author: PER CURIAM.

text:
    Grady L. MESSER v. Leonard O. LONDON.
    No. 83 CE 0899.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 10, 1983.
    Writ Granted Aug. 24,1983.

      J. Arthur Smith, III, John Samaha, Baton Rouge, for plaintiff-appellee.
    Albert F. Richard, Plaquemine, for defendant-appellant.
    Before PONDER, COLE, WATKINS, LANIER and ALFORD, JJ.
   PER CURIAM.

Plaintiff filed suit alleging that defendant, Leonard 0. London, who had qualified as a candidate in the election for police juror, District 2, Parish of East Feliciana, did not meet the qualifications for that office, because the defendant was not presently domiciled in the Parish of East Felici-ana and had not been domiciled in that parish for a full year preceding July 25, 1983, the date of defendant’s qualification.

The trial judge rendered judgment declaring that the defendant was ineligible to be a candidate for election as a member of the East Feliciana Parish Police Jury. Defendant appealed.

The only issue before this court is whether Mr. London was domiciled at a location within Police Jury District 2 in the year prior to his qualification to run for police juror of that district.

By LSA-R.S. 33:1225, the qualifications of a police juror are made the same as a legislator’s. By Art. 3, Section 4 of the Louisiana Constitution of 1974, a legislator must have “been actually domiciled for the preceding year in the legislative district from which he seeks election.... ”

LSA-C.C. Article 38 defines domicile as follows:

“The domicile of each citizen is in the parish wherein he has his principal establishment.
The principal establishment is that in which he makes his habitual residence; if he resides alternately in several places, and nearly as much in one as in another, and has not declared his intention in the manner hereafter prescribed, any one of the said places where he resides may be considered as his principal establishment, at the option of the persons whose interests are thereby affected.”

The term “actually domiciled” of the constitutional provision has been discussed in Mix v. Blanchard, 318 So.2d 125, 127 (La. App. 4th Cir.), writ denied, 320 So.2d 547 (La.1975):

“... in light of the quoted definition the word actually serves to emphasize the residency aspect of domicile. It is interesting to note the dialogue among the delegates to the Constitutional Convention in drafting this article. It is apparent the delegates intended to limit candidacy for political office to citizens who actually live in the district they aspire to represent. The newly drafted constitutional article was designed to eliminate a system under which candidates would establish a ‘political domicile’ from which to seek office even though they chose to live and maintain their families in another area, and were not truly representative of the district from which they sought election.”

The burden of proof is upon the contestant. Charbonnet v. Hayes, 318 So.2d 917 (La.App. 4th Cir.), writ denied, 320 So.3d 201 (La.1975).

Laws governing the conduct of elections should be liberally interpreted so as to promote rather than to defeat candidacy. Slocum v. Dewitt, 374 So.2d 755 (La.App. 3rd Cir.), writ denied, 375 So.2d 1182 (La. 1979).

There was much evidence both for and against plaintiff’s contention that defendant had not been a domiciliary of District Two of the Parish of East Feliciana for the year preceding his qualification. The trial court listed the following evidence:

(1) On June 2,1980, the defendant filed a petition for divorce alleging that he and Mrs. London had lived separate and apart since June of 1978;

(2) On December 29, 1980, Mr. London received a loan from a finance company in Baton Rouge wherein he gave his present mailing address as 1060 Swan Street, Baton Rouge, Louisiana, which address appeared on a chattel mortgage executed to secure the loan;

(3) A joint bank account in the names of Leonard London or Johnny London gives the defendant’s address as 1060 Swan Street;

(4) For the past three years his driver’s license and vehicle registrations have listed his home address as 1060 Swan Street;

(5) For the 1981-82 school year, Mrs. London applied for free or reduced school lunch prices for their children, which application did not list the defendant as living in the household;

(6) Mrs. London executed multiple applications for the 1982-83 school year for free or reduced price school lunches for her children which gave her name as the only adult living in her household;

(7) For several years the defendant’s address on Police Jury stationary has been 1060 Swan Street;

(8) Since 1978, gas, water and electric accounts at 1060 Swan Street in the name of Leonard London have been active;

(9) Utility accounts in the name of Leonard London at the Jackson, Louisiana, address remain active;

(10) A Gulf States Utilities Company account in the name of the defendant at 1040 Swan Street, Side B, was opened on September 26, 1980, and disconnected on November 2, 1982;

(11) The defendant has not established any domicile in Police Jury District Two, East Feliciana Parish, except at the Jackson, Louisiana, address;

(12) The defendant owns and operates a business located at 1060 Swan Street, where he spends a substantial amount of his time.

The court also noted after a visit to the defendant’s Jackson, Louisiana address, the only personal effects of Mr. London’s found at the premises were a couple of coats.

In written reasons, the trial judge made this statement in regard to Mr. London’s credibility:

“... the court refuses to accept as true Mr. London’s testimony except for his statements to the effect that since June of 1978 he had visited Route 1, Box 616, Jackson, Louisiana occasionally.”

Putting aside Mr. London’s testimony, we find that a clear preponderance of the evidence supports the trial court’s conclusion and we find no error. Canter v. Koehring Company, 283 So.2d 716 (La.1973).

For the foregoing reasons, the judgment is affirmed at appellant’s costs.

AFFIRMED.


source: Caselaw Access Project

author: LOTTINGER, Judge. SAVOIE, Judge, SHORTESS, Judge, WATKINS, Judge,

license: Public Domain

text:
    Roberta Margaret Young MADDEN, Individually and in her Capacity as Executive Director of Louisiana Common Cause, and Charles A. “Sam” Jones, III, Individually, and Winston J. Jackson, Jr., Individually v. R.E. EDWARDS and James H. “Jim” Brown, in his Capacity as Secretary of State.
    No. 83 CE 0921.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 15, 1983.
    Writ Denied Aug. 24,1983.
    Theodore (Ted) L. Jones, Baton Rouge, for plaintiffs-appellees Roberta Margaret Young Madden, et al.
    Milton Osborne, Jr., Baton Rouge, for defendant-appellant R.E. Edwards.
    Before LOTTINGER, EDWARDS, COLE, WATKINS, SHORTESS, CARTER, SAVOIE, LANIER, CRAIN and ALFORD, JJ.
   LOTTINGER, Judge.

This is a suit contesting the candidacy of R.E. Edwards for governor of Louisiana. Plaintiffs are Roberta Young Madden, individually and in her capacity as executive director of Louisiana Common Cause, and Charles A. “Sam” Jones, III, individually, and Winston J. Jackson, Jr., individually. These same plaintiffs filed similar suits against Ken “Cousin Ken” Lewis, 436 So.2d 761, and Michael J. Musmeci, Sr., 436 So.2d 762. All three suits were consolidated in both the trial court and in this court. This opinion will discuss all three suits, however, separate judgments shall be rendered. The Honorable James H. “Jim” Brown, in his capacity as Secretary of State of Louisiana was named as a defendant seeking to enjoin the Secretary of State from placing the names of the defendants on the ballot in the October 22,1983, gubernatorial primary election.

In the petitions plaintiffs allege they are qualified to vote in the subject election. Plaintiffs contend that the notice of qualification of R.E. Edwards is defective in that it does not contain the proper certificate and financial statement was not filed as required by R.S. 18: 463 A(2). As to Lewis and Musmeci, plaintiffs contend that the notice of qualification did not have an affidavit attached certifying that the information contained in the statement was true and correct as required by R.S. 18:463 B(l); and additionally that the financial statements filed with the Board of Ethics for Elected Officials had the same defects.

TRIAL COURT

Citing R.S. 18:463, the trial judge held that the financial statement required to be filed with the notice of candidacy must be notarized, and since none of the financial statements had been notarized, the defendants failed to properly qualify and were thus disqualified to seek the office of governor of Louisiana.

FACTS

Qualification for the office of governor of Louisiana commenced on July 25, 1983, and closed on July 29, 1983, at 5:00 P.M.

R.E. EDWARDS submitted a notice of candidacy form for the office of governor to the Secretary of State of Louisiana on July 25, 1983. There was not attached to this form a financial statement as required by R.S. 18:463. Mr. Edwards was informed at the time he submitted his notice of candidacy that the financial statement was necessary, and Edwards initialled an acknowledgment on the face of the form that the financial statement was not attached. On August 11,1983, Edwards attempted to furnish the Secretary of State’s office with a financial statement and the office refused to accept the statement.

KEN “COUSIN KEN” LEWIS and MICHAEL J. MUSMECI, SR. submitted notices of candidacy forms for the office of governor with financial statements attached thereto to the Secretary of State on July 25, 1983. The notices of candidacy forms are notarized but not witnessed. The financial statements are not independently notarized.

I

Any registered voter may bring an action objecting to the candidacy of a person who qualified as a candidate in a primary election for an office for which the plaintiff is qualified to vote. R.S. 18:491. Mrs. Madden is a registered voter qualified to vote for the office of governor of Louisiana.

R.S. 18:492 in part provides:

“An action objecting to the candidacy of a person who qualified as a candidate in a primary election shall be based on one or more of the following grounds: (1) The defendants failed to qualify for the primary election in the manner prescribed by law; * * * ”

II

R.S. 18:463 A(2) in part provides that the notice of candidacy shall include a certificate, signed by the candidate, certifying that he has read the notice of his candidacy and that he has attached to the notice of his candidacy the financial statement required by Subsection (B) of Section 463. R.S. 18:463 B(l) provides that each person who seeks to become a candidate for the office of governor shall at the time he files the notice of candidacy required by R.S. 18:463 A, shall also file a financial statement with the Louisiana Board of Ethics for Elected Officials. The candidate shall attach his affidavit to the financial statement certifying to its correctness. Thus, it is a mandatory requirement that a financial statement be attached to the notice of candidacy for the office of governor.

