and as President is insufficient to justify involuntary dissolution. The actions of the majority were within the corporate powers and not ultra vires. Streb, supra; Gruenberg, supra.

There is no legal basis to order involuntary dissolution of the corporation.

APPOINTMENT OF A RECEIVER

In the alternative, plaintiff requests appointment of a receiver pursuant to LSA-R.S. 12:151 which provides in part:

A. The court may, after trial, appoint a receiver to take charge of the corporation’s property when it is made to appear, in a proceeding instituted against the corporation:
(1) By any shareholder or creditor, that the directors or officers of the corporation are jeopardizing the rights of its shareholders or creditors by grossly mismanaging the business, or by committing gross and persistent ultra vires acts, or by wasting, misusing or misapplying the assets of the corporation; or
(5) By any shareholder, that a majority of the shareholders are violating the rights of minority shareholders and endangering their interests;
* * * * * *

Plaintiff relies on the same allegations discussed above.

Fincher v. Claiborne Butane Co., 349 So.2d 1014 (La.App. 2d Cir.1977) sets forth the applicable legal principles:

[T]he appointment of a receiver is not mandatory but is subject to sound judicial discretion. In determining whether or not the facts justify and make advisable a receivership, in the absence of a clear showing of fraud or breach of trust the courts are slow to interfere, will order the appointment of a receiver only when it is manifest that it should be made, and are influenced by a consideration of whether such action would serve a useful purpose. This court will not disturb the ruling of the trial judge in his refusal to appoint a receiver except in a case where it clearly appears that the interest of the minority of stockholders are in imminent danger_receivership of a corporation, as a remedy, looks only to the prevention of future injuries rather than to the redress of past grievances .... The effect of appointing a receiver being to take the property of the corporation out of the control of its own officers to whom it has been entrusted by its stockholders, the courts proceed with extreme caution in the exercise if so summary a power, and in construing such statutes they are inclined to give them a strict construction. * ⅜ * A minority of the stockholders of a corporation is not entitled to a receiver because of dissatisfaction with the policy and management of a majority of the officers and directors in the absence of any showing of fraud or insolvency.
* * * * ⅜ s(¡
Receivership is granted in cases where there is imminent danger of the rights of minority stockholders being destroyed by a fraudulent or illegal practice intentionally designed to dissipate the assets of the corporation.

Id. at 1016, 1017, 1018 (Citations omitted.)

Plaintiff has not shown that the corporation is insolvent nor that the defendants intend to dissipate its assets. Plaintiffs’ CPA stated there was no waste, misuse or misapplication of assets and the defendants had not committed ultra vires acts. Plaintiffs’ other CPA testified the corporate expenses were normal, but filing late tax returns was a waste of assets. However, this is not the sort of “wasting” envisioned by the legislature to justify appointment of a receiver. As fully stated above, plaintiffs’ other allegations are unsupported by the record. •

Receivership is proper only where mismanagement is “wilful and its purpose is to ruin the corporation ... where the facts disclose a scheme on the part of the ... majority stockholder to wreck the corporation and dissipate its assets.” West v. Certified Credit Corporation, 162 So.2d 589, 595 (La.App. 2d Cir.1964). The lower court concluded there has been no such showing and we find no error in the trial judge’s refusal to appoint a receiver. Accordingly, attorney’s fees requested by plaintiff under LSA-R.S. 12:151(D) were also appropriately denied.

COMPENSATION FOR SERVICES

Allen contends he had an agreement with FMH whereby he would manage the hotel and could keep the excess income after expenses. He states his agreement with defendants was that if the sale went through he would keep any excess; if it did not go through the net amount would be split equally. FMH’s President testified he thought any extra money was to apply toward the purchase price. Defendants claim that the excess would be put back into the corporation if the sale was consummated and profits would be taken only if there was no sale. The trial judge apparently believed defendant’s version and we find no basis to hold otherwise.

The judgment of the District Court is affirmed at plaintiffs’ cost.

AFFIRMED.

      . LSA-C.C. Art. 1841 provides:
      Error as to the nature of the contract will render it void.
      The nature of the contract is that which characterizes the obligation which it creates. Thus, if the party receives property, and from error or ambiguity in the words accompanying the delivery, believes that he has purchased, while he who delivers intends only to pledge, there is not [no] contract.

      . LSA-R.S. 12:103(D) provides in part:
      Upon at least five days’ written demand, any shareholder, except a business competitor, who has been the holder of record of at least two per cent of all outstanding shares of the corporation for at least six months, shall have the right to examine, in person or by agent or attorney, at any reasonable time, for any proper and reasonable purpose, any and all of the records and accounts of the corporation, and to make extracts therefrom.


author: HALL, Judge.

text:
    Sarah Baxter PETERS, Plaintiff and Defendant in Rule—Appellee, v. William Burke PETERS, Defendant and Plaintiff in Rule—Appellant.
    No. 16192-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 30, 1984.
    Bethard & Davis by Walter E. Dorroh, Jr., Coushatta, for defendant and plaintiff in rule — appellant.
    Horton & Jones by Donald G. Horton, Coushatta, for plaintiff and defendant in rule — appellee.
    Before HALL, MARVIN and SEXTON, JJ.
   HALL, Judge.

In this child custody case, the father of a nine-year-old boy filed a rule for a change of custody against his former wife because she and the child were living with a man to whom she was not married. After trial, the trial court rendered an award of joint custody and the father appealed. The mother neither appealed nor answered his appeal. We affirm the judgment of the district court.

On appeal, the father contends that the trial court erred in awarding joint custody in this case, and instead, should have awarded him sole custody of the boy because of the mother’s demonstrated moral unfitness and his better financial ability to provide for the child. He further argues that the trial court’s decree is unworkable in providing for a sharing of physical custody of the child on an alternating monthly basis. This plan of sharing, he contends, will create an unstable environment for the young boy. The mother argues that because the parents live so close to each other this plan of sharing will work in this instance. She further argues that the joint custody decree rendered by the trial court is in the child’s best interest and it was not an abuse of discretion for the trial court to refuse to award the father sole custody because there was no evidence the child had been detrimentally affected by his current living arrangements.

The parties were married in November 1971. Of this marriage one child, a son, was born. On November 23, 1981, a judgment of separation was rendered on grounds of mutual fault and the mother was awarded custody of their son. On December 9, 1982, a judgment of divorce was rendered on grounds of the parties having lived separate and apart for six months or longer following their judicial separation. Custody of their son was continued with the mother.

In April 1983, the mother and the nine-year-old boy moved into a two bedroom mobile home owned and occupied by a man who was at that time legally separated from his wife. The mobile home was located across the road from a trailer home occupied by the child’s father and his new wife. On July 7, 1983, the father filed this suit seeking a change of custody and on August 19, 1983, a judgment decreeing joint custody of their child was signed. This appeal followed.

