text:
    Joe BIZET, Plaintiff-Appellant, v. GENERAL ACCIDENT AND INDEMNITY COMPANY, Defendant-Appellee.
    No. 16449-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 1984.
    C. William Gerhardt, Shreveport, for plaintiff-appellant.
    Mayer, Smith & Roberts by Caldwell Roberts, Shreveport, for defendant-appel-lee.
    Before MARVIN, JASPER E. JONES and NORRIS, JJ.
   MARVIN, Judge.

Plaintiff building contractor appeals a judgment rejecting his demands for the $15,000 proceeds of a fire insurance policy and for penalties and attorney fees under LRS 22:658. We affirm.

Plaintiff is an experienced contractor who routinely purchased builder’s risk insurance on his construction and renovation jobs. The premium for such insurance is based on the “average amount of liability during the period of construction” for coverage that is proportionate to the value of the work done by the builder to the value projected at the completion of the work. This insurance protects the builder against loss of that which he has contracted to produce. See Mixon v. St. Paul Fire and Marine Ins. Co., 147 La. 302, 84 So. 790 (1920); Schmieder v. State Farm Fire and Cas. Co., 339 So.2d 390 (La.App. 1st Cir.1976), writ refused, 341 So.2d 895 (La.1977); and Annotation, Builder's Risk Insurance Policy, at 97 A.L.R.3d 1274.

With his widowed mother, his sister, and his brother, plaintiff owned the residence covered by the policy in this action. Plaintiff purchased the policy in August 1980. Plaintiff intended to partially renovate the home for his mother or in prospect of renting the home at a later time. Plaintiffs mother died in March 1981 before the fire occurred. By telephone to his agent, plaintiff specifically “requested” $15,000 of builder’s risk insurance and was charged and paid a premium based on this insurance. The home was valued at $29,000 when he purchased the insurance. Plaintiff testified he had done “some” plumbing and had installed “some” paneling in one room of the home before the fire occurred. Plaintiff did not attempt to prove the value of this work.

Plaintiff’s agent invoiced plaintiff for a “Builders Risk Policy” and attached the “Builders’ Risk Completed Value Form” to a standard fire insurance policy form. Plaintiff contends that because the standard fire policy form was used he should be entitled to the entire proceeds of the policy. Notwithstanding some ambiguity between the builder’s risk endorsement and the standard policy form, we do not agree. Section 1 of the builder’s risk endorsement attached to the policy form restates the “Description of Coverage.” The endorsement also provides in part:

“4. AMOUNT OF INSURANCE CLAUSE: The amount of insurance stated in Item 1 is provisional. It is a condition of this insurance, wherein the rate and premium are based on an average amount of liability during the period of construction, that at any date while this policy is in force, the actual amount of insurance hereunder is that proportion of the provisional amount that the actual value of the described property bears to the value at the date of completion, but shall not in any case exceed the provisional amount.
“In consideration of the reduced rate at which the insurance under item 1 is written, it is a condition of this insurance that in the event of loss, this Company shall be liable for no greater proportion thereof than the provisional amount of insurance under Item 1 bears to the full value of the described property at date of completion.”

When the totality of the policy and endorsements are considered, plaintiff received the builder’s risk coverage, and only that coverage that he bargained for.

Cases have recognized that in certain instances of mistake, error, or even negligence on the part of the agent or employee of an insurer, a policy erroneously issued will be “reformed” to reflect the true intent of the parties. Trahan v. Bailey’s Equipment Rental’s, Inc., 383 So.2d 1072 (La.App. 3d Cir.1980); Billiot v. Sentry Ins., 366 So.2d 1017 (La.App. 1st Cir.1978), writ refused, 368 So.2d 125 (La.1979). The trial court effectively followed this principle and La.CC Art. 1945 by discerning the intent of the parties to determine their respective rights and obligations under the written contract. The court found that the one clear intent of the parties was to purchase and to sell a builder’s risk policy insuring only the value of plaintiff’s anticipated construction. Plaintiff did not prove the value of the work done and the trial court correctly rejected plaintiffs demands for the $15,000 proceeds of the policy which might have been due if plaintiff had completed renovation work valued at this amount.

A trial judge’s finding of fact is entitled to great weight, and will be upheld by an appellate court unless manifestly erroneous. Ellis v. MFA Mut. Ins. Co., 419 So.2d 92 (La.App. 2d Cir.1982), writ denied, 422 So.2d 158; Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). The phrase “manifestly erroneous” means that there is no reasonable basis to support the factual conclusions reached by the trier of fact. Haydel v. Clark, 347 So.2d 1200 (La.App. 1st Cir.1977).

There is more than a reasonable basis to support the factual conclusion reached by the trial court. The facts that we have summarized support the conclusion that plaintiff was not insuring the residence as such, but the value of his work on the residence. The policy endorsement insures the value of plaintiffs work.

At appellant’s cost, judgment is AFFIRMED.


source: Caselaw Access Project

author: NORRIS, Judge.

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Sherman HODGE and Charlie Ray Hodge, Appellants.
    Nos. 16452-KW, 16454-KW.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 1984.
    Writ Denied Nov. 9, 1984.

      Indigent Defendant Office by William T. Giddens, Shreveport, for defendant-appellant, Charlie Ray Hodge.
    Rountree, Hicks & Cox by Dale G. Cox, Shreveport, for defendant-appellant, Sherman Hodge.
    William J. Guste, Jr., Atty. Gen., Paul J. Carmouche, Dist. Atty., A.M. Stroud, III and John Broadwell, Asst. Dist. Attys., Shreveport, for plaintiff-appellee.
    Before HALL, MARVIN and NORRIS, JJ.
   NORRIS, Judge.

Petitioners, Sherman Hodge and Charlie Ray Hodge, both indigents with different appointed counsel, were jointly charged with second-degree murder, LSA-R.S. 14:30.1, on January 26, 1984, in a single indictment. Each petitioner filed a motion to sever. Sherman Hodge also filed motions for appointment of expert assistance, for a reasonable inquiry by the state into the criminal record and reputation of the deceased, for the criminal records of certain eye witnesses to the crime, and for the state to furnish that information to defendant’s counsel. The lower court denied these pre-trial motions. We granted writs to review those rulings and ordered that the matter not be set for trial pending our review. The issues presented for review are: (1) whether the trial court erred in denying the motions to sever; (2) whether the lower court erred in refusing to appoint at state expense expert witnesses in the field of pathology and firearms identification and to appoint an investigator for the indigent Sherman Hodge to enable him to prepare and present his defense; and (3) whether the trial court erred in failing to require the district attorney to make a reasonable inquiry, first, to determine if records exist of arrest and convictions of the deceased and eye witnesses to this crime and second, to determine if the deceased possessed a reputation for violence or other criminal activity in the community in which he lived.

For the reasons expressed, we reverse the lower court’s ruling on the motions to sever. Otherwise, we affirm.

FACTS

The facts for the purpose of this review are of necessity gleaned from the statements given by the co-defendants, the autopsy report, the crime lab report, the transcript of the preliminary exam, and the testimony of firearms examiner Steve McKinney. All of the above were introduced into evidence in connection with the hearing on the motions to sever.

On December 21, 1983, the victim, Patrick Paul Carey, knocked on the door of Larry Smith’s home where the defendants, Charlie Ray and Sherman Hodge were visiting. Sherman answered the door and went outside with the victim. An argument ensued between Sherman Hodge and the victim, resulting in the victim striking Sherman Hodge. The victim left and Sherman Hodge reentered the house and told his brother, Charlie Ray, that Carey had struck him. Sherman and Charlie Ray left in separate cars and drove to their residence where Charlie Ray went inside and obtained a shotgun. It is disputed whether Sherman was armed at this point. It is also disputed whether he then knew that Charlie Ray had obtained the weapon. Charlie Ray entered Sherman’s car and Sherman drove the pair to the intersection of Ford and Dale Streets in Shreveport, Louisiana, where the victim was standing. They stopped the car beside the victim and both defendants got out of the car. Charlie Ray Hodge fired at least one shot with the shotgun; and it is disputed whether Sherman had a gun or fired a shot. The officer who testified at the preliminary examination said there were two witnesses at the scene, both of whom stated that both Charlie Ray and Sherman were armed, Charlie with a shotgun and Sherman with a handgun. After reviewing their statements, however, the officer concluded that one witness evidently did not see Sherman shoot the deceased, and the other was not sure whether Sherman fired a shot.

The victim was struck in the left arm and the head by gun fire and died several hours later. The autopsy report lists the cause of death as trauma due to a gunshot wound to the head. Numerous pellets were recovered from the arm wound by the coroner and submitted to the crime lab along with metal fragments obtained from the scalp and brain as a result of the head wound. Steven McKinney, a firearms expert, testified that the pellets recovered from the victim’s arm wound came from a shotgun but that the fragments from the head wound definitely did not come from a shotgun. The head wound, he felt, was caused by a rifle or pistol.

Charlie Ray and Sherman subsequently surrendered to the Shreveport police and each gave statements concerning the incident after being advised of their constitutional rights.

Charlie Ray’s statement verified the incident between Sherman and deceased that occurred at Larry Smith’s house as reported to him by his brother. He admitted leaving in his car, going to his residence, getting a .12 gauge shotgun from the bedroom, getting in Sherman’s car and then, with Sherman driving, proceeding to Ford and Dale Streets where they encountered the victim. Charlie Ray stated that he got out of the car with a shotgun in his hand and shot Carey one time when the victim “went into his pocket,” because he thought the victim was reaching for a weapon of some sort. Charlie Ray stated that his brother, Sherman, never had a gun.