Since R.E. Edwards failed to attach a financial statement to his notice of candidacy, he did not qualify in the manner provided by law, and thus the trial court was not in error in disqualifying him from running for the office of governor of Louisiana.

III

The trial judge reasoned that since R.S. 18:463 A(2) requires the attachment of. the financial statement as required by Subsection B of R.S. 18:463, and that Subsection B required an accompanying affidavit to the financial statement, that it is necessary that the financial statement filed with the notice of candidacy be notarized. We are of the opinion the trial judge was in error in his interpretation of the law.

The notice of candidacy required by R.S. 18:463 must include a certificate attesting that all statements contained therein are true and correct, and the certificate shall be executed before a notary or two witnesses. Inasmuch as the form furnished by the Office of the Secretary of State to be used by candidates is printed and contains a printed statement which reads: “7. If I am a candidate for the office of governor, I hereby certify that I have attached to this notice of candidacy the financial statement as required by R.S. 18 463 B. (Act 747 of 1982),” then the attached financial statement becomes a part of the notice of candidacy. Since the notice of candidacy must be executed before a notary or two witnesses, there is no need for the attached financial statement to be independently notarized if the notice of candidacy has been notarized. Thus the trial judge was in error in ruling that the financial statement must be independently notarized.

IV

We note that the notice of candidacy forms for both Lewis and Musmeci bear the signature of a notary. Therefore, the trial judge was in error in disqualifying these two candidates.

DECREE

Therefore, for the above and foregoing reasons, the judgment of the trial court disqualifying the candidacy of R.E. Edwards and enjoining the Honorable James H. “Jim” Brown, Secretary of State of Louisiana from placing the name of R.E. Edwards on the ballot in the October 22,1983, gubernatorial primary election is affirmed at appellant’s costs.

AFFIRMED.

COLE and LANIER, JJ., concur in the result.

SAVOIE, Judge,

dissenting.

The whole spirit of the law is to encourage a multiplicity of worthy candidates to public office, not to obstruct their candidacy with technical difficulties. Roe v. Picon, 361 So.2d 874 (La.1978).

SHORTESS, Judge,

dissenting.

Appellant’s submission to the Board of Ethics for Elected Officials on July 21,1983 complied with the spirit of the law, especially when I consider the very confusing state of that law.

WATKINS, Judge,

dissenting.

I agree with the views expressed in dissents by Judges Shortess and Savoie. In accordance with the principles set forth in Roe v. Picou, 361 So.2d 874 (La.1978), I believe that if the legislature had intended to disqualify a candidate for a mere technical non-compliance with R.S. 18:463, they would have expressly so provided.


author: LOTTINGER, Judge. COLE, J.,

text:
    Roberta Margaret Young MADDEN, Individually and in her Capacity as Executive Director of Louisiana Common Cause, and Charles A. “Sam” Jones, III, Individually, and Winston J. Jackson, Jr., Individually v. Ken “Cousin Ken” LEWIS and James H. “Jim” Brown, in his Capacity as Secretary of State.
    No. 83CE0922.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 15, 1983.
    Writ Denied Aug. 24,1983.

      Theodore (Ted) L. Jones, Baton Rouge, for plaintiffs-appellees Roberta Margaret Madden, et al.
    Chester C. Williams, Baton Rouge, for defendant-appellant Ken “Cousin Ken” Lewis.
    Before LOTTINGER, EDWARDS, COLE, WATKINS, SHORTESS, CARTER, SAVOIE, LANIER, CRAIN and ALFORD, JJ.
   LOTTINGER, Judge.

For the reasons assigned in Roberta Margaret Young Madden, individually and in her capacity as executive director of Louisiana Common Cause, and Charles A. “Sam” Jones, III, individually, and Winston J. Jackson, Jr., individually versus R.E. Edwards and James H. “Jim” Brown, in his capacity as Secretary of State, 436 So.2d 759, rendered this date, the judgment of the trial court disqualifying the candidacy of Ken “Cousin Ken” Lewis and enjoining the Honorable James H. “Jim” Brown, Secretary of State of Louisiana from placing the name of Ken “Cousin Ken” Lewis on the ballot in the October 22, 1983, gubernatorial primary election is reversed, and the suit of plaintiffs is dismissed with costs to be paid by appellees both in this court and in the trial court as it relates to this suit.

REVERSED AND RENDERED.

WATKINS, J., concurs in the result.

COLE, J.,

dissents for reasons assigned in Docket Number 83 CE 0923 as to appellant Musmeci. The same applies equally to appellant Lewis. The trial court should be affirmed as to all three appellants.


author: LOTTINGER, Judge. COLE, Judge,

text:
    Roberta Margaret Young MADDEN, Individually and in her Capacity as Executive Director of Louisiana Common Cause, and Charles A. “Sam” Jones, III, Individually, and Winston J. Jackson, Jr., Individually v. Michael J. MUSMECI, Sr. and James H. “Jim” Brown, in his Capacity as Secretary of State.
    No. 83 CE 0923.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 15, 1983.
    Writ Denied Aug. 24,1983.
    Theodore (Ted) L. Jones, Baton Rouge, for plaintiffs-appellees Roberta Margaret Madden, et al.
    Milton Osborne, Jr., Baton Rouge, for defendant-appellant Michael J. Musmeci, Sr.
    Before LOTTINGER, EDWARDS, COLE, WATKINS, SHORTESS, CARTER, SAVOIE, LANIER, CRAIN and ALFORD, JJ.
   LOTTINGER, Judge.

For the reasons assigned in Roberta Margaret Young Madden, individually, and in her capacity as executive director of Louisiana Common Cause, and Charles A. “Sam” Jones, III, individually, and Winston J. Jackson, Jr., individually versus R.E. Edwards and James H. “Jim” Brown, in his capacity as Secretary of State, 436 So.2d 759, rendered this date, the judgment of the trial court disqualifying the candidacy of Michael J. Musmeci, Sr. and enjoining the Honorable James H. “Jim” Brown, Secretary of State of Louisiana from placing the name of Michael J. Musmeci, Sr. on the ballot in the October 22,1983, gubernatorial primary election is reversed, and the suit of plaintiffs is dismissed with costs to be paid by appellees both in this court and in the trial court as it relates to this suit.

REVERSED AND RENDERED.

WATKINS, J., concurs in the result.

COLE, Judge,

dissenting.

I believe the trial court is correct and should be affirmed as to appellant Musmeci, Sr. The law is clear as to the need for the financial statement to be separately sworn to and then attached to the Notice of Candidacy. Notarization of the Notice of Candidacy only attests to the fact that the sworn financial statement is attached.


author: STOKER, Judge.

text:
    Lloyd A. NICHOLSON, Jr., Plaintiff-Appellee, v. Patricia M. GRISAFFE, Defendant-Appellant.
    No. 83-753.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 16, 1983.
    Writ Granted Aug. 24,1983.

      Caffery, Oubre, Dugas & Campbell, Michael W. Campbell, New Iberia, for defendant-appellant.
    Paul J. deMahy, St. Martinville, for plaintiff-appellee.
    Before STOKER and YELVERTON, JJ., and PICKETT, J. Ad Hoc.
   STOKER, Judge.

This matter arises out of a suit brought by Mr. Lloyd A. Nicholson, Jr. against Mrs. Patricia M. Grisaffe seeking to have her disqualified as a candidate for Council Member in the Iberia Parish Council, District Eight. Nicholson claims that Grisaffe is disqualified because she is not in fact a resident and domiciliary of the district in which she seeks to be elected.

Suit was filed on July 29, 1983, and after trial of the matter on August 5,1983, judgment was rendered declaring Grisaffe disqualified as a candidate for the council post. This appeal followed. For reasons set out below, we affirm.

FACTS

The subject of dispute in this matter is whether Grisaffe’s place of residence is located within the boundaries of District Eight. Nicholson offered in support of his contention that Grisaffe does not reside in District Eight a survey done by a surveyor employed by him. The survey was done in accordance with the word description of the district found in the reapportionment plan for Iberia Parish.

It is undisputed that Grisaffe is and has been a registered voter in District Eight. However, it is Nicholson’s position that this designation is incorrect and that for purposes of her candidacy, Grisaffe is not in fact a resident of District Eight. Therefore, she is not qualified to run for the council position in that district.

On appeal Grisaffe’s primary argument is that the survey offered into evidence by Nicholson is not “official”. The only “official” evidence in the record is her record of voter registration which places her in District Eight. The registrar of voters testified that he relied on the “official” parish map in registering Grisaffe in District Eight; however, that map is not in evidence. It is Grisaffe’s position that this “official” evidence and the “official” map should prevail over the survey. Other arguments in support of her position are also raised and are addressed below.

DEFENDANT-APPELLANT’S EXCEPTIONS

In defense of plaintiff’s action Mrs. Gri-saffe filed two exceptions in one pleading designated as exceptions of no right and no cause of action. These were filed on the same day on which the trial was held and were referred to the merits with the agreement of the defendant’s counsel. Tr. 27, line 26. No answer to the suit was filed. At the conclusion of the trial the trial court gave oral reasons for its ruling. Both exceptions were overruled, and the trial court disqualified Mrs. Grisaffe as a candidate for the office she sought from District Eight.