The law applicable to this controversy is LSA-C.C. Arts. 146 and 157 as amended by Act 307 of 1982, effective January 1, 1983. This case was tried and decided prior to the later amendment of Article 146 by Act 695 of 1983, effective August 30, 1983. Although not directly applicable, the clarifying and detailed provisions of the 1983 amendment serve as helpful guidelines in interpreting and applying the provisions of Article 146 as they read after the 1982 amendment and prior to the 1983 amendment.

Article 157 provides that in cases of change in custody after an original award, custody shall be granted to the parents in accordance with Article 146. Article 146 provides that custody shall be awarded, according to the best interest of the child, to both parents jointly as the first preference. The article establishes a rebuttable presumption that joint custody is in the best interest of a minor child. The article defines joint custody as meaning “the parents shall share the physical custody of children” and provides that “physical care and custody shall be shared by the parents in such a way as to assure a child of frequent and continuing contact with both parents.”

The primary purpose of the amendment to Article 146 is to further promote the child’s best interest by insuring that whenever possible the physical care and custody of the child will be shared by the parents in such a way as to insure the child of frequent and continuing contact with both parents. The courts are not free to disregard this legislative mandate. Adams v. Adams, 441 So.2d 490 (La.App. 2d Cir. 1983); Plemer v. Plemer, 436 So.2d 1348 (La.App. 4th Cir.1983). The Legislature, by amending Articles 146 and 157 to provide for joint custody, introduced new approaches and considerations into the judicial determination of child custody matters. See Pleasant v. Pleasant, 448 So.2d 824 (La.App. 2d Cir.1984) and Stewart v. Stewart, 430 So.2d 189 (La.App. 2d Cir.1983).

Each child custody case must be analyzed and judged upon its own peculiar set of facts and relationships involved, with the end in mind of achieving what has always been the paramount objective in such matters, the best interest of the child. The standard of appellate review of a child custody judgment is that great weight is given to the trial court’s decision which will not be overturned in the absence of a clear abuse of the trial court’s much discretion. Stephenson v. Stephenson, 404 So.2d 963 (La.1981); Cleeton v. Cleeton, 383 So.2d 1231 (La.1980); Monsour v. Monsour, 347 So.2d 203 (La.1977); Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (La.1971); Pleasant v. Pleasant, supra; Stewart v, Stewart, supra; Griffin v. Griffin, 424 So.2d 1228 (La.App. 1st Cir.1982); Hord v. Hord, 407 So.2d 1314 (La.App. 3d Cir.1981); Howes v. Howes, 388 So.2d 1182 (La.App. 4th Cir.1980).

In the instant case counsel for the appellant, in a well-prepared and forceful brief, urges that sole custody of the child should have been changed from the mother to the father because of the mother’s moral unfitness and because the father is in a better position to provide the child with material benefits. Taking the latter argument first, we note that although the father is better off financially than the mother and may be able to provide a larger home, there is no showing in this record that the' homes in which the mother has lived with the child are not entirely adequate. The evidence establishes that both parties have adequate means to provide for the child’s needs and have done so.

Turning to the moral fitness argument, we note that moral fitness of the parents is but one factor, albeit an important one, to be considered when examining the totality of the facts, circumstances, and relationships presented by a particular case in the attempt to reach a decision in the child’s best interest. Stewart v. Stewart, supra. The moral fitness of the parties involved is only 1 of 11 factors listed in Article 146 as amended in 1983, to be considered in determining whether the presumption in favor of joint custody has been rebutted by a showing that it is not in the best interest of the child. The parent’s attitude toward living with a man whom she plans to marry is but one aspect of moral fitness. Other aspects of moral fitness or unfitness may be more significant in their effect on a child, such as the parent’s attitude toward criminal activity, drug abuse, sexual promiscuity in the home, and other activities deemed immoral in our society. In this case there was no evidence of any aspect of moral unfitness on the part of the mother other than her attitude toward and her actions in living with the man she planned to marry.

In spite of changing attitudes and moral standards, “living together” without benefit of marriage, in a home where young children are present, remains widely regarded as immoral and as necessarily having a detrimental effect on a child’s moral upbringing. The courts of this state have consistently, in many reported cases, recognized this fact. In almost every case where the parent lived with someone to whom they were not married, and the situation continued through trial of a custody proceeding, the child was removed from the custody of that parent. See, for example, Bagents v. Bagents, 419 So.2d 460 (La.1982) and Tabor v. Tabor, 421 So.2d 1185 (La.App. 2d Cir.1982). However, in most cases where the parent had married the person with whom they were living, or where the relationship was discontinued prior to trial, the courts did not change custody because the moral detriment to the child no longer existed. Stephenson v. Stephenson, supra; Cleeton v. Cleeton, supra; Monsour v. Monsour, supra; Fulco v. Fulco, supra; Pleasant v. Pleasant, supra; Stewart v. Stewart, supra; Griffin v. Griffin, supra; Hord v. Hord, supra; Howes v. Howes, supra. In some cases where it appeared that the parent married the paramour after trial, the appellate courts remanded the case to the district court for a new trial so that the fact of the parent’s marriage could be considered, the strong indication being that the marriage cured the problem and custody should not be changed. Atteberry v. Atteberry, 381 So.2d 1231 (La.1980), remanding Atteberry v. Atteberry, 379 So.2d 18 (La.App. 3d Cir. 1979); Shackleford v. Shackleford, 389 So.2d 825 (La.App. 3d Cir.1980). In the instant case, counsel for the mother represents in brief that the mother married the man with whom she was living in January 1984, and they now live together as husband and wife. Counsel for the father has not disputed this representation. The trial court’s decision in this case is further supported by the fact of the mother’s marriage and there is no need to prolong this litigation by remanding the case for proof of this fact and reconsideration by the trial court.

Under the particular facts and circumstances of this case, we find that the trial court did not abuse its great discretion in declining to fully deprive the mother of custody and grant sole custody to the father. After hearing testimony presented by both parties, and after talking in chambers with the child at the request of counsel, the trial court found the boy to be a very well adjusted child who loves both his father and mother and understands that they love him. The court noted the child’s good grades in school and noted a total absence of any manifestation that the child was being detrimentally affected by his present situation. While stating that it did not condone the mother’s behavior, the trial court noted that the mother’s relationship with the man appeared stable and it produced no apparent detrimental effect on the child’s well-being. The evidence at trial was that the mother planned to marry the man with whom she was living as soon as legally possible within a relatively short period of time, establishing that the immoral situation in which the child was living was to be of short duration. The mother has now, in fact, married.

