author: CARTER, Judge.

text:
    STATE of Louisiana v. Ray Charles WALTERS.
    No. 83 KA 1224.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 1984.
    Richard A. Swartz, Asst. Dist. Atty., Covington, William J. Guste, Jr., Atty. Gen., New Orleans, for plaintiff-appellee.
    Thomas J. Ford and S. Austin McElroy, Covington, for defendant-appellant.
    Before PONDER, WATKINS and CARTER, JJ.
   CARTER, Judge.

Defendant, Ray Charles Walters, was charged by bill of information with armed robbery in violation of LSA-R.S. 14:64. Defendant pled not guilty and not guilty by reason of insanity. After a trial by jury, the jury returned a verdict of guilty. Defendant was sentenced to ninety-nine years at hard labor and defendant now appeals his conviction and sentence requesting a review of the record for errors patent on the face of the record.

No assignments of error were filed pursuant to Arts. 844 and 920(1) of La.Code of Crim.Procedure. Therefore, under Art. 920(2) of the La.Code of Crim.Procedure, we are limited in our review to errors discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence. State v. Delaney, 359 So.2d 976 (La.1978); State v. Gerald, 333 So.2d 645 (La.1976); State v. Crain, 442 So.2d 695 (La.App. 1st Cir.1983); State v. Griffin, 442 So.2d 698 (La.App. 1st Cir.1983).

After review of the record, the only patent error discovered is that the defendant received a sentence on the armed robbery conviction of ninety-nine years at hard labor. This sentence is statutorily incorrect as the penalty clause of LSA-R.S. 14:64, entitled “Armed robbery,” reads as follows:

“(B) Whoever commits the crime of armed robbery shall be imprisoned at hard labor for not less than five years and not more than ninety-nine years, without benefit of parole, probation or suspension . of sentence.” (Emphasis added)

Since the sentence was not imposed without benefit of parole, probation or suspension of sentence, it is an illegal sentence. See LSA-C.Cr.P. arts. 882(1), 920; State v. Brown, 434 So.2d 1166 (La.App. 1st Cir.1983); State v. Napoli, 428 So.2d 957 (La.App. 1st Cir.1983). Although a serious question exists as to whether or not this court may, ex proprio motu, review an incorrect sentence when the review mandates a result unfavorable to the defendant, we choose to follow the rationale in State v. Thomas, 439 So.2d 629 (La.App. 1st Cir.1983) and State v. Jackson, 439 So.2d 622 (La.App. 1st Cir.1983) until the Louisiana Supreme Court resolves the conflicting application of the law as set forth in State v. Telsee, 425 So.2d 1251 (La.1983) and State v. Napoli, 437 So.2d 868 (La.1983).

Accordingly, we amend the sentence for armed robbery to provide it shall be served without benefit of parole, probation or suspension of sentence. In all other respects, the conviction and sentence are affirmed.

CONVICTION AND SENTENCE AFFIRMED WITH AMENDMENT.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Todd K. ALLEN.
    No. 83 KA 1167.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 1984.
    Rehearing Denied June 29, 1984.

      Allen J. Myles, Asst. Dist. Atty., Parish of Iberville, Plaquemine, for State of La.
    William C. Dupont, Plaquemine, for defendant.
    Before PONDER, WATKINS and CARTER, JJ.
   CARTER, Judge.

This criminal appeal arises from the conviction of Todd Allen of manslaughter in violation of LSA-R.S. 14:31. After a trial by jury, defendant was found guilty as charged and was sentenced to confinement with the Department of Corrections for twenty-one (21) years. Defendant appeals his conviction alleging nine assignments of error.

FACTS

On September 19, 1982, the body of Amos Foster was found on Laurel Ridge Road, White Castle, Iberville Parish, Louisiana. Since he had been shot with a .22 caliber weapon, deputies launched an investigation to determine who owned .22 caliber guns in the White Castle area. The deputies discovered that Calvin Allen had recently purchased a pistol of this type. When questioned, Calvin Allen said his nephew, Todd Allen, had the gun, but that he, Calvin, had the gun on September 19, 1982. The officers accompanied Calvin to Todd Allen’s home. Calvin obtained the gun from Todd and then gave it to the officers for ballistics testing.

After the ballistics tests confirmed that the gun was used in the shooting, Calvin admitted he purchased the gun for his nephew, Todd.

On October 12, 1982, a Louisiana warrant was issued for Todd Allen’s arrest by a justice of the peace in Iberville Parish who was also a detective in the Iberville Parish Sheriff’s Office. The Stockton County Police Department, in California, received a telephone call from Chief Whitaker in the Iberville Parish Sheriff’s office that an arrest warrant had been issued for defendant, Todd Allen, on the charge of first-degree murder. They were also given Todd Allen’s description and address and were told that the warrant was being sent via teletype. Officers on patrol in Stockton County were radioed this information and on the basis of the “verbal warrant” arrested the defendant in the parking lot of his aunt’s apartment complex. He cooperated with the officers making the arrest and was taken to the police station where he confessed to having killed Amos Foster. The teletype warrant from Louisiana was not received in California until after defendant was brought to the police station. Later, a second Louisiana warrant was issued by Judge Landry for the charge of manslaughter in connection with the extradition proceedings. Defendant, however, waived extradition and was returned to Louisiana. After a hearing on the motion to suppress the confession, the trial court ruled the arrest valid and admitted testimony of the oral confession at trial. Defendant contends that since his arrest was an invalid arrest based on invalid warrants, etc., that his oral confession should be considered fruit of an illegal arrest.

ASSIGNMENTS OF ERROR

Defendant-appellant, Todd Allen, relates the following assignments of error.

1. The arrest and warrant for the defendant’s arrest was illegal, invalid and unconstitutional because it was not issued by an independent magistrate, but was authorized by Detective Brent Barbier, an investigation officer in the case who was also a Justice of the Peace.
2. The arrest and warrant for the defendant’s arrest was illegal, invalid and unconstitutional because it was not issued upon affidavits showing independent probable cause.
3. The arrest and warrant for the defendant’s arrest was illegal, invalid and unconstitutional because of material omissions left out by the complaining officer.
4. The arrest of defendant in California was illegal under California law in that it violated proceedings against fugitives from justice under California law.
5. The arrest of defendant in California by virtue of an alleged Louisiana arrest warrant was illegal in that a Louisiana arrest warrant is invalid in California because it can only be directed to an officer in Louisiana.
6. The alleged Louisiana arrest warrant for the defendant’s arrest was invalid for failure to comply with form requirements.
7. The alleged “Teletype” warrant sent to California and used to effect the defendant’s arrest was illegal and invalid by virtue of California law.
8. The defendant’s arrest was illegal and therefore any subsequent confession obtained therefrom should have been suppressed being a product of an illegal arrest and questioning.
9. Reversible error was committed in allowing the jury to hear parts of an alleged taped confession prior to it being ruled admissible, when in fact the tape recording was ruled inadmissible after partial playing.

ASSIGNMENTS OF ERROR NOS. 1-8

By these assignments, defendant contends that his arrest was illegal on several grounds and that his confession should be suppressed as the product of an illegal arrest.

Since this case involves a California arrest, we look initially to see if the arrest complied with California law.

California Penal Code § 850, which specifically authorizes an arrest based on a telegraphic copy of a warrant or an abstract of a warrant, states:

“(a) A telegraphic copy of a warrant or an abstract of a warrant may be sent by telegraph, teletype, or any other electronic devices, to one or more peace officers, and such copy or abstract is as effectual in the hands of any officer, and he shall proceed in the same manner under it, as though he held the original warrant issued by a magistrate or the issuing authority or agency.
(b) An abstract of the warrant as herein referred to shall contain the following information: the warrant number, the charge, the court or agency of issuance, the subject’s name, address and description, the bail, the name of the issuing magistrate or authority, and if the offense charged is a misdemeanor, whether the warrant has been certified for night service.
(c) When the subject of a written or telegraphic warrant or abstract of warrant is in custody on another charge, the custodial officer shall, immediately upon receipt of information as to the existence of any such warrant or abstract, obtain and deliver a written copy of the warrant or abstract to the subject and shall inform him of his rights under Section 1381, where applicable, to request a speedy trial and under Section 858.7 relating to Vehicle Code violations.”

Since the statute provides that a telegraphic abstract is effectual in the hands of any officer and he shall proceed as though he held the original, an arrest based upon the abstract would be an arrest under warrant.

Furthermore, California Penal Code § 842 states:

“An arrest by a peace officer acting under a warrant is lawful even though the officer does not have the warrant in his possession at the time of the arrest, but if the person arrested so requests it, the warrant shall be shown to him as soon as practicable.”

Thus, an arrest based upon the teletyped abstract would be lawful, although the warrant or abstract was not in possession of the arresting officer.

In this case, however, neither the arresting officer nor the officers in the Stockton Police Department were in possession of the warrant. Thus, the arrest herein cannot be considered an arrest based upon a teletype warrant.

In one of his assignments of error defendant argues that the teletype warrant sent to California does not comply with California’s statutory requirements for a teletype warrant.