EXCEPTION OF NO RIGHT OF ACTION

Defendant Grisaffe grounded her exception of no right of action on the charge that Nicholson’s petition failed to allege that Nicholson is qualified to vote in District Eight as required by law. The evidence at trial established that Nicholson was qualified to vote in District Eight. Under the circumstances the exception of no right of action was properly overruled by the trial court.

EXCEPTION OF NO CAUSE OF ACTION

The position taken in defendant’s exception of no cause of action is her primary defense. She views this case as being governed by a presumption which can not be attacked in this proceeding by evidence. Mrs. Grisaffe does not suggest how one might challenge the accuracy of a map made by the Iberia Parish Police Jury as directed by LSA R.S. 18:532 B and followed by the Registrar of Voters. She does emphatically contend, however, that election district boundaries as fixed on such an “official” map can not be attacked by evidence in the form of an independent survey in an action by one candidate to disqualify another candidate.

In fact, Mrs. Grisaffe takes the position that, even conceding for the sake of argument that an accurate survey would show that she physically resides in District Nine rather than District Eight, such cannot alter her status as a qualified voter and resident in District Eight. In other words Mrs. Grisaffe’s argument is that regardless of the true location of the boundary between Districts Eight and Nine, she is legally qualified as a voter in District Eight and a resident thereof for qualification purposes. Therefore, she meets the qualifications required by the Home Rule Charter of Iberia Parish contained in Article II, Section 2-01, Subparagraphs B and C thereof. Plaintiff’s exhibit 1, Tr. 6.

The duty of a parish governing authority to provide and maintain a map to show election districts is set forth in LSA R.S. 18:532 B. The full text of Section 532 provides:

§ 532. Establishment of precincts

A. Subject to the provisions of R.S. 18:1903, the governing authority of each parish shall establish precincts, prescribe their boundaries and number the precincts consecutively from first to last in each ward. The governing authority of each parish shall define the territorial limits within the ward for which each precinct is established. Each precinct shall be a contiguous, compact area having clearly defined and clearly observable boundaries coinciding with visible features readily distinguishable on the ground such as designated highways, roads, streets, rivers, or canals, except where the precinct boundary is coterminous with the boundary of a parish, an incorporated place, or a ward. No precinct shall be wholly contained within the territorial boundaries of another precinct.
A precinct shall be wholly contained within or without an incorporated place.
B. Each parish governing authority shall provide and maintain at all times a suitable map showing the current geographical boundaries with designation of ward and precinct. A word description of the ward and precinct geographical boundaries shall be attached to each map. Each parish governing authority shall send a copy of each map, with attached description, to the registrar of voters, the secretary of state, and the commissioner of elections. The map may be composed of one or more sheets but each sheet shall not exceed three feet by four feet. The map shall include all existing roads, streets, railroad tracks, and drainage features but shall not include underground utility lines, land use and zoning symbols or shadings, symbols for vegetation cover, topographic contour lines and similar items that obscure the basic street pattern and names. All features, names, titles, and symbols on the map shall be clearly shown and legible. The map sheet of the entire parish shall be on a scale of one inch equals one mile to one inch equals two miles. Map sheets of each incorporated place within the parish shall be on a scale of one inch equals eight hundred feet to one inch equals sixteen hundred feet. Each map sheet shall indicate the date of the base map or the date of last revision. Wherever the boundaries of a precinct, ward, or incorporated place, are coterminous, they shall be clearly indicated.
C. The parish governing authority shall also furnish a copy of the map required in R.S. 18:532(B) clearly indicating the boundaries of each parish governing authority district, school board district, special election district, representative district and senate district.
D. Each parish governing authority shall establish its election precinct boundaries to comply with the provisions of R.S. 18:532(A) and shall submit a map as required by R.S. 18:532(B) on or before January 1, 1984.

Neither plaintiff nor defendant saw fit to introduce the “official” parish map which the registrar of voters testified was furnished to him by the Policy Jury of Iberia Parish and on the basis of which he stated he placed defendant Grisaffe in District Eight. Plaintiff apparently takes the position that what the “official” map shows as the District Eight boundary is immaterial because evidence in the form of a survey shows that defendant Grisaffe does not live in District Eight. As she argues that evidence to challenge the “official” map is inadmissible, defendant apparently takes the position that plaintiff is bound by the action taken by the registrar of voters which the registrar testified places defendant in District Eight.

EXCEPTION OF NO CAUSE OF ACTION PROPERLY OVERRULED

The trial court admitted evidence at the trial on the issue of the location of the boundary of District Eight in relation to the location of defendant’s residence, which is Lot 4A of Blue Haven Subdivision in Iberia Parish. The evidence as to the boundary consisted of the testimony of Alfred W. Schoeffler, a civil engineer and registered land surveyor, together with a plat made by him, P-7 (Tr. 12) and a copy of the Iberia Parish map, P-8 (separate exhibit), on which he marked all the boundaries of District Eight. On both of these exhibits Mr. Schoeffler indicated that Mrs. Grisaffe’s lot (her domicile and residence) is located east of the segment of the district boundary in question and outside of District Eight.

From the trial court’s oral reasons for judgment it is evident that it saw no merit to defendant’s exception of no cause of action. His ruling and judgment effectively overruled the exception. This action was correct.

Defendant presents a persuasive argument concerning the effect of the map which the registrar of voters states was furnished him by the Iberia Parish Police Jury. Nevertheless, we find nothing in law which gives such a map (assuming it was prepared and furnished as directed by LSA R.S. 18:532 B) a presumptively valid or “official” status and effect which can not be questioned in a proceeding such as this. While such a map is official in a sense, its preparation under official authority of the statute by the Parish governing body does not preclude attack on its accuracy when voting or election qualifications come into question. All that the statute provides is that each parish governing authority shall prepare such a map and provide it to certain public officials.

For the reasons given above we hold that evidence as to the boundary of District Eight, other than whatever may be shown on the “official” map made in compliance with Section 532, was admissible.

At this point we note a further reason why we think admission of evidence was proper. As pointed out above the so-called “official” map prepared by the Police Jury was not produced in evidence. The record contains only the testimony of the registrar that such a map was furnished to him. He further testified that based on the districts designated on the map he determined that Mrs. Grisaffe lived in District Eight. The trial court overruled an objection made on behalf of plaintiff to any reference to a map until it had been introduced in evidence. The trial court overruled the objection on the ground that the registrar was entitled to state the reason why he made the determination.

In considering the matter from our viewpoint we note that defendant is actually urging two presumptions: first that the “official” map cannot be challenged in this proceeding, and second, that what the “official” map shows can be proved by the testimony of the registrar alone without production of the “official” map. It appears to us that the objection presented a foundation question and the defendant should not have been enabled to foreclose any inquiry into the accuracy of the registrar’s interpretation of the map through a trial court ruling that exempted the defendant from producing the map relied upon.

EVIDENCE AS TO THE BOUNDARY

The record contains plaintiff’s Exhibit 2 (Tr. 7) which purports to be a word description of District Eight. The parties apparently agree that the word description is accurate and is the valid description of District Eight. After describing a point of beginning and a course along Louisiana Highway 86 to its intersection with Bayou Teche, the description continues to describe the segment of the boundary which is in question here as follows:

“... thence easterly along Bayou Teche to its intersection with a point north of the intersection between LA Highway 344 and Parish Road 429, Thence southerly to its intersection between LA Highway 344 and Parish Road 429, ...”

The word description represented in exhibit P-2 is the only description of any kind in the record of this case. Plaintiff’s expert witness, Mr. Schoeffler, located the line from the point on Bayou Teche which was north of the intersection of the two named roads. He then indicated the line on a plat of survey (P-7) which also shows defendant’s property on which her residence is located. This is Lot 4A, marked by the letter “G”, located 617.49 feet east of the north — south line running through the intersection of Louisiana Highway 344 and Parish Road 429. We annex a copy of the survey represented by P-7 as an appendix to this opinion.

Other than the testimony of the registrar of voters, there is no contradictory evidence as to the location of the north — south line established by Schoeffler. Stated another way, there is no other survey in evidence to show the location of the north — south line. Therefore, the evidence shows that defendant’s property and residence is east of District Eight and she does not live in District Eight. Had the “official” Police Jury map been introduced in evidence, we would be required to resolve any conflict between maps. Since this map is not in evidence, we do not have that problem.

Defendant attacks the validity of the Schoeffler survey on several points. Her principal objection is that Schoeffler established his line as a true north direction rather than magnetic north. While Schoef-fler’s use of true north appears valid, it would make no difference in the outcome. According to Schoeffler magnetic north declination at this time at the place involved is approximately four degrees and thirty minutes. (Tr. 61) Employing magnetic north would shift the line approximately four degrees and thirty minutes to the right of the true north line shown on P-7. Schoeffler testified that using magnetic north, shifting the boundary at the required angle (4° 30'), would not relocate the line enough to move it 617.49 feet so as to include defendant’s lot.

Defendant also argues that Schoeffler admitted that different surveyors might select varying points as the middle of the intersection of the two roadways. He also admitted that there is some question as to whether the roads are in the centers of the two rights of way. Despite these admissions Schoeffler stated that variation as to location of the intersection point would not vary over twenty feet either way. Since any line drawn from different starting points in the intersection would run parallel to Schoeffler’s line (or the magnetic north line which Schoeffler indicated) the variation would be constant all along the line. It would not substantially affect the 617.49 foot distance between the north — south line and defendant’s property.