The child has lived with the mother for about three years since the parties separated and has gotten along well. Stability of environment and assurance of a continuing close relationship with his mother are strong best interest factors weighing in favor of continued custody in the mother, at least on a joint custody basis.

Faced with the circumstances described, the trial court looked to the joint custody provisions of Article 146 for guidance and correctly interpreted and followed both its letter and spirit. As previously noted, the primary aim of the new provisions is to foster, whenever possible, an arrangement whereby the child enjoys a frequent and continuing relationship with both parents. Under the facts and circumstances of this case, it was not an abuse of discretion for the trial court to follow the directive of the statute and seek to insure frequent and continuing contact between the son and both of his parents in a situation in which such an award would not run counter to the child’s best interest. It was not an abuse of discretion for the trial court to decline to fully deprive the mother of custody and grant sole custody to the father.

The father urges that the joint custody plan devised and ordered by the trial court whereby the child is to stay with each parent on alternate months is not workable and is not in the best interest of the child. He urges that such a plan is a Solomon-like approach, dividing the child between the parents.

Joint custody does not necessarily require an equal sharing of physical custody, but it does not preclude such an arrangement in the appropriate situation. Each case must be judged on its particular facts and the trial court is afforded much discretion in its pursuit of the child’s best interest. Adams v. Adams, supra; Plemer v. Plemer, supra.

The record reflects that at the time of trial the parties lived across the road from each other in a small, rural community. The record also indicates that the father intended to move from his trailer to a brick home several miles away. However, the distance involved, assuming the planned move indeed materialized, was not so great as to likely result in hardship either to the child or to his parents under the scheme of physical custody ordered.

Joint custody and shared physical custody are new to Louisiana and run counter in some respects to notions formerly held about the undesirability of a child living part of the time with one parent and part of the time with the other parent. However, the legislative mandate for joint custody with shared living arrangements is strong and positive and the courts must follow the legislative mandate. Joint custody opens the door for plans that assure a continued close relationship between the child and both parents, the primary objective of joint custody, and such plans should be tailored by the trial courts in accordance with the circumstances of individual cases. The plan of monthly alternating living arrangements adopted in this case is not, as a matter of law, either required or prohibited. Whether it will work to the best interest of this particular child under the particular circumstances of this case remains to be seen, but the carefully considered plan devised by the trial court in accordance with the code article should be given a chance to succeed. Undoubtedly, many different plans of shared custody will be adopted by trial courts in the course of administering the new joint custody law. Experience with this new-to-Louisiana concept will, perhaps, develop some guidelines for determining what sort of plans and arrangements seem to most benefit the children involved.

Appellate courts should be very reluctant to interfere with plans ordered by trial courts in the exercise of their discretion after careful consideration, and should do so only where a clear abuse of discretion is demonstrated. No such abuse of discretion is demonstrated in this case.

For the reasons assigned, the judgment of the district court is affirmed at appellant’s costs.

Affirmed.


author: JASPER E. JONES, Judge.

text:
    STATE of Louisiana, Appellee, v. Ruthie S. COOPER, Appellant.
    No. 16199-KW.
    Court of Appeal of Louisiana, Second Circuit.
    April 30, 1984.

      Hunter & Scott by Louis G. Scott, Monroe, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, Johnny Parkerson, Dist. Atty., Robert S. Kennedy, Jr., Asst. Dist. Atty., Monroe, for appellee.
    Before MARVIN, JASPER E. JONES and NORRIS, JJ.
   JASPER E. JONES, Judge.

We granted a writ to review the trial court’s ruling denying the defendant’s motion to quash a bill of information charging her with possession of marijuana in violation of LSA-R.S. 40:966. We reverse and grant defendant’s motion.

On January 21, 1983 the defendant, Ruthie S. Cooper, and her husband, Isiah Cooper, Jr., were arrested for possession of marijuana. A single attorney was hired by both parties. The attorney allegedly worked out a plea bargain agreement with the Ouachita Parish District Attorney’s Office on February 9, 1983. The terms of the agreement provided that Mr. Cooper would plead guilty to a charge of possession of marijuana and in return, charges would not be filed against Mrs. Cooper.

At Mrs. Cooper’s arraignment on February 14, 1983, the state declined to bring charges. Mr. Cooper was arraigned February 23, 1983. He refused to plead guilty at that time because he was advised by the trial court his sentence could include a prison term and Mr. Cooper was under the impression he would only be fined. A bill of information was filed the same day charging only Mr. Cooper- with possession of marijuana. He subsequently pled guilty to the charge on April 12, 1983. An amended bill of information was filed July 25, 1983 charging Mrs. Cooper with the same offense.

The motion to quash was based upon the state’s alleged breach of the plea bargain agreement. After a hearing on the motion, the trial judge filed a written ruling in which he made the following findings:

RULING

From the evidence presented at hearing of the Motion to Quash filed by Ruthie S. Cooper, the Court finds that Isiah William Cooper, Jr. entered a plea of guilty to this offense of possession of marijuana on the condition and representation by an Assistant District Attorney that his wife would not be charged with the offense. Subsequently, an amended bill was filed which charged Mrs. Cooper as a co-defendant. The plea bargain was an agreement between Mr. Cooper and the state. Since the state did not keep its agreement, justice and fair play may allow Mr. Cooper to withdraw his plea of guilty. However, Mrs. Cooper was not a party to the breached agreement and has no standing to quash the information.
The Motion to Quash filed by Ruthie S. Cooper is denied.

In brief, the state contends the trial judge’s finding that the plea bargain agreement existed was incorrect. We disagree. The motion to quash was filed September 21, 1983 and the hearing was held October 12, 1983. At the hearing, the state called no witnesses. The only witnesses who testified were Mr. and Mrs. Cooper and their attorney. The attorney testified to the negotiations and the acceptance of the agreement by the District Attorney’s office. When the Coopers were individually called to the stand, the state stipulated that their understanding of the agreement was that if Mr. Cooper pled guilty, Mrs. Cooper would not be charged. The records of the court on February 14, 1983, the date Mrs. Cooper was scheduled for arraignment, twice contained the statement by the Assistant District Attorney that the state declined to charge Mrs. Cooper:

By Mr. Aycock: If we could return to the very beginning of the arraignment docket, # 01 is Ruthie S. Cooper. Your Honor, the state has declined to accept that charge on Ms. Cooper. It was a possession of marijuana.
By Mr. Scott: And we waive her presence. She had been ordered to be here today.
By the Court: So you’re dismissing, there’s no charge?
By Mr. Aycock: Or declining it. Yes, Your Honor.