The abstract of the warrant sent by teletype from Louisiana were as follows:

“0240000 41555

126 15:30 120CT82

123 15:30 120CT82

BI.CA0390500

RH/239

SO IBERVILLE TO PD STOCKTON, CALIFORNIA

ATTENTION HOMICIDE DIVISION: KLT. MARNOCH

SIR THIS OFFICE HOLDS A WARRANT OF ARREST ON ONE TODD K. ALLEN B/M DOB/041063. SUBJECT SHOULD BE AT 1625 ROSE MARIE, STOCKTON, CALIFORNIA. THE CHARGE IS 1ST DEGREE MURDER, WARRANT # 0552-82. WIWE!!!!

AUTH: JIM WHITAKER

CHIEF OF INTELLIGENCE

PLAQUEMINE, LA.

PH# 504-687-9282 OR 504-687-3553

SO IBERVILLE HEBERT 1530”

“AM..BI.CA0390500,CA0390000.AM..

TO STOCKTON POLICE DEPT. STOCKTON, CALIFORNIA MSG 1012-1 IBERVILLE SO 10/12/82 ATTENTION WARRANT DIVISION: LT. MARNOCH

SIR THIS OFFICE HOLD A WARRANT FOR 1ST DEGREE MURDER ON TODD K. ALLEN B/M DOB/041063. WARRANT NUMBER #0552-82. SUBJECT SHOULD BE AT 1625 ROSE MARIE, STOCKTON, CALIFORNIA. WIWE, THANKS FOR YOUR HELP IN THIS MATTER.

AUTH: JIM WHITAKER

CHIEF OF DETECTIVES

CENTRAL INTELLIGENCE DIVISION IBERVILLE PARISH SHERIFF OFFICE PLAQUEMINE, LA. OPR/GERMANY 1703-HRS”

“AM..BICA0390000,AM..

SAN JOQUIN CO SO STOCKTON, CALIFORNIA MSG 1012-5 IBERVILLE SO 10/12/82

TO STOCKTON POLICE DEPT.

ATTENTION: LT. MARNOCH, HOMICIDE DIVISION

SIR THIS OFFICE HOLD A WARRANT FOR 1ST DEGREE MURDER. WARRANT #0552-82 SIGNED BY MAGISTRATE BRENT BARBIER, 18TH JUDICIAL DISTRICT COURT DOW/101282 ON TODD K. ALLEN B/M DOB/041063 HGT/503 WGT/160 OLN74731523 OLS/LA. SUBJECT SHOULD BE AT 1625 ROSE MARIE, STOCKTON, CALIFORNIA.

AUTH: JIM WHITAKER

CHIEF OF DETECTIVES

CENTRAL INTELLIGENCE DIVISION IBERVILLE PARISH SHERIFF OFFICE PLAQUEMINE, LA. OPR/GERMANY 1816 HRS”

From the above, it can be noted that there are several deficiencies in the first two teletypes since they do not contain a court of issuance and the name of the issuing magistrate. The third teletype does meet the necessary requirements. Be this as it may, any defect in any of the teletypes would not have any effect on the validity of the arrest since we have previously determined that California authorities in effect made a warrantless arrest.

California Penal Code § 836 authorizes warrantless arrests and provides as follows:

“A peace officer may make an arrest in obedience to a warrant, or may, pursuant to the authority granted him by the provisions of Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2, without a warrant, arrest a person:
1. Whenever he has reasonable cause to believe that the person to be arrested has committed a public offense in his presence.
2. When a person arrested has committed a felony, although not in his presence.
3. Whenever he has reasonable cause to believe that the person to be arrested has committed a felony, whether or not a felony has in fact been committed.”

In People v. Ramirez, 34 Cal.3d 541, 194 Cal.Rptr. 454, 668 P.2d 761 (1983), defendant was arrested on an outstanding bench warrant which had actually been recalled and where no independent cause to arrest existed. In that case the California Supreme Court reversed defendant’s conviction and overruled a similar case, People v. Marquez, 237 Cal.App.2d 627, 47 Cal.Rptr. 166 (3rd Dist.1965) where the defendant was arrested on the basis of an outstanding arrest warrant that had previously been cancelled without the arresting officer’s knowledge. In Marquez, as in Ramirez, there was no independent cause for the arrest. The Court in Ramirez stated:

“[BJecause Marquez asserts that courts must look only to the perceptions of the officer in the field, rather than trace his probable cause determination to its source in the law enforcement system, it must be disapproved.”

In the instant case, we trace the probable cause back to the Louisiana officers.

In People v. Honore, 2 Cal.App.3d 295, 82 Cal.Rptr. 639 (2nd Dist.1969), the defendant’s arrest without possession of a warrant by the officer was upheld on the basis of reasonable cause established on the basis of information received through official channels. In that case, a check of the official police department records revealed that a warrant was outstanding for defendant on a felony charge and for a traffic violation. Prior to defendant’s arrest, however, the felony warrant was withdrawn and substituted with a warrant for a misdemeanor charge. The arresting officer was unaware of this substitution and acted upon the basis of the felony warrant. The court stated:

“It would constitute an outrageous sacrifice of substance to technical form to hold that the procedure followed by the police officer in the case was illegal merely because he acted without knowledge that the misdemeanor warrant had been substituted for the previously outstanding felony warrant and because it was not his subjective intent in making the arrest to rely upon the other outstanding warrant for appellant’s traffic violation.” People v. Honore, 2 Cal.App.3d 295, 82 Cal.Rptr. 639 (2nd Dist.1969).

That court went on to say that such a holding would violate common sense and would be inconsistent with the reasoning of California law.

Furthermore, in People v. Chimel, 68 Cal.2d 436, 67 Cal.Rptr. 421, 439 P.2d 333 (1968), reversed on other grounds, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) U.S. reh. denied, 396 U.S. 869, 90 S.Ct. 36, 24 L.Ed.2d 124, the arrest of defendant was held valid despite the invalidity of the arrest warrants issued. There, as in this case, the prosecution sought to justify the arrest of defendant independently of the warrant. The court in that case found that the arresting officer had probable cause to arrest when he obtained a warrant for defendants arrest and, pursuant to the warrant, arrested defendant. No evidence showed that the officer procured the warrant in bad faith or exploited the illegality of the warrant. The court noted that if the officer had been proceeding without a warrant in arresting defendant the arrest would have been lawful. The court stated:

“To invalidate the arrest here solely because the arresting officer first obtained a warrant supported by a constitutionally insufficient complaint would not further the policies of the Fourth Amendment but would subvert its preference for arrest and searches conducted pursuant to warrants.” People v. Chimel, 68 Cal.2d 436, 67 Cal.Rptr. 421, 439 P.2d 333, 337 (1968).

The legality of an arrest cannot depend exclusively upon the validity of the warrant pursuant to which the arrest is executed since an arrest without a warrant may stand if based on probable cause. People v. Chimel, supra.

In several California cases, it has been held that a police officer may rely on information which he received through “official channels” in making an arrest based upon reasonable cause to believe a felony had been committed. Ojeda v. Superior Court, In and for County of Monterey, 12 Cal.App.3d 909, 91 Cal.Rptr. 145 (1st Dist.1970); People v. Madden, 2 Cal.3d 1017, 88 Cal.Rptr. 171, 471 P.2d 971 (1970); Remers v. Superior Court of Alameda County, 2 Cal.3d 659, 87 Cal.Rptr. 202, 470 P.2d 11 (1970); People v. Lara, 67 Cal.2d 365, 62 Cal.Rptr. 586, 432 P.2d 202 (1967), U.S. cert. denied, 392 U.S. 945, 88 S.Ct. 2303, 20 L.Ed.2d 1407.

When it comes to justifying the arrest in court, however, the prosecution is required to show the basis for the information supplied to the arresting officer. People v. Madden, supra. To hold otherwise would permit the manufacture of reasonable grounds for arrest within a police department by one officer who did not know such information, without establishing under oath how the information had in fact been obtained by the former officer. Remers v. Superior Court of Alameda County, supra.

No exact formula exists for determining reasonable cause, and each case must be decided on the facts and circumstances presented to the officers at the time they were required to act. People v. Ross, 67 Cal.2d 64, 60 Cal.Rptr. 254, 429 P.2d 606 (1967); reversed on other grounds 391 U.S. 470, 88 S.Ct. 1850, 20 L.Ed.2d 750 (1968). In the instant case, the arresting officers received a radio call that a Louisiana arrest warrant for murder had been issued for defendant and was being sent via teletype. An officer within the Stockton Police Department had received a call from Louisiana authorities informing him that a warrant had been issued and was being sent. There was no evidence to show that the California authorities could not believe this information, nor did they act in bad faith. Additionally, there was no evidence to show that they knew the teletype warrant would not comply with California law. Thus, we find that the arresting officers acted reasonably and properly. We find that they had reasonable cause to believe that defendant had committed a felony.

Although we have determined the arrest complied with California law, our inquiry cannot end here. We continue our analysis to determine whether there was a valid basis for the information relied upon in making the arrest, i.e., either a valid Louisiana arrest warrant or probable cause to make a valid warrantless arrest.

Defendant contends the Louisiana arrest warrant was invalid because it was not issued by an independent magistrate, the supporting affidavit did not show probable cause, material omissions were left out by the complaining officer, and the warrant did not comply with form requirements.