On behalf of Mrs. Grisaffe it is argued that the situation in this case should be governed by the rule applicable in conflicts between word descriptions of property in deeds and instruments of conveyance and attached maps. Defendant-appellant argues that in such cases the map controls. Then it is argued that the “official" Police Jury survey should control in a conflict between it and the “unofficial” survey made by Schoeffler. We do not follow this argument. The conflicts in deeds refer to differences between word descriptions and maps. Therefore, we interpret appellant’s argument as stated in her brief as being that the “official” Police Jury map should control over the word description contained in P-2. This contention evidently rests on the contention that this map and word description were adopted by the Police Jury at the same time. Also it apparently assumes that the word description was drafted to follow the map rather than the other way around. There is no evidence on this point. More important is the fact, as pointed out above, that the “official” Police Jury map is not in evidence. Since this is so, we have no conflict between a map and a word description.

The word description is in evidence, and Schoeffler’s survey and plat is the only determination of the north — south line in question contained in that description.

Mrs. Grisaffe further contends that the action of the trial court changed precinct boundaries after the opening of the qualification period for candidates and the date of the general election. Such changes may not be made as they are prohibited by LSA R.S. 18:532.1. Such an argument could have validity only if one accepted defendant’s premise that the boundary is as the registrar of voters contends it is, and also that, even if the Police Jury map was incorrect, it is official and legally binding until the Police Jury corrects it or a court of law orders it corrected in an appropriate action.

We regard the action with which this appeal is concerned as one to locate the district boundary and not an action to change it.

OTHER ARGUMENTS OF APPELLANT

Mrs. Grisaffe contends that La. Const. Art. 3 § 4(B) is applicable. Article 3, Section 4, Subsection B provides in pertinent part as follows:

“B. Domicile: Special Provisions. However, at the next regular election for members of the legislature following legislative reapportionment, an elector may qualify as a candidate from any district created in whole or in part, from a district existing prior to reapportionment if he was domiciled in that prior district for at least one year immediately preceding his qualification and was a resident of the state for the two years preceeding his qualification period. The seat of any member who changes his domicile from the district he represents or, if elected after reapportionment, whose domicile is not within the district he represents at the time he is sworn into office, shall be vacated thereby, any declaration of retention of domicile to the contrary notwithstanding.”

She argues that this case is analogous to the above situation because Districts Eight and Nine were changed by a 1983 reapportionment required by the federal government. We disagree.

The case of Toldson v. Fair, 374 So.2d 759 (La.App. 2nd Cir.1979), writ denied, 375 So.2d 1182 (La.1979), cited as authority by Mrs. Grisaffe is distinguishable. In Told-son, the candidate had a residence in the new district, but failed to meet the one year domicile requirement. In the present case, the residency of Mrs. Grisaffe is at issue, not just the question of whether or not she meets the one year domiciliary requirement.

Mrs. Grisaffe contends that Mr. Nicholson is estopped from contesting her candidacy. She argues that since Mr. Nicholson knew of the alleged irregularity in the districting lines prior to the opening of the qualification period, he should not be estopped from raising the issue at a time when nothing can be done about it.

Equitable estoppel is defined as the effect of voluntary conduct of a party whereby he is barred from asserting rights against another party justifiably relying on such conduct and who has changed his position to his detriment as a result of such action. Babin v. Montegut Ins. Agency, Inc., 271 So.2d 642 (La.App. 1st Cir.1972). Estoppels are not favored in our law. They will be applied, however, when the evidence warrants it and when the ends of justice demand it. G.J. Deville Lumber Co., Inc. v. Chatelain, 308 So.2d 428 (La.App; 3rd Cir. 1975), writ denied, 313 So.2d 239 (La.1975).

The record reveals that the Registrar of Voters led Mrs. Grisaffe to believe she was a resident of District Eight. Mrs. Grisaffe did not rely on the conduct of Mr. Nicholson. We hold that equitable estoppel is not appropriate. Further, equitable considerations cannot be permitted to prevail when in conflict with positive written law. Chambers v. Parochial Emp. Retirement System, 398 So.2d 102 (La.App. 3rd Cir. 1981), writ denied 400 So.2d 1382 (La.1981). The positive written law of the Iberia Parish Home Charter, Section 2-01 requires that a candidate be a qualified voter, be legally domiciled, and actually reside in the district for which she seeks office.

We hold that the trial court correctly overruled defendant-appellant’s exceptions and correctly ruled in plaintiff’s favor declaring Patricia M. Grisaffe disqualified as a candidate for the office of councilwoman for District Eight of the Iberia Parish Council. The trial court’s judgment is affirmed and defendant-appellant is assessed with the costs of this appeal.

AFFIRMED.


text:
    Harry WILLIAMS, Jr. v. Cedric FLOYD and William M. Justice, Jr.
    No. 83 CA 574.
    Court of Appeal of Louisiana, Fifth Circuit.
    Aug. 18, 1983.
    Jacob J. Amato, Jr., Gretna, for plaintiff-appellant.
    Anthony Wambsgans, Metairie, Walter Crittenden, Gretna, for defendants-appel-lees.
    Before BOUTALL, KLIEBERT and GRISBAUM, JJ.
   PER CURIAM.

For the reasons to be hereafter assigned, the judgment of the trial court is hereby reversed and set aside and the defendant, Cedric Floyd, is decreed to have failed to qualify as a candidate for the office of Council Chairman, Parish of Jefferson, for the election to be held on October 22, 1983.


author: KLIEBERT, Judge.

text:
    Harry WILLIAMS, Jr. v. Cedric FLOYD and William M. Justice, Jr.
    No. 83 CA 574.
    Court of Appeal of Louisiana, Fifth Circuit.
    Aug. 18, 1983.
    Writ Denied Aug. 24,1983.
    Jacob J. Amato, Jr., Gretna, for plaintiff-appellant.
    Anthony Wambsgans, Metairie, Walter Crittenden, Gretna, for defendants-appel-lees.
    Before BOUTALL, KLIEBERT and GRISBAUM, JJ.
   KLIEBERT, Judge.

This is an appeal from a judgment of the trial court dismissing a suit filed by Mr. Harry Williams, Jr. seeking to disqualify Mr. Cedric Floyd as a candidate for Council Chairman, Jefferson Parish, at the election to be held on October 22, 1983.

Mr. Williams’ suit is grounded in the contention Mr. Floyd failed to pay the qualifying fee required by law. The trial judge’s judgment permits the candidate to run for the office by submitting an additional qualification fee.

For the reasons hereafter stated, we reverse the trial judge and hold that Mr. Floyd has not qualified in the manner required by law.

La.R.S. Article 18:464 reads in pertinent part as follows:

“A. Method of payment. The qualifying fee shall be paid to the official with whom the candidate qualifies and shall accompany the notice of candidacy. The qualifying fee shall be paid in cash or by certified or cashier’s check on a state or national bank, United States postal money order, or money order issued by a state or national bank. (Emphasis Supplied).
B. Amount of qualifying fees. The qualifying fees for candidate in primary elections are:
(2) For local candidate — two hundred dollars for state senator and district judge, one hundred fifty dollars for state representative and other district or parochial offices, and fifty dollars for ward and all other local offices. (Emphasis Supplied).
C. Additional fees. (1) A state central committee of a political party may fix and impose an additional fee to be collected in the manner provided in this Paragraph. The amount of the additional fee shall be uniform as to all candidates for each office of the same kind or character and in no event shall be in an amount in excess of one-half the qualifying fee fixed by law.... ”

Mr. Floyd contends that some unknown person in the Clerk’s office informed him the qualifying fee was $112.00. He does not seriously dispute, however, Mr. Justice’s testimony as to events which transpired at the time he qualified for office which was just a few minutes prior to the closing of qualifications.

According to Mr. Justice, the Clerk of Court for the Parish of Jefferson, when asked as to the amount of the qualifying fee for Council Chairman, he informed Mr. Floyd he did not know, but pointed out that the other candidates had paid a state qualifying fee of $150.00 plus an amount to cover their respective party qualifying fee and, accordingly, advised Mr. Floyd to pay a qualifying fee of $225.00. Nevertheless, based on his belief the office he was qualifying for was similar to that of a “Police Juror”, Mr. Floyd elected to pay the qualifying fee ($75.00 for the state and $37.00 for the party) set out for a police juror in the Secretary of State’s pamphlet entitled “Gubernatorial Election Information, State of Louisiana 1983”.

The trial judge found the proper qualifying fee under the above quoted provision was $150.00 for the state and $75.00 for the party. However, in view of alleged ambiguities in the statute and for the stated reasons that courts have traditionally hesitated to disqualify candidates on misunderstandings or ambiguous statutes, his judgment permitted Mr. Floyd to run for the office by submitting the remaining qualifying fee of $125.00 by 4:00 o’clock P.M. on Monday, August 15, 1983.

As we read the quoted statute, the requirements are clear. Further, we see no basis for equating the office of council chairman to that of a police juror rather than a parochial office. Under the statutes, the failure to submit with the notice of candidacy an amount sufficient to cover the qualifying fee is a failure to qualify in the manner provided by law. The effect of the trial court order is to extend the time for qualifying to August 15, 1983. We see no difference in principle from the situation involved here to one where the prospective candidate files his qualifying papers after the time for qualifying has expired. Prohibiting the latter’s candidacy in the election for failure to timely qualify would not be considered a technicality, but rather, a recognition that qualifying deadlines must be adhered to for the citizens to have an orderly election.

