author: REDMANN, Chief Judge. LOBRANO, Judge,

text:
    Mrs. Darryl SANTIAGO, et al. v. EQUIPMENT LEASING OF CALIFORNIA, et al.
    No. C-1138.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 14, 1983.
    Writ Denied Nov. 18, 1983.

      René A. Curry, Jr., New Orleans, for relators.
    Peter Liberto, New Orleans, for respondents.
    Before REDMANN, C.J., and GULOTTA and LOBRANO, JJ.
   REDMANN, Chief Judge.

Defendant insurer applies for review of refusal of summary judgment dismissing it from a suit for damages from the tragic injury and death of a 16-year-old employee of a car wash. Plaintiffs alleged that the car wash manager ordered the 16-year-old and a 15-year-old co-employee to use gasoline to clean up spilled paint in the car wash storage room containing electric motors, and that that order was an “intentional act” for which both the manager and the employer are liable (as an exception to the exclusivity of workers’ compensation, La. R.S. 23:1032). The insurer was sued as insurer of the car wash employer, but the policy shows that it also insures employees, such as the manager whose act is alleged to have caused plaintiffs’ damages.

We order entry of summary judgment of dismissal. Irrespective of whether the manager co-employee’s order constituted an intentional act, and irrespective of whether the employer and the manager co-employee are therefore liable in tort, the clear provisions of the policy prevent holding the insurer liable, either as insurer of the employer or as insurer of the manager co-employee.

The simplest applicable provisions are policy exclusion (d) as to the employer and policy definition of insured as to the manager co-employee.

As to the employer, policy exclusion (d) and a similar medical payments exclusion deny the employer coverage against liability for “bodily injury to any employee of the insured arising out of and in the course of his employment by the insured .. . . ” There is no genuine dispute of material fact: plaintiffs’ decedent was an employee of the insured employer, and his injury from using gasoline to clean his employer’s premises arose “out of and in the course of his employment by the insured” employer. The exclusion could hardly be plainer: under our circumstances, the insurer cannot be held liable as insurer of the employer.

As to the manager co-employee, the policy definition of persons insured provides that “any person while engaged in the business of his employer with respect to bodily injury to any fellow employee of such person injured in the course of his employment” is not an insured. There is no genuine dispute of fact as to whether plaintiffs’ decedent was an employee of the insured employer, nor as to whether the manager whose alleged (intentional) tort caused the injury was a fellow employee, nor as to whether the manager was “engaged in the business of his employer” or the injured youth “in the course of his employment.” Whether or not the injury was intentional, the policy definition of persons insured makes our alleged tortfeasor employee not an insured, and therefore the insurer cannot be held liable as insurer of the employee.

The insurer’s motions for summary judgment did not seek release from the suit so simply, however. An earlier motion for summary judgment urged the exclusivity of workers’ compensation in addition to exclusion (d). The trial court granted that motion, but was reversed by another panel of this court, 420 So.2d 209 (La.App. 4 Cir. 1982), on the sole ground that a material dispute of fact existed over whether the manager had committed an intentional act by ordering the teen-age employees to use gasoline. The insurer’s application for rehearing argued that the policy did not insure against liability for one’s intentional acts, but only against liability from an “occurrence” of accidental injury “neither expected nor intended from the standpoint of the insured.” The previous panel of this court denied rehearing on the basis that the application “raises an issue not argued nor briefed before this court or the trial court .... Nonetheless, this does not preclude [the insurer] from raising this issue in the trial court below.” 420 So.2d at 212.

The insurer then again moved for summary judgment, adopting “in extenso” its previous motion but supplementing it with the argument of non-coverage of liability for injury “expected [or] intended from the standpoint of the insured.” The net result is a somewhat complicated position for the insurer both (a) because the “expected [or] intended” provision would not exclude coverage of the liability of the manager co-employee for a non-intentional act — although exclusivity of workers’ compensation would exclude the insurer’s liability as insurer of the co-employee by making the co-employee not liable in tort — and (b) because, as plaintiffs well point out, that provision would not exclude coverage of the liability of the employer for an employee’s intentional act (see Jones v. Thomas, 426 So.2d 609 (La.1983)), because the injury from an employee’s intentional act is not expected or intended “from the standpoint of the insured” employer (see Home Insurance Co. v. Degelos Brothers G. Corp., 315 So.2d 74 (La.App. 4 Cir.1975)) — although, again, policy exclusion (d) would exclude liability for an employer’s intentional (or unintentional) injury of a co-employee though not of a third person. Despite the complicatedness of that reasoning, it, too, is correct.

Plaintiffs argue that both that more complicated reasoning and the simpler reasoning first set out are inadmissable, on the theory that the previous panel of this court rejected the insurer’s exclusion (d) argument, and that this panel has no authority to reconsider the previous panel’s decision. That theory is incorrect. The previous panel did quote exclusion (d) and the similar medical payments exclusion in full at the beginning of its opinion, but did not thereafter make any reference to those exclusions. It is evident that that panel recognized that exclusion (d) does not purport to exclude coverage of an employee’s liability (which would exist if the manager’s act were intentional), and therefore would not release the insurer as insurer of the manager. But that panel nowhere suggested that exclusion (d) would not release the insurer as insurer of the employer, and plaintiffs have not suggested any escape from exclusion (d)’s clear wording as to the employer.

Our conclusions are that, in respect to this claim for on-the-job injury to an employee, exclusion (d) prevents the insurer’s being held liable as insurer of the employer, whether the manager’s act was intentional or not; and that the definition of insured prevents the insurer’s being held liable as insurer of the manager, whether his act was intentional or not — in addition to which the insurer is correct in arguing that it is not liable as insurer of the manager for any intentional act by him because of the policy’s non-coverage of injury “expected [or] intended” by him, and it is not liable as insurer of the manager for any unintentional act by him injuring a co-employee because of the exclusivity of workers’ compensation, R.S. 23:1032.

Plaintiffs suggest that the insurer still cannot be dismissed because it “is also in this lawsuit as insurer of Press Drive Corporation” which is also a named insured. But plaintiffs’ petitions did not mention the name of that named insured, nor does their brief suggest any reason why Press would be liable for plaintiffs’ damages. Plaintiffs’ brief suggests that there was a contract between Press and the employer that discovery attempts have not produced, and that on that account dismissal of the insurer is premature. We respond that the insurer was never sued as the insurer of Press Drive and therefore can neither be “dismissed” nor retained as insurer of Press Drive.

Finally, plaintiffs object to this court’s failure to afford them oral argument. This court’s practice is to reject without awaiting response any writ application it deems not meritorious, and to request a written response to a writ application it deems possibly meritorious, and to have the Clerk’s office explain to counsel of whom a response is requested that the court makes the request because it does deem the application to require a response. In this case plaintiffs filed a brief in response two days after the insurer’s application. Moreover, plaintiffs filed a supplemental brief at our invitation when we noted our tentative conclusion that the definition of insured would eliminate the insurer’s liability as insurer of the employee-manager. Then plaintiffs filed a second supplemental brief as a reply to applicant’s supplemental brief. Plaintiffs have had ample opportunity to argue their position in writing and they have utilized it.

The ruling complained of is set aside and it is ordered that in lieu thereof the trial judge enter summary judgment dismissing Fidelity & Casualty Company of New York as a defendant in this matter.

LOBRANO, J., concurs with written reasons.

LOBRANO, Judge,

concurring.

I concur in the result reached by the majority. I am satisfied that there is no coverage if the injury was the result of the negligence of the manager co-employee because of policy exclusion (d). I am also satisfied that if the injury was caused by the intentional acts of the manager co-employee there is no coverage. Jones v. Thomas, 426 So.2d 609 (La.1983) holds that there is a cause of action against an employer for the intentional acts of his employees in injuring a fellow employee. This “vicarious liability” of the employer is also recognized with respect to third party injuries. LeBrane v. Lewis, 292 So.2d 216 (La.1974). However the question before us is not the employer’s liability, but the liability of his insurer. That responsibility is governed by the insurance contract. Exclusion (d) excludes coverage for “bodily injury to any employee of the insured arising out of and in the course of his employment by the insured...” Further, under the circumstances of this case, the manager co-employee does not fall within the policy definition of insured, and therefore there is no coverage. This does not mean that the co-employee manager, or the employer or both, may not be responsible.


source: Caselaw Access Project

author: WARD, Judge.

license: Public Domain

text:
    William J. DAWSON v. JAMES H. STUART AND DEATON, INC.
    No. CA-0634.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 14, 1983.

      John E. Peltier, Jr., New Orleans, for plaintiff-appellee.
    Joseph R. McMahon, Jr., New Orleans, for defendant-appellant.
    Before WARD and BARRY, JJ., and REMY CHIASSON, J. Pro Tempore.
   WARD, Judge.

Plaintiff, William J. Dawson, instituted suit in Orleans Parish Civil District Court against James H. Stuart and Stuart’s employer, Deaton, Inc., seeking to recover damages sustained in a collision that occurred on May 24, 1979, between two tractor-trailer trucks, one driven by Dawson and one driven by Stuart. A jury of twelve found Stuart negligent and Stuart and his employer, Deaton, Inc., liable for Dawson’s injuries. The jury awarded Dawson $8,000. The award included compensation for his physical injuries, accompanying medical expenses, pain and suffering, mental anguish, and lost wages. On appeal, Stuart and Deaton, Inc., do not contest the jury’s finding of negligence but argue that the damage award is excessive.

The accident occurred on an elevated portion of Interstate Highway 10 in New Orleans. At the time of the accident, the flow of traffic was blocked by another vehicle, a low-boy trailer and a van which were attempting to negotiate a sailboat loaded on the low-boy under an access ramp that crossed over the interstate. Due to this traffic obstruction, Dawson’s vehicle had come to a stop when it was struck from the rear by the truck driven by Deaton. The impact pushed Dawson’s rig from the center lane, through the right lane, and into the emergency lane next to the railing. Dawson’s truck came to rest approximately one foot from the guard rail of the elevated interstate.