Sherman Hodge’s statement also was fairly consistent about his prior altercation with the deceased although he said the deceased pulled a knife after striking him from behind. Sherman told his brother Charlie Ray what happened, they left in their individual cars and went to their residence. Sherman stated that Charlie Ray went into the house and that he stayed in the car. He further stated he did not know what Charlie Ray went into the house for and that he thought they were only going to talk to the victim. Sherman stated he did not see the shotgun when Charlie Ray came out of the house and got into the car. Sherman said he had no weapon and only saw the shotgun when Charlie Ray got out of the car and as the victim was walking toward the car. Sherman stated that he also got out of the car and told Carey they wanted to talk to him, that Carey started “pulling out of his pocket” a shiny object, and that Charlie Ray shot the victim one time despite Sherman’s protestations that Charlie Ray not do anything but talk to the victim.

ASSIGNMENT OF ERRORS DEALING WITH DENIAL OF THE MOTIONS TO SEVER

Charlie Ray Hodge bases his motion to sever on two grounds. First, he contends a joint trial would violate the rule set forth in Bruton v. US., 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Under Bruton, a defendant’s sixth amendment right of confrontation is violated when an incriminating confession by a non-testifying co-defendant is admitted at trial. Second, Charlie Ray contends that the co-defendants in this case will present antagonistic defenses which will force him to defend not only against the state but also against his co-defendant, Sherman Hodge.

Sherman Hodge contends that the co-defendant’s defenses are indeed antagonistic and that because Charlie Ray has given a recorded statement exculpating Sherman Hodge as a perpetrator and inferentially as a principal, he is entitled to compel the attendance of Charlie Ray as a witness at his trial to provide this favorable evidence.

The state made it clear it intends to introduce the co-defendants’ statements at trial, claiming that they do not show “antagonistic defenses,” but rather support the state’s claim that both defendants were principals in the commission of the offense.

The trial court denied the severance motions of both defendants. It concluded that the defenses were not antagonistic, that the statements were “interlocking” in nature and thus an exception to the Bruton rule and that there was evidence from which the state could attempt to show that both defendants were principals. See State v. McSpaddin, 341 So.2d 868 (La.1977).

We find merit in the antagonistic defenses argument and in the contention that Sherman Hodge is entitled to compel the attendance of Charlie Ray Hodge as a witness at a separate trial to provide exculpatory evidence. We will not, therefore, discuss the Bruton argument.

Jointly indicted defendants are to be tried jointly unless the court is satisfied that justice requires . a severance. La.C. Cr.P. Art. 704: State v. Thibodeaux, 315 So.2d 769 (La.1975); State v. Webb, 424 So.2d 233 (La.1982). An accused is not entitled to a severance as a matter of right, but the decision is one resting in the sound discretion of the trial judge. A denial of a motion to sever will not be overturned on appeal absent a clear abuse of discretion. State v. Gaskin, 412 So.2d 1007 (La.1982). It is an abuse of discretion, however, not to grant a motion for severance when the trial judge has been made aware that a defendant intends to lay blame for the offense at the feet of a co-defendant. State v. Thibodeaux, supra; State v. Lavigne, 412 So.2d 993 (La.1982); State v. Webb, supra. A mere allegation, however, that a co-defendant intends to accuse the other does not automatically mandate severance. Co-defendants seeking severance must present evidence of actual antagonism. State v. Dunbar, 356 So.2d 956 (La.1978). The pretrial standard for obtaining a severance is broader because before trial there is a degree of speculation as to what the trial evidence will actually be. After trial starts, the standard is stricter because the trial judge is at that time able to analyze the evidence which has actually been admitted. State v. Williams, 355 So.2d 1291 (La.1978). We note, however, that antagonistic defenses do not represent the only instances where denial of a motion to sever will constitute an abuse of discretion. Where the ends of justice will best be served by a severance, it should be granted. See La.C.Cr.P. Art. 704, comments (c), (d); State v. Webb, supra. Whether justice requires a severance must be determined by the facts of each case. State v. Turner, 365 So.2d 1352 (La.1978).

Counsel for Charlie Ray Hodge made it clear at the hearing on the severance motion that, based on existing evidence, his client contends his actions were in self-defense and, if not in self-defense, were not the cause of the victim’s death. Counsel further contends since Charlie Ray was unaware that Sherman Hodge shot or intended to shoot the deceased, or even was armed, then Charlie Ray cannot be guilty as a principal. Thus, counsel for Charlie Ray Hodge adequately informed the lower court that he intended to lay the blame for this crime solely at the feet of Sherman Hodge.

The evidence relied on is:

1. A showing that only Charlie Ray fired a shotgun at the deceased;
2. Other witnesses who saw Sherman Hodge with a pistol, at least one of whom may have stated he saw Sherman fire that weapon;
3. Charlie Ray’s statement that he was unaware that Sherman had a weapon;
4. Sherman’s denial of being armed at all;
5. The autoposy report which showed that the victim died as the result of a gunshot wound to the head; and
6. The physical evidence analyzed by the crime lab, which showed that the wound to the deceased’s left arm (non-fatal) was the result of pellets from a shotgun and that the gunshot wound to the head (fatal) was not a shotgun wound, but probably came from a rifle or pistol.

Counsel for Charlie Ray Hodge contends that while this evidence possibly shows that his client could be guilty of attempted second degree murder or aggravated battery, as a result of inflicting the non-fatal wound, these verdicts are not responsive to the crime of second degree murder, under La.C.Cr.P. Art. 814. Thus, should the jury believe his theory of defense, it would have to find Charlie Ray Hodge not guilty.

Conversely, Sherman Hodge’s counsel argues that Sherman Hodge, in his statement, denies culpability for the crime since he declares that his only intention was to go and talk to the deceased. He claims that he was unarmed and fired no weapon. Sherman further stated that he was unaware that Charlie Ray Hodge possessed a shotgun until Charlie Ray exited the car with the weapon and shot the deceased despite Sherman’s protests. Counsel for Sherman Hodge objected to the acceptance by the court of the firearms examiner as an expert and filed a motion to request the court to appoint such an expert to make an independent testing on behalf of Sherman Hodge. This is an attempt to show that the fatal wound was in fact caused by fragments from shotgun pellets. Admittedly, counsel for Sherman Hodge is not as forceful in his contention that Sherman will lay the blame for the crime on Charlie Ray as is counsel for Charlie Ray Hodge. But simple logic makes the reason obvious. Sherman says he was unarmed and fired no weapon and Charlie Ray’s statement corroborates this point in Sherman’s behalf. Thus, Sherman Hodge wants the opportunity to call Charlie Ray at a separate trial to testify to this exculpatory evidence to contradict the perhaps unclear testimony of the state’s eyewitnesses as well as to corroborate his own statement or testimony. A joint trial would certainly defeat Sherman’s right to compel Charlie Ray to testify-

Our Supreme Court has stated in the past that where it is clear from the record that a co-defendant would give exculpatory testimony if a severance were granted, the denial of a severance is an abuse of discretion. See La.C.Cr.P. Art. 704, Official Revision Comment (c)(2). The burden, however, was on the movant to establish that the co-defendant would, in fact, testify at a separate trial and to establish the exculpatory nature of his proposed testimony. But even when a co-defendant at a severance hearing had indicated willingness to testify and present exculpatory evidence at a separate trial, a trial judge’s denial of a motion to sever on the basis that the co-defendant would in fact be unlikely to testify because his testimony would be highly self-incriminating, has been held not to be an abuse of discretion. See State v. Turner, 365 So.2d 1352 (La.1979); State v. Barkley, 412 So.2d 1380 (La.1982).

However, in the recent case of State v. Webb, 424 So.2d 233, 237 (La.1983), which presents a somewhat analogous situation, our highest court qualified its previous stand and explained the Barkley holding:

In State v. Barkley, supra, we held that a denial of a motion to sever may constitute an abuse of discretion where a defendant establishes that his co-defendant would present exculpatory evidence at a separate trial. In this case, there is no evidence which would indicate that Webb would be willing to voluntarily exculpate Davis at a separate trial. However, we are not willing to limit the scope of Barkley and a defendant’s right to obtain a severance to situations where the co-defendant will take the stand to willingly exculpate the defendant. A criminal defendant has the right to compel the attendance of witnesses and present a defense. [Citations omitted.] In keeping with his right to present a defense, Davis would have the right to compel the attendance of Webb and other witnesses to examine them as to the content of the exculpatory statement, a right which was limited by the denial of the motion to sever?
Therefore, we find, under the circumstances of this case, that the denial of Davis’ motion to sever ... constituted an abuse of discretion on the part of the trial judge. [Emphasis added.]

More recently in State v. Prudholm, 446 So.2d 729 (La.1984), the Supreme Court seems at first blush to have reverted to its ^re-Webb standard when it declared without reference to Webb that “[t]he bare assertion that a joint trial would deprive defendant of the right to call co-defendants as witnesses is not of itself a sufficient ground to grant a severance.” However, we believe that Prudholm is distinguishable from Webb, in that in Prudholm there was no showing at the hearing on the motion to sever that the co-defendant’s testimony would have in any manner exculpated defendant.

Because we are reviewing a pre-trial disposition of a motion to sever with its broader standard and because it has been sufficiently shown that the defenses of these co-defendants will be antagonistic, in that each will attempt to place the blame for the victim’s death on the other, and because defendant Sherman Hodge, in connection with presenting his defense, has the right to compel the attendance of his co-defendant, Charlie Ray Hodge, to examine him as to the content of the exculpatory statement, we conclude, that under the circumstances of this case justice requires a severance. Therefore the denial of the motions to sever constituted an abuse of discretion on the part of the trial judge.