Under the election laws, the Secretary of State determines the qualifying dates for various offices by counting back from the date on which the election is to be held. There are numerous “deadlines or cutoff” dates which must be adhered to in order to maintain an orderly election on the date set. Even the trial and appeal of election suits are to adhere to a rigid time period to take action or the right to do so is thereafter foreclosed.

The payment of the proper qualifying fee is not a technicality. It is a prerequisite to qualifying and must be rigidly adhered to if order in the conduct of elections are to be maintained. Paramount to a democratic society is the conduct of orderly elections. If we permit a candidate who may be confused as to his appreciation of the law to re-open the qualification period, then we would be unable to enforce the legislative time limitations on any of the prerequisites to qualification, or the time limit set for an orderly election.

REVERSED AND SET ASIDE.

      . During oral arguments we were informed the additional qualifying fee of $125.00 had been paid.


author: GRISBAUM, Judge.

text:
    Guido SALAS v. Steve J. MORTILLARO.
    No. 83-CA-575.
    Court of Appeal of Louisiana, Fifth Circuit.
    Aug. 18, 1983.
    Writ Denied Aug. 24,1983.
    Cameron C. Gamble, New Orleans, for plaintiff-appellant.
    Stumpf, Dugas, LeBlanc, Papale & Ripp, George M. Papale, Gretna, for defendant-appellee.
    Before BOUTALL, KLIEBERT and GRISBAUM, JJ.
   GRISBAUM, Judge.

This is a suspensive appeal brought by Guido Salas (Salas) from a judgment granting a directed verdict upholding the validity of candidacy of the defendant, Steve J. Mortillaro (Mortillaro), for the office of the Fifth Justice of the Peace, Parish of Jefferson and dismissing the petition of the plaintiff. We affirm.

The issue is whether Mortillaro was a “resident” of Ward 10, Precinct 24, (4709 Lake Louise Avenue) as defined by L.S:AR.S. 18:101(B) at the time he filed his notice of candidacy on July 25,1983, and is thus a “qualified elector” as required in L.S.A.R.S. 13:2581.1.

STATEMENT OF FACTS

On July 25, 1983 in qualifying with the Secretary of the Board of Election Supervisors, Mortillaro listed 4709 Lake Louise Avenue as his address. His wife alleged in a petition for separation from bed and board filed December 4, 1982 that he no longer lived with her in their home on Lake Louise Avenue, but Mrs. Mortillaro did not attempt to confirm a judgment of separation in the seven months preceding the qualifying date. During the separation, Mortillaro rented an apartment at 2301 Severn, but he spent time at the Lake Louise home and did not at any time file a notice of change of residence with the Registrar of Voters.

The trial court in its reasons for judgment found that the defendant’s apartment was temporary in nature in that Mortillaro did not make any utility deposits; he rented on a month-to-month basis; he gave the phone number at Lake Louise as his contact; and he purchased no furniture. In addition, the trial court concluded from the testimony of Mortillaro and his wife that their arrangement of separation was temporary, noting that Mrs. Mortillaro took no further action in obtaining a judgment of separation and that the Mortillaros owned the Lake Louise home together, there having never been a community property settlement of any kind between them. The court noted that Mortillaro listed 4709 Lake Louise as his address in many of his transactions, business and otherwise, and that his creditors considered Lake Louise to be his address. Moreover, the court found it was Mortillaro’s intention to maintain the Lake Louise Avenue home as his primary residence.

This court recognizes a candidate may have multiple residences under the Louisiana Election Code. See, L.S.A.-R.S. 18:101(B). The code defines a “resident” for purposes of voter registration as “a citizen who resides ... in the precinct in which he offers to register and vote, with an intention to reside there indefinitely.” See, L.S.A.-R.S. 18:101(B).

Any doubt regarding the domicile of a candidate should be resolved in favor of permitting the candidate to run for public office. See, Slocum v. DeWitt, 374 So.2d 755 (La.App. 3d Cir.1979).

When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. See, Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1978). The trial court determined that it was Mortillaro’s intention to be a resident of 4709 Lake Louise Avenue and this was in fact his residence. We see no manifest error.

AFFIRMED.

      . The record reflects the 4709 Lake Louise Avenue and the 2301 Severn apartment are within the Fifth Justice of the Peace district.


author: SCHOTT, Judge. CIACCIO, Judge,

text:
    STATE of Louisiana v. Elijah MURRAY.
    No. KA 0339.
    Court of Appeal of Louisiana Fourth Circuit.
    June 28, 1983.

      Philip E. O’Neill, Gretna, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William R. Campbell, Jr., Asst. Dist. Atty., New Orleans, for state of La.
    Before SCHOTT, AUGUSTINE and CI-ACCIO, JJ.
   SCHOTT, Judge.

Defendant has appealed from his conviction of attempted purse snatching in violation of LSA-R.S. 14:27(65.1). Following the jury verdict a multiple offender hearing was conducted and defendant was sentenced as a third felony offender to 12 years imprisonment at hard labor.

On April 25, 1982, while in a crowd leaving an event at the Superdome, the victim was shoved and observed the defendant’s hand in her purse causing her to exclaim, “he’s taking my purse.” There were two other eyewitnesses to the incident, the victim’s husband and her brother. The brother observed the defendant push past him and then he noticed defendant’s arm reaching down into the victim’s purse causing him to say, “he has got your purse.” Immediately after hearing his brother-in-law and wife shouting the victim’s husband grabbed defendant and brought him to the police station. Based on this testimony defendant was convicted.

ASSIGNMENTS OF ERROR 1 AND 2

By these assignments, defendant argues that R.S. 14:65a is unconstitutionally vague and the offense described is the same as that contained in R.S. 14:65 pertaining to simple robbery, and, yet, it provides for a greater penalty. R.S. 14:65.1 withstands a vagueness attack since the statute sufficiently describes the unlawful conduct with enough clarity for any ordinary person with reasonable intelligence to understand it. State v. Gisclair, 363 So.2d 696 (La.1978). In regard to the suggestion that there is no justification for the greater penalty in R.S. 14:65.1 than in R.S. 14:65, the legislature’s decision that purse snatching is more serious than simple robbery was reasonable considering the widespread exposure of the public to this crime, the personal nature of a wallet or purse, and the potential for loss of greater value. These assignments have no merit.

ASSIGNMENTS OF ERROR 3 AND 6

By these assignments, defendant argues that the wrong form of the bill of information was used, the bill charged only an offense of attempted theft, R.S. 14:27(67), it did not adequately set forth the crime of attempted purse snatching, R.S. 14:27(65.1), and the judge’s charge and verdict sheet were deficient in dealing with attempted purse snatching rather than attempted theft. The bill states that the defendant “attempted to commit a theft by snatching a wallet valued at forty ($40.00) dollars belonging to Carmel Delany.” The cover portion of this bill stated the statutory offense as “R.S. 14.27(65.1), Attempted Purse Snatching.” The language of the bill satisfied the accused’s constitutional right to be informed of the nature and cause of the charge against him and no prejudice to the defendant occurred because of the form of the bill. The charge and verdict sheet were likewise correct. These assignments have no merit.

ASSIGNMENT OF ERROR 4

By this assignment defendant contends the trial court erred in restricting defendant’s cross examination of one of the state’s witnesses. A review of the transcript of the subject cross-examination shows no abuse of the wide discretion granted a trial judge in such circumstances. Furthermore, defendant failed to object contemporaneously to this ruling as required by C.Cr.P. Art. 841. This assignment has no merit.

ASSIGNMENTS OF ERRORS 5 AND 9

These assignments deal with the state’s rebuttal argument. Defendant urges that his Motion for Mistrial should have been granted because of the prosecutor’s reference to “force and intimidation” in the rebuttal argument. Defendant further contends that the prosecutor used in-flamatory language in the argument by making reference to the defendant’s lack of evidence at trial. We are not convinced that the remarks, even if improper, influenced the jury and contributed to their verdict. State v. Vosloh, 387 So.2d 1174 (La.1980). These assignments have no merit.

ASSIGNMENTS OF ERROR 7 AND 8

These assignments deal with whether or not the record contains sufficient evidence to convict the defendant. Based upon a review of the record we conclude that any rational finder of fact reviewing the evidence in the light most favorable to the prosecution could have found the essential elements of the crime were proved beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Specifically, the record indicates that there was an attempt by defendant to take something of value contained in a purse from the person of another by snatching. The victim and her brother observed the defendant with his arm protruding from the victim’s purse which contained a wallet, and the victim saw defendant’s hand in her purse. The trial court, in its charge to the jury, defined snatching as “to grasp or seize hastily, eagerly or suddenly ... to make grasping or seizing motions.” An examination of the record shows that the defendant attempted to quickly grab something in the victim’s purse and his intention to permanently deprive can be inferred from these circumstances. R.S. 15:445. These assignments have no merit.

ASSIGNMENTS OF ERROR 10 AND 11

These assignments deal with the evidence presented at the multiple offender hearing. By assignment 11, defendant argues that the fingerprints of defendant did not match those offered into evidence from the arrest registers in case Numbers 266-568 and 272-712. The trial court’s conclusions were based on Officer Comeaux’s conceded expert testimony that there was no possibility that he could be mistaken in his opinion that all the prints matched. Defendant presented no contrary evidence. Assignment 11 has no merit.

Assignment 10 challenges the trial court’s use of the two prior felony convictions as a basis for the finding that the defendant was a third felony offender under R.S. 15:529.1. A review of the transcript of the multiple offender hearing shows that the state introduced the following evidence of defendant’s prior convictions.