Although badly shaken, Dawson was able to complete work for the day, but the next day he experienced pain in his shoulder and back and he was seen by his employer’s company doctor. After three or four days of heat treatments, the company doctor discharged Dawson over Dawson’s protest. Because he was still in pain, Dawson consulted his physician, Dr. Henry Braden. Dr. Braden’s examination disclosed paraver-tebral muscle spasm in the lower thoracic area. The spasm was more pronounced on the left, extending laterally to Dawson’s left shoulder. Range of motion of the left shoulder was impaired and there was also lumbosacral muscle spasm bilaterally, the spasm being more pronounced on the left. Dawson also had a contusion of the left shoulder which ran up from the mid-back, and impairment of extension of his left arm. Dr. Braden testified that all of these problems aggravated Dawson’s pre-existing arthritic condition.

Dr. Braden prescribed muscle relaxants, pain medication, and moist heat treatments. Dawson underwent twenty treatments between May 18 and June 26, 1979, the date of his discharge. Dr. Braden testified that he allowed Dawson to return to work on June 12, 1979, but he continued treatment until June 26,1979. Dawson incurred medical expenses of $580.00.

The trial court concluded that Dawson’s lost wages from May 14,1979 through June 25, 1979 were $1388.07. His lost overtime pay was established to have been $214.20. Thus, the portion of the $8,000 award representing Dawson’s lost wages is $1,602.27.

The special damages proven by Dawson, his medical expenses and lost wages, amount to a total of $2,182.27. Thus, $5,817.73 of the $8,000 awarded by the jury represents compensation for general damages. Because the record shows that Dawson proved his special damages to the degree of certainty, required by Jordan v. Travelers Ins. Co., 257 La. 995, 245 So.2d 151 (La.1971), we now focus our review on the alleged excessiveness of the award of general damages. General damages are defined in Anderson v. Welding Testing Laboratory, Inc., 304 So.2d 351 (La.1974) as “... those which may not be fixed with any degree of pecuniary exactitude but which, instead, involve mental or physical pain or suffering [or] inconvenience, ... which cannot really be measured definitively in terms of money.”

Pain and suffering, mental anguish and anxiety are included in Dawson’s list of itemized damages in his original petition. Dawson’s testimony reflects that he experienced extreme terror that he would lose his life during the accident; he anticipated being pushed over the edge of the elevated interstate. The photographic evidence supports his claim that his truck came to rest a scant foot from the guardrail. The force of the impact is easily discerned from the photographs of Deaton’s truck which show that Deaton’s cab was practically demolished. Fright, fear, or mental anguish while an ordeal is in progress is legally compensable. Hoffman v. All Star Insurance Corp., 288 So.2d 388 (La.App. 4th Cir.) writ refused 290 So.2d 909 (1974); Butler v. Pardue, 415 So.2d 249 (La.App. 2d Cir.1982).

Dawson testified that he was still experiencing discomfort from his injuries at the time of trial and that he is nervous and frequently experiences nightmares and an inability to sleep. Although he had been involved in a similar accident shortly after this one, the jury apparently believed his testimony that his nervousness, nightmares and inability to sleep began immediately after the collision with Deaton’s truck. Therefore, the jury compensated him for those general damages and also for his fear during the ordeal.

It is only after a finding that the lower court abused its discretion in determining an award of damages that the appellate court may disturb that award. If it is found that the award is above the point which is reasonably within the much discretion afforded to the trier of fact, the appellate court is not free simply to decide what it considers to be an appropriate award on the basis of evidence. The appellate court may disturb the award only to the extent of lowering it to the highest point which is reasonably within the fact-finder’s discretion. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976).

We consider the amount awarded for general damages to be within the jury’s discretion and cannot conclude that it is higher than the highest amount which could be awarded based upon a reasonable evaluation of the evidence in the record. We find no abuse of discretion and will not disturb the jury’s award. Accordingly, the judgment appealed from will be affirmed. Appellant is to bear the cost of this appeal.

AFFIRMED.


text:
    Elijah PHILLIPS v. CHIEF ADMINISTRATIVE OFFICE.
    No. CA-0643.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 14, 1983.
    Avis Marie Russell, Deputy City Atty., New Orleans, for defendant/appellant.
    New Orleans Legal Assistance Corp., Frank Pola, Jr., Senior Staff Atty., New Orleans, for plaintiff/appellee.
    Before WARD and BARRY, JJ., and REMY CHIASSON, J. Pro Tempore.
   WARD, Judge.

The appellee, Mr. Phillips, was an employee of the City of New Orleans, and worked as a dispatcher in the Equipment Maintenance Division when he was dismissed by the Chief Administrative Officer on August 3, 1981. He appealed his dismissal to the Civil Service Commission, and the Commission overturned the dismissal, held in favor of Phillips, and ordered him reinstated. The Chief Administrative Office, Phillips’s appointing authority, brings this appeal. The issue before this Court is whether the Civil Service Commission erred when it reversed the action of dismissal by the Chief Administrative Office (CAO).

The appellant, the CAO, who based the dismissal on the recommendation of Phillips’s immediate supervisor, argues that there was legal cause for the dismissal of Phillips because of his misconduct and improper performance of his job. The charge against Phillips has been variously stated. The letter of dismissal from Phillips’s supervisor stated: “You, having full responsibility for dispatching equipment, knowingly allowed an off duty employee to leave the premises with City equipment intended for personal use.” At the hearing before the Commission, Phillips’s immediate supervisor stated the grounds for the dismissal of Phillips: “He allowed an off duty employee to enter the premises of the Equipment Maintenance Garage to take a wrecker and to leave the premises with it, subsequently hitting a pole and wrecking the wrecker.” (TR p. 7)

Phillips argues that the CAO, his appointing authority, failed to carry the burden of proof that the dismissal was for cause, and, therefore, the action of the Commission should be affirmed. We agree.

This incident occurred in the early morning of August 1, 1981, shortly before Phillips was going off duty. Phillips and a security guard were the only people at the Dispatcher Office on Alvar Street when an off duty employee, Mr. Washington, came onto the premises and requested use of a City wrecker. Phillips refused, but Washington commandeered the wrecker, drove it off the premises, and wrecked it one block away. The supervisor of the next shift, Mr. Henninger, observed the wreck as he was coming to work, and as he was discussing the incident with Phillips, Washington returned to the premises and commandeered a second wrecker and drove it off the premises. The New Orleans Police Department investigated the incident, and thereafter the CAO concluded that Phillips was at fault, and the CAO terminated Phillips’s employment.

When Mr. Phillips was appointed as a Dispatcher, his job description was given: “Routine work in the receiving and giving the appropriate response to requests for field service for city-owned automotive equipment, and related work as required.”

We conclude, as the Commission did, that the City has not met its burden to prove that Phillips failed to perform his job. First, the record does not show that Phillips is responsible for keeping unauthorized persons off the premises. That duty is not included in his job description. The testimony at the hearing shows that the Security Guard, not Phillips, was responsible for unlocking the gates. Secondly, it was not proven that Phillips permitted Washington to take the wrecker. The record shows just the opposite.

When Washington requested use of the City wrecker, his request was refused by Phillips. The Security Guard testified that the only way Washington could have been stopped from leaving with the wrecker was if someone had shot at him. Phillips was not armed, and the guard, although armed, is only authorized to shoot in “life threatening situations”. The Commission concluded there was nothing Phillips could have done to have restrained Washington from leaving the premises with the wrecker.

When an employee brings an appeal before the Commission, the appointing authority bears the burden of proof to show that the dismissal was for cause. Stiles v. Department of Public Safety, Drivers’ License Division, 361 So.2d 267 (La.App. 1st Cir.1978). We agree with the Commission’s holding that the City failed to prove that Phillips either allowed an unauthorized person to enter the premises or that he could have prevented the unauthorized removal of City equipment.

The Supreme Court stated in Newman v. Department of Fire, 425 So.2d 753, 754 (La.1983):

The appropriate standard of appellate review of action by the Civil Service Commission is to determine whether the conclusion reached by the Commission was arbitrary or capricious.... As in other civil matters, deference should be given on appellate review to the factual conclusions of the Commission.

The action of the Commission was neither arbitrary nor capricious, and we affirm its decision to reinstate Mr. Phillips, and assess all costs to the appellant.

Affirmed.


text:
    Shelton O. MYERS v. DEPARTMENT OF FINANCE.
    No. CA-0712.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 14, 1983.

      Bemette J. Johnson, Asst. City Atty., • Douglas P. Wilson, Chief Deputy City Atty., Salvador Anzelmo, City Atty., New Orleans, for Dept, of Finance.
    Shelton 0. Myers, in pro per.
    Before WARD, GULOTTA and BYRNES, JJ.
   WARD, Judge.

The Department of Finance brings this appeal of a decision by the Civil Service Commission of the City of New Orleans modifying a disciplinary action ordered by the Department. The Department had dismissed appellee, but the Commission found termination too harsh, and reduced the penalty to a suspension without pay for approximately six months. We affirm.

Mr. Myers was employed by the City as a Senior Computer Operator, and was terminated on May-13, 1982. In the letter of termination the City described two infractions by Mr. Myers:

1. After an investigation, it was determined that on March 27, 1982 at 4:30 a.m. you, along with Ms. Glenda Thomas, left the Computer Room unattended for approximately 20 minutes or more. You allowed this to happen knowing there was no one else on duty.
2. You allowed, at the same time, Ms. Thomas to take leave from 4:30 a.m. to 8:00 a.m. without charging it to any valid leave authorization.

The letter also referred to an earlier incident in which Mr. Myers was suspended for leaving the computer room unattended.

Mr. Myers appealed his dismissal to the Civil Service Commission which held a hearing on August 4, 1982, and rendered a decision on November 10, 1982. The Commission determined that the action of dismissal was an unusually harsh penalty in the circumstances, and modified the penalty against Mr. Myers to a suspension, effective from May 13, 1982 until Mr. Myers could be reinstated, no later than November 29, 1982.

The Department argues that it had sufficient cause to dismiss Mr. Myers because his absence was a serious offense both because of the risk of leaving expensive equipment unattended and because the tele-processing equipment provides a network of communication and information to many city agencies, including the Police Department. Further, the Department relies on his earlier suspension as justification for termination of Mr. Myers. For these reasons, the Department claims that the Commission erred in not upholding the original disciplinary action and in finding that the disciplinary action should be modified.