ASSIGNMENT OF ERROR DEALING WITH THE DENIAL OF THE MOTION FOR APPOINTMENT OF EXPERTS AND AN INVESTIGATOR

Sherman Hodge seeks by these pre-trial motions to have the court appoint an investigator, pathologist and an expert in the field of firearms identification to assist him in preparing his defense. Petitioner is indigent and contends that the assistance of these experts and investigator is crucial to his defense. All requests were denied by the trial court.

Furnishing counsel to the indigent defendant is not enough if counsel cannot secure information upon which to construct a defense. State v. Madison, 345 So.2d 485 (La.1977). The Louisiana Supreme Court has recognized that the state should supply funds upon a showing by the defense that the indigent accused is unable to obtain existing evidence crucial to the accused. State v. Madison, supra; State v. Prestridge, 399 So.2d 564 (La.1981).

The trial judge made factual findings that defendant did not make a sufficient showing of need to justify the procurement of the investigator, pathologist and firearms examiner. We find no abuse of discretion with these findings from our review of the record. State v. Monroe, 397 So.2d 1258 (La.1981). Petitioner failed to adequately show that the state’s experts might be erroneous in their opinions or that another expert might necessarily be expected to disagree with their conclusions.

This assignment lacks merit.

ASSIGNMENT OF ERROR DEALING WITH THE DENIAL OF THE MOTION TO REQUIRE THE DISTRICT ATTORNEY TO INQUIRE ABOUT THE EXISTENCE OF “RAP” SHEET AND REPUTATION INFORMATION

Sherman Hodge’s final claim is that his rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and U.S. v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) were abridged by the trial court’s refusal to, order the state to make a reasonable investigation to determine whether the victim or eyewitnesses to the crime had criminal records and whether the victim had a reputation for violence in the community and to furnish to petitioner any favorable information as a result of such investigation. By briefing time, respondent conceded that the state had recently provided the victim’s “rap sheet” so that particular issue becomes moot.

If the state does not possess or have knowledge of a “rap sheet” on a murder victim, it is not required to make a search for same. State v. Moore, 414 So.2d 340 (La.1982). Further, if the state has conviction records of its witnesses, then it must furnish them to the defense or submit them to the court for determination as to whether the defense is entitled to them. State v. Harvey; 358 So.2d 1224 (La.1978); State v. Washington, 407 So.2d 1138 (La.1982). But if the state does not possess or have knowledge of such records then it is under no obligation to search for them. State v. Washington, supra; State v. Hines, 422 So.2d 1297 (La.App. 4th Cir.1982).

At the hearing on this motion, the clear indication was that the state had no conviction records on its eyewitnesses even though it questioned whether such information, even if possessed, would be Brady material. Nevertheless the state agreed to turn over any such information to the defense if and when it was obtained. The court and defense counsel accepted this offer in good faith and the only issue before us is whether or not the state is obligated to make a search for such conviction records. We conclude that under the rationale of State v. Washington, supra, the state is under no such obligation. Likewise, we determine that the state is under no obligation to make an investigation as to the victim’s reputation for violence in the community in which he lived. State v. Moore, supra.

This assignment of error lacks merit.

The lower court’s rulings denying the motions to sever are reversed. The other rulings of the lower court are affirmed. This matter is remanded to the trial court for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

      . Footnote 3 indicated in the above quoted portion of the opinion in State v. Webb, supra, reads as follows:
      Of course, Webb could not be compelled to testify as to the inculpatory nature of the statement. U.S. Const., amendment V; Roberts v. United States, 445 U.S. 552, 100 S.Ct. 1358, 63 L.Ed.2d 622 (1980); La. Const, art. 1, sec. 16; State v. Wilson, 394 So.2d 254 (La. 1981); State v. Johnson, 345 So.2d 14 (La. 1977). In Wilson, we noted that a witness may not simply refuse to take the stand. He may assert the privilege only with respect to certain questions. 394 So.2d at 258; see also Roberts v. U.S., supra.


author: MARVIN, Judge.

text:
    Essie Sprawls WHITE, et al., Plaintiffs-Appellants, v. J.O. EVANS, et al., Defendants-Appellees.
    No. 16456-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 1984.
    Rehearing Denied Oct. 26, 1984.
    Writ Denied Jan. 7, 1985.
    Goff, Caskey, Davis & Fallin by H. Russell Davis, Arcadia, and Smitherman, Lunn, Chastain & Hill by W. James Hill, III, Fred A. Rogers, III and W. Lake Hearne, Shreveport, for plaintiffs-appellants.
    Gamble & Sledge by Jack R. Gamble, Jr., Mansfield, for defendants-appellees.
    Before HALL, MARVIN and NORRIS, JJ.
   MARVIN, Judge.

Plaintiff-landowners appeal a judgment declaring, contrary to their demands, that production from an oil and gas unit that contained 40 acres of a 120-acre mineral servitude interrupted the 10 year non-use prescription accruing against the 80 acres of the servitude that was not in the unit. The unit well is not on the servitude tract. We affirm. La.Mineral Code Art. 75. See and compare Elson v. Mathewes, 224 La. 417, 69 So.2d 734 (1953); Crown Central Petroleum Corporation v. Barousse, 238 La. 1013, 117 So.2d 575 (1960); and Allied Chemical Corporation v. Despot, 414 So.2d 1346 (La.App. 2d Cir.1982).

Plaintiffs’ ancestor, White, created the servitude on October 2, 1934, by selling one-half of the minerals underlying 120 contiguous acres (SE/4 of SW/4 of Sec. 18 and N/2 of NW/4 of Sec. 19, T15N, R6W, Bienville Parish) to defendants’ ancestor, Evans. In 1942 White leased this acreage with an additional 299 acres (369 total acres) to Placid Oil Company on a Bath’s Form 14-B lease. Four months later Evans executed a co-lessor’s agreement to Placid, expressly ratifying, joining, and concurring in the White lease as a co-lessor of the servitude of ½ the minerals on the 120 acres.

In 1943 and 1944 Placid and the respective owners of mineral interests in sections 18 and 19, T15N, R6W, executed voluntary pooling agreements separately creating a 640 acre unit in Section 18 and a 640 acre unit in Section 19. White and Evans separately signed the voluntary pooling agreements. Placid spudded in the Section 18 unit well in the NE/4 of the section on June 7, 1944. This well was not on the servitude property. The well was successfully completed and has since produced oil and gas. Section 19 was not drilled or explored.

The trial court did not hear witnesses. The record consists of a stipulation, the various instruments executed by the litigants’ ancestors, and demand letters. The trial court concluded that the language of the pooling agreements should be interpreted as intending to interrupt prescription against the contiguous 120 acre servitude tract, whether in or out of the Section 18 unit.

The landowners contend that the language of the two pooling agreements should have been interpreted as intending to divide the servitude. Elson, supra; Allied Chemical Corp., supra.

Where the written agreements of the servitude owner and landowner are silent as to the effect of production on the servitude, the basic rules of Arts. 33, 34, and 37 of the Mineral Code apply. Unit production other than on the part of the servitude tract within the unit interrupts prescription only on that part of the servitude tract within the unit. Art. 37. See Comment under Art. 75. The parties may agree expressly and in writing, either in the act creating the servitude or otherwise, that an interruption of prescription by unit production shall extend to the entirety of the servitude tract, wherever the location of the unit well and whether only part of the servitude tract is within the unit. Art. 75.

Prescription accruing against a mineral servitude may also be interrupted by the express acknowledgment of the landowner. This acknowledgment may be gratuitous or onerous, but it must be in writing, must express the intent to interrupt prescription, and must clearly identify the servitude that is acknowledged and the party making the acknowledgment. Arts. 54, 55.

The critical issue is whether this landowner and servitude owner expressly agreed in the pooling agreements or other writings, and contrary to the basic rule of Art. 37, that production from the unit would interrupt prescription on the part of the servitude that was not contained in the unit. Art. 75.

The 1942 lease executed by White to Placid contained this typewritten provision that was initialed by White:

“Lessor agrees that any party owning an interest in ... the minerals underlying the property leased herein may ratify this lease and such ratification shall constitute an interruption of prescription li-berandi causa now running against the mineral interest then owned by the party so ratifying as of the date of this lease. This right of ratification may be exercised at any time during the first year of this lease or during any subsequent year of the primary term for which lessor has received delay rentals.”

The co-lessor’s agreement executed by Evans to Placid contained a similar typewritten provision that

“This ratification or co-lessor’s agreement is executed in consideration of the interruption, as of the date of the lease ratified herein, of prescription liberandi causa then running against the mineral interest owned by co-lessor. Co:lessor further agrees that all rentals under said lease shall be paid to lessor named therein, all as provided in said lease.”

The pooling agreements executed in 1943 and 1944 are apparently printed forms then used by Placid, to which are attached exhibits describing the leases that Placid owned which described acreage that included lands in sections 18 and 19 and elsewhere.

In the Section 18 unit, for instance, the pooling agreement recites in par. 2 that Tract B in the exhibit attached contains 369 acres (Tract B of the exhibit identifies the White lease and describes the 369 acres). Paragraph 2 also recites that the part of Tract B which is “embraced within the pooled premises” contains 43 acres (40 acres of the Evans servitude and three additional acres owned by White elsewhere in Section 18). The exhibit to the pooling agreement also expressly includes “eo-les-sor’s agreements ... executed in connection with any lease described herein.”