The requirements for an arrest warrant are set forth in LSA-C.Cr.P. art. 202, which provides:

“A warrant of arrest may be issued by any magistrate, and, except where a summons is issued under Article 209, shall be issued when:
(1) The person making the complaint executes an affidavit specifying, to his best knowledge and belief, the nature, date, and place of the offense, and the name and surname of the offender if known, and of the person injured if there be any; and
(2) The magistrate has probable cause to believe that an offense was committed and that the person against whom the complaint was made committed it.
(3) A justice of the peace shall not have the authority to issue a warrant for the arrest of a peace officer for acts performed while in the course and scope of his official duties.
When complaint is made before a magistrate of the commission of an offense in another parish, the magistrate shall also immediately notify the district attorney of the parish in which the offense is alleged to have been committed.”

Furthermore, if an arrest warrant is issued, the determination of probable cause should be made by a neutral and detached magistrate. U.S. Const. amends. IV, XIV. In Shadwick v. City of Tampa, 407 U.S. 345, 92 S.Ct. 2119, 32 L.Ed.2d 783 (1972), the United States Supreme Court addressed the issue of whether municipal court clerks, authorized by the charter of Tampa, Florida to issue certain arrest warrants, were qualified as neutral and detached magistrates for the purposes of the Fourth Amendment. In that case the Court stated:

“[A] issuing magistrate must meet two tests. He must be neutral and detached, and he must be capable of determining whether probable cause exists for the requested arrest or search. This Court has long insisted that inferences of probable cause be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. Johnson v. United States, supra, at 14 of 333 U.S. [10], at 369 of 68 S.Ct. [367, 92 L.Ed. 436]; Giordenello v. United States, supra, at 486 of 357 U.S. [480], at 1250 of 78 S.Ct. [1245, 2 L.Ed.2d 1503]
Whatever else neutrality and detachment might entail, it is clear that they require severance and disengagement from activities of law enforcement.” Shadwick v. City of Tampa, 407 U.S. at 352, 92 S.Ct. at 2123 (1972).

Here the determination of probable cause was made by Detective Barbier, a justice of the peace who also worked as a detective in the Iberville Parish Sheriffs Office. Although he was not assigned to investigate the case, he was involved in the case. Barbier was with another officer when Calvin Allen was initially questioned about the gun and when the gun was retrieved from Todd Allen’s residence. He also showed other officers where several persons lived during the investigation of this case. Furthermore, another detective testified that he discussed the case with Barbier during the investigation and prior to the issuance of the warrant. Therefore, we cannot say that the warrant was issued by a “neutral and detached magistrate.”

Even though the requirement of an independent magistrate was not met in the instant case, the arrest is not rendered illegal. The crucial question is whether, at the time of the arrest, there was probable cause to believe that a crime had been committed. An arrest, based upon such probable cause, is a valid arrest whether a valid warrant had been issued or not. Jackson v. Bergeron, 306 F.Supp. 1263 (E.D.La.1969); Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958)

In this case, even though the arrest warrant may have been invalid, we conclude that the arrest was based upon probable cause that existed at the time of the arrest. It is apparent from the record that there was probable cause to arrest defendant, based upon the ballistics test results, the fact that Todd Allen had the gun a few days after the crime and his abrupt departure from Louisiana after the police had begun to investigate the murder.

Furthermore, in deciding whether an arrest is valid despite a defective warrant we look to State v. Tokman, 412 So.2d 561 (La.1982), which involved the issuance of an arrest warrant by a magistrate without knowledge of the underlying facts upon which probable cause to arrest could be based. In that case, the Louisiana Supreme Court found that an arrest was not illegal even though the judge issuing the warrant was not presented with facts indicating probable cause. There, the court determined that the police did have knowledge of facts indicating probable cause. The court concluded that the arrest was based on probable cause and lawful, and thus, the confession obtained after the arrest was not the product of an unlawful arrest.

Defendant also contends that the affidavit supporting the warrant does not contain facts from which the magistrate could determine probable cause. An arrest warrant need not depend solely upon the information recorded within the “four corners” of the affidavit. State v. Cook, 404 So.2d 1210 (La.1981). The magistrate may issue an arrest warrant based upon facts and circumstances asserted verbally by the officer at the time the warrant is obtained. State v. Rodrique, 437 So.2d 830 (La.1983). If such information reflects the necessary probable cause, the magistrate may issue the arrest warrant. State v. Haynie, 395 So.2d 669 (La.1981).

In this case, the affidavit does not contain facts which support a finding of probable cause. Although it is quite possible that Barbier was aware of the facts and circumstances supporting a probable cause finding, the record does not reflect that they were told to him before he issued the warrant. The fact that the magistrate issued the arrest warrant without knowledge of the underlying facts upon which probable cause to arrest defendant could be based does not render the arrest illegal, since defendant’s arrest was in fact based upon probable cause. State v. Tokman, supra.

Defendant also contends that material omissions were left out of the affidavit by the complaining officer. Calvin Allen, defendant’s uncle, initially told police that if the victim were shot with his pistol, he would have committed the murder since he had the gun on the night the victim was killed. Defendant contends the failure to present this information to the magistrate was a material omission.

The magistrate who issues the warrant must be supplied with facts and circumstances which would reflect probable cause for the issuance of the arrest warrant. There is no statutory requirement that such information be incorporated into the affidavit supporting the warrant; it may be supplied verbally to the magistrate. If such information reflects the necessary probable cause, the magistrate is authorized to issue the warrant. State v. Haynie, supra.

Since we have already determined that the arrest warrant was defective, but have upheld the arrest based upon probable cause, there was no prejudice to defendant by the failure to communicate this information to the magistrate. We need not determine whether this omission affected the validity of the arrest warrant.

In addition, defendant contends that the Louisiana warrant fails to comply with form requirements. LSA-C.Cr.P. art. 203 states in pertinent part:

“The warrant of arrest shall:
(6) Be signed by the magistrate with the title of his office.”

In this case the warrant was issued by a justice of the peace but the title printed on the warrant form is “Magistrate or Judge of the Eighteenth Judicial District Court of Louisiana.” Although the warrant form herein does not strictly comply with the form required, this error does not affect the substantial rights of the accused in light of our finding that a warrantless arrest based upon probable cause, was valid. We note, however, that since the term “magistrate” as used in LSA-C.Cr.P. art. 202 means justice of the peace, LSA-C. Cr.P. art. 931, the warrant was issued by an officer with actual authority to issue an arrest warrant.

Defendant also contends that his arrest was illegal in that it violated the California “Fugitives from Justice” law. He argues that the arrest was not made in accordance with any of the three methods for arrest under that law.

The California extradition law entitled “Proceedings Against Fugitives from Justice” provides three methods for arrest when extradition is sought:

(1)The Governor’s Warrant as provided for in California Penal Code § 1549.2:

“If a demand conforms to the provisions of this chapter, the Governor or agent authorized in writing by the Governor whose authorization has been filed with the Secretary of State shall sign a warrant of arrest, which shall be sealed with the State Seal, and shall be directed to any peace officer or other person whom he may entrust with the execution thereof. The warrant must substantially recite the facts necessary to the validity of its issuance.”

(2) The Magistrate’s warrant provided for in California Penal Code § 1551:

“(a) Whenever any person within this State is charged by a verified complaint before any magistrate of this State with the commission of any crime in any other State, or, with having been convicted of a crime in that State and having escaped from confinement, or having violated the terms of his bail, probation or parole; or (b) whenever complaint is made before any magistrate in this State setting forth on the affidavit of any credible person in another State that a crime has been committed in such other State and that the accused has been charged in such State with the commission of the crime, or that the accused has been convicted of a crime in that State and has escaped from bail, probation or parole and is believed to be in this State; then the magistrate shall issue a warrant directed to any peace officer commanding him to apprehend the person named therein, wherever he may be found in this State, and to bring him before the same or any other magistrate who is available in or convenient of access to the place where the arrest is made. A certified copy of the sworn charge or complaint and affidavit upon which the warrant is issued shall be attached to the warrant.”

(3) California Penal Code § 1551.1 which provides:

“The arrest of a person may also be lawfully made by any peace officer, without a warrant, upon reasonable information that the accused stands charged in the courts of any other State with a crime punishable by death or imprisonment for a term exceeding one year. When so arrested the accused must be taken before a magistrate with all practicable speed and complaint must be made against him under oath setting forth the ground for the arrest as in the preceding section.”

Although the record does not indicate compliance with any of these provisions in the extradition statute providing for arrest, defendant waived extradition and voluntarily returned to Louisiana. Once a fugitive has been brought within custody of the demanding state, legality of the extradition is no longer subject to legal attack by him. Siegel v. Edwards, 566 F.2d 958 (5th Cir.1978). Thus, the proper place for defendant to complain about the failure to comply with the extradition law was in California. He cannot, now that he is in Louisiana, the demanding state, contend the arrest under the extradition law was illegal.

The United States Supreme Court has held that a confession obtained as a direct result of an arrest made without probable cause should be suppressed. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Although we found merit in defendant’s argument that the Louisiana and California warrants were invalid, we concluded that there was probable cause for the warrant-less arrest. Since probable cause existed for the arrest, defendant’s confession, obtained immediately thereafter, was not the product of an unlawful arrest. See State v. Tokman, supra. We find no error in the admission of testimony regarding defendant’s oral confession.