The contents of a tape which had recorded the district attorney’s comment to defense counsel at a bench conference held on April 12, 1983 at the time Isiah Cooper pled guilty, was stipulated at the hearing on the motion to quash. The Assistant District Attorney’s comment was “No, we are not even charging her or we didn’t even charge her.” The court records of February 14th and the stipulated contents of the tape recording of the Assistant District Attorney’s remarks on April 12th, fully corroborate the testimony of the witnesses who testified to the existence of the plea bargain. We find, under the totality of the circumstances, the existence of the agreement was proved. We further observe the state presented no evidence to disprove the plea bargain, even though it had adequate notice of the grounds for the motion to quash prior to the hearing.

In support of its position the state cites two cases where it was found that the existence of a plea bargain agreement was not proved. State v. Baudoin, 334 So.2d 186 (La.1976); State v. Lockwood, 399 So.2d 190 (La.1981). Both cases are distinguishable from the instant case. In Bau-doin, the evidence was in conflict as to whether the District Attorney ever approved the plea bargain. Here, there is no contradictory evidence; on the contrary, all the evidence establishes the plea bargain and this was found as a fact by the trial judge. In Lockwood, there was no evidence that a plea bargain ever existed.

The relief Mrs. Cooper seeks requires that two issues be resolved in her favor. Those issues are:

(1) Whether she has standing to have the plea bargain agreement between the state and her husband specifically enforced; and
(2) If so, whether the motion to quash is the proper procedural device to raise the issue.

Issue # 1

The disposition of criminal charges by the process known as plea bargaining has been characterized as an “essential component” of the criminal justice system. Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). When a plea rests in any significant degree on a promise by the prosecution, that promise must be fulfilled. Santobello v. New York, supra; State v. Redfearn, 441 So.2d 200 (La.1983). It is a denial of due process when the state fails to carry out its promise which induced the defendant to plead guilty. State v. Neitte, 363 So.2d 425 (La.1978); State v. Jones, 398 So.2d 1049 (La.1981); State v. Hayes, 423 So.2d 1111 (La.1982); State v. Redfearn, supra.

When these principles of law are applied to the facts of the instant case, it is clear Mr. Cooper’s due process rights were violated by the state’s breach of the plea bargain agreement. The promise his wife would not be charged with possession of marijuana was the primary inducement for his guilty plea and the state failed to carry out its promise.

Because of the peculiar facts surrounding the plea, we find that Mrs. Cooper’s due process rights were also violated by the state’s breach of the plea bargain agreement. She was the beneficiary of the agreement. The state promised not to charge her but did so after Mr. Cooper carried out his end of the bargain. Such conduct shocks our sense of justice and is contrary to fundamental fairness.

Standing is a concept utilized to determine if a party is sufficiently affected so as to insure that a justiciable controversy is presented to court. The requirement of standing is satisfied if it can be said that the plaintiff has a legally protectible interest at stake. Guidry v. Roberts, 331 So.2d 44 (La.App. 1st Cir.1976); Black’s Law Dictionary, 5th Ed., p. 1260. An accused has a right to be dealt with fairly at all stages of the criminal proceedings against him and can have that right judicially enforced. Mrs. Cooper’s right to be treated fairly was violated. The trial court erred in finding she had no standing to have the plea bargain agreement specifically enforced.

Even if it could be said that Mrs. Cooper’s individual right to due process was not violated by the breach of the plea bargain agreement, Louisiana law still affords her the right to have the agreement enforced. It has been held that a plea bargain agreement is a contract between the state and the accused. State v. Nall, 379 So.2d 731 (La.1980). In that case the supreme court based its decision of whether a plea bargain agreement was enforceable on principles of civil contract law.

The plea bargain agreement in the instant case is analogous to a contract containing a stipulation pour autrui. A party to a contract may make some advantage for the benefit of a third person his consideration for entering the contract; and if the third person consents to avail himself of the advantage stipulated in his favor, the contract cannot be revoked without his consent. LSA-C.C. 1890; LSA-C.C. 1902; Capital Loans, Inc. v. Stassi, 195 So.2d 670 (La.App. 1st Cir.1967).

The state’s promise not to charge Mrs. Cooper with possession of marijuana was the primary consideration received by Mr. Cooper for his agreement to plead guilty and Mrs. Cooper consented to avail himself of the stipulation in her favor. The state cannot unilaterally revoke the stipulation. Mrs. Cooper has the right to have it judicially enforced. See State ex rel. Guste v. Simoni, Heck & Associates, 331 So.2d 478 (La.1976); Andrepont v. Acadia Drilling Co., 255 La. 347, 231 So.2d 347 (1969).

Issue # 2

Louisiana’s statutory law on motions to quash is found in Title XV of the Code of Criminal Procedure consisting of articles 531-538. Article 531 defines the nature of the motion. It provides, “all pleas or defenses raised before trial ... shall be urged by a motion to quash.” (emphasis supplied). Articles 532 and 534 contain a list of grounds for motions to quash bills of information. The list of grounds for the motion in these articles is merely illustrative. See State v. Reaves, 376 So.2d 136 (La.1979); State v. Tanner, 425 So.2d 760 (La.1983). The matters that can be raised by the motion are limited to pleas and defenses which do not go to the merits of the case. State v. Patterson, 301 So.2d 604 (La.1974); State v. Rembert, 312 So.2d 282 (La.1975); State v. Reaves, supra.

The amended bill of information charging Mrs. Cooper with possession of marijuana should never have been filed because of the plea bargain agreement. The stipulation in her favor contained in the agreement was a defense which did not go to the merits of the case. The issue was properly raised by motion to quash. See State v. Tanner, supra.

For the foregoing reasons, the ruling of the trial court is reversed. The motion to quash the amended bill of information is granted.

      . Defendant also urged that the bill of information was invalid because it was amended after Mr. Cooper pled guilty. The trial judge found this contention to be without merit. Since we find the bill should have been quashed on other grounds, we do not consider whether the finding on this issue was correct.

      . We note that the analogy is not perfect. In order for a contract containing a stipulation pour autrui to be enforceable, the stipulation must be in writing. Fontenot v. Marquette Casualty Co., 258 La. 671, 247 So.2d 572 (1971). Here there is no evidence that the plea bargain agreement was in writing. The lack of a written instrument does not render the analogy invalid, however, since the writing requirement addresses itself to problems of proof. We have found that the existence of the plea bargain agreement was proved, not only by the testimony of Mr. and Mrs. Cooper but by declarations of the Assistant District Attorney made in open court in connection with criminal judicial proceedings related to Mr. and Mrs. Cooper. These circumstances justify the enforcement of the stipulation pour autrui in this criminal case, even though it does not meet the requirement that it be in writing.