As to the most recent incidents, Mr. Myers admits the derelictions as described, although he says he was away from the computer room for only about fifteen minutes. He explained that he thought there existed an accepted practice, which he had observed, of letting an employee go early in some instances if the work was completed. He testified that he allowed Glenda Thomas to leave early so that she might go out of town to attend a wake and funeral for a family member. He explained his absence: he accompanied her to the Trailways Bus Station because he thought that she would not be safe if she went to the bus station alone at 4:30 in the morning. Mr. Myers acknowledged that he had been previously suspended, and, although the earlier suspension was not on appeal, he explained that incident by testifying that the computer room was unattended at that time because of confusion about covering the shift which resulted when the City fired two employees whom he had already assigned to cover that shift.

In Newman v. Department of Fire, 425 So.2d 753 (La.1983), the Louisiana Supreme Court clearly stated the standard by which this Court should review actions of the Civil Service Commission:

The appropriate standard of appellate review of actions by the Civil Service Commission is to determine whether the conclusion reached by the Commission was arbitrary or capricious....

In its decision, the Commission concluded, as had the Department, that leaving the computer room unattended is a serious offense. However, it also concluded that the offense was not so serious as to be a cause for dismissal. The Commission has the authority to reduce a penalty if it determines that the greater penalty is not justified. Branighan v. Department of Police, 362 So.2d 1221 (La.App. 4th Cir.1978).

The Commission’s conclusions and its modification of Mr. Myers penalty have not been proven to be an arbitrary or capricious exercise of authority, and therefore its finding that the offense was an insufficient cause for the harsh penalty of dismissal, but sufficient cause for suspension, is affirmed.

Costs for this appeal will be assessed against the Department of Finance.

AFFIRMED.


author: DOUCET, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Jerry J. JONES, Defendant-Appellant.
    No. CR82-691.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 19, 1983.
    Patrick L. Durusau, Jena, for defendant-appellant.
    Norris Dale Jackson, Asst. Dist. Atty., Jena, for plaintiff-appellee.
    Before DOUCET, YELVERTON and KNOLL, JJ.
   DOUCET, Judge.

Defendant, Jerry J. Jones, was charged by bill of information with two counts of forgery, a violation of La.R.S. 14:72. After trial he was found guilty on both counts and sentenced to four years imprisonment at hard labor on each count, sentences to run concurrently. Defendant appeals.

No assignments of error were perfected as required by La.C.Cr.P. art. 844. Therefore, this court is limited to a review of the record for errors that are discoverable by a mere inspection of the pleadings and proceedings. C.Cr.P. art. 920; State v. Jackson, 332 So.2d 211 (La.1976); State v. Gerald, 325 So.2d 574 (La.1976). We have reviewed the record and find no error.

Accordingly, the convictions and sentences are affirmed.

AFFIRMED.

      . LSA-C.Cr.P. article 844 provides:
      “The party appealing shall designate, in writing, those errors which are to be urged on appeal. This assignment of errors shall be filed within the time specified by the trial judge, but not later than five days prior to the return date. A copy of the assignment of errors shall be furnished to the trial judge by the appealing party on the date such errors are filed.
      “The trial judge may submit such per curiam comments as he desires.”

      . LSA-C.Cr.P. article 920 provides:
      “The following matters and no others shall be considered on appeal:
      (1) An error designated in the assignment of errors; and;
      (2) An error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.”


author: KNOLL, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Gary SPURGEON, Defendant-Appellant.
    No. CR82-772.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 19, 1983.
    Daryl Gold, Leesville, for defendant-appellant.

      William E. Tilley, Dist. Atty., Edwin L. Cabra, Asst. Dist. Atty., Leesville, for plaintiff-appellee.
    Before DOUCET, YELVERTON, and KNOLL, JJ.
   KNOLL, Judge.

The defendant, Gary Spurgeon, pleaded guilty to one count of theft of property having a value in excess of $100 but less than $500 in violation of LSA-R.S. 14:67 and one count of possession of marijuana in violation of LSA-R.S. 40:966(C) and (D)(1). The trial judge sentenced the defendant to serve one year without hard labor for the theft and six months without hard labor on the possession, the two sentences to run concurrently.

On appeal are three assignments of error: (1) the trial judge erred in accepting the defendant’s guilty plea to the charge of theft in that there was no factual basis for the entry and acceptance of the plea; (2) the sentence was excessive and (3), the trial judge did not comply with the sentencing guidelines, Article 894.1 of the Louisiana Code of Criminal Procedure.

FACTS

The defendant was a detective for the Yernon Parish Sheriff’s Office. He occasionally brought evidence to the State Regional Crime Laboratory in Lake Charles for testing. On his return from the crime lab on February 24, 1982, the defendant withheld approximately three pounds of marijuana from the Vernon Parish custodian of evidence. He stored the marijuana in the trunk of his unit with intentions of selling it. It is noted that the defendant’s possession of the marijuana was not in connection with any authorized police work.

ASSIGNMENT OF ERROR ONE

In this assignment the defendant is attempting to set aside his plea on the grounds that there was no factual basis for the entry and acceptance of his plea because marijuana, a contraband, cannot have value and cannot be owned, therefore the element of theft cannot be met. We observe that the defendant did not file any motions, object or reserve any assignments of error on this point. The defendant has raised this assignment for the first time after entering his plea and imposition of sentence.

Without going into a discussion of defendant’s argument, we dismiss this assignment as not being properly reserved. In State v. Spain, 329 So.2d 178 (La.1976), a case addressing these same issues, the defendant pleaded guilty to attempted simple burglary without making any objections at the time the plea was taken. On appeal he admitted the absence of objections but, nonetheless, asked for appellate review of his conviction and sentence. In holding that defendant’s plea of guilty constituted an intelligent waiver of appellate review of the merits of the prosecution’s case against him, Justice Tate stated:

“Under these circumstances, the appeal presents nothing for review except ‘patent’ errors, i.e., those discoverable by an inspection of the pleadings and proceedings and without inspection of the evidence. LA.C.Cr.P. arts. 841, 920. In reviewing appeals from pleas of guilty, our jurisprudence holds that the review is limited to jurisdictional defects which appear on the face of the pleadings and prodeedings. State v. Knighten, 320 So.2d 184 (La.1975); State v. Coats, 260 La. 64, 255 So.2d 75 (1971).”

See also State v. Crosby, 338 So.2d 584 (La.1976); and State v. Bourgeois, 406 So.2d 550 (La.1981).

ASSIGNMENTS OF ERROR TWO AND THREE

The defendant attacks his sentence as excessive and failing to comply with the sentencing guidelines of LSA-R.S. C.Cr.P. Art. 894.1.

Possession of marijuana carries a maximum of six months in the parish jail, a $500 fine, or both. The theft carries a maximum of two years with or without hard labor, a $1000 fine, or both. The defendant received six months and one year without hard labor, respectively, to run concurrently. We find, as did the trial judge, that a probationary sentence would deprecate the seriousness of the defendant’s crime.

The trial judge ordered a pre-sentence investigation. This report showed that the defendant was thirty-two years of age, married, no record of any previous criminal activity and, he was considered to be a worthy and able law enforcement officer. The trial judge in considering a probationary sentence stated:

“The court is, however, of the opinion that such treatment would so deprecate the seriousness of this offense by a trusted officer as to make it not a reasonable or acceptable alternative.”

The defendant argues that if he had not been a law enforcement officer he would have been placed on probation. This may be correct but it is within the guidelines of Article 894.1 to do so. This article specifically provides:

“Article 894.1 Sentence guidelines; generally
A. When a defendant has been convicted of a felony or misdemeanor; the court should impose a sentence of imprisonment if:
* * * * * *
(3) A lesser sentence will deprecate the seriousness of the defendant’s crime.”

A trusted law enforcement officer’s involvement in criminal activity does enhance the seriousness of such acts.

We have reviewed the record carefully and find that the trial judge fully complied with the sentencing guidelines of C.Cr.P. Art. 894.1.

In State v. Brewer, 436 So.2d 631 a case before this court involving a like issue, this court stated:

“When we find that the sentencing guidelines have been adequately considered, our standard of review is stated as follows:
‘[a] sentence will not be set aside as excessive absent manifest abuse of the trial judge’s sentencing discretion. State v. Spencer, 374 So.2d 1195 (La.1979); State v. Sepulvado, supra [367 So.2d 762 (La.1979)]. The penalty imposed must be so disproportionate to the crime committed, in light of the harm caused to society, as to shock our sense of justice. State v. Bonanno, 384 So.2d 355 (La.1980); State v. Goode, 380 So.2d 1361 (La.1980).’

State v. Smack, 425 So.2d 737, 740 (La.1983).”

This same ruling is appropriate to the present case. We therefore find that the sentences are not excessive and the sentencing guidelines were fully met. These assignments of error are without merit.

DECREE

For the foregoing reasons the defendant’s convictions and sentences are affirmed.

AFFIRMED.


text:
    STATE of Louisiana, Plaintiff-Appellee, v. Asahel HARVIN, Defendant-Appellant.
    No. CR82-793.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 19, 1983.

      Smith, Ford & Clark, Leesville (Vernon Clark, Leesville, of counsel), for defendant-appellant.
    William E. Tilley, Dist. Atty., Leesville, for plaintiff-appellee.
    Before DOUCET, YELVERTON and KNOLL, JJ.
   DOUCET, Judge.

Roderick Ellis Smartt and Asahel Harvin were indicted by the Vernon Parish Grand Jury for the First Degree Murder of James E. Mancil, in violation of R.S. 14:30(1). The murder occurred on May 19, 1982, while defendants were allegedly attempting to rob James E. Mancil, a taxi driver, while armed with a dangerous weapon. Roderick Smartt, pursuant to a plea agreement, pled guilty to conspiracy to commit armed robbery and accessory after the fact to murder and testified at the trial of Asahel Harvin. Asahel Harvin was found guilty of Second Degree Murder on October 14,1982 and was subsequently sentenced to life in prison at hard labor without benefit of parole, probation, or suspension of sentence.

Defendant appeals assigning the following specifications of error: (1) The verdict of the jury was contrary to the evidence introduced at trial; (2) The trial court erred in admitting certain photographs into evidence inasmuch as their probative value was outweighted by their prejudicial effect and an insufficient foundation was laid for introduction of said evidence; (3) The trial court erred in allowing into evidence a photocopy of the taxi company dispatch sheet in violation of the best evidence rule; and (4) The trial court erred in allowing testimony as to inculpatory statements of the defendant where improper notice was given of the prosecution’s intention to use same.