ASSIGNMENT OF ERROR NO. 9

Defendant contends the trial judge erred in allowing the jury'to hear parts of defendant’s taped confession which he later ruled inadmissible. The State attempted to play the tape, but the voices were so inaudible that the judge ruled it inadmissible. When asked if any jurors had understood the tape, all jurors responded in the negative. Since they could not even understand the tape, defendant could not have been prejudiced by what the jurors heard and his conviction shall not be reversed. LSA-C. Cr.P. art. 921. Therefore, this assignment of error is without merit.

PATENT ERROR

Although a firearm was used in the commission of this crime, the trial judge failed to impose the additional sentence mandated under LSA-R.S. 14:95.2. This sentence, although lenient, is illegal. The Louisiana Supreme Court and this court have in the past noted as patent error too lenient illegal sentence. See State v. Telsee, 425 So.2d 1251 (La.1983); State v. Jackson, 439 So.2d 622 (La.App. 1st Cir.1983), writ granted in part, denied in part 443 So.2d 1123 (La.1984); State v. Thomas, 439 So.2d 629 (La.App. 1st Cir.1983). Cf. also State v. Norman, 448 So.2d 246 (La.App. 1st Cir.1984); State v. Walters, 450 So.2d 1377 (La.App. 1st Cir.1984).

Since LSA-R.S. 14:95.2 imposes different sentences for first and subsequent convictions, and the record does not indicate defendant’s status, we remand for proper sentencing.

DECREE

Therefore, for the above reasons, defendant’s conviction is affirmed and the ease is remanded for sentencing in accordance with the above.

CONVICTION AFFIRMED; REMANDED FOR AMENDMENT OF SENTENCE.

      . The United States Supreme Court, in reversing the case on account of the invalidity of the arrest warrant and where the Government relied entirely on the validity of the warrant in the lower courts, stated "This is not to say, however, that in the event of a new trial the Government may not seek to justify petitioner’s arrest without relying upon the warrant.”

      . Even if the magistrate had been presented with facts sufficient to establish probable cause for issuance of the arrest warrant, this omission would not have invalidated the warrant for two reasons. The first is that Detective Barbier, the issuing magistrate, was present when Calvin Allen made the statement on the day the officers obtained the gun and thus, Barbier had actual knowledge of the statement. The second reason is that this statement when considered with the other facts, does not negate the existence of probable cause to arrest.
      Although this court has not found any cases involving the standard to be applied by a court reviewing an arrest warrant when the affiant omits material facts from the affidavit, the approach used would be the same where a search warrant is reviewed. In situations involving search warrants, the reviewing court must consider the affidavit as though the omitted facts were included and then evaluate the presence of probable cause in light of the added facts. State v. Lehnen, 403 So.2d 683 (La.1981), State v. Howard, 448 So.2d 150 (La.App. 1st Cir.1983).

      . LSA-R.S. 14:95.2 provides:
      "Notwithstanding any other provisions of law to the contrary, any person who uses a firearm or explosive device at the time he commits or attempts to commit the crime of second degree murder, manslaughter, aggravated battery, simple kidnapping, aggravated escape, aggravated burglary, or aggravated arson or attempted aggravated rape, attempted first degree murder or attempted aggravated kidnapping shall upon conviction serve a term of two years imprisonment for the first conviction and upon conviction for each second and subsequent offense listed in this Section, he shall serve a term of five years imprisonment. The penalty provided herein shall be in addition to any other penalty imposed under the provisions of this Title and such person shall serve the additional term of imprisonment without benefit of parole, probation, suspension of sentence or credit for good time and any adjudication of guilt or imposition of sentence shall not be suspended.
      The prison terms provided under the provisions of this Section, shall run consecutively to any other penalty imposed upon conviction of any of the crimes listed in this Section.”


author: PONDER, Judge.

text:
    STATE of Louisiana v. Anthony DAVIS.
    No. 83 KA 1194.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 1984.

      Margaret A. Coon, Asst. Dist. Atty., Cov-ington, for plaintiff-appellee.
    Anthony Davis, in pro. per.
    Before PONDER, WATKINS and CARTER, JJ.
   PONDER, Judge.

Defendant, convicted of second degree murder, a violation of La.R.S. 14:30.1, was sentenced to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. Defendant appealed, alleging five assignments of error:

a) denial of a continuance;

b) introduction of evidence in variance from that previously disclosed to defendant;

c) denial of motion for mistrial;

d) sufficiency of evidence;

e) presence of patent error.

We affirm.

Defendant and the victim, after an argument, engaged in two scuffles. After the second, the victim stumbled to a truck holding the left side of his chest and asking to be taken to a hospital because of knife wounds. He was pronounced dead on arrival.

Defendant asserts that the continuance was requested to give the defendant an opportunity to perform tests on evidence and to allow counsel to attend to an out-of-state matter.

The denial of a motion for continuance is not ground for reversal absent an abuse of discretion and a showing of specific prejudice caused by a denial of the motion. State v. Durio, 371 So.2d 1158 (La. 1979); State v. Jones, 395 So.2d 751 (La. 1981).

During the period from arraignment to trial, although the State made the physical evidence available to the defendant for testing, the defendant did not perform any blood-typing tests on the knife, the subject of this dispute. Furthermore, although the motion for the continuance was denied, the defense counsel and the prosecutor agreed to a two-day delay, in which the trial judge acquiesced, and the defendant failed to have the evidence tested during this time period. We find no abuse of discretion on the part of the trial judge and no specific prejudice.

Defendant complains that the court allowed the State to introduce evidence in conflict with that which it had previously disclosed to defendant in discovery. During the trial, the defense counsel’s cross examination of the serologist revealed the possibility of new evidence. The State asked to be allowed to perform additional testing, and the defense counsel had no objection. The results of the tests were conveyed to both parties simultaneously. The State provided the defense the opportunity to have an expert present during the testing, which the defense did not take advantage of. Counsel cannot let opportunities pass by and then object when there has been no prejudice to the defendant and no constitutional violation of the defendant’s right to a fair trial. State v. Arnaud, 412 So.2d 1013 (La.1982).

The record shows that the admission of the new evidence regarding the blood types did not require the defendant to change his trial strategy. Furthermore, the court granted a four-day recess to enable the defense to redirect its efforts. Therefore, the defendant was afforded an opportunity to review the case and make changes in his defense, if so desired. The defendant had every opportunity to present any exculpatory evidence and the defendant fully cross-examined the serologist called by the State.

Defendant made a motion for mistrial after the new blood-typing evidence was introduced. For the reasons stated above, we find no error in the trial court’s action.

The scope of appellate review for the sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Graham, 422 So.2d 123 (La.1982).

The evidence consisted of the testimony of four eyewitnesses, two experts for the State, and two experts for the defense. Because some of the testimony was conflicting, the jury had to make credibility decisions. We find no error. A rational trier of fact could have found defendant guilty beyond a reasonable doubt, accepting facts most favorable to the State.

Defendant’s fifth assignment of error requested that the judgment be reversed if any error patent on the face of the record were found. We find no such error.

In brief, defendant in proper person raises the issue of intoxication as a bar to his specific criminal intent, a required element of second degree murder. Although the State must prove, beyond a reasonable doubt, the essential elements of the crime with which the defendant is charged, intoxication is in the nature of an affirmative defense to a criminal charge and the burden is upon the defendant to prove the existence of that condition at the time of the offense. State v. Gipson, 427 So.2d 1293 (La.App. 2d Cir.1983), State v. Rivers, 444 So.2d 1384 (La.App. 3rd Cir. 1984). We find that defendant has failed to sustain this burden.

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

AFFIRMED.

      . State v. Arnaud, 412 So.2d 1013 (La.1982).


author: CARTER, Judge:

text:
    Brenda HOOVER v. LIVINGSTON BANK.
    No. 83 CW 1086.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 6, 1984.
    Rehearing Denied June 1, 1984.

      Byard Edwards, Jr., Ponchatoula, for plaintiff-respondent.
    Murphy J. Foster III, Breazeale, Sachse & Wilson, Baton Rouge, for defendant-relator.
    Before PONDER, WATKINS and CARTER, JJ.
   CARTER, Judge:

On September 29, 1983, this court issued alternative writs of mandamus and certio-rari to the trial judge directing him to grant the motion for summary judgment or to show cause in this court why the writ should not be granted. The alternative having been selected, the case is now before us for decision.

FACTS

On Tuesday, June 1, 1982, plaintiff was a part-time hourly employee working as a bank teller for Livingston Bank. Upon balancing her drawer at the close of business, plaintiff discovered a shortage of approximately $2,000.00. The shortage was then reported to the officers of the bank, who began an investigation into the discrepancy-

Plaintiff continued to work for defendant until Friday, June 4, 1983, when she was suspended from her job pending a full investigation.

Plaintiff was requested to take a polygraph examination as part of the investigation. Although plaintiff missed the original scheduled date for the exam due to illness, she subsequently took the polygraph test on Wednesday, June 9, 1983. The results of the exam indicated that her responses to questions concerning the missing funds were untrue.

As a result of the investigation conducted by the bank, plaintiff was not reinstated.

Plaintiff subsequently filed a suit for damages against Livingston Bank alleging wrongful discharge and defamation. Livingston Bank moved for summary judgment, which was denied by the trial court.