      . Express acceptance or consent to the stipulation in his favor by the third party is not required. An assertion by the third party of his claim may be sufficient. First State Bank v. Burton, 225 La. 537, 73 So.2d 453 (1954); Andrepont v. Acadia Drilling Co., 255 La. 347, 231 So.2d 347 (1969). Mrs. Cooper at least accepted by asserting her claim in the motion to quash.

      . Art. 532. General grounds for motion to quash
      A motion to quash may be based on one or more of the following grounds:
      (1) The indictment fails to charge an offense which is punishable under a valid statute.
      (2) The indictment fails to conform to the requirements of Chapters 1 and 2 of Title XIII.
      In such case the court may permit the district attorney to amend the indictment to correct the defect.
      (3) The indictment is duplicitous or contains a misjoinder of defendants or offenses. In such case the court may permit the district attorney to sever the indictment into separate counts or separate indictments.
      (4) The district attorney failed to furnish a sufficient bill of particulars when ordered to do so by the court. In such case the court may overrule the motion if a sufficient bill of particulars is furnished within the delay fixed by the court.
      (5) A bill of particulars has shown a ground for quashing the indictment under Article 485.
      (6) Trial for the offense charged would constitute double jeopardy.
      (7) The time limitation for the institution of prosecution or for the commencement of trial has expired.
      (8) The court has no jurisdiction of the offense charged.
      (9) The general venire or the petit jury venire was improperly drawn, selected, or constituted.

      .Art. 534. Special grounds for motion to quash information
      A motion to quash an information may also be based on one or more of the following grounds:
      (1) The information was not signed by the district attorney; or was not properly filed.
      (2) The offense is not one for which prosecution can be instituted by an information.

      . We note that in State v. Francis, 345 So.2d 1120 (La.1977), it was stated that the state’s breach of an agreement with the defendant is not a legal ground for a motion to quash. Tanner holds to the contrary. During the course of that opinion the supreme court pointed out that the motion in Francis was untimely, unwritten and without merit. (See footnote 2 on p. 762 of the Tanner opinion.)


author: WARD, Judge,

text:
    STATE of Louisiana v. Kevin RHODES and Lawrence Bright.
    No. K 1355.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 14, 1984.
    Writ Denied June 8, 1984.
    WARD, J., dissents with written reasons.
   WARD, Judge,

dissenting.

I dissent.

I would grant the State’s application. The totality of circumstances presented in the transcript of the suppression hearing shows that the State satisfied the Tague requirement that it affirmatively show that the defendants waived their rights. State v. Burkhalter, 428 So.2d 449, 454-56 (La.1983); State v. Harper, 430 So.2d 627, 633 (La.1983). Furthermore, the time which elapsed between the giving of the Miranda warnings and the questioning at the station was insufficient to warrant a finding that the defendants did not knowingly waive their rights when they made their statements.


author: FORET, Judge.

text:
    STATE of Louisiana, Appellee, v. Benjamin THOMAS, Appellant.
    No. CR83-53.
    Court of Appeal of Louisiana, Third Circuit.
    May 16, 1984.
    John C. Geiger, Lafayette, for appellant.
    J. Nathan Stansbury, Dist. Atty., Michael Harson, Asst. Dist. Atty., Lafayette, for appellee.
    Before FORET, LABORDE and YEL-VERTON, JJ.
   FORET, Judge.

Defendant, Benjamin Thomas, was charged by a grand jury indictment with armed robbery, a violation of LSA-R.S. 14:64. On February 3, 1982, a jury of twelve found the defendant guilty of attempted armed robbery. On April 8, 1982, the defendant was sentenced to five years at hard labor, without benefit of probation, parole, or suspension of sentence.

The defendant was granted an out-of-time appeal, but has not filed any assignments of error, nor has a brief been filed. Consequently, this case will only be reviewed for errors patent on the face of the record. State v. Jimmerson, 432 So.2d 1093 (La.App. 3 Cir.1983). We have fully reviewed the record for these errors and find none.

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

AFFIRMED.


author: DOMENGEAUX, Judge. GUIDRY, Judge,

text:
    HONEYWELL, INC., Plaintiff-Appellant, v. JIMMIE B. GUINN, INC., Jesse F. Heard & Sons, Inc., and Travelers Indemnity Company, Defendants-Appellees.
    No. 83-207.
    Court of Appeal of Louisiana, Third Circuit.
    May 16, 1984.

      Provosty, Sadler & deLaunay, David P. Spence, Alexandria, for plaintiff-appellant.
    Jesse S. Heard, Jr., West Monroe, for defendants-appellees.
    Before DOMENGEAUX, GUIDRY and DOUCET, JJ.
   DOMENGEAUX, Judge.

By this suit, plaintiff, Honeywell, Inc., is attempting to recover from defendants, Jesse F. Heard & Sons, Inc., and its surety, Travelers Indemnity Company, the sum of $11,513.00 for work performed in the construction of LaSalle General Hospital of Jena, Louisiana.

The case was considered by us once before. Originally, judgment was rendered in favor of defendants, Jesse F. Heard & Sons, Inc. and Travelers Indemnity Company, with that judgment being affirmed by this Court, 440 So.2d 973 (La.App.3rd Cir. 1983).

Honeywell, Inc., applied for writs of cer-tiorari and review to the Louisiana Supreme Court and the latter tribunal granted the application at 445 So.2d 427 (La.1984), with the following language:

“Granted. Decision of Court of Appeal is reversed. Case remanded to Court of Appeal for reconsideration in light of Hauserman v. Rousel-Hart Gen. Contr., 395 So.2d 800 (1981).”

We find the high court’s procedure in this case unusual. The reversal, it would seem, should be explained away by it rather than us. In any event of course, we will adhere to the mandate of the Supreme Court and reconsider in light of Hauserman, supra.

We interpret the Hauserman case as simply providing guidelines to determine whether a claimant is a sub-contractor or a materialman. Further, the case points out that different prescriptive periods apply to each category. Should that be the controlling issue in the case under consideration, we would have no problem in holding Honeywell to be a sub-contractor and accordingly applying the five-year prescriptive period of La.R.S. 38:2189. However, as we pointed out in our original opinion, the plaintiff is without remedy under the Public Works Act for failure to file his claim within the statutorily mandated forty-five day period following recordation of acceptance of the work. See Powers Regulator Company v. Murphy’s Plumbing Service, Inc., 311 So.2d 503 (La.App. 4th Cir.1975). The Hauserman case does not involve such a contention. Neither does the Hauserman case involve a contention that the prescriptive period of the bond itself should govern. The issue there was which of the two periods provided for in the Public Works Act should control.