The pooling agreement for Section 19 contains an exhibit that describes Tract B in exactly the same language as the Section 18 pooling agreement exhibit, and states that the part of Tract B which is “embraced” in the Section 19 unit is 200 acres. The remaining 126 acres of the 369 acres described in the White lease are located in sections other than sections 18 and 19. The White lease, the Evans’ co-lessor’s agreement, and the pooling agreements were recorded on the public records. Each pooling agreement is an agreement not only between Placid and SECOND PARTY (the mineral owners in the particular section) but, as well, “between and among the parties who constitute SECOND PARTY.”

Under these circumstances, White should have known that prescription accruing against the Evans servitude would be interrupted if Evans chose to “ratify” the lease White executed to Placid. The lease expresses acknowledgment of this power in a typewritten paragraph that was initialed by White. See Arts. 54, 55. White also should have known that each pooling agreement distinguished between the acreage described in each tract (or lease) identified in the exhibit and the acreage of that description that was to be “embraced within the pooled premises.”

In this light, the pooling agreement clearly expresses that production from the “pooled premises” will interrupt prescription running against mineral rights on lands covered by the pooling agreement and on each and every tract covered by the oil and gas lease acreage described in the exhibit to the agreement.

The last clause of the paragraph quoted in footnote one (that payment of royalty or shut in royalty is a “new acknowledgment ... interrupting prescription as to all rights of all parties under all servitudes affecting the premises pooled herein”) does not limit, or make ambiguous, the express language we have emphasized. The agreement expressly recognizes that co-lessor’s agreements have been executed and that Tract B contains acreage that is not within the unit but which broadly “affects” the pooled premises.

The fact that two pooling agreements were separately executed by the landowner and the servitude owner to create one unit in Section 18 and another unit in Section 19 does not change our conclusion. Each pooling agreement mentioned and described as Tract B, the 369 acres that were described in the White lease. Each agreement mentioned that the part of that Tract B acreage “embraced in the pooled premises” was less than the 369 acres described in the lease description contained in the exhibit. Each agreement then stated that production from the unit would interrupt prescription accruing against mineral rights on lands covered by the pooling agreement and on lands or tracts covered by the leases and described in the exhibit. See quoted and emphasized language in footnote one.

The fact that each agreement contained the same language and the same description with regard to Tract B, the 369 acre White lease, indicates that production from one section would interrupt prescription accruing against mineral servitudes extending from that section into the other. The fact that Placid later “released” its lease in Section 19 does not persuade us to a contrary conclusion.

We shall not join and add to the many comparisons of the cited cases and others that touch on the issue and that construe and distinguish similar agreements. See e.g., Williams and Meyers, Oil and Gas Law, §§ 963.3 and 964, and Mineral Law Primer, 50 Tulane L.R. 732, at 781 (1976). The ease law appears to have been codified insofar as it was possible to do so in the principle of Art. 75: The landowner and the servitude owner “may agree expressly and in writing, either in the act creating a servitude or otherwise, that an interruption of prescription shall extend to the entirety of the tract burdened by the servitude regardless of the location of the well or of whether all or only part of the tract is included in the unit.” See also 50 Tulane L.R. 781, note 347. We hold that the pooling agreement in question expresses such an agreement as Art. 75 contemplates.

For the reasons assigned by the trial court, as here supplemented, and at appellants’ cost, we AFFIRM the judgment.

      . We quote and emphasize the pertinent language:
      "NOW, THEREFORE, IT IS AGREED by and between PLACID and SECOND PARTY and between and among the parties who constitute SECOND PARTY as follows: * * *
      "2. For the purposes of this contract, it is agreed that the individual tracts described in Exhibit “A." contain exactly the following acreage:
      "Tract “A" contains 9983 acres

        “Tract "B" contains 369 acres

        "Tract "C" contains 80 acres ...
      "That the entire pooled premises described as follows, to-wit:
      “Section 18 Township 15 North Range 6 West in Bienville Parish, Louisiana, contain exactly 640 acres of land, whether there be more or less; and that that part of each of the individual tracts described in Exhibit "A ” which is embraced within the pooled premises contains exactly the following acreage:
      "That part of Tract "A” contains 517 acres

        "That part of Tract “B" contains 43 acres

      "That part of Tract "C” contains 80 acres
      "It is further agreed that ... production on any part of the pooled premises shall constitute an interruption of prescription Iiberandi causa then running against the ... mineral rights ... owned by any of the parties constituting SECOND PARTY in and to all of the lands covered by this pooling agreement and as to any and all other lands covered by any and all of said leases and so long as there may be production of gas from any portion of the premises pooled herein or so long as royalty in lieu of such production shall be paid in accordance with the terms of this agreement, the same shall constitute an interruption of the running of prescription Iiberandi causa applicable under the law of the State of Louisiana to mineral servitudes and each monthly payment of any of the royalties or royalties in lieu of production hereunder shall be considered and accepted by all parties constituting SECOND PARTY as a new acknowledgment made for the purpose and intent of interrupting said prescription as to all rights of all parties under all servitudes affecting the premises pooled herein.”


text:
    Allie Marie Buffington SIMS, Plaintiff-Appellee, v. John Will SIMS, Defendant-Appellant.
    No. 16458-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 1984.
    Rankin, Yeldell, Herring & Katz by Stephen J. Katz, Bastrop, for plaintiff-appel-lee.
    James D. Sparks, Jr., Monroe, for defendant-appellant.
    Before MARVIN, JASPER E. JONES and NORRIS, JJ.
   NORRIS, Judge.

John Will Sims appeals that portion of a judgment on rule awarding his wife, Allie Marie Buffington Sims, child support pending the outcome of her suit for separation in the amount of $575 for the use and benefit of their twelve year old daughter, Elizabeth Ashley Sims. Finding no abuse of the wide discretion accorded a trial court in such matters, we affirm.

Sims’ argument on appeal is two-fold. He claims that the trial court erred in (1) failing to equally pro-rate the child support obligation between the two parents by requiring Sims to pay the entire child support obligation and (2) awarding a sum of support which is high in light of his proven obligations and monthly expenses.

Initially, Sims relies on the legal principle that both mother and father share the obligation of supporting, maintaining and educating their child. La.C.C. Art. 227. However, this article has never been construed jurisprudentially to mean that in all cases the parents’ obligation to provide for the financial support of their child must be pro-rated equally between them. See Neel v. Neel, 365 So.2d 34 (La.App. 4th Cir.1978). Rather, the rule is that each must contribute to the child’s support in light of the needs of the child as well as the circumstances of those who are obligated to meet these needs. Guinn v. Guinn, 405 So.2d 620 (La.App. 3d Cir.1981); Chaffee v. Chaffee, 398 So.2d 1169 (La.App. 2d Cir.1981). Where both parents are gainfully employed, the proper procedure is to first determine the needs of the child and then apportion that amount between the father and the mother in proportion to their ability to pay. Manuel v. Broderson, 298 So.2d 333 (La.App. 3d Cir.1974). Furthermore, the maintenance referred to in La.C.C. Art. 227 is not limited to monetary contributions but includes the day to day care and maintenance which the custodial parent gives to the child by virtue of his or her physical presence and efforts. Chaffee v. Chaffee, supra; Neel v. Neel, supra; Ducote v. Ducote, 339 So.2d 835 (La.1976). A child living with a custodial parent is entitled to the same standard of living which he or she would have were he or she residing with the non custodial parent if financial circumstances permit. See Glasscock v. Glasscock, 398 So.2d 95 (La.App. 3d Cir.1981); Ducote v. Ducote, supra.

Overriding all of the aforementioned applicable legal principles is the general rule that in determining the amount of child support to be awarded a custodial parent, the trial court is vested with wide discretion, and its determinations will not be disturbed by an appellate court unless a review of the record indicates that the trial judge abused that discretion. Hudson v. Hudson, 421 So.2d 1188 (La.App. 2d Cir.1982); Guinn v. Guinn, 405 So.2d 620 (La.App. 3d Cir.1981).

Our review of this record reveals that Mrs. Sims has a net income of $650 per month from which she must meet her needs as well as contribute to the support of her minor child. Mr. Sims’ gross income is in excess of $32,000 annually and his net income is approximately $2000 per month. The conservative itemization of expenses introduced into evidence by Mrs. Sims reflects that her monthly expenses for her support are $694 and her monthly expenses for the support of her child are $769. The trial court found these expenses not to be exaggerated and Mr. Sims does not seriously contest their validity.

It is apparent from this record that Mrs. Sims’ income is considerably lower than that of Mr. Sims. However, it is equally obvious that she provides day to day care for the child by her daily presence and physical support which greatly exceeds such contributions by Mr. Sims. In effect, the trial court apportioned the amount of child support to be paid for the minor child in the approximate amounts of 75% to Mr. Sims and 25% to Mrs. Sims, based on their respective abilities to pay and the non-pecuniary contributions of Mrs. Sims.

The calculation of child support by a mathematical formula is impossible and all of the varying facts and circumstances of each individual case should be taken into consideration in fixing the amount awarded. Fall v. Fontenot, 307 So.2d 779 (La. App. 3d Cir.1975). Each case involving such awards must be determined on its own facts and circumstances. Hudson v. Hudson, 421 So.2d 1188 (La.App. 2d Cir.1982).

Applying these well recognized legal principles to the facts and circumstances presented for our review, we are compelled to conclude that the support award does not constitute an abuse of discretion. The allocation of support attributed to each parent is properly proportioned, the award is not high in light of the proven monthly expenses and obligations of Mr. Sims and the award clearly does not exceed the needs of the child as reflected by the record.