Livingston Bank then applied for supervisory writs to this court, raising the following issues:

(1) Whether an employer is free to discharge or suspend an employee who is employed on a part-time basis for an indefinite duration, and
(2) Whether an action for defamation can lie when there have been no defamatory words.

WRONGFUL DISCHARGE

This court set forth the applicable law in Jackson v. East Baton Rouge Parish School Bd., 393 So.2d 243 (La.App. 1st Cir.1980) as follows at p. 244:

“The liability of an employer who dismisses an employee without just cause is set forth in La. Civ. Code art. 2749.
‘If, without any serious ground of complaint, a man should send away a laborer whose services he has hired for a certain time, before that time has expired, he shall be bound to pay to such laborer the whole of the salaries which he would have been entitled to receive, had the full term of his services arrived.’
The article clearly states that only those employees who have been hired for a definite time period are entitled to their back wages. To the contrary, employees hired without a fixed term are subject to dismissal by their employer at any time, for any reason, and the employer does not incur liability for the discharge. Jackson v. East Baton Rouge Parish Indigent Defender’s Board, 353 So.2d 344 (La.App. 1st Cir.1977), writ denied 1978; Copeland v. Gordon Jewelry Corp., 288 So.2d 404 (La.App. 4th Cir. 1974), writ denied 1974. Therefore, there is no ‘wrongful discharge’ when an employee hired without a fixed term is fired. Without a wrongful discharge there can be no claim for past wages....
The source of this principle is La. Civ. Code art. 2747 which reads as follows:
‘A man is at liberty to dismiss a hired servant attached to his person or family, without assigning any reason for so doing. The servant is also free to depart without assigning any cause.’
This article has been interpreted by the courts as dealing with employer-employee relationships. United Credit Co. v. Croswell Co., 219 La. 993, 54 So.2d 425 (1951); Manning v. Shreveport Transit Co., 130 So.2d 497 (La.App. 2d Cir. 1961).”

Because of LSA-C.C. art. 2747 and the jurisprudence, an employee who is not hired for a fixed term may be terminated without cause at any time and an employee so hired has no action against his employer for wrongful discharge.

Plaintiff did not have an employment contract with defendant, nor was she employed for a definite period of time. Therefore, defendant was free to discharge her at any time without cause.

This argument lacks merit.

DEFAMATION

To maintain an action in defamation, the following elements must be shown: (1) defamatory words; (2) publication; (3) falsity; (4) malice, actual or implied; and (5) resulting injury. HMC Management v. New Orleans Basketball Club, 375 So.2d 700 (La.App. 4th Cir.1979), writs denied, 378 So.2d 1384, 379 So.2d 11 (La.1980); Trahan v. Ritterman, 368 So.2d 181 (La. App. 1st Cir.1979); Lees v. Smith, 363 So.2d 974 (La.App.3d Cir.1978); Perrilloux v. Batiste, 357 So.2d 841 (La.App. 4th Cir. 1978); Harper v. Jeans, 353 So.2d 1093 (La.App. 2d Cir.1977), writ denied, 355 So.2d 264 (La.1978); Ward v. Sears, Roebuck & Co., 339 So.2d 1255 (La.App. 1st Cir.1976); Lake Charles Diesel, Inc. v. Guthridge, 326 So.2d 613 (La.App. 3d Cir. 1976); Carter v. Catfish Cabin, 316 So.2d 517 (La.App. 2d Cir.1975); Rougeau v. Firestone Tire & Rubber Company, 274 So.2d 454 (La.App. 3d Cir. 1973).

Words which impute a crime to another, however, are defamatory per se. Trahan v. Ritterman, supra; Becnel v. Boudreaux, 340 So.2d 687 (La.App. 4th Cir. 1976), writ denied, 342 So.2d 671 (La.1977).

Plaintiff admitted that no one at the bank accused her of theft and that she has no knowledge that anyone at the bank had even said such to others. She simply feels the bank “defamed” her by suspending her without giving her a chance to prove herself. Additionally, plaintiff has applied for only one job (with another bank) since her termination by defendant. Plaintiff told the other bank about the incident with defendant and was not hired because of it.

We find no factual basis from which to conclude that defendant’s personnel used defamatory language. Nor do we find that the investigation into the location of the missing money constituted publication. The only publication is by plaintiff who discussed the incident with third parties when she applied for a job at another bank. Furthermore, the record discloses a sufficient basis to justify defendant’s good faith and lack of malice in initiating an investigation regarding plaintiff’s involvement in the incident.

This argument lacks merit.

DECREE

Since we find no dispute as to material facts, and since we are of the opinion that Livingston Bank is entitled to judgment as a matter of law, the ruling of the trial court must be reversed.

Accordingly, the writ of certiorari issued herein is made peremptory, and there will be judgment in favor of Livingston Bank and against plaintiff, dismissing plaintiff’s suit at plaintiffs costs.

REVERSED AND RENDERED.

      . Plaintiffs attorney filed a brief in opposition to the application for writs.


author: SHORTESS, Judge. LANIER, Judge,

text:
    CALLAIS CABLEVISION, INC. v. HOUMA CABLEVISION, INC., et al.
    No. 83 CA 0220.
    Court of Appeal of Louisiana, First Circuit.
    March 5, 1984.
    Rehearing Denied April 10, 1984.
    Writ Denied June 8, 1984.

      Ashton R. Hardy, New Orleans, for plaintiff and appellant.
    Christopher Siegrist, Sidney C. Sund-bery, Houma, Edward J. Gay, III, New Orleans, for defendant and appellee.
    Before SHORTESS, LANIER and CRAIN, JJ.
   SHORTESS, Judge.

This suit is brought by Calíais Cablevision Company (Calíais) for injunctive relief against Houma Cablevision, Inc. (HCI), and relief declaratory of its rights vis-a-vis those of HCI to operate cable television systems in Terrebonne Parish. Calíais presently is providing cable service to the residents of the unincorporated areas of Terrebonne Parish under a nonexclusive franchise granted it in 1978 by the Parish Police Jury, pursuant to the power granted in La.R.S. 33:4361. HCI is also providing service to customers in this same area, and it has been doing so since the 1960’s. HCI, however, is not operating under a La.R.S. 33:4361 franchise. For that reason Calíais seeks to have HCI’s operation declared an unlawful infringement on Calíais’ franchise rights and permanently enjoined or, alternatively, restricted in scope.

The trial court found for HCI and dismissed Calíais’ suit, prompting this appeal.

HCI is the successor to a line of compa-' nies that have provided cable service in Terrebonne Parish since the early 1960’s. The first of these companies, Mohana’s Electrical Construction Company (Mohana) was granted a city franchise in 1962 to provide cable service in the City of Houma but not in the unincorporated areas of the Parish. Mohana later requested and received a “letter of no objection” from the Terrebonne Parish Police Jury in response to its request for permission to use the privately-owned utility poles of South Central Bell to install a “community antenna television system” (cable system) in the unincorporated portion of the Parish. HCI claims and the trial court found that the transfers of interest from Mohana to subsequent companies included this .“permit” to operate a cable system in the Parish. Calíais claims that the transfers were insufficient to convey the “permit” and that HCI is therefore unlawfully operating because it is without benefit of a permit or a franchise.

We find, however, that regardless of the status of the permit, HCI lawfully commenced its operations in 1966 pursuant to the State law then in effect. La.R.S. 45:781 provides that corporations “formed for the purpose of transmitting intelligence” may construct lines necessary to do so “along all public roads or public works.” This language was interpreted by the Third Circuit Court of Appeal in KAOK-CATV, Inc. v. Louisiana Cable TV, Inc., 195 So.2d 297 (La.App.3rd Cir.1967), to be broad enough to include a cable system company as one formed to “transmit intelligence,” thus entitling the company to use the public ways for its lines. We agree that the broad language of La.R.S. 45:781 encompasses cable television companies.

KAOK-CATV further held that it was not necessary for the defendant cable system operator to obtain a franchise from the policy jury. It examined the powers granted police juries in La.R.S. 33:1236 (general powers) and La.R.S. 33:4361 (activities subject to police jury franchise) and found that no provision of our law required a cable company to obtain a franchise from a police jury in order to conduct its business. These two statutes have undergone extensive amendment since that time, however, particularly relating to cable television operations. We must now determine whether HCI is lawfully operating today in the face of these legislative amendments.

La.R.S. 33:1236 sets forth in detail the powers of a police jury. Being a political subdivision of the State, a police jury has only those powers that are conferred on it by the Constitution and laws of this State. La. Const, of 1974, art. VI, § 5(E) and 7(A); Rollins Environmental Services of Louisiana, Inc. v. Iberville Parish Police Jury, 371 So.2d 1127 (La.1979); KAOK-CATV, 195 So.2d at 298 (and authorities cited therein). We find no change in La.R.S. 33:1236 since KAOK-CATV which would allow a police jury to require cable television companies to get a franchise.