It was argued on original hearing that plaintiffs failure to file this claim within 45 days merely resulted in their losing privity of contract between Honeywell and Heard & Sons. It was thus plaintiff’s theory that privity could be found from the language of the bond. In effect plaintiff asks us to look to the provisions of the bond to find the requisite privity of contract and disregard its one year prescriptive period in order to find the five year prescriptive period of La.R.S. 38:2189 controlling. We find this approach to be inconsistent with statutory reality; and in order to follow plaintiff’s approach, it would be necessary to grant it the advantages of both situations, while relieving it of its barriers.

We adhere to our original holding that Honeywell’s failure to timely file its claim deprives it of any right of action against the contractor or the surety under the Public Works Act. The case is then one of simple contract interpretation and we further adhere to our original holding that plaintiff is also not entitled to recover on the terms of the bond itself.

The Supreme Court by its aforementioned writ action disagrees with our original treatment of this case. We do not view Hauserman as the high court does, which places us in a position of awkwardness.

We considered Hauserman in our original opinion, we have considered it again and we maintain that it does not apply to the facts of the case at hand, and if it should, we respectfully think it is wrong.

Such being the case, we are constrained to adhere to our original opinion which affirmed the trial court’s dismissal of plaintiff’s claim. However, our disagreement with the high court does not jurispruden-tially allow us to reverse that tribunal, and such being the case we respectfully suggest that the Supreme Court, being the final arbiter, take the matter up, decide it according to its own thinkings and rationale, and render its own opinion.

Decision of the trial court is affirmed.

DOUCET, J., concurs.

GUIDRY, J., dissents and assigns with written reasons.

GUIDRY, Judge,

dissenting.

For the reasons which will be more fully expressed below, I respectfully disagree with the holding of the Supreme Court in Hauserman v. Roussel-Hart Gen. Gont., 395 So.2d 800 (La.1981). However, in my view, that case is dispositive of the issue presented herein, inasmuch as it held that the liability of a general contractor and his surety to a subcontractor on a public works contract is governed by the prescriptive period provided by LSA-R.S. 38:2189, contained in Part I of the chapter on public contracts. Because this five-year prescriptive period is applicable, Honeywell’s suit is timely, irrespective of any shorter prescriptive period provided in the bond. I therefore dissent from the dismissal of Honeywell’s suit.

In Hauserman, the Supreme Court concluded that the prescriptive period provided in LSA-R.S. 38:2247, being in Part III of the chapter on public contracts (titled “Claims of Materialmen and Laborers on Public Works”) had no applicability to a claim by a subcontractor. Following this reasoning to its logical conclusion, one must necessarily conclude that Part III has no application to the claims of subcontractors.

The chapter on public contracts provides two important rights to persons involved in the construction or repair of public works. First, those not in contractual privity with the general contractor are afforded a right of action against both the contractor and his surety. LSA-R.S. 38:2241. Secondly, when a claimant properly files and records a sworn statement of his claim, any payment made by the governing authority without deducting the amount of such claim renders the governing authority liable for the claim. LSA-R.S. 38:2242. Thurman v. Star Electric Supply, Inc., 307 So.2d 283 (La.1975). Both of these rights are created by the provisions of Part III of the chapter.

The Supreme Court in Hauserman held that Part III applies exclusively to laborers and materialmen, but not to subcontractors. Thus, an unpaid subcontractor who is not in contractual privity with the general contractor (i.e., a sub-subcontractor) would appear to have no right under the act to proceed against the general contractor and his surety. Further, unpaid subcontractors have no right to preserve a claim against the governing authority pursuant to LSA-R.S. 38:2242. In effect, Hauserman means that while the Public Works Act protects suppliers of labor and suppliers of materials, it does not protect persons who supply both, i.e., subcontractors.

I do not feel that the legislature ever intended to exclude subcontractors from the provisions of Part III. Rather, it appears that Part III was clearly intended by the legislature to affect suppliers of materials, laborers and those who performed both functions, i.e., subcontractors. In sum, it is my view that Part III of the chapter on public contracts applies to subcontractors including the provisions of LSA-R.S. 38:2247. In my view, the legislature intended LSA-R.S. 38:2247 to apply to materialmen, laborers and subcontractors and LSA-R.S. 38:2189 is applicable to disputes between the owner or public body and the contractor and his surety concerning the quality or quantity of the work. Marquette Cement Manufacturing Co. v. Normand, et al., 186 So.2d 396 (La.App. 1st Cir.1966), writ issued, 249 La. 373, 186 So.2d 626 (1966); affirmed, 249 La. 1027, 192 So.2d 552 (La.1966).

Whatever disagreement we may have with Hauserman, we of course must yield to its weight. I am unable to distinguish it from the instant ease. I therefore respectfully dissent.


author: DOMENGEAUX, Judge.

text:
    STATE of Louisiana v. Berry CEASAR.
    No. CR83-518.
    Court of Appeal of Louisiana, Third Circuit.
    May 16, 1984.
    Lloyd K. Milam, Lake Charles, for defendant-appellant.
    Leonard Knapp, Jr., Dist. Atty., Lake Charles, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and DOUCET, JJ.
   DOMENGEAUX, Judge.

On December 8, 1980, the defendant was charged by bill of information with the crime of armed robbery, a violation of La. R.S. 14:64. He initially requested a trial by jury, but later petitioned the court for a bench trial. He was subsequently tried and found guilty as charged.

Before sentencing, the trial judge ordered a pre-sentence investigation. After the investigation, the defendant was sentenced as a habitual offender to 75 years at hard labor without benefit of probation, parol or suspension of sentence.

An appeal of this conviction was not perfected by defendant’s appointed counsel. Defendant claims he was under the impression that once he was convicted, an appeal was automatically filed by his trial attorney in order to finalize the conviction. However, after inquiring, defendant received a response from his trial attorney informing him that no appeal would be filed. On application for writ of habeas corpus defendant claims he did not waive his right to appeal and we thus granted this out of time appeal. State of Louisiana v. Simmons, 390 So.2d 504 (La.1980).

In response thereto defendant's newly appointed attorney filed the following assignments of error: (1) The trial judge erred in denying defendant’s objection to the introduction of the money which had been stolen; (2) The sentence imposed upon defendant was excessive and unsupported by the facts and circumstances of the case. However, as neither brief nor argument has been presented to this Court in support of defendant’s first contention, this assignment has been abandoned upon appeal. State v. West, 419 So.2d 868 (La.1982).

The defendant also raises in his appellate brief a new assignment of error, to-wit: (1) The State of Louisiana failed to prove beyond a reasonable doubt the identity of the defendant, Berry Ceasar, as the individual who participated in the robbery on November 9, 1980.

This assignment, though briefed for the Court, cannot be addressed because a new basis for an objection cannot be raised for the first time on appeal. La.C.Cr.P. Art. 841, State v. Feeback, 414 So.2d 1229 (La.1982).