With respect to defendant’s contention that the jury’s verdict was not supported by the evidence, it is argued, inter alia, that the facts indicate Roderick Smartt perpetrated this crime. The critical inquiry when reviewing such a sufficiency of evidence claim is to determine whether the record evidence could reasonably support a finding of guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The relevant question is whether, after 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 beyond a reasonable doubt. Jackson v. Virginia, supra; State v. Crawford, 403 So.2d 1221 (La.1981); State v. Lemoine, 403 So.2d 1230 (La.1981); State v. Mathews, 375 So.2d 1165 (La.1979); State v. Abercrombie, 375 So.2d 1170 (La.1979). The same standard applies whether the case be one of direct or direct and circumstantial evidence. State v. Washington, 421 So.2d 887 (La.1982). When there is conflicting testimony as to factual matters, evaluation of the credibility of the witnesses is within the sound discretion of the trier of fact and his determinations will not be disturbed unless clearly contrary to the evidence. State v. Klar, 400 So.2d 610 (La.1981).

Roderick Smartt testified that both he and the defendant had conspired at different times to commit a robbery. Smartt stated that the defendant was desirous of seeking funds to return to his home in New York and suggested that the two rob a cab driver. The evidence is conflicting as to who placed the call requesting a cab, however, the record indicates that two calls were made on the evening of May 19, 1982, requesting a taxi at Ellias Trailer Park. The second call was made requesting a cab at a neighboring trailer after the two realized they would be suspected if the taxi picked them up at the trailer where they had been all day. Smartt testified that upon the cab’s arrival the defendant sat in the back seat while he (Smartt) sat in the front seat. Both were armed with guns however Smartt claims his was not loaded. Halfway between departure and the place designated as their destiny, the defendant ordered James Mancil to stop the car. According to Smartt, the defendant then shot the driver once in the neck. Smartt and Harvin panicked and fled the scene on foot without completing their planned robbery.

The victim lived a short while thereafter and attempted to drive in search of aid. The vehicle was discovered in a ditch, in a direction opposite of the assailants’ assigned destiny. James Mancil was dead. Dr. George McCormick would subsequently testify at trial that it was possible the victim could have lived 15-20 minutes after infliction of the gunshot wound.

Ms. Angela Johnson testified that the defendant, in the presence of her mother and herself, subsequently confessed to committing the murder of the taxi driver.

Viewing the evidence in a light most favorable to the prosecution, we find that the jury’s responsive verdict was justified by direct and circumstantial evidence.

Appellant submits that certain photographs were gruesome and inflammatory in nature such that their prejudicial effect outweighs their probative value. One photo, labeled S-3, depicts the victim inside the vehicle with blood on his chest and abdomen. It was introduced to show the actual scene of the crime when discovered. The photographs marked S-5 and S-6 depict the victim in the sterile confines of the autopsy room, showing the entry and exit wounds, respectively, and the resultant blood. The standard for determining the admissibility of such pictures was set forth in State v. Boyer, 406 So.2d 143 (La.1981) as follows: “The test for admissibility of allegedly gruesome photographs is whether their probative value outweighs any prejudicial effect. A trial court’s ruling in this regard will only be disturbed if the prejudicial effect of the photographs clearly outweighs the probative value. State v. Landry, 388 So.2d 699 (La.1980); State v. Unger, 362 So.2d 1095 (La.1978); State v. Bryant, 351 So.2d 1188 (La.1977). Photographs are generally admissible if they illustrate any fact, shed any light upon an issue in the case, or are relevant to describe the person, thing or place depicted. State v. Valentine, 364 So.2d 595 (La.1978).” See also: State v. Lindsey, 404 So.2d 466 (La.1981). The photos in the present case illustrate and corroborate the testimony of other witnesses. They are material, relevant' and probative. They shed light on relevant issues. The trial judge’s ruling in this regard will not be disturbed.

The appellant also contends that there was no foundation laid for the introduction of the aforementioned photographs inasmuch as it was not shown that the pictures were maintained in the proper care and custody of law enforcement officials. The record, however, indicates that the foundation for introduction of the photos was indeed properly laid. The photographs were taken by Vernon Parish Sheriff’s deputies at the scene of the crime and thereafter at the Sheriff’s Office and the scene of the autopsy. The photographs were introduced after either the photographer and/or an identifying witness testified that the photographs were taken in their presence and that they fairly and accurately depicted the scene as viewed by the witnesses. The photographer’s identification of each photo is not always required. State v. Lindsey, supra. The assignment of error lacks merit.

The trial court allowed into evidence a photocopy of the dispatch sheet of Red Diamond Cab Co. The dispatch sheet was for Cab No. 2, the one driven by James Mancil on the evening of his death. Appellant contends that the admission of the photocopy was improper where it was not shown the original was unavailable, citing in support thereof State v. Perniciaro, 374 So.2d 1244 (La.1979). The dispatcher on duty, Barbara Sue Hollis, testified that she made the entries that evening on the dispatch sheet and that the copy accurately reflected the original she had prepared. The defendant was afforded his constitutional right to confront and cross-examine the witness testifying against him. The photocopy of the dispatch sheet merely corroborated the testimony of Ms. Hollis. Furthermore, where the document offered into evidence is a mechanical reproduction of the original and therefore the substantial equivalent of the original, its admission into evidence does not constitute reversible error as violating the best evidence rule absent a showing that the content of the copy did not accurately reflect that of the original. State v. Stuart, 344 So.2d 1006 (La.1977).

Lastly, appellant contends that insufficient notice of the prosecution’s intention to introduce inculpatory statements had been granted. Unless the defendant has been granted pre-trial discovery, if the state intends to introduce a confession or inculpatory statement, it is required to so advise the defendant in writing prior to the state’s opening statement. C.Cr.P. Art. 768. Appellant does not claim lack of notice but rather challenges the sufficiency of notice given. In response to pretrial discovery motions filed by the defendant, the state filed an answer on Sept. 21, 1981, and two supplemental answers on Sept. 29,1982 and Sept. 30, 1982. The first supplemental answer informed the defendant of certain oral statements made by the defendant approximately two to three days after May 19,1982 to Michael Price and Leslie Blevins in Michael Price’s automobile. Appellant fails to set forth where in the notice lies the alleged ambiguity complained of. We find the state’s notice to be clear and sufficient. The assignment of error lacks merit.

For the reasons set forth hereinabove, the conviction appealed is affirmed.

AFFIRMED.


text:
    STATE of Louisiana, Plaintiff-Appellee, v. Fred Anthony SONNIER, Defendant-Appellant.
    No. CR82-797.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 19, 1983.
    Hardy M. Parkerson, Lake Charles, for defendant-appellant.

      Leonard K. Knapp, Jr., Dist. Atty., and Karen Price, Asst. Dist. Atty., Lake Charles, for plaintiff-appellee.
    Before DOUCET, YELVERTON and KNOLL, JJ.
   KNOLL, Judge.

This appeal concerns a hearing to revoke probation. On June 30, 1980, the defendant, Fred Anthony Sonnier, pleaded guilty in the Fourteenth Judicial District Court to two counts of simple burglary. The trial judge imposed a sentence of two concurrent three-year terms with the Louisiana Department of Corrections. The sentences were suspended and the defendant was placed on supervised probation for three years, subject to the general conditions of LSA-C.Cr.P. Art. 895 and other specially enumerated conditions.

On October 13, 1982, the defendant was convicted by a jury in the Fourteenth Judicial District Court of simple burglary, a violation of LSA-R.S. 14:62. He was remanded for sentencing on October 29, 1982. The last conviction violated the conditions of his probation which necessitated a probation violation hearing. The trial judge appointed an attorney to represent the defendant at the hearing which was fixed for the same date as sentencing.

The court sentenced the defendant to serve twelve years with the Department of Corrections. At sentencing, the defendant appeared with his attorney who represented him during his last trial and his court appointed attorney for the probation revocation hearing. Immediately after he was sentenced, the trial judge went into the probation revocation hearing which was short and informal. The court noted that the defendant’s latest offense occurred while he was on probation and further, that the defendant pleaded guilty to the 1980 offenses.

After establishing these facts the trial judge revoked the defendant’s probation and ordered him to serve the first sentence which had been probated consecutive to the twelve years he had just imposed.

The defendant objected to the probation revocation on the grounds that he was not given a hearing, and orally moved for an appeal. From this objection the defendant has alleged five assignments of error. All of the assignments of error are related except number three, therefore we will treat numbers one, two, four and five together, and number three separately. The defendant alleges that:

1. The trial court erred in revoking the defendant’s probation without allowing his counsel a chance to participate in the proceedings.
2. The trial court erred in revoking the defendant’s probation without affording him the right to counsel.
3. The trial court erred in addressing the defendant directly at what was the only hearing he had, without advising him of his right to remain silent.
4. The trial court erred in appointing counsel to represent defendant at a probation revocation hearing, and when counsel had appeared and announced that he denied the probation violation allegations and requested a hearing, then summarily addressing the defendant and eliciting questions from him and then summarily ordering his probation revoked.
5. The trial court erred in disregarding counsel’s request for a hearing on the probation revocation charge.

ASSIGNMENTS OF ERROR ONE, TWO, FOUR AND FIVE

The defendant alleges that his probation was improperly revoked by: not allowing the defendant’s counsel to participate in the proceedings; not affording the defendant the right to counsel; addressing the defendant and summarily revoking his probation and, disregarding counsel’s request for a hearing.

It is apparent that the basis for the defendant’s violation of probation was his involvement in criminal activity. As a result of his criminal activity he was convicted on October 13, 1982 of simple burglary. This was in direct contravention of his condition of probation as set forth in LSA-C.Cr.P. Art. 895. This article specifically provides, among other things, that:

“A. When the court suspends the imposition or execution of sentence and places a defendant on probation, it shall require the defendant to refrain from criminal conduct and it may impose any specific conditions reasonably related to his rehabilitation, including any of the following:

When a defendant violates a condition of his probation he is subject to having his probation revoked. The hearing for a probation revocation is a simple and uncomplicated proceeding. See LSA-C.Cr.P. Art. 900. The hearings on probation revocations may be informal and summary as long as the minimum requirements of due process are met. Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (U.S.1973).