La.R.S. 33:4361 was amended by Louisiana Acts 1976, No.-573, § 1, to allow police juries to “grant franchises over the public ... roads ... of [the] parishes ... to any person for ... the construction, maintenance, and operation of ... lines and cables ... for transmitting television signals _” Also in that act, La.R.S. 45:781 was amended to add subsection B providing that nothing in that statute shall “affect the right granted to parish governing authorities to grant franchises for the regulation of cable television outside municipalities.” (Other changes, not material here, were also made.) However, no specific provision was made for companies such as HCI which were already operating cable systems but without franchises. It is therefore unclear just how the status of companies such as HCI was affected by these 1976 amendments. Calíais urges that the 1976 amendments had the effect of imposing upon HCI the requirement of getting a Parish franchise in order to operate. It argues persuasively that under Gulf States Utilities Co. v. Dixie Electric Membership Corporation, 185 So.2d 313 (La. App. 1st Cir.1966) and Town of Coushatta v. Valley Electric Membership Corporation, 139 So.2d 822 (La.App. 2nd Cir.1962) a non-exclusive franchise holder has a right to operate free from non-franchised competition and that when Calíais was granted its franchise, that right became exclusive as to HCI. It therefore claims that it is entitled to injunctive relief against HCI to prevent an irreparable trammeling of its rights. Consequently, in order to determine whether Calíais is actually entitled to such relief, we must first determine the effect, if any, of the 1976 amendments to La.R.S. 33:4361 and La.R.S. 45:781 on HCI.

HCI began its operations under the legal sanction of La.R.S. 45:781. The State in Acts 1880, No. 124, § 1, offered to companies “transmitting intelligence” the right to “construct and maintain telegraph, telephone or other lines necessary ... along all public roads or public works ... and along the streets of any city, with the consent of the city council or trustees.” HCI and its predecessors accepted this offer by investing in the equipment necessary to construct a fledgling cable television service. Calíais now argues that Act 573 of 1976 requires HCI to obtain a franchise from the police jury to operate and that its operations without one are infringing upon Calíais’ franchise rights. We disagree and find that Calíais’ asserted construction of Act 573 would render it unconstitutional, in violation of the Contract Clauses, La. Const, art. I, § 23, and the United States Const., art. I, § 10.

In Russell v. Sebastian, 233 U.S. 195, 34 S.Ct. 517, 58 L.Ed. 912 (1914), the U.S. Supreme Court considered a provision of the California State Constitution of 1879, as amended in 1885, which gave “any individual, or any company duly incorporated for such purpose ... the privilege of using the public streets and thoroughfares [of certain municipalities] and of laying down pipes ... and connections ... as may be necessary for ... supplying such city ... with gaslight ... or with fresh water_” Sebastian, 34 S.Ct. at 517, quoting California Const, of 1879, art. 11, § 19.

In 1911, this section was amended to provide, in pertinent part, that “[p]ersons or corporations may establish and operate works for supplying the inhabitants with such services upon such conditions and under such regulations as the municipality may prescribe under its organic law _” Sebastian, 34 S.Ct. at 517-18. (Emphasis added.)

Approximately two weeks later, the municipality of Los Angeles passed two ordinances, one providing that “no one should exercise any franchise or privilege to lay or maintain pipes or conduits in the streets for conveying gas, water, etc., without having obtained a grant from the city and the other making it unlawful to make any excavation in the street for any purpose without written permission from the city. Sebastian, 34 S.Ct. at 518. The plaintiff was arrested four months later for violation of this latter ordinance and sued out a writ of habeas corpus alleging that the city ordinances and the 1911 constitutional amendment unconstitutionally impaired the company's contract with the state, in violation of U.S. Const, art. I, § 10.

The facts set forth in the opinion were that the plaintiffs employer, the Economic Gaslight Company, was organized in 1909, so that the constitutional provision (before the 1911 amendment) applied to it; that it acquired a plant and extended its system to serve 3,500 customers; and that its intent was to supply the entire city, and to that end it had constructed a plant capable of serving a much larger area than that served on the date of the 1911 amendment. It was further established that the company had applied to the Board of Public Works for permission to excavate in the streets, in compliance with the city ordinance but was refused this permission until and unless it first obtained a franchise in accordance with the recent constitutional amendment. The company defied the city and proceeded with its expansion, resulting in the plaintiffs arrest.

The court characterized the central issue of the case not as the right of the city to supervise the work or regulate the gas rates but, rather, as “the nature and extent of the right acquired by the company prior to the constitutional amendment_” Sebastian, 34 S.Ct. at 519. The court noted that the grant embraced “any [qualified] city” in the state, and “when as to such a city the offer was accepted, the grant became as effective as if it had been made specially to the accepting individual or corporation.” The court held that there could be no dispute “[t]hat the grant, resulting from an acceptance of the state’s offer, constituted a contract, and vested in the accepting individual or corporation a property right, protected by the Federal Constitution,” and concluded that “the constitutional amendment of 1911, and the municipal ordinances adopted in pursuance thereof, were ineffectual to impair this right _” Sebastian, 34 S.Ct. at 520, 522.

The Sebastian analysis and holding were employed more recently in Southern Bell Telephone and Telegraph Co. v. City of Meridian, 154 F.Supp. 736 (E.D.Miss.1957). Meridian involved not a constitutional grant but a legislative one. The Mississippi Legislature in 1886 enacted Chapter 38 of the Mississippi Code of 1880, adding telephone companies to the rank of telegraph companies, granting them:

the right to construct, maintain and operate telegraph or telephone lines through any public lands of this State, and on, across and along all highways, streets and roads, and across and under any navigable waters _ Meridian, 154 F.Supp. at 738.

The corporate predecessors of Southern Bell had, since the invention of the telephone in 1876, maintained telephone exchanges in the City of Meridian, beginning with the Louisiana Telephone Company. In 1926 the Southern Bell Telephone and Telegraph Company acquired the rights of the company then servicing Meridian. It continued to expand its business and used the streets and highways of Mississippi continuously until 1956. In that year, the Mississippi Legislature passed Laws of 1956, Chapter 372 of the Mississippi Code, providing (paraphrased) that municipalities could now charge certain utilities 2% of their monthly service charges, whether the utility was franchised or not. The act also contained a repealer clause purporting not to affect “any rights accruing, accrued or established prior to the effective date” of the act. Meridian, 154 F.Supp. at 739.

The court framed the central issue of the case and answered that issue in two sentences:

The question now arises whether or not the plaintiff in this case and its predecessors in title had accepted the privileges granted by the Laws of 1886 so as to constitute a contract between the State and the companies that is protected by the federal and state constitutions. The authorities are unanimous that it is a binding contract and to change its terms would be to impair the obligations of a contract and conflict with the U.S. Constitution. Meridian, 154 F.Supp. at 740.

Relying primarily upon Sebastian, the Federal Court reasoned that “the plaintiff in this ease, having accepted the [statute’s] benefits and relied upon its provisions and expanded its services, indicated a clear intent to accept the offer, and as a result a binding contract became effective.... [T]he offer by the state to companies of benefits when accepted by any utility is irrevocable and is more than mere license to use the streets at the will of the legislature.” Meridian, 154 F.Supp. at 740. The court concluded that:

It is clear that the act of 1956 by the Mississippi State Legislature, if it undertakes to authorize a municipality to impose the charges, is beyond the power of the legislature and would conflict with the constitution of the United States.... [T]he plaintiff had acquired vested rights and these vested rights could not be impaired by the State of Mississippi .... Meridian, 154 F.Supp. at 742-743.

Finally, we draw upon the work of our Supreme Court in a case involving the very statute (La.R.S. 45:781) which is at the heart of this case. In City of New Orleans v. Great Southern Telephone and Telegraph Co., 3 So. 533, 40 La.Ann. 41 (1888), the city had in 1879 authorized the defendant to construct its poles and lines along the city streets. One year later, the Legislature passed Act 124 (present day R.S. 45:781(A)). The court found that “[t]he defendant, having the prior consent of the city, certainly came under the protection of this act as to the maintenance of its lines from the date of its passage.” Great Southern, 3 So. at 534. In 1883, the city passed an ordinance charging companies $5.00 per pole for all new and existing poles in certain parts of the city. The court noted that the ordinance characterized the charge as “a price or consideration for the privileges enjoyed” and determined that “[t]he question for our determination is whether the city had the right to make such a regulation or impose such condition.” Great Southern, 3 So. at 534, 535. Recognizing that the phone company had “at great expense” established its plant and constructed its lines under the grant of authority from the city and for “no other consideration than the furnishing of certain free telephonic facilities to the city,” our Supreme Court concluded that “the grant of authority to defendant, when accepted and acted upon, became an irrevocable contract, and the city is powerless to set it aside or to interpolate new or more onerous considerations therein_” Great Southern, 3 So. at 535.

Although the Great Southern case involved the specific grant of authority by a city, we believe the principle flowing through Sebastian, Meridian, and Great Southern applies to the general grant of authority by the state found in La.R.S. 45:781. Indeed, we feel that the aforementioned decisions mandate the result we reach here under both our State and Federal Constitutions. HCI’s operations under the broad Legislative grant of La.R.S. 45:781 vested in the company the right to continue such operations. It is well established that an ongoing business is a property right, entitled to constitutional protection. Banjavich v. Louisiana Licensing Board for Marine Divers, 237 La. 467, 111 So.2d 505 (1959); Mongogna v. O’Dwyer, 204 La. 829, 16 So.2d 829 (1943); Shreveport Long Leaf Lumber Co. v. Wilson, 195 La. 814, 197 So. 566 (1940). The fact that HCI took advantage of the La.R.S. 45:781 grant and pioneered a cable system before the legislative process provided for the coming of age of the cable industry should not work to HCI’s detriment. It cannot be arbitrarily made to cease operations after acting in reliance upon a legislative grant of rights. Both reason and the authorities we have here examined compel this result; our State and Federal Constitutions demand it.