The defendant also alleged the following assignment of error in his appellate brief: (2)The State of Louisiana failed to meet its burden of proof in the habitual offender hearing, thereby sentencing the defendant Berry Ceasar, to excessive and improper sentencing. We note that this assignment briefed for the Court does not complain of the excessiveness of the sentence in the same language as does the assignment earlier filed. Nevertheless,, the assignment filed and the assignment briefed both complain of excessiveness. To that extent an assignment of error complaining of an excessive sentence has been timely filed and briefed for this Court. We shall therefore address that issue.

As to determining what is excessive punishment under the Eighth Amendment’s prohibition against cruel and unusual punishment, the Louisiana Supreme Court in State v. Sepulvado, 367 So.2d 762 (La.1979), decided that the imposition of a sentence, even though within the statutory limits, may be unconstitutionally excessive in violation of Article 1, Section 20 of the Louisiana Constitution of 1974. A sentence has been determined to be excessive punishment when the penalty is so disproportionate to the crime as to shock the senses of justice or if it is nothing more than the purposeless and needless imposition of pain and suffering. State v. Reed, 409 So.2d 266 (La.1982); State v. Goodman, 427 So.2d 529 (La.App. 3rd Cir.1983). However, due to the trial judge’s unique advantage of viewing subjective factors not available from the appeal record, he is given wide discretion in the imposition of sentences within statutory limits, and a sentence imposed by him should not be set aside as excessive in the absence of manifest abuse of this discretion. Sepulvado and Goodman, supra; State v. Forshee, 395 So.2d 742 (La.1981).

The defendant was subject to a 198 year term of imprisonment when he was convicted and adjudged a habitual offender. Under the circumstances set out herein it seems to us that the 75 year sentence is indeed proper considering the defendant as a habitual offender could have gotten no less than 49¾⅛ years. The sentence of 75 years at hard labor is fully supported and articulated and is not excessive.

We are unable to find any manifest error. The trial judge complied with proper procedures as set forth in the sentencing guidelines and the sentence imposed follows the defendant’s third felony conviction. Therefore we will not disturb this sentence on appeal.

DECREE

For the above and foregoing reasons, defendant’s conviction and sentence for the crime of armed robbery are affirmed.

AFFIRMED.

      . The author of this opinion is compelled to again state his position as to appellate review of sentences for excessiveness. Our state constitution does not provide for nor does it mandate judicial review of sentences which fall within the limits set by the respective criminal statutes. See State v. Goodman, 427 So.2d 529 (La.App. 3rd Cir.1983), concurring opinion at 529; State v. Vallare, 430 So.2d 1336 (La.App. 3rd Cir. 1983); concurring opinion at 1339, writ denied, 433 So.2d 729 (La.1983). See also State v. Shelby, 438 So.2d 1166 (La.App. 3rd Cir.1983), concurring opinion at 1169.


author: LABORDE, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Donald BABINEAUX, Defendant-Appellant.
    No. CR83-555.
    Court of Appeal of Louisiana, Third Circuit.
    May 16, 1984.
    Paul J. De Mahy, St. Martinville, for defendant-appellant.
    Chester R. Cedars, J. Phil Haney, Asst. Dist. Attys., St. Martinville, for plaintiff-ap-pellee.

      Before FORET, LABORDE and YEL-VERTON, JJ.
   LABORDE, Judge.

Defendant, Donald Babineaux, was charged by bill of information with distribution of marijuana in violation of LSA-R.S. 40:966. After pleading not guilty, defendant was tried before a twelve (12) member jury, found guilty and sentenced by the trial judge to serve five (5) years at hard labor. Defendant appeals from this conviction and sentence contending that a mistrial should have been granted following the prosecutor’s comment on defendant’s silence during the trial of a codefend-ant and that his sentence is excessive. We affirm.

FACTS

On November 23, 1981, the defendant met with an undercover narcotics agent for the Sheriffs Office of St. Martin Parish. The two met at a service station where the undercover agent was employed part-time. The defendant told the narcotics agent that he would sell her a “bag” of marijuana for fifty dollars ($50.00). The defendant then informed the agent that she was to meet Belinda Wiltz at the service station on the following day and give her the fifty dollars ($50.00) in payment for the marijuana. He would then deliver the marijuana to the narcotics agent.

On November 24, 1981, everything went as planned. At approximately 6:45 p.m. the agent gave Miss Wiltz fifty dollars ($50.00). She was instructed to return to the service station at 9:00 p.m., at which time, the defendant gave the bag of marijuana to the undercover agent completing their deal.

Because the defendant was part of an ongoing investigation, he was not arrested until January of 1982. Belinda Wiltz was also arrested and tried before defendant. She was found guilty and convicted.

The defendant was charged by bill of information on April 16, 1982, with distribution of marijuana, a violation of LSA-R.S. 40:966. The defendant was tried and unanimously convicted by a jury of twelve (12) and sentenced to serve five (5) years at hard labor. The defendant appeals his conviction and sentence alleging two (2) assignments of error.

ASSIGNMENT OF ERROR NO. 1

Through this assignment, defendant contends that the trial court erred by refusing to grant his motion for a mistrial made during the course of the trial. Defendant’s motion was based on the prosecutor’s questioning him at trial about exercising his right to remain silent during the trial of a codefendant, Belinda Wiltz. She was tried first for her involvement in the drug transaction and found guilty. Defendant, Donald Babineaux, was called to testify at Miss Wiltz’s trial, but refused to testify by exercising his Fifth Amendment right against self-incrimination.

During defendant Babineaux’s trial, the prosecutor questioned him regarding his failure to testify at Miss Wiltz’s trial.

“Q. Do you recall when Belinda Wiltz had her trial?
A. Yes sir.
Q. You were here?
A. Yes, sir.
Q. Did you testify—
BY MR. DeMAHY: Objection, Your Honor. Move for a mistrial.
BY MR. CEDARS: On what basis? BY THE COURT: Retire the jury, Sheriff.
BY THE COURT: The jury is instructed to disregard the last question.
You may proceed, Mr. Cedars.”

The defendant argues that the prosecutor’s reference to his refusal to testify in the Wiltz trial constituted an impermissible comment on defendant’s right to remain silent, which is grounds for mistrial under LSA-C.Cr.P. art. 770(3). Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 48 L.Ed.2d 91 (1976).

Conversely, the state argues that under LSA-R.S. 15:462, a defendant who takes the stand to testify in his own behalf is subject to be cross-examined on the whole case. State v. Rhodes, 337 So.2d 207 (La.1976).