(1) A 1978 robbery conviction — the Arrest Register, a minute entry, the bill of information, and a guilty plea form. (2) A 1979 robbery conviction — the Arrest Register, a transcript of hearing on the plea of guilty, a copy of the bill of information, the multiple bill and the minute entry therefrom, the docket master and the plea of guilty form. Defendant contends that the state failed to establish that these guilty pleas were constitutionally valid under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) and State v. Santiago, 416 So.2d 524 (La.1982).

Under Boykin a guilty plea may not be accepted unless there is an affirmative showing that it is intelligently and voluntarily made, evidenced on review by a record which shows defendant’s effective waiver of his rights against self-incrimination, his right to a trial by jury and his right to confront his accusers. Where defense counsel objects to the use of a guilty plea as a predicate to enhance a sentence, the state carries the burden to show the free and voluntary nature of a plea of guilty with an articulated waiver of Boykin rights. State v. Holden, 375 So.2d 1372 (La.1979). The purpose of the Boykin rule is to insure that the defendant has adequate information so that his decision to plead guilty is truly intelligent and voluntary. In this regard a defendant must be told what three basic rights at trial are guaranteed to him by the constitution. State v. Martin, 382 So.2d 933 (La.1980).

In the instant case defendant objected to the use of the minute entry and waiver form for the 1978 conviction and the adequacy of the Boykinization transcript and waiver form for the 1979 conviction.

As to the earlier case, the following from the case of State v. Bolton, 379 So.2d 722 (La.1979) is applicable:

“(b) However, for pleas of guilty taken after December 8, 1971, in order to use the prior plea of guilty to enhance punishment in a subsequent proceeding, the state must, if objection is made to its voluntariness or to its being a knowing plea (due, e.g., to the absence of waiver of the Boykin rights), affirmatively show through (only) a contemporaneously recorded transcript that the plea was voluntary and made with an awareness of its consequences. State v. Lewis, 367 So.2d 1155 (La.1979); State ex rel. LeBlanc v. Henderson, 261 La. 315, 259 So.2d 557 (1972); State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971).” (Emphasis added)

Thus, under Bolton the defense need only object to the use of a minute entry and the state was required to produce a recorded transcript of the Boykin colloquy. However, in the more recent case of State v. Bland, 419 So.2d 1227, 1223 (La.1982) the court suggests that unless the defense objects to the use of the minutes based on a contention that they are in error, the use of the minutes is appropriate to help establish a prima facie case of a knowing and voluntary waiver of Boykin rights with respect to a previous conviction used for enhancement.

However, the minute entry in question here does not suffice because it fails to show affirmatively that proper Boykini-zation had taken place. Indeed, the language of this entry is more deficient than that in State v. Age, 417 So.2d 1183 (La. 1982). For this reason we hold that the predicate for the multiple offender bill based on the defendant’s conviction in the 1978 case is inadequate. We find no support for the state’s contention that a guilty plea form alone is sufficient to satisfy its burden. State v. Holden, supra.

In regard to the predicate founded on the 1979 case, we have examined the transcript of the colloquy and the waiver of rights and guilty plea form. Although the colloquy does not include the specific language that defendant could remain silent at trial as discussed in State v. Martin, supra, and State v. Age, supra, the colloquy on this point is at least as complete as the one approved in State v. Yarbrough, 418 So.2d 503 (La.1982) In all other respects, including as regards the waiver of jury trial, the transcript shows that the judge sufficiently questioned the defendant about his Boykin rights. The waiver of rights form repeats essentially the same rights explained in the colloquy transcript. Thus, we find that the guilty plea in the 1979 ease was voluntarily and intelligently given and the conviction was properly used at the multiple offender hearing.

For the foregoing reasons, the defendant’s conviction under LSA-R.S. 14:27(65.1) is affirmed. However, because of the lack of proof as to the 1978 guilty plea, the adjudication of defendant as a third felony offender is reversed, and the case is remanded to the district court for the defendant to be resentenced in accordance with law.

CONVICTION AFFIRMED: THIRD OFFENDER ADJUDICATION REVERSED, REMANDED FOR RESEN-TENCING.

CIACCIO, J., concurs.

CIACCIO, Judge,

concurring:

The question of what constitutes a sufficient advisement of the privilege against self-incrimination in connection with entry of a defendant’s guilty plea, has been addressed on at least five occasions by the Louisiana Supreme Court. State v. Yarbrough, 418 So.2d 503 (La.1982); State v. Age, 417 So.2d 1183 (La.1982); State v. Robicheaux and Powell, 412 So.2d 1313 (La. 1982); State v. Hayes, 412 So.2d 1323 (La. 1982); State v. Martin, 382 So.2d 933 (La. 1980). When these cases are considered together, the following jurisprudential rule may be extrapolated: When interrogating a defendant as to his understanding of the Constitutional rights which are waived by pleading guilty, the trial judge must determine with certainty that the defendant un-. derstands that his right against self-incrimination, i.e. his right to remain silent, is in effect at the time of the guilty plea as well as at the time of trial, should the defendant choose to exercise his right to proceed to trial. While it is preferrable that the trial judge articulate that the right against self-incrimination is maintained “at trial”, these words are not sacrosanct. If the overall colloquy between the trial judge and the defendant indicates that the defendant understood the full extent of his right against self-incrimination, then this requirement has been satisfied.

As pointed out by the majority, the colloquy in this case is similar to the one found sufficient in State v. Yarbrough, supra. After reviewing the colloquy as a whole, I find that defendant understood that his right against self-incrimination extended throughout a trial.

      . R.S. 14:65.1 reads:
      § 65.1 Purse snatching. A. Purse snatching is the theft of anything of value contained within a purse or wallet at the time of the theft, from the person of another or which is in the immediate control of another, by use of force, intimidation, or by snatching, but not armed with a dangerous weapon.

      . R.S. 14:65 reads:
      § 65, Simple robbery. Simple robbery is the theft of anything of value from the person of another or which is in the immediate control of another, by use of force or intimidation, but not armed with a dangerous weapon.

      . The pertinent part of the rebuttal argument at question reads as follows:
      “I want you to remember this: An attempt, and you have got to couple that with purse snatching. It’s ‘the theft of anything of value contained within a purse—within a purse—or wallet at the time of the theft, from the person of another or which is in the immediate control of another, by use of force, intimidation, or by snatching, but not armed with a dangerous weapon.’ ‘Force, intimidation, or by snatching.’
      BY R. O’NEILL:
      Objection. Objection. May I approach the bench? Your Honor, the bill says by snatching only. It doesn’t say force or intimidation. I ask for a mistrial. He can’t do that at this late state.
      Note my objection for the record.
      BY THE COURT: It’s overruled.

      . The subject minute entry in the 1978 case reads in pertinent part:
      “The accused submitted to the Court a signed plea of guilty form in connection with his plea of guilty and the Court questioned the said Elijah Murray, after the minute clerk placed him under oath, regarding his plea of guilty, as noted by the court reporter.

      . The entry discussed in Age, supra, simply stated that the court “interrogated the defendant as to whether he understood his constitutional rights, the court explained the same and the defendant answered in the affirmative.”

      .The portion of the colloquy pertaining to defendant’s fifth amendment rights is as follows:
      “Also, you’re waiving your privilege against self incrimination because by pleading guilty you are incriminating your self, and by testifying this morning you’re incriminating yourself. And you wish to waive the privilege against self incrimination?”


author: ROBERTSON, Justice,

text:
    Dempsey M. LEVI and Earl L. Denham, Appellants, v. MISSISSIPPI STATE BAR, Appellee.
    Misc. No. 887.
    Supreme Court of Mississippi.
    July 20, 1983.

      John L. Hunter, Cumbest, Cumbest & Hunter, Pascagoula, Clyde 0. Hurlbert, Biloxi, D. Knox White, Gulfport, for appellants.
    Earl L. Denham, pro se.
    Jimmy L. Miller, Jackson and Marks, Andrew J. Kilpatrick, Jr., Jackson, for appel-lee.
    Before WALKER, P.J., and DAN M. LEE and ROBERTSON, JJ.
   ROBERTSON, Justice,

for the Court.

I. Introduction

This case comes before us on the Complaint of the Mississippi State Bar that two attorneys, Dempsey M. Levi and Earl L. Denham, have been guilty of misconduct within the meaning and contemplation of certain Disciplinary Rules of the Mississippi Code of Professional Responsibility.

Exhaustive and exhausting proceedings were had before the Complaint Tribunal duly constituted as provided by law. Miss. Code Ann. §§ 73-3-323, -325, and -327. (Supp.1982). A ten volume record has been produced, including numerous exhibits, all of which we have reviewed with care. The Complaint Tribunal found Levi and Den-ham guilty of misconduct. It imposed a one year suspension.

From that decision Levi and Denham have prosecuted this appeal. Under the rules applicable to cases such as this, we consider the matter de novo. Having done so, it is our opinion that the Mississippi State Bar has failed to prove its case. Accordingly, the Complaint is finally dismissed.

II. De Novo Review

The Complaint Tribunal in many ways has acted as a trial court sitting without a jury. It has issued detailed findings of fact and conclusions of law and has rendered what is in essence a final judgment.

In one decisive respect, however, we do not proceed here as we would in any other appeal from the final judgment of a trial court sitting without a jury. We are the triers of fact. As a matter of law, we are not bound by those limited scope-of-review rules applicable in appeals generally, rules whereby we are without power to disturb findings of fact if they are supported by substantial evidence.