For the foregoing reasons, the judgment of the trial court is affirmed in its entirety at the cost of appellant.

JUDGMENT AFFIRMED.


author: SEXTON, Judge.

text:
    Beulah Grace Hamner HIGGINBOTHAM, Plaintiff-Appellant, v. Jesse Woodrow HIGGINBOTHAM, Defendant-Appellee.
    No. 16460-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 1984.

      Love, Rigby, Dehan, Love & McDaniel by Samuel P. Love, Shreveport, for plaintiff-appellant.
    J. Stacey Freeman, Bossier City, for defendant-appellee.
    Before PRICE, MARVIN and SEXTON, JJ.
   SEXTON, Judge.

Beulah Grace Hamner Higginbotham originally sought a separation from her husband, Jesse Woodrow Higginbotham in a petition alleging adultery, abandonment and cruel treatment. Mr. Higginbotham reconvened, claiming he was entitled to a separation on the basis of cruel treatment. Testimony was heard and the case was continued. In the interim, Mr. Higgin-botham filed a petition for divorce based on the allegation that the couple had lived separate and apart in excess of one year. The matters were consolidated for trial. Fault was litigated to determine Mrs. Higginbotham’s right to permanent alimony. The trial court granted the divorce with a further finding that both parties were at fault in the dissolution of the marriage. Mrs. Higginbotham appeals that portion of the judgment which finds her guilty of alimony-precluding fault under Civil Code Article 160, complaining that the trial court erred factually as well as legally. We affirm.

The trial judge found Mrs. Higginbotham to be at fault based on two separate incidents in which she threatened her husband with a gun, once after having attacked him and beat him with a telephone. The testimony at the hearing was in conflict as to these two incidents. Mr. Higginbotham testified that one incident occurred in April of 1982 as he sat in his recliner making business calls to his employees. He stated that as he replaced the telephone, Mrs. Higginbotham picked it up and struck him with it on his arm and head, breaking his watch, and bruising his arm. Mr. Higgin-botham testified that after this incident, he was taken to the hospital for treatment of a “heart flare up.” Later that evening, Mr. Higginbotham said that his wife threatened him with a .22 caliber pistol. After relieving his wife of the gun, he retreated to the bedroom and locked the doors. Mrs. Higginbotham denied that she ever attacked her husband with the telephone or threatened him with the gun.

The second incident occurred in a parked car in front of the Brass Rail Lounge in Bossier City, Louisiana. According to Mr. Higginbotham, as he got into the car, he saw a gun in his wife’s hands. Mr. Higgin-botham stated that he was afraid that his wife would shoot him. He was eventually able to wrest the gun from her.

Mrs. Higginbotham’s version of the Brass Rail Lounge incident is different. She stated that she saw her husband, a female companion, and the woman’s daughter having drinks at the lounge. She testified that after having a drink with the group, she left. She later returned to find her husband and his friends gone, but his station wagon still parked in the lounge parking lot. Mrs. Higginbotham got in the station wagon and waited. She stated that when the trio returned, the woman’s daughter was driving, and Mr. Higgin-botham and his female companion were kissing in the front seat. Mrs. Higgin-botham testified that when Mr. Higgin-botham saw her in the station wagon, he became angry. She stated that she reached for the gun, which was kept in the glove compartment, but Mr. Higginbotham hit her. According to her testimony, the gun then fell on the floor. She picked it up and returned it to the glove compartment.

Mr. Higginbotham’s version of the events was corroborated by two witnesses. Mr. Higginbotham’s daughter, Sue Reynolds, testified that her stepmother told her that she had threatened to kill her father. According to this witness, Mrs. Higgin-botham described the telephone incident to her and told her that she had pulled a gun on her father which had to be taken away from her. Mrs. Reynolds also testified that Mrs. Higginbotham told her that she threatened Mr. Higginbotham with a gun at the Bossier City lounge. Another witness, a co-worker of Mrs. Reynolds, stated that she heard Mrs. Higginbotham telling Mrs. Reynolds about throwing the telephone at Mr. Higginbotham and threatening him with the gun.

When a husband obtains a divorce on the ground of voluntary separation, a wife is entitled to alimony only if she is free from fault, and is without sufficient means of support. LSA-C.C. Art. 160; LeBlanc v. LeBlanc, 362 So.2d 568 (La.1978). To constitute fault, a wife’s misconduct must not only be of a serious nature but must also be an independent contributory or proximate cause of the separation. Pearce v. Pearce, 348 So.2d 75 (La.1977). Fault for purposes of permanent alimony preclusion is synonymous with the fault grounds for separation and divorce under LSA-C.C. Arts. 138 and 139. The party seeking alimony bears the burden of proving freedom from fault in order to be entitled to alimony following divorce. Moore v. Moore, 393 So.2d 822 (La.App. 2d Cir.1981); Brannon v. Brannon, 362 So.2d 1164 (La.App. 2d Cir.1978).

The question of a party’s fault under the statute providing for alimony when a spouse has not been at fault and has not sufficient means for support is a factual one. A trial court’s finding of fact on the issue of fault will not be disturbed unless found to be manifestly erroneous. Pearce, supra.

Cruel treatment in any form which renders living together insupportable is a legal ground for separation from bed and board. LSA-C.C. Art. 138. For a person to live in fear of bodily harm is such cruel treatment as to render living together insupportable and to support a claim of separation from bed and board. Seymour v. Seymour, 423 So.2d 770 (La.App. 4th Cir.1982). In Dejoie v. Dejoie, 224 La. 611, 70 So.2d 398 (1954), the Supreme Court held that a wife’s action of firing a pistol in the presence of her husband in order to frighten him constituted cruel treatment entitling him to a separation from bed and board. Accord, Amos v. Amos, 232 La. 178, 94 So.2d 23 (1957).

The initial fault on the part of one spouse which would render further marital relations insupportable may provoke some reasonably justifiable response on the part of the other spouse. A response by the other spouse in this context, however, is not fault within the meaning of Civil Code Article 160 which will preclude permanent alimony. Bruner v. Bruner, 364 So.2d 1015 (La.1978); Vail v. Vail, 390 So.2d 978 (La.App. 2d Cir.1980).

In this case the trial court also found Mr. Higginbotham at fault in the dissolution of the marriage because of his close relationship with another woman. Mrs. Higginbotham strenuously argues, with reliance upon Vail, supra, that her actions were a justifiable response to this provocation by her husband. Evidence adduced at the hearing revealed that Mrs. Higginbotham engaged in amateur sleuthing activities, such as constantly following Mr. Higginbotham and his female friend and photographing them. The trial judge noted in his reasons for judgment that many of Mrs. Higginbotham’s actions could be explained as a justifiable response to her perception of her husband’s adulterous relationship. However, he found that the two incidents involving threats on Mr. Higginbotham’s life constituted independent contributory fault on her part. We agree. Such physical violence and threats do not constitute “justifiable responses” to her husband’s fault. We find that the facts and circumstances of this case present a sufficient showing of cruel treatment by Mrs. Higginbotham with respect to her twice threatening her husband’s life with a firearm, as well as attacking him physically. The trial court’s ruling finding Mrs. Higginbotham guilty of alimony barring fault is adequately supported by the record. As such, we find no manifest error in the trial court’s conclusion that Mrs. Higginbotham was at fault. The judgment of the trial court is accordingly affirmed.

AFFIRMED.


text:
    CITY OF BASTROP, Appellee, v. Donnie R. PAXTON, Appellant.
    No. 16471-KW.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 1984.
    Hamilton & Carroll by O.N. Hamilton, Jr., Oak Grove, for appellant.
    James H. Boddie, Jr., Asst. City Atty., Bastrop, for appellee.
    Before PRICE, MARVIN and SEXTON, JJ.
   MARVIN, Judge.

In this DWI conviction by a city court, we granted a writ to review whether defendant, Donnie R. Paxton, was “operating” his automobile within the intendment of the city ordinance.

The term operating is broader than the term driving. Operating in some circumstances may mean handling the controls of a vehicle. The definition of operating, however, should not dictate the result in all cases. The result should be determined by the sufficiency of the evidence in each particular case. See and compare State v. Sims, 426 So.2d 148 (La.1983); State v. Phillips, 389 So.2d 1260 (La.1980); State v. Lindinger, 357 So.2d 500 (La.1978); State v. Rutan, 448 So.2d 267 (La.App.3d Cir.1984). See Annotation, “Operating Motor Vehicle While Intoxicated,” 93 ALR 3d 7. The issue is sometimes phrased in terms of the sufficiency of the circumstantial evidence. See Louisiana cases cited above.

FACTS

About 1:00 p.m. Paxton rode with the step-father of his girlfriend, Darla Han-kins, to a bar that the step-father owned in Bastrop. About two hours later, Darla Hankins arrived in Paxton’s automobile and joined defendant in the bar. Ms. Han-kins parked Paxton’s car across the street from the bar. Sometime after Darla arrived at the bar, Paxton’s mother, Gwendolyn Paxton, joined them. Paxton drank beer from 1:00 p.m. until about 4:00 p.m. when he and Darla left the bar. His blood alcohol, by a later test, was .16 grams percent. His intoxication is not contested. Darla Hankins, who said she does not drink, drank only a soft drink. Ms. Paxton drank one or more mixed drinks while at the bar.