In State v. Vernon, 385 So.2d 200 (La.1980), the Louisiana Supreme Court resolved this issue where the testimonial situation was identical to the present case. The court reasoned:

“[15] However, testimony was never before the jury which affirmatively showed that defendant did not testify at Regallis’ trial. Vernon was asked if he had been requested to testify at that trial and answered affirmatively. When asked if he actually had testified, he was precluded from answering by the objection of his attorney. (Tr., Vol. VII, p. 832). The trial judge admonished the jury to disregard the references to his testimony or lack thereof at Regallis’ trial and denied defendant’s motion for mistrial. In light of these circumstances, we cannot say that the State impermissi-bly referred to defendant’s failure to testify in his own defense so as to warrant a mistrial under LSA-C.Cr.P. art. 770. The trial judge’s admonition to the jury to disregard the question was sufficient to assure defendant a fair trial.”

The record reflects, as provided above, that the defendant, Donald Babineaux, was never allowed to answer the prosecutor’s question in light of the timely objection made by defense counsel. The partial question put to defendant “did you testify ...”, without more and without answer, did not constitute any comment upon, or prejudicial inference to, the defendant’s exercise of silence at the Wiltz trial.

We hold that the defendant suffered no prejudice as a result of the prosecutor’s perilously close infringement upon defendant’s constitutional right to remain silent. With the judge’s admonition to the jury, defendant was assured a fair trial. For these reasons, this assignment is without merit.

ASSIGNMENT OF ERROR NO. 2

Finally, defendant argues that the imposition of a five (5) year sentence at hard labor for distribution of marijuana is unconstitutionally excessive in this instance. The maximum penalty for this offense is ten (10) years at hard labor and/or fifteen thousand dollars ($15,000), or both.

Trial judges are granted great discretion in imposing sentences, but even sentences within the statutory limits may be reviewed on appeal and found to be excessive under certain circumstances. State v. Jones, 398 So.2d 1049 (La.1981). Article 1, section 20 of the Louisiana Constitution prohibits the imposition by law of excessive punishment.

Defendant is eighteen (18) years old and has a history of prior arrests relating to use, possession and distribution of marijuana, especially to juveniles. The record shows that defendant perjured himself during trial and that he threatened to kill a police officer while in possession of a very dangerous knife. After considering all of the sentencing guidelines under LSA-C. Cr.P. art. 894.1, the trial court concluded that defendant is in serious need of correctional treatment and that suspension of his sentence would pose undue risks that he would commit other crimes.

We have carefully reviewed the trial judge’s reasons for sentencing, and conclude that he did not abuse his wide discretion in imposing a five (5) year sentence for the offense charged in this instance. Such a sentence is in keeping with the established sentences imposed upon habitual offenders for the distribution of marijuana. State v. Beatty, 391 So.2d 828 (La.1980). Therefore, this assignment of error is without merit.

DECREE

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

AFFIRMED.


author: YELVERTON, Judge.

text:
    MOTORS INSURANCE CORPORATION and Ravena M. McNett, Plaintiffs-Appellants, v. Sherry O’NEAL and Miller’s Casualty Insurance Corporation, Defendants-Appellees.
    No. 83-574.
    Court of Appeal of Louisiana, Third Circuit.
    May 16, 1984.
    Harold L. Savoie, Lafayette, for defendant-appellant.
    D. Warren Ashy, Lafayette, for plaintiffs-appellees.
    Franklin, Moore & Walsh, Daniel J. Dziu-ba, Baton Rouge, Roy, Forrest & Lopresto, L. Albert Forrest, New Iberia, James Robert Shelton, Opelousas, for defendants-ap-pellees.
    Before FORET, LABORDE and YEL-VERTON, JJ.
   YELVERTON, Judge.

Plaintiff, Motors Insurance Corporation, appeals from a judgment dismissing its subrogation suit. The sole issue to be addressed is whether the suit was properly dismissed. We conclude that it was dismissed through error. We shall order that the judgment of dismissal be appropriately amended and that the subrogation case be remanded for further proceedings.

The attorney for Motors Insurance Corporation filed a subrogation suit against Sherry O’Neal and her insurer. The suit demanded the amount paid under a collision policy of insurance by Motors Insurance Corporation to its insured, Ravena McNett. The petition also made the insured a plaintiff so that she could collect the deductible amount under her policy. Attached to the petition was the subrogation agreement between the parties. Without the knowledge of the attorney for Motors Insurance Corporation another suit involving the same automobile accident had been filed under the Docket Number 810770.

Since the parties agreed that the actions arose out of the same accident and involved the same facts and common questions of law, the actions were consolidated. After the consolidation, and without informing the attorney for Motors Insurance Corporation, Ravena McNett, Sherry O’Neal and her insurer, Miller’s Casualty Insurance Corporation, settled their differences and moved for a dismissal. The trial court granted the motion and dismissed both consolidated cases-with prejudice.

In this appeal Motors Insurance Corporation contends, rightly, that its claim should not have been dismissed because its claim was never compromised, it never joined in the motion to dismiss, and never consented to a dismissal.

Parties to a lawsuit may put an end to the lawsuit by mutual consent. LSA-C.C. art. 3071. Consent by the parties is required to make a compromise binding between the parties. LSA-C.C. art. 3071.

In Halford v. Dugas, 422 So.2d 693 (La. App. 3rd Cir.1982), a plaintiff argued that a judgment of dismissal with prejudice based on a compromise was not intended to release all parties. The dismissal of all parties, however, was affirmed, for all the parties were informed of the compromise and the judgment of dismissal which stated “on motion of all parties” was signed by the attorneys for all parties.

The facts in this case, however, differ from those in Halford v. Dugas. In this ease all the parties were not involved in the settlement and motion to dismiss. The attorney for Motors Insurance Corporation did not sign the motion to dismiss. It was signed only by the attorneys for Ravena McNett and Sherry O’Neal. There is no indication that Motors Insurance Corporation consented to the compromise and settlement. Therefore, the compromise and judgment of dismissal could not have been intended to dismiss both actions. Although the actions were consolidated, the. subrogation suit should not have been dismissed. However, the cause of action therein stated on behalf of Ravena McNett seeking the amount of her deductible under the policy was properly dismissed with prejudice along with the consolidated suit brought by her against the defendants.

The judgment of the trial court is, therefore, amended to sever the consolidated actions and dismiss with prejudice the suit originally filed under the Docket Number 810770. The other suit filed under the Docket Number 812980 and entitled “Motors Insurance Corporation v. Sherry O’Neal” is dismissed only as to Ravena MeNett’s claim against the defendants. It is remanded for further proceeding according to law as to Motors Insurance claim for subrogation against Sherry O’Neal and Miller’s Casualty Insurance Corporation. Costs are assessed against defendants-ap-pellees.

AMENDED and REMANDED.