This Court’s charge is found in Section 73-3-329(5) (Supp.1982) which reads:

On appeal, the Court may review all of the evidence and the law and the findings and conclusions of the complaint tribunal and it may make such findings and conclusions and render such order as it may find to be appropriate based upon the whole record.

In its brief the State Bar concedes the point, stating:

This Court is the ultimate judge of the facts and the law in disciplinary cases....

And further:

“The Bar also does not intend to controvert this Court’s right, power and duty to review the entire matter and enter orders as the Court may deem appropriate”.

See Mississippi State Bar v. Phillips, 385 So.2d 943, 945 (Miss.1980).

All of this is wholly consistent with the well established proposition that lawyer disciplinary proceedings are with this Court’s exclusive and inherent jurisdiction, notwithstanding the statutory format pursuant to which this matter has proceeded. See, Mississippi State Bar v. Phillips, 385 So.2d 943, 944 (Miss.1980); Matter of Mississippi State Bar, 361 So.2d 503, 505 (Miss.1978); Bramlett v. Burgin, 382 So.2d 284, 285 (Miss. 1979). Those inherent powers have been enhanced, not diminished, by the statutory scheme. Mississippi State Bar v. Phillips, 385 So.2d 943, 945 (Miss.1980).

It may well be that the Complaint Tribunal obtained valuable insights by its personal observation of the appearance and demeanor of the witnesses. And, to be sure, in the exercise of our sound discretion we are by no means prohibited from giving to findings of fact made by the Tribunal such weight as in our judgment they may deserve. This we may do so long as we do not lose sight of the fact that, as a matter of law, it is our non-delegable duty and responsibility to make findings of fact in cases such as this.

III. Barden of Proof

Bar disciplinary proceedings are inescapably “adversary proceedings of a quasi-criminal nature”. In Re Ruffalo, 390 U.S. 544, 551, 88 S.Ct. 1222, 1226, 20 L.Ed.2d 117, 122 (1968); see also Netterville v. Mississippi State Bar, 397 So.2d 878, 883 (Miss. 1981); and Ex Parte Redmond, 156 Miss. 439, 452, 125 So. 833, 835 (Miss.1930). A standard of proof higher than the ordinary “beyond a preponderance of the evidence” standard is thus appropriate.

Beyond that, we are confronted in this case with charges of fraud and other equivalent forms of misconduct. In civil litigation generally, it is settled in our law that, before a plaintiff may prevail on a charge of fraud, he must prove his case by clear and convincing evidence. See, e.g., Mosby v. Gandy, 375 So.2d 1024, 1028 (Miss. 1979); Parker v. Howarth, 340 So.2d 434, 437 (Miss.1976); Aponaug Manufacturing Co. v. Collins, 207 Miss. 460, 473, 42 So.2d 431, 434 (1949).

In its written opinion in accordance with Section 73-3-327 (Supp.1982), the Complaint Tribunal recognized the clear and convincing evidence burden of proof imposed upon the Bar when it stated:

In this case, in order to show that the Respondents [Levi and Denham] should be disciplined or disbarred, the Mississippi State Bar has the burden of showing a violation ... by clear and convincing proof.

In re Quinn’s Disbarment, 223 Miss. 660, 665, 78 So.2d 883, 884 (1955); Ex Parte Redmond, 156 Miss. 439, 452, 125 So. 833, 835 (1930).

And in its brief on this appeal, the Bar acknowledges “that the burden to be met in support of discipline is clear and convincing proof,” citing Mississippi State Bar v. Phillips, 385 So.2d 943 (Miss.1980) and Netterville v. Mississippi State Bar, 397 So.2d 878, 884 (Miss.1981).

The Bar here charges that Levi and Den-ham have violated Mississippi Code of Professional Responsibility Disciplinary Rule 1-102(A)(4) and 1-102(A)(6) which provide as follows:

9. DR 1—102[A][4] provides:
“DR 1-102 Misconduct.
[A] A lawyer shall not:
Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.”
10. DR 1-102[A][6] provides:
“DR 1-102 Misconduct.
[A] A lawyer shall not:
* * * * * *
Engage in any other conduct that adversely reflects on his fitness to practice law.”

The Bar also charges that Levi and Den-ham have violated Miss.Code Ann. § 73-3-35 (1972), which requires each attorney to swear or affirm to use no falsehood.

Notwithstanding the proceedings below, we hold that the Mississippi State Bar has the burden of proving in this Court by clear and convincing evidence each and every evidentiary and ultimate fact necessary to support a judgment that either Levi or Denham should be disciplined or disbarred. We emphasize that we do not here inquire whether there was sufficient evidence so that the Complaint Tribunal, as a hypothetical rational trier of the facts, might have found against Levi and Denham by clear and convincing evidence. Certainly, when it is performing its important duties, the Complaint Tribunal should employ the clear and convincing evidence standard. In the present posture of this case, however, our inquiry is whether the evidence persuades us clearly and convincingly that either Levi or Denham has been guilty of misconduct as defined in the two disciplinary rules and the statute mentioned above.

IV. The Undisputed Facts

There are certain undisputed facts which form the backdrop of these complaints.

At all times relevant to these proceedings Levi, Dénham, and James W. Wilson (“Wilson” hereafter) were attorneys at law, members of the State Bar of Mississippi, and subject to the disciplinary agencies created by Miss.Code Ann. section 73-3-301, et seq. (Supp.1982).

Levi and Denham reside in Jackson County, Mississippi.

In January, 1976, Levi, Denham and Wilson were engaged in the practice of law as a professional association known as “Levi, Wilson & Denham, A Professional Association” (“firm” hereafter). Each owned a Vs interest in the firm.

On January 9, 1976, Erwin Padgett, Jr. (“Padgett” hereafter) executed a contingent fee contract with the firm, employing the firm to represent him in a personal injury action for injuries sustained by him in an automobile accident. Under this contract, the firm would receive as legal fees 50% of all sums recovered after a trial had commenced.

On December 7, 1976, a declaration was filed on behalf of Padgett in the Circuit Court of Jackson County, Mississippi.

By that time Padgett had become quite dissatisfied with Wilson’s services, primarily because Wilson refused to communicate with him. Padgett came to the office to discharge Wilson and obtain his file. Levi and Denham, however, persuaded Padgett to leave the case with the firm, provided Wilson would no longer have responsibility for the file.

On January 21, 1977, Wilson resigned from the firm. He, Levi and Denham agreed to a division of all property belonging to the firm. Under that agreement any fee resulting from the Padgett case was to be divided equally among Levi, Denham and Wilson.

Padgett’s trial came on for hearing in the Jackson County Circuit Court on July 21, 1977. Levi and Denham were both present for the trial and both participated in the trial. Denham had done most of the pretrial preparation and had dealt with Pad-gett more than Levi up to this point.

During the course of the trial, the defendants in the Padgett case began settlement negotiations. Padgett insisted that he needed a minimum of $128,000.00 net to him. Levi and Denham agreed to reduce the legal fee so that Padgett could net $128,000.00 out of $173,500.00 settlement. On this basis, the settlement offer of $173,-500.00 was accepted.

A few days after the settlement was reached Levi advised Wilson of the settlement. He also gave Wilson a handwritten disbursement sheet showing a total fee of $42,867.59 and a net distribution to Padgett of $126,480.16. Under their previous agreement, Levi, Denham and Wilson would each receive one-third of $42,867.59.

The settlement draft arrived in the firm’s office on or about August 10, 1977. That same day Padgett and his wife went to the firm’s office to get his money. At this time Denham was in Canada on vacation. All of Padgett’s dealings were with Levi.

Levi advised Padgett that he could not disburse the funds from the settlement check until the check had cleared. Padgett, however, insisted that he receive funds that day. Padgett wanted the money that day so that he could immediately invest it and receive interest for the entire month of August.

Levi then arranged at a local bank for sufficient credits to allow issuance to Pad-gett of a check for $90,474.36 on August 10, 1977. The settlement draft of $173,500.00 had been deposited in the firm trust account. Having done this, Levi then issued the check to Padgett and had Mr. and Mrs. Padgett sign a typed disbursement sheet. The disbursement sheet showed a total legal fee of $42,856.28 and a net disbursement to Padgett of $126,446.20.

On August 10, 1977, Levi gave Wilson a firm check for $14,326.30 and a copy of the settlement sheet signed by the Padgetts.

Although Levi did ask Wilson to hold the check until the settlement check cleared, Levi did not tell Wilson that a partial disbursement of $90,474.36 had been made to Padgett.

On August 17,1977, Levi was notified by the bank that the settlement draft had cleared. He immediately called Padgett and told him the remaining funds were available.

During the course of the telephone conversation between Levi and Padgett on August 17, 1977, Padgett, on “a spur of the moment,” decided to let Levi and Denham keep the $35,930.96, provided they would pay any outstanding medical bills that had not yet been paid. Padgett testified that he had used the $90,000.00 to take care of his own needs. He gave the remainder to Levi and Denham in appreciation of their efforts ón his behalf.

The Bar insists that the gift theory was a sham. It argues that the settlement was agreed to without any reduction in fee by Levi and Denham. The essence of what happened, the Bar argues, is that Levi and Denham made misrepresentations to Wilson for the purpose of defrauding him.

We view these charges de novo, as explained in Part II above. We further view these charges under the clear and convincing evidence standard discussed in Part III above.