Turning to the defendant’s allegations, we find that the record clearly shows that the defendant was represented by counsel at the hearing. The record is void of any evidence that prohibited the defendant’s counsel from participating in the proceedings. The trial judge was within his province in addressing the defendant. Counsel’s request for another hearing would have been repetitious and.is not required. The trial judge first determined that the defendant violated a condition of his probation before the probation was revoked, as provided by Article 900. We do not find that the record supports any of the defendant’s allegations.

Immediately before the probation hearing, the trial judge imposed a twelve year sentence on the defendant for a simple burglary conviction. The trial court may rely on the court record of a criminal prosecution to establish a criminal conviction and to use this information to show a violation of probation. State v. Harris, 312 So.2d 643 (La.1975); State v. O’Conner, 312 So.2d 645 (La.1975).

We therefore find that these assignments of error are without merit.

ASSIGNMENT OF ERROR THREE

The defendant complains that he was questioned by the trial court without first being advised that he had a right to remain silent.

There are critical differences between criminal trials and probation revocation hearings. Formal procedures and rules of evidence are not employed in revocation hearings. LSA-C.Cr.P. Art. 900; Gagnon, supra.

Further, the “Miranda” rule has not been extended to probation hearings. State v. Lassai, 366 So.2d 1389 (La.1978); United States v. Johnson, 455 F.2d 932 (5th Cir. 1972), cert. denied 409 U.S. 856, 93 S.Ct. 136, 34 L.Ed.2d 101 (1972).

Therefore defendant’s assignment of error number three is without merit.

DECREE

For the reasons assigned we affirm the order of October 29, 1982 revoking the probation of the defendant, Fred Anthony Son-nier, and ordering the execution of the sentences of June 30, 1980.

AFFIRMED.


text:
    STATE of Louisiana, Plaintiff-Appellee, v. Arnold M. TOUSSAND, Defendant-Appellant.
    No. CR82-806.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 19, 1983.

      Gray, Clemons & Spruel, Lake Charles (M. Joy Clemons, Lake Charles, of counsel), for defendant-appellant.
    Leonard K. Knapp, Jr., Dist. Atty. and Robert Bryant, Asst.. Dist. Atty., Lake Charles, for plaintiff-appellee.
    Before DOÜCET, YELVERTON and KNOLL, JJ.
   KNOLL, Judge.

The sole issue on appeal is whether the trial judge erred in denying defense counsel’s motion to remove a juror who had read a newspaper article which may have been prejudicial to the defendant.

The defendant was indicted by the grand jury for the Fourteenth Judicial District with two counts of aggravated rape in violation of LSA-R.S. 14:42. Prior to trial the State severed the two counts. After the jury was impaneled and the alternate jurors had been selected, the trial judge instructed them not to discuss the case, nor to read the newspaper or watch television reports pertaining to the trial.

The newspaper article in question appeared in the Lake Charles American Press the morning after jury selection was completed. At the request of defense counsel all jurors were polled to find out if any of them had read the newspaper article. One juror acknowledged that he had read the article. The juror was then questioned in camera by the trial judge, the State, and defense counsel, to determine if the newspaper article had influenced his opinion of the case. We are not apprised of the contents of the article since it was not introduced into evidence and made a part of the record.

The trial court determined that the juror was not influenced by the newspaper article and that he would be fair and impartial. The defendant objected to the court’s ruling and reserved this assignment of error.

The defendant contends that the trial judge should have replaced the juror with an alternate juror since the original juror read the newspaper article. We find that the record does not support the defendant’s argument. Once a juror has been selected it is expected that he will serve unless death, illness or other causes render him unfit or disqualified to perform his duty. State v. Square, 257 La. 743, 244 So.2d 200 (1971), vacated on other grounds, 408 U.S. 938, 92 S.Ct. 2871, 33 L.Ed.2d 760. Although the juror read the newspaper article, this in itself is not grounds for disqualifying him. It would have to be shown that the article influenced him and prevented him from being a fair and impartial juror. We note of particular importance, as did the trial judge in his per curiam, that at the conclusion of the trial the jury was not polled as provided by LSA-C.Cr.P. Art. 812. A verdict for conviction of aggravated rape requires a 10-2 vote therefore, it is mere speculation as to how the juror who read the article cast his verdict.

In questioning the juror, the trial court determined that although the juror had read the article, he was firm in his repeated assertions that the article had not prejudiced him against the defendant. The juror was unable to remember most of the article. Much of what he did remember was a synopsis of the testimony from the previous day. The article did not contain new information about the defendant. The juror was repeatedly questioned about any prejudice or influence that he would have felt as a result of reading the article. He answered consistently and candidly that he was not influenced nor prejudiced by the article. •

All of the evidence indicates that in spite of the juror reading the newspaper article he was not influenced by it. The record presents nothing to justify disqualification of the juror. In order to justify a reversal of a conviction, injury and prejudice must be shown. State v. Snowden, 198 La. 1076, 5 So.2d 355 (1941). In the absence of such proof the trial judge was correct in not removing the juror. State v. Hoffman, 120 La. 949, 45 So. 951 (La.1908).

This assignment of error is without merit.

DECREE

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

AFFIRMED.


author: YELVERTON, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Harry Lee ALEXANDER, Defendant-Appellant.
    No. CR82-845.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 19, 1983.

      Hannah, Cook & Kaufman, (Hank Hannah, Lafayette, of counsel), Lafayette, for defendant-appellant.
    Michelle Jackson, Carrol Spell, Jr. and Robin Rhodes, Asst. Dist. Attys., Lafayette, for plaintiff-appellee.
    Before DOUCET, YELVERTON and KNOLL, JJ.
   YELVERTON, Judge.

Defendant, Harry Lee Alexander, was convicted of aggravated rape (LSA-R.S. 14:42), attempted second degree murder (LSA-R.S. 14:27, 14:30.1) and aggravated burglary (LSA-R.S. 14:60). The convictions arose out of a single course of criminal activity perpetrated upon one victim during the early morning hours of February 14, 1982. He was sentenced to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence for the aggravated rape; fifty years at hard labor for the attempted second degree murder; and thirty years at hard labor for the aggravated burglary. The sentences were ordered to be served consecutively.

By this appeal defendant challenges only his conviction for aggravated rape. Although he perfected four assignments of error in the lower court, defendant has chosen to argue only one of those assignments —viz, the State failed in its burden of proving every element of the crime of aggravated rape. Assignments of error neither briefed nor argued are considered abandoned, and we will, therefore, consider only the assignment defendant has chosen to pursue upon this appeal. State v. Lewis, 416 So.2d 921 (La.1982); State v. Frith, 412 So.2d 1000 (La.1982); Rule 2, Section 12.4, Uniform Rules of the Courts of Appeal.

FACTS

On Sunday, February 14,1982, at approximately 6:30 A.M., the 22 year old female victim returned alone to her apartment in Lafayette, following an evening spent celebrating her visiting sister’s birthday. The two women had become separated during the evening but were to meet at the victim’s apartment.

After entering her apartment the victim closed the door but left it unlocked for her sister’s anticipated return. As she was walking across her living room floor, a man entered and attacked her from behind. The victim was beaten and choked until she lost consciousness.

When she regained consciousness the victim was alone and lying on the floor. Most of her clothing — shoes, stocking, skirt, vest, earrings and panties — had been removed and were scattered on the floor, as was a tampon which she had been using. Her body was bruised and covered with blood and she had several lacerations on her face. There were scattered patches of blood on the carpet, drapes, sofa and throughout the living room. Shortly after she regained consciousness the. battered victim was standing unsteadily in her doorway when her sister returned and discovered her.

The victim was taken to the hospital. There it was found that her attacker had administered a large bite mark on one of her buttocks. A rape kit was performed approximately an hour after the attack. This failed to reveal the presence of sperm relative to the victim’s body although a trace amount of semen was found on her slip. Pubic combings failed to reveal any foreign hairs or substances on the victim. A large piece of carpet (6' X 4') was removed from the attack area and analyzed by the criminal lab. No evidence was discovered from this.

The victim testified she had no idea as to whether or not she had been raped during her period of unconsciousness. The examining physician testified he was unable to determine whether or not there had been any sexual penetration.

ASSIGNMENT OF ERROR

The single assignment of error is that the State has failed in its burden of proving every element of the crime of aggravated rape. We agree.

It is well-established that the burden of proving beyond a reasonable doubt every element of the crime charged rests solely with the State, which must affirmatively meet its burden. LSA-Const. art. I, Sec. 16; LSA-R.S. 15:271; State v. Prestridge, 399 So.2d 564 (La.1981); State v. Searle, 339 So.2d 1194 (La.1976). Moreover, when the State has only circumstantial evidence as proof of the necessary elements, it is subject to a stricter standard of proof than if there were direct evidence. The circumstantial evidence rule requires that the evidence presented by the State “must exclude every reasonable hypothesis of innocence.” LSA-R.S. 15:438.

The elements of the crime of rape include sexual intercourse, which requires proof of sexual penetration, vaginal or anal, however slight. LSA-R.S. 14:41.

The evidence of a rape in the instant case is circumstantial only. The State conceded as much in its argument to the jury. There is no direct evidence establishing that sexual penetration, no matter how slight, ever occurred. The only facts presented by the State in support of its contention of penetration are that the victim’s clothes had been removed, that she had suffered a bite on her buttocks, that her tampon had been removed, and that a trace amount of semen was found on the victim’s slip, which she was still wearing after the attack.

Although it is apparent that the jury concluded that the defendant had removed the victim’s tampon for the purpose of raping her, there is no evidence supporting the required element of proof of actual sexual penetration, no matter how slight. See State v. Prestridge, supra.

The lack of any medical or physical evidence tending to show penetration and the unfortunate circumstance that the victim was senseless during and after the removal of her clothing and unable to testify as to whether she had been raped necessitates a reversal of defendant’s conviction for aggravated rape. The prosecution failed to prove the necessary element of sexual penetration beyond a reasonable doubt and did not, therefore, exclude every reasonable hypothesis of innocence as to an aggravated rape.

For the foregoing reasons, we reverse and set aside defendant’s conviction for aggravated rape. However, pursuant to recently established jurisprudence, defendant is not entitled to be discharged or to receive a new trial on this matter, as we find that attempted aggravated rape, a lesser included offense, was necessarily found in this case by the jury. State v. Parish, 405 So.2d 1080 (La.1981) (On rehearing). Also, see State v. Byrd, 385 So.2d 248 (La.1980), and LSA-R.S. 14:5.