Paxton and Darla left the bar because Darla and Ms. Paxton became engaged in an argument. As they were leaving, Darla declined the offer of another female patron to “take care of” Ms. Paxton. Darla said she and Paxton walked across the street to Paxton’s car. As she drove out of the parking lot she and Paxton, her passenger, saw the other female patron “throwing” Ms. Paxton out the front door of the bar and onto the ground. Darla testified that she then drove and parked the car in front of the bar and that she and Paxton immediately got out of the car to assist his mother. Paxton said he put his mother in the front seat of the car and told Darla, who in the meantime had sat in the driver’s seat, to move over. Paxton said he then sat in the driver’s seat.

At this time (about 4:00 p.m.), Bastrop policemen, who were called because of the disturbance in the bar involving Ms. Pax-ton, began arriving at the scene. Officer Aulds, who was the first to arrive and who arrested Paxton for DWI and later administered the breath test to Paxton, said he saw the car parked in front of the bar with its back wheels a few feet into the street, with its motor running. He said that he “noticed the brake light flashed ... for a second ... However, the vehicle was not moving.” Aulds also testified that the three people in the car were sitting as described by Paxton and Darla. He acknowledged that Darla said that she drove and parked the car in front of the bar and that Paxton said he was not driving and that he wanted to go home and take the others home.

A second policeman testified that he heard Paxton say “You didn’t see me driving ... I wasn’t driving.” A third policeman said Paxton “said several times that he wasn’t driving.” As found by the city court judge and by the district court judge, who heard the appeal from the city court, we accept, as a fact, that the motor of the car was running, notwithstanding the testimony of Paxton and Darla to the contrary.

At best, the evidence shows only that Paxton, while intoxicated, was behind the wheel of his parked car when its motor was running and when the brake lights of the car flashed “for a second.” In the absence of other circumstances, this evidence may be legally sufficient to exclude every reasonable hypothesis other than that Paxton had operated the car to achieve the position it was in when the police arrived. See Sims, Phillips, Lindinger, and Rutan, supra. But there are other circumstances in this case which cause us to respectfully disagree with the conclusion of our brothers below that the evidence is sufficient to convict Paxton of “operating” the car.

The testimony of Darla and of Paxton that explains how and when he seated himself in the driver’s seat is uncontradicted. They gave this explanation to police when they were questioned at the scene. It is not shown that Paxton turned on the ignition or started the car. It is not shown that Paxton had been operating or driving the car. It is not shown that Paxton hit the brake pedal to cause the brake lights to flash, although we recognize this is a reasonable deduction or hypothesis because it is shown that he was in a position to do so. It is equally as reasonable, however, to deduce that Darla’s foot touched the brake pedal as she was moving over to make room for Paxton. The police testified that Darla was excited and upset when they arrived. It is reasonable to deduce that Darla, being excited [perhaps because of what she observed about Ms. Paxton’s predicament], simply failed to turn off the ignition. The position of the car, as described by the police, indicates that it was parked in haste.

These total circumstances, even when viewed most favorably toward the prosecution, simply do not show sufficient physical handling of the controls of the car by Paxton to convict him of “operating” the vehicle. The circumstances show that Paxton turned off the ignition and that he may have flashed the brake light. The total circumstances also do not exclude the hypothesis of innocence that Paxton did not operate the vehicle to achieve the position in which it was found by police. LRS 15:438. State v. Captville, 448 So.2d 676 (La.1984). Compare Louisiana cases cited supra. Darla testified that she drove the car to that position. The ordinance makes conduct criminal. Compare LRS 14:7, 8. The intent of an intoxicated person to operate a vehicle is not of itself prohibited criminal conduct. The prosecution simply failed to meet its burden of proving beyond a reasonable doubt and to the exclusion of other reasonable hypotheses that Paxton either was “operating,” or had operated, the car.

Defendant’s conviction is REVERSED.

SEXTON, J., concurs.

      . The language of the Bastrop city ordinance reads in part:
      “The crime of operating a vehicle while intoxicated is the operating of any motor vehicle ... while under the influence of alcoholic beverages ..." Compare LRS 14:98.

      . The city court trial judge said:
      "My appreciation of the law is that any operation is sufficient. [RJeally there is little question in my mind as to what happened here. I think that the parties were having difficulties there at the Postoffice Lounge and Mr. Paxton and Mrs. Paxton had been drinking quite a bit there, apparently. And apparently Mr. Pax-ton was going to drive off after the problems that they had had there. I think that the operation that has been shown by the State is sufficient here to prove operation.’ Emphasis supplied.
      The district court judge reviewed the record made in the city court and concluded that the city court judge rejected as unworthy of belief the testimony of defendant, his girlfriend, and his mother and that the evidence was "convincing to the exclusion of any other reasonable hypothesis that [defendant] was ‘operating’ the vehicle."


author: JASPER E. JONES, Judge.

text:
    Martha Ellard Glass EDELEN, Plaintiff-Appellee, v. William Herbert EDELEN, III, Defendant-Appellant.
    No. 16473-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 1984.

      B. Woodrow Nesbitt, Jr., Shreveport, for plaintiff-appellee.
    Pringle & Herzog by John R. Herzog, Shreveport, for defendant-appellant.
    Before JASPER E. JONES, FRED W. JONES, Jr. and SEXTON, JJ.
   JASPER E. JONES, Judge.

The plaintiff wife filed suit seeking a separation based on cruel treatment, custody of the minor child of the marriage, child support and alimony pendente lite. The defendant husband reconvened seeking a separation based on abandonment and cruel treatment and joint custody of the child. After a trial on the merits the trial court rendered judgment granting plaintiff’s demands. The judgment limits defendant to one three hour visit with the child per week and orders defendant not to take the child to his parent’s home during the visits. Defendant appeals. We amend and affirm.

The issues raised by defendant’s appeal are: (1) whether the trial judge erred in finding the wife free from fault in causing the separation; and (2) whether the child visitation privileges granted defendant are unduly restrictive.

FACTS

Plaintiff and defendant were married September 12, 1980. One child, a son age 2, was born of the marriage. Plaintiff had custody of her 2 minor daughters from a previous marriage.

The relationship between the parties began deteriorating shortly after they were married. Plaintiff left the matrimonial domicile after a physical confrontation with defendant on July 2, 1983 and has not returned. The confrontation was over a peach pie defendant brought home from a nearby restaurant. The parties give conflicting accounts of the confrontation.

Plaintiff contends she was on a diet and when she refused to eat any pie defendant became enraged. She testified he grabbed her, shook and slapped her. She stated that while this was going on she told one of her daughters to call her grandfather (plaintiffs father) on the phone. When the daughter tried to make the call defendant slapped the daughter down and ripped the phone out of the wall. Plaintiff then took the children across the street to a neighbor’s house where she called her father to come pick her and the children up.

Defendant testified plaintiff became upset when he brought the pie home because it was peach and not strawberry. He stated she chastised and insulted him about his choice of pie. He testified he remained calm throughout the verbal abuse. He admits to slapping plaintiff but contends he did so after she spit in his face. Defendant admits he stopped the daughter from calling her grandfather but claims that all he did was unplug the phone and stated he did not strike the girl.

PLAINTIFF’S FAULT

The party seeking a separation bears the burden of proving by a preponderance of the evidence the facts in support of his demand. Slater v. Slater, 431 So.2d 904 (La.App. 2d Cir.1983); Richard v. Richard, 340 So.2d 1104 (La.App. 3d Cir.1976). Fault is a question of fact. The trial court’s finding on the issue will not be disturbed on appeal absent a finding of manifest error. Slater v. Slater, supra; Allemand v. Allemand, 415 So.2d 463 (La.App. 1st Cir.1982). It must be established that a spouse is guilty of conduct sufficient to establish an independent grounds for a separation for the spouse to be adjudicated guilty of fault. Adams v. Adams, 389 So.2d 381 (La.1980).

Defendant contends plaintiff was at fault for abandonment and cruel treatment. We will first consider abandonment.

The abandonment of the matrimonial domicile by either spouse is considered to be fault for purposes of a separation. LSA-C.C. art. 138(5). In order for a party to prevail on an allegation of abandonment it must be shown the other party withdrew from the matrimonial domicile without lawful cause and has constantly refused to return. LSA-C.C. art. 143; O’Pry v. O’Pry, 425 So.2d 986 (La.App. 5th Cir.1983).

A lawful cause for leaving is a defense to a claim of fault based upon abandonment. Harrington v. Campbell, 413 So.2d 297 (La.App. 3d Cir.1982); Lyles v. Lyles, 126 So.2d 859 (La.App. 2d Cir.1961); Kendrick v. Kendrick, 236 La. 34, 106 So.2d 707 (1958). A single instance of cruel treatment by the other spouse may be sufficient to constitute lawful cause for leaving. See Seymour v. Seymour, 423 So.2d 770 (La.App. 4th Cir.1982); Gilberti v. Gilberti, 338 So.2d 971 (La.App. 4th Cir.1976); Dejoie v. Dejoie, 224 La. 611, 70 So.2d 398 (1954). A person is not required to live in fear of receiving bodily harm. See Seymour v. Seymour, supra; Dejoie v. Dejoie, supra.

If plaintiff’s testimony is accepted as true, she was justified in abandoning the matrimonial domicile in response to defendant’s cruel treatment. The trial judge obviously found that plaintiff was telling the truth. Our task is to decide whether there was sufficient evidence to support such a finding.

The litigants were the only witnesses testifying to the events surrounding plaintiff’s leaving the matrimonial domicile; other than the neighbor, Warren Wright, who merely confirmed that plaintiff came to his house with her children and called her father. There is no evidence directly corroborating plaintiff’s version of the incident. However, her testimony is corroborated by events occurring subsequent to her leaving. These events show that defendant becomes extremely upset and acts irrationally and sometimes violently when he does not get his way. These events show a continuing pattern of conduct directed toward the plaintiff that supports a finding she was subjected to cruel treatment on the date she left the matrimonial domicile.