Every statute is presumed to be constitutional, and the Court of Appeal is bound to uphold it when possible. Statutory language broad enough to be applied both validly and invalidly may be given the valid application when such conforms to the legislative intent and purpose of the statute. New Orleans Firefighters Association v. Civil Service Commission of City of New Orleans, 422 So.2d 402 (La.1982); Faulk v. State, 382 So.2d 992 (La.App. 1st Cir.1980), writ denied, 383 So.2d 1016 (La.1980); Fitzmorris v. Lambert, 382 So.2d 169 (La.App. 1st Cir.1979), writ denied, 384 So.2d 793 (La.1979). Since the interpreta tion Calíais would have us give Act 573 would be an unconstitutional and therefore impermissible construction, it follows that Calíais’ demand for injunctive relief, dependent upon that construction, must be denied. We stress here that we do not hold Act 573 of 1976 to be unconstitutional; nor do we hold any parts of La.R.S. 33:4361 or 45:781 to be unconstitutional. Our determination of unconstitutionality applies only to the hypothetical application Calíais would give Act 573.

Calíais argues alternatively that should we find HCI to be lawfully operating, we should rely upon Section 2 of Acts of 1978, No. 83, to restrict its operations. The pertinent section of that act provides:

Any individual, partnership or corporation operating a franchise or operating system of cable television on the effective date of this Act shall continue to operate such franchise or operating system under the same terms and conditions as it is operating under on the effective date of this Act.

Calíais asserts that the language “shall continue to operate ... under the same terms and conditions” requires that HCI service only those customers and retain the same station carriage and station carriage capability as it had at the time of the act. This argument, too, must be rejected. The cable television industry is a dynamic one, depending upon competition for viewable programming, maintaining state-of-the-art equipment, and a fluctuating subscriber base. To apply “terms and conditions” as Calíais suggests would slowly throttle HCI, effectively running it out of business. For the principles discussed above, such a construction cannot be allowed. We note that in Sebastian the Supreme Court considered a similar argument. Addressing the scope of the offer contained in the constitutional provision in question there, the court said:

It was not simply [the grant] of a privilege to maintain pipes actually laid, but to lay pipes so far as they might be required in order to effect an adequate distribution.... The breadth of the offer was commensurate with the requirements of the undertaking which was invited. Sebastian, 34 S.Ct. at 520-521.

Furthermore, we do not read Act 83 of 1978 as requiring the restrictions Calíais asserts. The “terms and conditions” of HCI’s operations were and are contained in La.R.S. 45:781 and, generally, all other applicable State and Federal laws. It may conduct its operations as allowed by the statute subject, of course, to the reasonable exercise of the police power of the Police Jury and/or the State. State v. Birdsell, 235 La. 396, 104 So.2d 148 (1958); Schwegmann Bros. v. Louisiana Board of Alcoholic Beverage Control, 216 La. 148, 43 So.2d 248 (1949); Wes-T-Erre Develop ment Corp. v. Parish of Terrebonne, Police Jury of Parish of Terrebonne, 416 So.2d 209 (La.App. 1st Cir.1982), writ denied, 421 So.2d 251 (La.1982). We express no opinion as to the validity or application of any of the acts amending La.R.S. 33:4361 and 45:781 as proper exercises of the police power of the State.

For the reasons stated above, the judgment of the trial court is affirmed and appellant’s suit is dismissed. Costs of this appeal are taxed to appellant.

AFFIRMED.

LANIER, J., concurs for reasons to be assigned.

CRAIN, J., concurs for reasons assigned by LANIER, J.

LANIER, Judge,

concurring.

We agree with the result reached in the lead opinion but do not agree with its rationale for reaching that result.

Prior to Act 573 of 1976, cable television companies were not prohibited from conducting business operations by State law, were not subject to franchising or regulation by non-home rule parish governing authorities (police juries) and pursuant to La.R.S. 45:781 had authority to conduct their operations on public property and public rights-of-way. KAOK-CATV, Inc. v. Louisiana Cable T.V., Inc., 195 So.2d 297 (La.App. 3rd Cir.1967). Act 573 of 1976 amended La.R.S. 33:4361 to give police juries the power to grant franchises and/or regulate the construction, maintenance and operation of cable television companies as follows:

Police juries may, subject to any conditions, regulations and restrictions which they impose, grant franchises over the public places, roads, streets, and alleys of their respective parishes, not within the limits of any municipality, to any person for:
(5) The construction, maintenance and operation of television lines and cables whether erected on poles owned or leased from existing public utilities or on poles to be erected, or through cables to be laid underground for receiving, distributing and transmitting television impulses or signals to residences, commercial establishments or other customers. A franchise shall be awarded to the highest responsible bidder in accordance with the public bid laws of the state. The specifications shall state the area to be served by the franchise, the duration of the franchise, and the other terms of the agreement. (Emphasis added).

Act 573 also amended La.R.S. 45:781 by adding thereto Paragraph (B) which provided as follows:

Nothing provided in Section A herein shall affect the right granted to parish governing authorities to grant franchises for the regulation of cable television outside municipalities[]

A provision of law is self-executing when no subsequent action is necessary by a legislative body to give it effect. Cf. State v. Flynn, 160 La. 483, 107 So. 314 (1926); State ex rel. Noe v. Knop, 190 So. 135 (La.App.Orl.1939). If a provision of law is incomplete in itself and contemplates supplemental and enabling legislation, it is not self-executing. Cf. Moosa v. Abdalla, 248 La. 344, 178 So.2d 273 (1965). A provision of law which is not self-executing is of no effect until the necessary assisting legislation has been enacted. Cf. State ex rel. Noe v. Knop, 190 So. at 142; 16 C.J.S. Constitutional Law § 48 (1956).

The provisions of La.R.S. 33:4361, as amended by Act 573 of 1976, are not self-executing. This statute authorizes police juries to exercise certain powers but does not mandate such because the verb “may” is used to grant the power. Further, the grant of power is subject to any conditions, regulations and restrictions which may be imposed by the police jury. These conditions, regulations and restrictions can only come into existence by subsequent legislative action by the police jury. The record contains no evidence to show that the Ter-rebonne Parish Police Jury enacted an ordinance to prohibit the operation of a cable television system, or the expansion of an existing cable television system, without a franchise. See, for example, Town of Kinder v. Beauregard Electric Cooperative, Inc., 339 So.2d 891, 893 (La.App. 3rd Cir.1976). The evidence of record only indicates that ordinances were enacted to establish a procedure for granting a non-exclusive franchise for a cable television system in the unincorporated area of Terre-bonne Parish and to specify the terms of this franchise.

Section 2 of Act 83 of 1978 provided as follows:

Any individual, partnership or corporation operating a franchise or operating system of cable television on the effective date of this Act shall continue to operate such franchise or operating system under the same terms and conditions as it is operating under on the effective date of this Act.

The language used in this “grandfather” clause denotes a legislative intention to ratify the existence and activities of operating cable television systems on the effective date of the Act. By authorizing such systems to continue to operate “under the same terms and conditions” as they operated on the effective date of the Act, this legislation authorizes such systems to do the things necessary to continue to function, including, but not limited to, improving programming capabilities and physical equipment and adding new subscribers within the geographical area , serviced on the effective date of the Act. We believe this interpretation is implicit in the language used and that these activities are necessary concomitants to the ratification.

There is no evidence in the record which indicates that HCI has actually expanded its operations outside of the geographical area it was serving on the effective date of Act 83 or has threatened to do so. Accordingly, Calíais is not entitled to injunctive relief.

It is well settled in the law that a court should not consider a constitutional question where it is not necessary to a resolution of the dispute. Benson & Gold Chevrolet, Inc. v. Louisiana Motor Vehicle Commission, 403 So.2d 13 (La.1981); Aston v. Lazarus, 439 So.2d 1240 (La.App. 5th Cir.1983); Viator v. City of New Iberia, 428 So.2d 1329 (La.App. 3rd Cir.1983). The constitutional rulings contained in the lead opinion are unnecessary to a resolution of this case for the following reasons:

(1) La.R.S. 33:4361, as amended by Act 573 of 1976, is not self-executing;
(2) There is no evidence of record that the Terrebonne Parish Police Jury enacted an ordinance pursuant to La.R.S. 33:4361 that prohibited the operation of a cable television system, or the expansion of an existing cable television system, without a franchise;
(3) A reasonable interpretation of the language contained in the “grandfather” clause of Section 2 of Act 83 of 1978 would ratify the operations of HCI in the geographical area it was serving on the effective date of that Act with all concomitants thereto; and
(4) There is no evidence of record that HCI has expanded its operations outside the geographical area it was serving on the effective date of Act 83 of 1978 or has threatened to do so.

For these reasons, we do not subscribe to the rationale of the lead opinion.