The conviction and sentence for aggravated rape are reversed and the case is remanded with instructions to enter a judgment of conviction of attempted aggravated rape and to impose a sentence for that crime.

CONVICTION OF AGGRAVATED RAPE SET ASIDE; SUBSTITUTION OF ATTEMPTED AGGRAVATED RAPE CONVICTION ORDERED; REMANDED.


text:
    STATE of Louisiana, Plaintiff-Appellee, v. Steve BROCKINGTON, Defendant-Appellant.
    No. CR83-21.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 19, 1983.
    John Larry Yidrine, Ville Platte, for defendant-appellant.
    A. Bruce Rozas, Asst. Dist. Atty., Ville Platte, for plaintiff-appellee.
    Before DOUCET, YELVERTON and KNOLL, JJ.
   DOUCET, Judge.

Melton Lee Gallow died shortly after being shot three times, with a .22 caliber pistol, by Steve Brockington on April 8, 1982 in Ville Platte, Louisiana. Brocking-ton was subsequently indicted by grand jury, charged with Second Degree Murder pursuant to R.S. 14:30.1. At trial, defendant asserted he acted in self-defense. The jury rejected the defense and returned a unanimous verdict of guilty as charged. Defendant appeals, assigning as error that the verdict of the jury is inconsistent with the law and evidence as presented at trial. We affirm.

There are three principal individuals in this case: the defendant, the decedent and a woman named Phyllis Frank. Melton Gallow, a/k/a Mickey Gallow, began living with Phyllis Frank on or about Thanksgiving Day of 1980. This relationship lasted approximately six to eight months until a dispute arose and the couple parted ways. Thereafter, Phyllis Frank met the defendant herein, Steve Brockington, in the latter part of October of 1981, and they began living together two months later. Prior to this alliance, Gallow still considered Phyllis Frank to be “his woman” and he demonstrated this possessiveness in November of 1981 when he forcibly entered Phyllis Frank’s apartment and proceeded to threaten the life of and inflict a brutal beating upon Steve Brockington. Brockington fled the apartment and Gallow followed him into the street. The police quickly arrived and broke up the disturbance but made no arrests. In March of 1982, while Brocking-ton and Frank were living together, the defendant left Ville Platte, traveling to Dallas to get a divorce from his second wife. Upon return, approximately three weeks prior to the fatal shooting, the defendant suspected Phyllis and the decedent had reunited and an argument ensued which resulted in their separation. Subsequently, Phyllis resumed seeing Mickey Gal-low.

On April 8, 1982 Phyllis Frank, accompanied by an acquaintance, Isaac Gallow, whom she met through the defendant, went to Joe’s Happy Landing, a lounge, on Dr. Carver Street in Ville Platte. At the nightclub, Isaac and Phyllis met some friends and discussed going to Eunice, Louisiana. The defendant approached Isaac and Phyllis and inquired about a receipt for a bill that the latter had paid a finance company on Broekington’s behalf. Phyllis informed the defendant that she was planning to depart and they would have to discuss the matter later. She proceeded to exit the lounge and defendant followed. An argument ensued outside whereupon the two exchanged physical blows approximately 145 feet down the street from the lounge. At this point, the versions of the facts vary.

The defendant contends that during his struggle with Phyllis Frank, Mickey Gallow came up on him from behind armed with a knife. He turned around as Gallow approached threatening him and pulled a gun from his back pocket and proceeded to shoot Gallow three, possibly four times from a distance of five feet.

According to Phyllis Frank, Mickey Gal-low had calmly approached the fighting couple and interjected that the police were coming and pleaded with the defendant to leave Phyllis alone whereupon Brockington turned and fired three shots at Gallow. At no time did Phyllis recall Gallow having any weapon whatsoever. With each shot Gal-low retreated, finally seeking cover underneath a nearby car where he was joined by Phyllis Frank. Thereafter, the defendant shot twice underneath the car, missing both Gallow and Frank. The defendant fled the scene. Frank’s version of the incident was corroborated by Sherry Ann Adams who witnessed the shooting from a ways down the street. Winnie Simon testified similarly-

Officer Joseph Toussant of the Ville Platte Police Department, while patrolling the area known as “The Front”, discovered Mickey Gallow underneath the car. Officer Toussant notified headquarters of the shooting, which dispatched additional units. Gallow died before medical help arrived.

The defendant was apprehended the same evening at the home of his former in-laws, where the revolver used in the shooting was also retrieved.

Dr. George McCormick, forensic pathologist, performed an autopsy on Gallow’s body on April 9,1982. He found the victim had been shot three times: in the left chest, the right upper arm, and right forearm. Additionally, there was a fourth traumatic injury of unknown origin consisting of a laceration of the first finger of the right hand described as a “defense wound” by Dr. McCormick. In the course of preparing the body for the autopsy, Dr. McCormick discovered a folding buck knife, 4½ inches long, between the buttocks of the deceased who was clad only in boxer shorts at the time Dr. McCormick received the corpse. No blood was found on the knife. Dr. McCormick theorized that, if the knife had been placed between Gallow’s buttocks after the shooting, blood would have appeared on the knife. The body’s state of rigor mortis was the reason the knife had not fallen earlier. Phyllis Frank testified that the decedent wore tight jeans, thereby explaining the knife’s suspended location.

David Epstein, a forensic chemist at Aca-diana Crime Lab, testified that the bullets retrieved from the body corresponded with the revolver seized by the police at the time of defendant’s arrest.

At the conclusion of the trial the jury found defendant guilty of second degree murder and he was subsequently sentenced to life imprisonment without benefit of parole. On appeal defendant alleges the verdict of the jury is contrary to the law and evidence presented at trial.

Second degree murder is the killing of a human being: (1) when the offender has a specific intent to kill or to inflict great bodily harm; or (2) when the offender is engaged in the perpetration or attempted perpetration of aggravated rape, aggravated arson, aggravated burglary, aggravated kidnapping, aggravated escape, armed robbery, or simple robbery, even though he has no intent to kill or to inflict great bodily harm. La.R.S. 14:30.1.

The Due Process Clause of the Fourteenth Amendment to the United States Constitution protects a defendant in a criminal case against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). The critical inquiry when reviewing the sufficiency of evidence is to determine whether the record evidence could reasonably support a finding of guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). “The relevant question is whether, after 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 beyond a reasonable doubt.” Jackson v. Virginia, supra at 2789.

The Jackson standard of factual review of sufficiency of the evidence applies in Louisiana. State v. Mathews, 375 So.2d 1165 (La.1979) and State v. Abercrombie, 375 So.2d 1170 (La.1979). See also: State v. Shapiro, 431 So.2d 372 (La.1983).

Where self-defense is claimed by the defendant, the State has the burden of proving beyond a reasonable doubt that a homicide was not perpetrated in self-defense. State v. Savoy, 418 So.2d 547 (La.1982); State v. Collins, 306 So.2d 662 (La.1975); State v. Patterson, 295 So.2d 792 (La.1974); State v. Sharp, 338 So.2d 654 (La.1976). A homicide is justified as self-defense only if a person using such force reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that deadly force is necessary to save his life. State v. Guinn, 319 So.2d 407 (La.1975).

An aggressor or one who brings on difficulty, as a general rule, cannot claim the right of self-defense unless he withdraws from the conflict in good faith and indicates his intention of abandoning the difficulty. State v. Stroud, 198 La. 841, 5 So.2d 125 (1941); State v. Leslie, 167 La. 967, 120 So. 614 (1929); La.R.S. 14:21. Where doubts exist as to whether the accused was an aggressor, the possibility of retreat is only one of many factors for the jury to consider in determining whether the defendant has a reasonable belief that the killing was necessary. State v. Collins, 306 So.2d 662 (La.1975). Factors to be considered in determining whether the party attacked had a reasonable belief that it was necessary to kill are the excitement and confusion of the occasion, the possibility of using force or violence less than killing, and the party’s knowledge of his assailant’s bad character. Reporter’s Comment to La.R.S. 14:20.

In a case similar to the present, the Louisiana Supreme Court held that the numerous stab wounds sustained by the victim furnished adequate evidence to support a finding of specific intent to kill required to sustain a conviction for second degree murder. State v. Carney, 319 So.2d 400 (La.1975). Here, the defendant shot the victim three times. Viewing the evidence in a light most favorable to the prosecution, the victim was not armed and he retreated after the first shot. Continued use of deadly force was no longer necessary if indeed it ever had been. Nevertheless, the defendant continued firing. In fact, even after Gallow and Frank sought cover underneath the car, Brockington pursued them, firing two additional shots. Furthermore, even if the defendant was not the aggressor with respect to Gallow, he did bring about the difficulty with his altercation with Frank. We find the evidence supports the jury’s verdict.

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

AFFIRMED.


author: LABORDE, Judge.

text:
    Roy J. PIPER, Plaintiff-Appellee, v. CENTRAL LOUISIANA ELECTRIC COMPANY, et al., Defendants-Appellants.
    No. 83-493.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 20, 1983.

      Robert H. Schmolke, Baton Rouge for plaintiff-appellee.
    Provosty, Sadler & deLaunay, Albin A. Provosty, Trimble, Randow, Percy, Wilson & Foote, James T. Trimble, Jr. and Alonzo P. Wilson, Alexandria, Patrick J. Briney, Lafayette, for defendants-appellants.
    Stafford, Stewart & Potter, Grove Stafford, Jr., Watson, Murchison, Crews, Arthur & Corkern, William P. Crews, Jr., Natchi-toches, Gist, Methvin, Hughes & Munster-man, John Munsterman, Alexandria, for defendant-appellee.
    Before GUIDRY, STOKER and LA-BORDE, JJ.
   LABORDE, Judge.

MOTION TO DISMISS

The third party defendant-appellee, Insured Lloyds, moves to dismiss the appeal of the third party defendant-appellant, Buford Perron d/b/a Perron Insurance Agency, Inc., on the grounds that Perron is not a party and that the judgment is final.

Lloyds issued a Manufacturer’s and Contractor’s Liability Policy naming Evangeline Cable Television, Inc. (Evangeline) as the insured for a period from August 28, 1980, to August 28, 1981. Perron was the insurance agent representing Evangeline in procuring the policy of insurance from Lloyds.