On July 3, 1983, the day after plaintiff left, she returned to the matrimonial domicile in her father’s car to pick up some personal items. Defendant was there when she arrived. When plaintiff attempted to carry some things out to the car defendant demanded to know what she was removing from the house. Plaintiff testified defendant grabbed her from behind when she tried to go outside and began shaking and hitting her. Defendant stated he only seized an item she was carrying and tried to take it away from her. Plaintiff shouted for help and Wright, who was working in his garage, heard her. When Wright responded to this call for help, he saw plaintiff trying to leave the house and defendant trying to pull her back inside. Defendant had nearly pulled off plaintiff’s blouse. Wright went over to try to protect plaintiff and prevent further physical confrontation between the spouses. At about this time plaintiff broke away from defendant and put the items she was carrying in the car. She then went to call the police. As plaintiff departed defendant tried to get into the car to see what plaintiff had removed from the house. Wright attempted to stop him and became engaged in a fight with the defendant. Wright subdued the defendant and held him until the police arrived.

When a police officer arrived on the scene she separated Wright and defendant. Defendant was extremely upset and tried to continue the fight but the officer managed to restrain him. Defendant then wanted the officer to arrest Wright and when she refused the defendant began cursing her. The officer observed scratch marks on plaintiff’s face and arms.

A few days later defendant went to plaintiff’s church and attempted to discuss with her the possibility of a reconciliation while church services were in progress. While plaintiff was playing the organ defendant approached her several times and attempted to discuss matters related to their separation. Accepting defendant’s argument that he did not disrupt church services, we find this incident corroborates plaintiff’s version of the separation because it shows defendant’s continuing pattern of irrational conduct. During church services is not the time to go up to the organist to discuss personal matters.

On August 2, following an eviction proceeding in which defendant was ordered to vacate the former matrimonial domicile which belonged to plaintiff’s father, it was necessary to have the defendant removed from the premises by police officers due to his hostile refusal to surrender possession of the premises to plaintiff and her father.

Plaintiff’s testimony describing the conduct of the defendant that caused her to leave on July 2 corroborated by evidence of his continuing pattern of misconduct directed toward her provides substantial evidence to support .the trial court’s finding that plaintiff was justified in leaving the matrimonial domicile. There is no manifest error in the trial court’s determination that the plaintiff did not abandon the defendant.

We now address defendant’s contention that plaintiff was guilty of fault based upon cruel treatment which contributed to the separation.

Cruel treatment, in any form, is proper grounds for a separation from bed and board provided the cruelty is of such a nature as to render living together insupportable. LSA-C.C. 138(3); Von Beckman v. Von Beckman, 386 So.2d 910 (La.1980).

Defendant testified plaintiff subjected him to cruel treatment by spitting in his face at the time she left. The plaintiff’s detailed description of the circumstances surrounding her departure contained no reference to such an occurrence. We find the trial judge committed no error when he made no finding that based solely upon the testimony of the defendant the plaintiff was guilty of this misconduct.

Defendant argues that plaintiff constantly told him and others that she hated him. He contends that she tried to kill him by putting a black widow spider in his bed and rat poison in his food. There is insufficient evidence in the record to establish these contentions.

Defendant testified that plaintiff had told him that the child born of the marriage was not his. It was stipulated that two witnesses who were not available at trial would testify that they had heard plaintiff make this remark. There is no evidence of the time frame in which the alleged remark was made nor sufficient details of the circumstances which precipitated it. Though the trial judge made no specific finding with regard to it, we cannot find his failure to accept defendant’s testimony supported by the stipulation of the testimony of two absent witnesses as establishing plaintiffs fault to be manifest error.

The totality of the evidence supports the trial judge’s finding that plaintiff was not guilty of fault which contributed to the separation.

CHILD VISITATION

In support of his argument that the trial court' erred in restricting him to one three hour visit per week, defendant cites several cases where the father was granted more extensive visitation rights than he received. Woods v. Woods, 386 So.2d 959 (La.App. 3d Cir.1980); Edler v. Murray, 360 So.2d 205 (La.App. 4th Cir.1978); Johnson v. Johnson, 357 So.2d 69 (La.App. 4th Cir.1978); Litton v. Litton, 299 So.2d 458 (La.App. 2d Cir.1974); Cook v. Wingo, 281 So.2d 867 (La.App. 3d Cir.1973).

These cases indicate that there are two fundamental rules in child visitation cases. The rules are: (1) the paramount consideration in determining visitation rights is the best interest of the child; and (2) the trial court has great discretion in the area and his determination will not be disturbed on appeal in the absence of manifest error. Furthermore, each individual case is dependent upon its own facts. Johnson v. Johnson, supra; Vinet v. Vinet, 184 So.2d 33 (La.App. 4th Cir.1966).

Applying these rules to the instant case, our task is limited to a determination of whether the trial judge abused his much discretion in limiting defendant to the one three hour visit per week.

The only evidence to which defendant points in support of his contention there was an abuse of discretion is the opinion testimony of a psychiatrist, Dr. Eichard Williams, who examined plaintiff and defendant prior to trial. Dr. Williams stated that in his opinion there would be no problem in allowing defendant overnight visits and there would be no physical danger to the child on such visits. These remarks do not support defendant’s claim of error. The mere fact that defendant would not physically harm the child does not, by itself, mean that it would be in the child’s best interest to allow overnight visits. The other remark was made in response to a question involving a hypothetical situation containing certain conditions which had not been met at the time of trial.

The actual recommendation given by Dr. Williams was that plaintiff be granted sole custody of the child and that defendant be allowed reasonable controlled visits. The doctor did not state what he considered to be reasonable visits. Even if he had done so, his recommendation would not have been binding on the trial judge. While a certain amount of deference must be given to expert medical testimony, courts cannot abdicate their decision making responsibilities in favor of the medical profession but must consider all factors present in the case. Broussard v. Broussard, 320 So.2d 236 (La.App. 3d Cir.1975).

The conduct of the defendant discussed in connection with our determination that plaintiff was justified in leaving the matrimonial domicile, indicate that defendant may be emotionally incapable of properly caring for the child. These facts indicate that defendant becomes extremely upset and exercises little self-control in times of crisis. The trial court in his reasons for judgment pointed out the defendant has a high level of external stress, hostility and guilt. The trial judge observed he. has a consistent need to control his feelings of anger and has trouble with interpersonal relationships. These findings are supported by the report of Dr. Ronald A. Goebel, a clinical neuropsychologist and Dr. Mark P. Vigen, clinical psychologist, which was filed in evidence. All of these circumstances justify the trial judge’s conclusion that it was to the best interest of the child to establish limited rights of visitation.

The trial court’s decision to limit defendant to one three hour visit with the child per week is supported by the record. We find no abuse of discretion in the court’s determination.

We find nothing in the record to support the order for defendant not to take the child to his parent’s home during his visits and we recast the judgment to eliminate this restriction on visitation.

We amend paragraph C.l of the judgment to delete the clause which provides:

... and while said visitation is occurring, the minor child shall not be taken to the residence of the parents of WILLIAM HERBERT EDELEN, III.

As amended the judgment is AFFIRMED at appellant’s cost.

      . Defendant claims that since plaintiff did not specifically deny spitting on him, that fact was conclusively established. We find that plaintiff's failure to mention spitting on defendant during her narrative of the incident constitutes a denial that she did so.

      . Each man claims the other threw the first punch.

      . In brief, defendant does not question the trial court’s failure to grant joint custody.

      . Dr. Williams was asked if he saw any problem in allowing overnight visits if defendant lived in his own residence which was large enough to accomodate the child. Although Dr. Williams made it clear that his opinion was based solely upon defendant obtaining such living arrangements, he was not asked why he conditioned his opinion on this fact. At the time of trial defendant lived with his parents.

      . There is also some indication in the record that defendant has not properly cared for the child during his visits since the physical separation. Plaintiff testified that after the first few visits she noticed defendant always brought the child back wearing a dirty diaper. She began marking the diaper the child was wearing when defendant picked it up. Except for once, the child was wearing the same diaper when defendant returned it. On the occasion that the diaper was changed, defendant did so in the car immediately before returning the child. Defendant’s testimony on the issue is equivocal. However, there is some indication he knew plaintiff was checking the diapers and that is the reason he changed the child in the car prior to returning it on the one occasion.


author: PRICE, Judge.

text:
    STATE of Louisiana, Respondent, v. Wilmer D. LOCKHART, Applicant.
    No. 16474-KW.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 1984.

      Charles McConnell, Indigent Defender, Minden, for applicant.
    William J. Guste, Jr., Atty. Gen., Henry N. Brown, Jr., Dist. Atty., R. Harmon Drew, Jr., Asst. Dist. Atty., Minden, for respondent.
    Before PRICE, HALL and NORRIS, JJ.
   PRICE, Judge.

The defendant, Wilmer D. Lockhart, was charged on November 9, 1981, in two bills of information with aggravated burglary, La.R.S. 14:60 and attempted forcible rape, La.R.S. 14:27, 14:42.1. On January 18, 1982, the defendant was tried and found guilty of aggravated burglary. The state then dismissed the charges for attempted forcible rape. On September 2, 1983, the Louisiana Supreme Court reversed the defendant’s conviction on the ground that there was no evidence of an unauthorized entrance into the victim’s home, an essential element of the crime of aggravated burglary. On November 21, 1983, the state then filed a new bill of information again charging the defendant with attempted forcible rape. The defendant then moved to quash the bill of information based upon double jeopardy. The trial court denied defendant’s motion. This court granted defendant’s application for a writ of review to determine whether the trial court erred in denying defendant’s motion to quash. Finding error by the trial court, we reverse.