Because of our interpretation of the “grandfather” clause and the lack of evidence to show operations by HCI outside the geographical area served on the effective date of that clause, it is unnecessary for us to rule on whether or not the cases of Town of Kinder, Gulf States Utilities Company v. Dixie Electric Membership Corporation, 185 So.2d 313 (La.App. 1st Cir.1966) and Town of Coushatta v. Valley Electric Membership Corporation, 139 So.2d 822 (La.App. 2nd Cir.1961) are applicable.

We agree with the decree of the lead opinion.

      . La.R.S. 45:781 (1950), in pertinent part:
      “Corporations, domestic or foreign, formed for the purpose of transmitting intelligence by telegraph or telephone or other system of transmitting intelligence, may construct and maintain telegraph, telephone or other lines necessary to transmit intelligence along all public roads or public works, and along and parallel to any of the railroads in the state, and along and over the waters of the state, if the ordinary use of the roads, works, railroads, and waters are not obstructed, and along the streets of any city, with the consent of the city council or trustees. Such companies, shall be entitled to the right of way over all lands belonging to the state and over the lands, privileges and servitudes of other persons, and to the right to erect poles, piers, abutments, and other works necessary for constructing and maintaining lines and works, upon making just compensation therefor.”

      . La.R.S. 33:4361 (1950):
      "§ 4361. Police jury may grant franchise for use of streets, roads, and alleys outside municipalities
      Police juries may, subject to any conditions, regulations, and restrictions which they impose, grant franchises over the public places, roads, streets, and alleys of their respective parishes, not within the limits of any municipality, to any person for:
      (1) The construction, maintenance, and operation of lines of poles and wire for the transmission of electric current for heat, light, or power;
      (2) Laying, maintaining and operating lines of pipe or mains for supplying gas or water in, over, under or along the public roads, streets or alleys;
      (3) The construction, maintenance, and operation of sewerage and drain pipes across, along and underneath the roads, alleys, and public places;
      (4) The construction, maintenance and operation of railways utilizing electric or motive power other than steam, under the conditions hereinafter set forth."

      . La.R.S. 33:4361 (1976):
      "Police juries may, subject to any conditions, regulations, and restrictions which they impose, grant franchises over the public places, roads, streets, and alleys of their respective parishes, not within the limits of any municipality, to any person for:
      (1) The construction, maintenance, and operation of lines of poles and wire for the transmission of electric current for heat, light, or power.
      (2) Laying, maintaining, and operating lines of pipe or mains for supplying gas or water in, over, under or along the public roads, streets, or alleys.
      (3) The construction, maintenance, and operation of sewerage and drain pipes across, along and underneath the roads, alleys, and public places.
      (4) The construction, maintenance, and operation of railways utilizing electric or motive power other than steam, under the conditions hereinafter set forth.
      (5) The construction, maintenance, and operation of television lines and cables whether erected on poles owned or leased from existing public utilities or on poles to be erected, or through cables to be laid underground for receiving, distributing, and transmitting television impulses or signals to residences, commercial establishments, or other customers. A franchise shall be awarded to the highest responsible bidder in accordance with the public bid laws of the state. The specifications shall state the area to be served by the franchise, the duration of the franchise, and other terms of the agreement.”

      . La. Const, art. I, § 23: "No bill of attainder, ex post facto law, or law impairing the obligation of contracts shall be enacted.”
      U.S. Const., art. I, § 10 in pertinent part: "No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.”

      . The Meridian decision was vacated by the U.S. Supreme Court, 358 U.S. 639, 79 S.Ct. 455, 3 L.Ed.2d 562 (1959) under Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941) to allow state court consideration of the claims made under the Constitution of the State of Mississippi. For that reason, we cite this decision not as authoritative precedent but instead for its well-reasoned application of the Federal Contract Clause in this factual context. It should be noted that the District Court was affirmed by the United States Fifth Circuit Court of Appeals, 256 F.2d 83 (5th Cir.1958), which noted that as for the judgment and reasons given for it, “w find ourselves in full agreement.” Meridiai, 256 F.2d at 87. Furthermore, the Mississippi State Supreme Court, based upon its state constitution contract clause, rendered an opinion substantially identical to that of the Federal District Court, in Southern Bell Telephone & Telegraph Co. v. City of Meridian, 241 Miss. 678, 131 So.2d 666 (1961).

      . Although the title of Act 573 indicates that part of its purpose was to exclude cable television from the provisions of La.R.S. 45:781, the language contained in Paragraph (B) in the body of the Act apparently did not achieve this result. See Edward J. Gay Planting and Manufacturing Co., Ltd. v. Bayou Cable Television, Inc., 423 So.2d 58 (La.App. 1st Cir.1982), wherein it was held that cable television companies retained the power of expropriation granted to them in La.R.S. 45:781.

      . For examples of self-executing provisions of law, see Student Government Association of Louisiana State University and Agricultural and Mechanical College, Main Campus, Baton Rouge v. Board of Supervisors of Louisiana State University and Agricultural and Mechanical College, 262 La. 849, 264 So.2d 916 (1972); Angelle v. State, 212 La. 1069, 34 So.2d 321 (1948); Vaughn v. Coco, 409 So.2d 282 (La.App. 1st Cir.1981); State ex rel. Wootan, Praying for Testing of Sureties on Notarial Bonds, 364 So.2d 1079 (La.App. 4th Cir.1978).


author: REDMANN, Chief Judge.

text:
    STATE of Louisiana v. James C. RILEY.
    No. KA 0948.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 6, 1984.
    Writ Denied May 25, 1984.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Dist. Atty., Harry F. Con-nick, Dist. Atty., William R. Campbell, Jr., and Susan Scott Hunt, Asst. Dist. Attys., New Orleans, for the State.
    John W. Reed, Robert Glass, New Orleans, for defendant.
    Before REDMANN, C.J., and GARRISON and WARD, JJ.
   REDMANN, Chief Judge.

Defendant criminal sheriff’s deputy’s defense to aggravated battery was that he shot security guard John Ross in self defense during a fight (unrelated to either’s work). He now appeals his conviction for second degree battery, assigning one error.

Defendant’s testimony was that, upon their meeting in a fast-food restaurant parking lot, Ross, bragging of his years-earlier plea bargain for his involvement in a brutal crime in another fast-food restaurant, immediately began verbal abuse of defendant and threatened him by reference to Ross’s wearing a pistol and defendant’s not. A long fight ensued, during which defendant took Ross’s .38 pistol away from him. Thereafter Ross opened the door to defendant’s pickup truck to get defendant’s .45 automatic (visible on the front seat) to shoot defendant, and defendant shot Ross in the buttock to stop him. When shot, Ross was located between his own white van and another vehicle.

Among the disputed facts related to this defense was whether in truth the vehicle parked next to Ross’s white van was defendant’s blue pickup (with a white camper top) or another vehicle.

Investigating police officer Bolien was one of several witnesses who gave conflicting testimony concerning the other vehicle. At the very end of the two-day trial, he was recalled in rebuttal by the state. His rebuttal testimony included:

“Q. Getting back to when you came up on the scene, you remember the — the cars. Did I ask you to review your report? A. Yes, ma’am, you did. Q. Did I ask you to try to get your memory back and see how the cars were lined up when you got there? A. Yes, ma’am, you did. Q. And how did you tell me? A. Exact, the same way. Q. Would you tell the jury again? A. When we arrived, there was a green pickup truck on the left, there was a white van on the right, and the victim was lying between these two vehicles. Q. Did I also ask you to scan your report for license numbers? A. Yes, ma’am, you did. Q. And had you written down license numbers? A. Yes, ma’am, I did. Q. And did I ask you to run those license numbers? A. Yes, ma’am, we ran them through the state computer with the state police. Q. And what was that green pickup truck? A. The green pickup truck was a 1976 Chevrolet pickup truck, green, license number T-Tom, 200831. Q. Who did that belong to? A. Belonged to a Thomas Johnson, resides at 1326 Alvar Street, New Orleans. Q. And the white van? A. The white van was a 1970 Ford van, white in color, license number T-Tom, 630388. It was registered to a John W. Ross. Q. The victim in this case? A. Yes, ma’am. Q. And again the lineup of'the cars, the green pickup, the white van, and he was in between the two of them? A. Yes, ma’am. Q. And when the ambulance came to pick him up, he was in the same position he was when he fell? A. Yes, ma’am, he was. BY MRS. SMITH: Your witness. BY MR. HARTLEY: Your Honor, since the officer has made a re-ferment to his report, under a recent United States Supreme Court decision and for a purpose of cross examination only I’ll ask for a copy of the report from which he received these numbers on a piece of paper which was handed to him by counsel. BY THE COURT: Request denied.

It was reversible error, State v. Tharp, 284 So.2d 536 (La.1973), to refuse production of the report or “piece of paper ... handed to him by counsel” under these circumstances. The contents of the report or piece of paper, rather than the witness’s own present recollection refreshed, was what was placed in evidence through the witness’s mouth. Defendant was effectively denied the constitutional due process right of confrontation and cross-examination of the witness against him by the denial of access to the document of whose contents the witness testified.

The error is not harmless. The jury could indeed have rejected self-defense even if it believed the adjacent truck was defendant’s; but it could not accept defendant’s self-defense testimony if it believed the truck was someone else’s.

Set aside; remanded.