Donald H. Bradley and Roy J. Piper allegedly received electrocution injuries while placing or removing cable television lines belonging to Evangeline on utility poles belonging to Central Louisiana Electric Company, Inc., (CLECO). Evangeline and CLECO entered into a Pole Rental Agreement Contract on October 24, 1978. Said contract entitled Evangeline to use certain utility poles belonging to CLECO and included an indemnification and hold harmless agreement.

Piper and Bradley instituted this action against CLECO claiming that a crossarm was defective and that CLECO was liable for their injuries. CLECO filed a third party demand against Evangeline and Lloyds seeking reimbursement under the indemnification clause of the Pole Rental Agreement Contract. Lloyds answered the third party demand filed by CLECO denying coverage for contractual assumed liability. Evangeline filed a separate third party demand against Lloyds seeking to obtain contractual liability coverage for the indemnification. Lloyds answered the third party demand filed by Evangeline denying coverage under the Manufacturer’s and Contractor’s Liability policy issued by Lloyds. Evangeline further filed a separate third party claim against Perron alleging that if Lloyds is not liable, then Perron is liable for failing to insure that such coverage was placed.

Lloyds filed a Motion for Summary Judgment against CLECO and Evangeline seeking dismissal of their third party demands. On October 1,1982, the trial court dismissed the third party demands of Evangeline and CLECO against Lloyds. Neither CLECO nor Evangeline took an appeal of the trial court’s judgment. Perron devolutively appealed said judgment.

Lloyds filed a motion to dismiss this appeal contending that the judgment was final and conclusive, therefore nonappealable. Lloyds argues that the judgment was an incidental action between Lloyds, Evangeline and CLECO only. Further, Lloyds argues that since Evangeline and CLECO did not appeal that the judgment is final and that it should be dismissed as a party to this appeal. We disagree.

A person who could have intervened in the trial court may appeal, whether or not any other appeal has been taken. LSA C.C.P. Art. 2086. The sole object of an appeal is to give an aggrieved party to a suit recourse to a superior tribunal for the correction of a judgment of an inferior court, and such right is extended not only to the parties to the suit in which the judgment is rendered, but also to a third-party when such party is allegedly aggrieved by the judgment. Any one aggrieved by the judgment of a trial court has the right to appeal, unless he has acquiesced therein, or is otherwise deprived of that remedy. Emmons v. Agricultural Insurance Company, 245 La. 411, 158 So.2d 594 (1963).

In the present matter, Evangeline filed a third party demand against Perron alleging that if Lloyds is not liable then Perron is liable. It is evident that Perron has an interest in the trial court’s dismissal of Evangeline’s third party demand against Lloyds.

For the foregoing reasons, the motion to dismiss is denied at mover’s, Insured Lloyds, costs.

MOTION DENIED.


text:
    Donald H. BRADLEY, Plaintiff-Appellee, v. CENTRAL LOUISIANA ELECTRIC COMPANY, INC., Defendants-Appellants.
    No. 83-494.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 27, 1983.

      Robert H. Schmolke, Baton Rouge, for plaintiff-appellee.
    Provosty, Sadler & deLaunay, Albin A. Provosty, Trimble, Randow, Percy, Wilson & Foote, James T. Trimble, Jr. and Lon P. Wilson, Alexandria, Patrick J. Brine, Lafayette, for defendants-appellants.
    Stafford, Stewart & Potter, Grove Stafford, Jr., Alexandria, Watson, Murchison, Crews, Arthur & Corkern, William P. Crews, Natchitoches, Gist, Methvin, Hughes & Munsterman, John Munsterman, Alexandria, for defendant-appellee.
    Before GUIDRY, STOKER and LA-BORDE, JJ.
   LABORDE, Judge.

MOTION TO DISMISS

The third party defendant-appellee, Insured Lloyds, moves to dismiss the appeal of the third party defendant-appellant, Buford Perron d/b/a Perron Insurance Agency, Inc., on the grounds that Perron is not a party and that the judgment is final.

Lloyds issued a Manufacturer’s and Contractor’s Liability Policy naming Evangeline Cable Television, Inc. (Evangeline) as the insured for a period from August 28, 1980, to August 28, 1981. Perron was the insurance agent representing Evangeline in procuring the policy' of insurance from Lloyds.

Donald H. Bradley and Roy J. Piper allegedly received electrocution injuries while placing or removing cable television lines belonging to Evangeline on utility poles belonging to Central Louisiana Electric Company, Inc., (CLECO). Evangeline and CLECO entered into a Pole Rental Agreement Contract on October 24, 1978. Said contract entitled Evangeline to use certain utility poles belonging to CLECO and included an indemnification and hold harmless agreement.

Piper and Bradley instituted this action against CLECO claiming that a crossarm was defective and that CLECO was liable for their injuries. CLECO filed a third party demand against Evangeline and Lloyds seeking reimbursement under the indemnification clause of the Pole Rental Agreement Contract. Lloyds answered the third party demand filed by CLECO denying coverage for contractual assumed liability. Evangeline filed a separate third party demand against Lloyds seeking to obtain contractual liability coverage for the indemnification. Lloyds answered the third party demand filed by Evangeline denying coverage under the Manufacturer’s and Contractor’s Liability policy issued by Lloyds. Evangeline further filed a separate third party claim against Perron alleging that if Lloyds is not liable, then Perron is liable for failing to insure that such coverage was placed.

Lloyds filed a Motion for Summary Judgment against CLECO and Evangeline seeking dismissal of their third party demands. On October 1,1982, the trial court dismissed the third party demands of Evangeline and CLECO against Lloyds. Neither CLECO nor Evangeline took an appeal of the trial court’s judgment. Perron devolutively appealed said judgment.

Lloyds filed a motion to dismiss this appeal contending that the judgment was final and conclusive, therefore nonappealable. Lloyds argues that the judgment was an incidental action between Lloyds, Evangeline and CLECO only. Further, Lloyds argues that since Evangeline and CLECO did not appeal that the judgment is final and that it should be dismissed as a party to this appeal. We disagree.

A person who could have intervened in the trial court may appeal, whether or not any other appeal has been taken. LSA C.C.P. Art. 2086. The sole object of an appeal is to give an aggrieved party to a suit recourse to a superior tribunal for the correction of a judgment of an inferior court, and such right is extended not only to the parties to the suit in which the judgment is rendered, but also to a third party when such party is allegedly aggrieved by the judgment. Any one aggrieved by the judgment of a trial court has the right to appeal, unless he has acquiesced therein, or is otherwise deprived of that remedy. Emmons v. Agricultural Insurance Company, 158 So.2d 594 (La.1963).

In the present matter, Evangeline filed a third party demand against Perron alleging that if Lloyds is not liable then Perron is liable. It is evident that Perron has an interest in the trial court’s dismissal of Evangeline’s third party demand against Lloyds.

For the foregoing reasons, the motion to dismiss is denied at mover’s, Insured Lloyds, costs.

MOTION DENIED.


text:
    Felix “Skeekie” FREELON and Tommy Lee Green v. STATE of Mississippi.
    No. 54460.
    Supreme Court of Mississippi.
    Sept. 21, 1983.
    James P. Vance, Mitchell M. Lundy, Sr., Lundy & Lundy, Grenada, for appellant.
    Bill Allain, Atty. Gen. by Catherine Walker Underwood, Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Grenada County; Clarence E. Morgan, Judge.

Before WALKER, P.J., ROY NOBLE LEE and HAWKINS, JJ.

AFFIRMED.

PATTERSON, C.J., BROOM, P.J., BOWLING, DAN M. LEE, PRATHER and ROBERTSON, JJ., concur.


text:
    Roy TOLBERT v. STATE of Mississippi.
    No. 54509.
    Supreme Court of Mississippi.
    Sept. 21, 1983.
    J. Ronald Parrish, Laurel, for appellant.
    Bill Allain, Atty. Gen. by Walter L. Turner, Sp. Asst. Atty. Gen., Jackson, for appel-lee.
   Appeal from Circuit Court, Jones County; James D. Hester, Judge.

Before WALKER, P.J., ROY NOBLE LEE and HAWKINS, JJ.

AFFIRMED.


text:
    Lee Wilson PEACOCK (Peter) v. STATE of Mississippi.
    No. 53911.
    Supreme Court of Mississippi.
    Sept. 21, 1983.
    A.E. (Gene) Harlow, Grenada, for appellant. ,
    Bill Allain, Atty. Gen. by Billy L. Gore, Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Grenada County; Niles McNeel, Judge.

Before PATTERSON, C.J., and BOWLING and ROBERTSON, JJ.

AFFIRMED.


text:
    Earnest Netter JAMES, a/k/a Earnest James, a/k/a Earnest Netters v. STATE of Mississippi.
    No. 54429.
    Supreme Court of Mississippi.
    Sept. 21, 1983.
    John C. Webb, Greenville, for appellant.
   Appeal from Circuit Court, Washington County; Gray Evans, Judge.

Bill Allain, Atty. Gen. by Catherine Walker Underwood, Asst. Atty. Gen., Jackson, for appellee.

Before PATTERSON, C.J., and BOWLING and ROBERTSON, JJ.

AFFIRMED.

WALKER and BROOM, P.JJ., ROY NOBLE LEE, HAWKINS, DAN M. LEE and PRATHER, JJ., concur.


author: PRATHER, Justice,

text:
    Dome Gregory ALBRIGHT v. Jennie Rene ALBRIGHT.
    No. 54289.
    Supreme Court of Mississippi.
    Sept. 21, 1983.
    Walter W. Teel, Sekul, Hornsby, Wallace & Teel, Biloxi, for appellant.
    Robert E. Farish, Jr., Biloxi, for appellee.
   PRATHER, Justice,

for the Court:

Dome Gregory Albright, father of a nineteen month old son, challenges his son’s custody award to the mother, Jennie Rene Albright, by the Second Judicial District of Harrison County Chancery Court. The chancellor based his decision solely on the presumption that a child of young and tender years should be awarded to the mother and that such presumption had not been rebutted.

I.

Jennie Rene Albright and Dome Gregory Albright were married December 22, 1979. One son, Dome Gregory Albright, Jr. was born on October 31, 1980.

Both parties are enlisted personnel in the United States Air Force.' Dome Albright, age 24 years, is a security policeman, and Jennie Albright, age 23, is a sergeant. Their base pay is the same, except that the husband draws quarters allowance. Although the testimony evidences some disputed facts, both parents have performed parental duties for their son and shared in his support and rearing. The record reflects that, with both parents working, the boy has spent his weekdays with an efficient babysitter at least since seven months of age.