The events leading to the charges against defendant are set forth in the Louisiana Supreme Court’s opinion in State v. Lockhart, 438 So.2d 1089 (La.1983):

On October 27, 1981, at approximately 2:00 p.m. the defendant knocked on the door of a house occupied by Liby B. Carter, a woman in her sixties who resided in Minden, Louisiana. Ms. Carter responded to a knock at her unlocked door by calling out “alright,” words she described in testimony as meaning to “come on in.” Ms. Carter recognized the defendant who was her distant cousin and gave defendant permission to use the bathroom when he asked to do so. Ms. Carter then returned to the bedroom where she began changing the diaper of a baby whom she was babysitting. Defendant went into the bathroom. According to Ms. Carter’s testimony, defendant then came out of the bathroom and entered the bedroom. He grabbed her from the rear and attempted to throw her onto the bed on which the baby was lying. Defendant’s penis was exposed. After pulling up Ms. Carter’s dress, he attempted to achieve penetration as he told her, “give me some of this ...,” and “don’t make me kill you.” The two struggled and defendant threw the victim onto the floor. After struggling on top of the victim with his penis touching the lower part of Ms. Carter’s stomach, defendant got up to leave. Ms. Carter testified there had been no penetration. Defendant told the victim to give him “two hours to get out of town.” After checking to see that defendant was not hidden in the house, Ms. Carter called the police. When the officer arrived moments later, she told him that Lockhart had tried to rape her.

In reversing the defendant’s conviction for aggravated burglary, the Supreme Court found the state failed to prove an essential element of the crime by not proving unauthorized entry into the dwelling. The court found that the victim allowed the defendant to enter her home with her consent. The court also found that the consent was voluntary and intelligent based upon a reasonable understanding of the identity of the intruder. The state now seeks to prosecute the defendant for attempted forcible rape.

ASSIGNMENT OF ERROR

Defendant argues in his motion to quash that the charge of attempted forcible rape is prohibited by the double jeopardy provisions of the Louisiana and the United States Constitutions.

The double jeopardy clause of the Fifth Amendment of the United States Constitution, made applicable to the state through the Fourteenth Amendment, provides that no person shall be “subject for the same offenses to be twice put into jeopardy of life or limb.” Article 1, Section 15 of the 1974 Louisiana Constitution contains a similar guarantee.

In State v. Knowles, 392 So.2d 651 (La.1980), the Louisiana Supreme Court citing Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), outlined the following criteria for examining violations of double jeopardy:

... The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not....

This test was held constitutionally required by the U.S. Supreme Court in Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), and is embodied in Louisiana Code of Criminal Procedure Article 596:

Double jeopardy exists in a second trial only when the charge in that trial is: (1) identical with or a different grade of the same offense for which the defendant was in jeopardy in the first trial, whether or not a responsive verdict could have been rendered in the first trial as to the charge in the second trial; or (2) based on a part of a continuous offense for which offense the defendant was in jeopardy in the first trial.

Louisiana uses both the “Blockburger test” and the “same evidence test.” State v. Vaughn, 431 So.2d 763 (La.1983); State v. Steele, 387 So.2d 1175 (La.1980). When a defendant is charged with separate statutory crimes they need not be identical in elements or in actual proof to be the same within the meaning of the constitutional prohibition. Brown v. Ohio, supra; State v. Hayes, 412 So.2d 1323 (La.1982).

The Louisiana Supreme Court explains the “same evidence test” in State v. Steele, supra, as follows:

If the evidence required to support of finding of guilt of one crime would also have supported the conviction of the other, the two are the same offense under a plea of double jeopardy, and a defendant can be placed in jeopardy for only one. The test depends on the evidence necessary for conviction, not all the evidence introduced at trial ...
The “same evidence test” is somewhat broader in concept than Blockburger the central idea being that one should not be punished (or put in jeopardy) twice for the same course of conduct.

Aggravated burglary is defined in La. R.S. 14:60 as follows:

Aggravated burglary is the unauthorized entering of any inhabited dwelling, or of any structure, water craft, or movable where a person is present, with intent to commit a felony or any theft therein, if the offender,
(1) is armed with a dangerous weapon; or
(2) after entering arms himself with a dangerous weapon; or
(3) commits a battery upon any person while in such place, or in entering or leaving such place.

Therefore, in order to prove the crime of aggravated burglary, the state must prove beyond a reasonable doubt that the defendant made an unauthorized entry of a structure with the intent to commit a theft or a felony. Additionally, the state must prove beyond a reasonable doubt one of the three aggravating circumstances listed in La.R.S. 14:60.

The state now seeks to prosecute the defendant for attempted forcible rape.

Under La.R.S. 14:27, any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.

Forcible rape is defined in La.R.S. 14:42.1 as a rape committed where the anal or vaginal sexual intercourse is deemed to be without the lawful consent of the victim because the victim is prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believes that such existence would not prevent the rape.

It is apparent that the crimes of aggravated burglary and attempted forcible rape do not contain identical elements. However, under the same evidence test, crimes need not be identical in elements to be the same offense under a plea of double jeopardy. Therefore, the crucial determination for review is what evidence was necessary for conviction of the defendant in the aggravated burglary charge and what evidence would be necessary for a conviction of the defendant for attempted forcible rape.

In the present case, the Louisiana Supreme Court reversed the defendant’s conviction on the charge of aggravated burglary based on the failure of the state to prove beyond a reasonable doubt that the defendant had made an unauthorized entry of a structure. It is apparent from the facts at the defendant’s previous conviction that the state sought to prove “the intent to commit a felony” element of the crime by the defendant’s actions in attempting to rape the victim. The state need only prove the intent to commit a felony, not the actual felony itself.

However, it is equally apparent that the state sought to prove the third element of aggravated burglary under La.R.S. 14:60(3) by proving that the defendant did commit a battery upon the person while in such place. ' The facts in no way indicate that the defendant entered the residence armed with a dangerous weapon or armed himself with a dangerous weapon after entering the residence. Therefore, the state sought to prove the battery element of the crime of aggravated burglary by presenting evidence of the defendant’s attempted forcible rape.

Battery is the intentional use of force or violence upon the person of another. La. R.S. 14:33. It is apparent that the attempted rape by the defendant constituted a battery within the meaning of R.S. 14:33. It is equally apparent that the state sought to prove this battery to satisfy the essential elements of the crime of aggravated burglary.

Therefore, the evidence necessary for conviction of the defendant on a charge of attempted forcible rape is the same evidence which was necessary in the state’s attempt to convict the defendant of aggravated burglary. Consequently, the double jeopardy clause of the Fifth Amendment of the United States Constitution and Article 1, Section 15 of the Louisiana Constitution of 1974 prohibits the state from placing the defendant twice in jeopardy.

For these reasons, we find that the trial court erred in denying defendant’s motion to quash and therefore the ruling of the trial court is reversed.

REVERSED.

      . The Bill of Information reads in pertinent part as follows:
      Wilmer D. Lockhart ... did attempt to commit a forcible rape upon Lily B. Carter, contrary to La.R.S. 14:27 and La.R.S. 14:43.1.
      This court recognizes that La.R.S. 14:43.1 is the crime of “Sexual Battery,” forcible rape is found in La.R.S. 14:42.1. We find that the result will not differ under either crime. Nevertheless, since the defendant has been put on notice of a "Forcible Rape” charge, the review will be limited to Forcible Rape as defined by La.R.S. 14:42.1.


author: FRED W. JONES, Jr., Judge.

text:
    Burnice H. WHEELINGTON, Plaintiff-Appellee, v. WEST CARROLL PARISH POLICE JURY et al., Defendants-Appellants.
    No. 16,475-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 1984.
    Writ Denied Nov. 16, 1984.
    Thomas E. Cooper, Jr., Rayville, Edwin 0. Ware, Alexandria, for defendant-appellant, West Carroll Parish Police Jury.
    James D. Sparks, Jr., Monroe, for plaintiff-appellee.
    Before JASPER E. JONES, FRED W. JONES, Jr. and SEXTON, JJ.
   FRED W. JONES, Jr., Judge.

Burnice H. Wheelington filed suit seeking a declaratory judgment that the West Carroll Parish ordinance prohibiting the sale of 3.2 beer in Ward 4 is unconstitutional. The trial judge ruled for plaintiff citing Johnston v. Morehouse Parish Police Jury, 424 So.2d 1053 (La.App. 2d Cir.1982), writ denied 427 So.2d 1208 (La.1983). We affirm.

The case was submitted to the trial judge on a joint stipulation of fact. Wheelington applied to the West Carroll Police Jury for issuance of a permit for the sale of 3.2 beverages (beer). The request was denied based on ordinances prohibiting the sale of alcohol in all the wards of West Carroll Parish. The ordinances were passed after an election held pursuant to the local option laws as they existed in 1976. The election was ordered July 9, 1976 and was held August 28, 1976. The ordinance effectuating the election was passed October 9, 1976.

Johnston, supra, is applicable to all local option elections held under the provisions of La.R.S. 26:586.1 prior to the repeal of La.R.S. 26:588 by Acts 1980 Number 633, § 1. Johnston therefore is indistinguishable from this case. We are in accord with the well-reasoned Johnston opinion and see no reason to repeat it here.

The judgment is affirmed at appellant’s cost.