Following the separation of these parents on December 11,1981, this divorce and custody suit was filed. The chancery court awarded a divorce to the wife; however, no error is assigned with reference to that judgment. As to the custody issue, the trial court found that both parties were fit parents, but awarded custody to the mother.

II.

The question before the Court is whether the “tender age rule” in custody awards is violative of the father’s right to equal protection of the law under Fourteenth Amendment to the United States Constitution. However, it is not necessary to reach the United States constitutional question since there is Mississippi statutory law upon which this case can be decided. The applicable statute is Miss.Code Ann. § 93-13-1 (1972) which states in part that “Neither parent has any right paramount to the right of the other parent concerning the custody of the minors.... ”

A history of the development of the “tender years doctrine” is significant. At common law, a father had the absolute proprietary right to the custody of his legitimate minor children, and this right was incorporated into the jurisprudence of our country. Gradually, enlightened attitudes changed from the traditional common law rule of absolute paternal custody to an acknowledgment of maternal preference in custody awards of young children. In some jurisdictions this doctrine has taken the form of a legal evidentiary presumption; while in other jurisdictions, it is expressed as a rule or natural presumption.

In Mississippi jurisprudence the early case of Johns v. Johns, 57 Miss. 530 (1879) established the rule that: “In all cases where any child is of such tender age as to require the mother’s care for its physical welfare it should be awarded to her custody, at least until it reaches that age and maturity where it can be equally well cared for by other persons.”

This principle has been followed in numerous cases since it was first enunciated. Brown v. Brown, 237 Miss. 53, 112 So.2d 556 (1959); Kennedy v. Kennedy, 222 Miss. 469, 76 So.2d 375 (1955); Scott v. Scott, 219 Miss. 614, 69 So.2d 489 (1954); Bland v. Stoudemire, 219 Miss. 526, 69 So.2d 225 (1954); Mitchell v. Mitchell, 218 Miss. 37, 65 So.2d 265 (1953); Kyzar v. Kyzar, 248 Miss. 59, 157 So.2d 770 (1963); Bunkley and Morse’s Amis, Divorce and Separation in Mississippi § 805, p. 217.

These cases refer to this principle as a rule, not a presumption. Cf. Sistrunk v. Sistrunk, 245 So.2d 845 (Miss.1971). However, the rule is not absolute, and where unfitness of the mother is found, then the rule is not applied. Hodum v. Crumpton, 329 So.2d 667 (Miss.1976); Buntyn v. Smallwood, 412 So.2d 236 (Miss.1982).

Notwithstanding the reiteration of this maternal preference rule, our decisions have always stated the cardinal principle to be applied to custody decisions is that which is in the best interests and welfare of the minor child. Brown v. Brown, supra; Buntyn v. Smallwood, supra and the cases cited therein. Even now it is a principle which is weaker than in past years. Cheek v. Rick-er, 431 So.2d 1139 (Miss.1983). “It hardly seems rational that the age of a child should per se lead to any particular result.”

The “tender age doctrine” has been undergoing re-evaluation in recent years. Two states have held that the maternal presumptive favoring mothers in custody cases violates state as well as United States Constitutional guarantees of the Fourteenth Amendment. Watts v. Watts, 77 Misc.2d 178, 350 N.Y.S.2d 285 (1973). The tender years presumption was held an unconstitutional gender-based classification which discriminates between fathers and mothers in child custody cases solely on basis of sex. Devine v. Devine, 398 So.2d 686 (Ala.1981).

However, since Miss.Code Ann. section 93-13-1 (1972) affords us an independent and adequate remedy upon which to base this opinion, we decide it upon state statutory grounds and not federal constitutional ones.

We reaffirm the applicability of section 93-13-1. We are aware that the “tender years” doctrine has undergone a weakening process in many jurisdictions as well as in this state. Cheek v. Ricker, supra. To abandon the rule, however, would discard a factor worthy of weight in determining the best interest of a child in a particular case.

We reaffirm the rule that the polestar consideration in child custody cases is the best interest and welfare of the child. The age of the child is subordinated to that rule and is but one factor to be considered. Age should carry no greater weight than other factors to be considered, such as: health, and sex of the child; a determination of the parent that has had the continuity of care prior to the separation; which has the best parenting skills and which has the willingness and capacity to provide primary child care; the employment of the parent and responsibilities of that employment; physical and mental health and age of the parents; emotional ties of parent and child; moral fitness of parents; the home, school and community record of the child; the preference of the child at the age sufficient to express a preference by law; stability of home environment and employment of each parent, and other factors relevant to the parent-child relationship.

Marital fault should not be used as a sanction in custody awards. Relative financial situations is not controlling since the duty to support is independent of the right to custody. Differences in religion, personal values and lifestyles should not be the sole basis for custody decisions.

III.

Having reviewed the record, the Court is of the opinion that the chancellor applied the standard of best interest and welfare of the child to this custody decision. The proper result was reached even though for the wrong reasoning. We therefore affirm the trial court.

AFFIRMED.

PATTERSON, C.J., WALKER and BROOM, P. JJ., and ROY NOBLE LEE, BOWLING, HAWKINS, DAN M. LEE and ROBERTSON, JJ., concur.


author: HAWKINS, Justice,

text:
    Henry G. MILLS, et al v. DAMSON OIL CORPORATION, et al.
    No. 54349.
    Supreme Court of Mississippi.
    Sept. 21, 1983.

      Charles G. Copeland, Harry E. Neblett, Jr., Heidelberg, Woodliff & Franks, Jackson, for appellants.
    Ed Brunini, Jr., Brunini, Grantham, Grower & Hewes, Jackson, Matthew Harper, Jr., Holifield & Harper, Laurel, Stanford Young, David Slaughter, Waynesboro, for appellees.
    Before PATTERSON, C.J., DAN M. LEE and HAWKINS, JJ., and SUGG, Retired Justice.

      . Sitting pursuant to Section 9-3-6 Miss.Code Ann. (Supp.1982).

   HAWKINS, Justice,

for the Court:

This case comes to us upon certification from the United States Court of Appeals, Fifth Circuit. See Mills, et al., v. Damson Oil Corporation, et al., 686 F.2d 1096 (5th Cir.1982).

Judge Garwood of that Court has written an analytical and detailed opinion. He has simplified involved facts. He has also carefully researched the history of the legal principles involved in this case, which have been of invaluable assistance to us.

We adopt without repetition the statement of facts of the Court of Appeals opinion.

Likewise, we are in full agreement with and cannot improve upon that Court’s analysis of the previous decisions of this Court and the issues involved. No purpose would be served in restating or reiterating them.

QUESTION 1. Whether a defectively acknowledged and recorded deed imparts constructive notice if the defect in the acknowledgement is entirely latent?

This Court’s answer to this question is “yes.”

We recognize there is a division of authority, but we are convinced better reasoning supports the affirmative. See Amsterdam Lumber, Inc. v. Dyksterhouse, 179 Mont. 133, 586 P.2d 705, 711 (1978); Wayne Building and Loan Co. v. Hoover, 12 Ohio St.2d 62, 231 N.E.2d 873 (1967); Citizens National Bank v. Denison, 165 Ohio St. 89, 59 Ohio Ops. 96, 133 N.E.2d 329 (1956); 59 A.L.R.2d, at 1316, and cases cited therein.

QUESTION 3. Whether a married woman, who in 1940 joins her husband in a deed of his separate property which is their homestead and which deed, though reciting that the grantors are husband and wife, does not recite that the property is homestead or the separate property of the husband and does not indicate that her joinder is pro forma or limited to a release of her homestead interest is es-topped to assert an after-acquired title against the grantee in the deed?

Under the facts of this case, the Court’s answer to the question is “no.”

The 1940 mineral deed conveyed a part of homestead property. Without Mrs. Mills signing the deed; it would have been void. Miss.Code Ann. Section 89-1-29 (§ 1778 of 1930 Code); Travis v. Dantzler, 244 Miss. 360, 141 So.2d 556 (1962); Hughes v. Hahn, 209 Miss. 293, 46 So.2d 587 (1950); Yazoo Lumber Co. v. Clark, 95 Miss. 244, 48 So. 516 (1909). Twenty years later, after numerous mineral conveyances, Mrs. Mills was deeded an undivided one-sixteenth (½6) mineral interest. The Damson appellees seek to invoke the doctrine of after-acquired property against her.

As stated in the Court of Appeals opinion, if Mrs. Mills had limited her original conveyance to simply a joinder sufficient to convey her homestead interest, there would have been no basis for application of the doctrine, for the law required her signature to give validity to the deed.

Also, if the conveyance had not covered a homestead interest, an entirely different question would be presented. See Fitzgerald v. Allen, 126 Miss. 678, 89 So. 146 (1921).

The fact that this 1940 mineral conveyance carried a general warranty by both Mills and Mrs. Mills makes no difference in this case. The grantee had actual knowledge this was homestead property at the time of the conveyance, and all subsequent purchasers had constructive knowledge Mrs. Mills could only convey a homestead interest in the 1940 deed as well as of the law that her signature was required to give the deed validity.

We have stated that the doctrine of after-acquired title is “founded upon premises of equitable estoppel.” Buchanan v. Stin-son (1976), 335 So.2d 912 (Miss.1976); Crooker v. Hollingsworth, 210 Miss. 636, 46 So.2d 541 (1950).

The mineral deed in this case was on a form, filled in and prepared by a mineral speculator. He knew at most Mrs. Mills could only convey a homestead interest. It would be grossly unfair and inequitable to hold Mrs. Mills to anything beyond a conveyance of her homestead rights in the minerals in the 1940 deed.

In view of our answers to these questions, the remaining questions certified are inapplicable.

PATTERSON, C.J., WALKER and BROOM, P.JJ., and ROY NOBLE LEE, BOWLING, DAN M. LEE, PRATHER and ROBERTSON, JJ., concur.

      . Appendix A to that opinion suggests Mrs. Sue Bettie Mills may have acquired less than an undivided one-sixteenth (Vis) interest in the 1960 deed to her, but we do not determine the facts.

      .Judge Garwood’s opinion and our answers here will make for much easier reading than any attempt to duplicate them in this Court’s decision.