V. The Applicable Law

Levi and Denham have been charged with violations of Disciplinary Rules 1-102(A)(4) and (6). These Disciplinary Rules (“DRs” hereafter) have been approved by this Court. Unpublished Order of the Mississippi Supreme Court, March 15,1971; Ex Parte the Mississippi State Bar, Mise. No. 816 (Unpublished Order of the Mississippi Supreme Court, September 19, 1977); Mississippi Code of Professional Responsibility, Mississippi State Bar, p. 1. The violation of those rules by members of the State Bar of Mississippi constitute grounds for disciplinary action pursuant to Miss.Code Ann. Section 73-3-301 et seq. (Supp.1982). See, e.g., Miss.Code Ann. Section 73-3-143(1) (Supp.1982).

The obligations and responsibilities of an attorney transcend the attorney-client relationship and encompass all professional conduct by the attorney. While it has been held that in his non-professional relations an attorney “is held to no higher standard of morals or ethics than are men of other trades, callings and professions,” Ex Parte Redmond, 156 Miss. 439, 455, 125 So. 833, 837 (1930), even in his non-professional conduct an attorney must be honest and truthful.

The professional conduct of an attorney includes all conduct resulting from the fact that the individual is an attorney. Thus, the DRs, especially DR 1-102, apply to an attorney in his relationship with the courts and with his brother attorneys just as much as with his clients. We have recognized this in the case of In Re Poole, 222 Miss. 678, 76 So.2d 850 (1955):

“The attorney occupies a unique place in our society; he has great opportunity for useful and honorable service, with an equally great responsibility to maintain the highest standard of professional conduct; ... his conduct involves the integrity of the courts of which he is an officer, and the good name of the legal profession; and the very essence of his professional function is confidence and trust. One must possess good moral character to enter the practice of law; and to continue in the profession, this standard of moral character must be maintained. Inexperience, weakness and personal hardship do not excuse conduct inconsistent with common honesty.” 222 Miss, at 686, 76 So.2d at 853.

The DRs were not adopted solely for the protection of clients. They were adopted as part of the effort of the Supreme Court to maintain the highest standards of professional conduct by the members of the Bar in all facets of their professional life.

An attorney’s conduct toward his fellow attorneys is part of his professional conduct covered by DR 1-102 and by all other DRs not specifically limited to the attorney-client relationship. See, e.g., In Re Berkeley, 174 App.Div. 205, 160 N.Y.S. 1093, (1916) affirmed 243 N.Y. 597, 154 N.E. 621 (1926) (held grounds for disbarment that an attorney fraudulently attempted to prevent his former partner from collecting his share of the profits of the partnership in an accounting action).

In its brief the Bar has cited to us numerous cases articulating the important state interest in preserving public confidence and respect in the integrity of Mississippi’s lawyers. To be sure, the people of this state, as well as those who are engaged in the practice of law, have such an interest, and it is substantial. Bar disciplinary proceedings are no doubt an important and vital vehicle toward the vindication of that interest. It has been argued to us with considerable force that the purpose of bar disciplinary proceedings is not to punish the respondent lawyer but to vindicate in the eyes of the public the overall reputation of the bar. We do not question the validity and importance of these premises; rather, we reaffirm them.

We likewise reaffirm the proposition that the practice of law is a privilege, not a property right, and a revocable privilege at that. In Re Poole, 222 Miss. 678, 686, 76 So.2d 850, 853 (1955); Mississippi State Bar v. Attorney-Respondent, 367 So.2d 179, 183 (Miss.1979).

We do no violence to these premises when we recognize that, before either may be deprived of the privilege of practicing law, temporarily or permanently, Dempsey M. Levi and Earl L. Denham each has a right that the Mississippi State Bar persuade this Court by clear and convincing evidence that each has been guilty of “misconduct” as defined in Disciplinary Rules 1-102[A][4] and [6] and of uttering a falsehood in violation of his oath prescribed in Miss.Code Ann. § 73-3-35 (1972).

What is happening here is that this Court is being asked to sacrifice this right in favor of something not a right at all, something less than a right. We would not do this in a criminal case, see Read v. State, 430 So.2d 832, 840 (Miss.1983), and we will not do it in these quasi-criminal proceedings. Rights are customarily thought of as entitlements of an individual which he or she may claim no matter how inconvenient society or its members may deem it or no matter how powerful or compelling may be the interests arrayed against it. The interest of the Mississippi State Bar in preserving its reputation for honesty and fair dealings must not be allowed to override the right vested in Levi and Denham that they not be disciplined or disbarred except in accordance with the procedures established by our law. Cf. Netterville v. Mississippi State Bar, 397 So.2d 878, 884 (Miss.1981).

VI. The Core Facts Viewed De Novo Under the Clear and Convincing Evidence Standard

The Bar’s case against Levi and Denham centers upon its charge that the “gift theory” was a sham or artifice used to defraud Wilson. Levi and Denham are charged to have made material misrepresentations in connection therewith. There is indeed some evidence before us wholly consistent with this notion.

We are charged by law to inquire whether the evidence is clear and convincing that either Levi or Denham has been guilty of misconduct.

The crux of the matter is this. Padgett testified that he was upset to learn that Wilson was going to receive any part of the fee. He did not feel that Wilson had done anything for him. He did not think it fair that Wilson be paid for his work on the case. Moreover, Padgett was upset to learn that Levi and Denham would receive only $28,000, rather than the $42,000 “reduced” fee agreed upon on the day of the settlement.

Excising as we must suspicion and cynicism, we credit Padgett’s explanation of the $35,000 gift taken from the Abstract of the Record, to-wit:

One of them [Levi or Denham] called me and in the discussion that followed they told me the money was there, they were ready to disburse the rest of the money that.... [At that] time I had completed all of my disbursements, I had completed setting up my life and that was the time that I told them to utilize that money.... it is a fact that at the time I made the payment of $35,000 of my remaining proceeds to Mr. Denham and Mr. Levi, that this amount was conditioned upon them using these fees in their confidentiality regarding telling them of this gift. I have repeatedly, ..., requested confidentiality regarding that particular matter.... I felt somewhat guilty in that I feel that Mr. Levi and Mr. Denham had not been fully taken care of like they should have been. I felt like this particularly after I found out that he [Wilson] was getting equal share, he, meaning Mr. Wilson. If he got whatever the figure came to and Mr. Levi and Mr. Denham got the same amount, this is not equal, in my way of thinking, because he gets an equal share for doing nothing for a period of time during which I was entirely dissatisfied.

Considering all of the testimony and exhibits in the record before us, we hold that the Mississippi State Bar has failed to establish by clear and convincing evidence that Padgett’s allowing Levi and Denham to retain the additional $35,000 was anything other than a bona fide gift. From this it follows that neither Levi nor Denham may be said to have made any false or material misrepresentation to Wilson.

We hold further that at all times relevant hereto an attorney-client relationship existed between Levi and Denham, on the one hand, and Padgett on the other hand. Had Levi or Denham disclosed to Wilson the fact of the gift, without Pad-gett’s consent, there would have been a violation of the attorney-client privilege.

None of this is to say that we condone the actions of Levi and Denham in this case. Without doubt, they should have advised Padgett that their agreement with Wilson made incident to the breakup of the law firm necessitated disclosure to Wilson of the fact of the $35,000 gift. Considering this record de novo as we must and faithfully applying the burden of proof mandated by law, we hold that the Bar has failed to prove by clear and convincing evidence that either Levi or Denham is guilty of misconduct within the meaning of DR 1-102[A][4] or [6], To be sure these two attorneys stand convicted of errors in judgment. Yet those errors do not rise to the dignity of “misconduct” within the meaning of the Code of Professional Responsibility.

The same must be said of the charges that either Levi or Denham has uttered a material falsehood in violation of his oath under section 73-3-35. The evidence against these two attorneys is simply not clear and convincing.

VII. Postscript

Nothing said here should in any way detract from our firm conviction that the Mississippi State Bar has proceeded in this matter in complete good faith. Indeed we have recognized in Netterville v. Mississippi State Bar, 404 So.2d 1026 (Miss.1981) that

the Mississippi State Bar, through its duly constituted officials, is mandated by law to receive, investigate and dispose of complaints filed against its members. 404 So.2d at 1028.

The Bar has discharged its duty here. Likewise nothing said here should in any way be taken as indicating a view of less than complete respect and appreciation for the work of the volunteers who serve on the Mississippi State Bar Complaint Tribunal. Their task is as thankless as it is arduous. That we have, in the exercise of our nondel-egable duty, first, to review the evidence de novo and, second, to assure that the complaint has been proved by clear and convincing evidence, determined to dismiss should not detract from our respect and appreciation for the work of the members of the Bar in this and other disciplinary cases.

We live in a day of public cynicism toward lawyers. Like it or not, many of our citizens believe most lawyers will do anything for a fee. When the organized Bar claims the prerogative of policing its own, the public is skeptical.

Our concern today ought and must be the case of Dempsey M. Levi and Earl L. Den-ham. Our charge has been a dispassionate review of the evidence adduced in this case, aware of, but uninfluenced by, the climate of public opinion.

It would have been easy to sustain this complaint and disbar these attorneys. Many would applaud. The case would be lifted up as evidence that this Court and the organized Bar are getting tough with lawyer misconduct. Yet to have allowed ourselves to be seduced by these considerations would have led to a serious violation of our duty in hearing cases such as this, a serious (and irremediable) violation of procedural rights vested in Levi and Denham.

We do indeed need an effective program of lawyer discipline. Great progress has been made in this area, particularly since the enactment of our current complaints procedure almost a decade ago. Miss.Laws (1974) ch. 566, as amended by Miss.Laws (1981) ch. 480. See Matter of Mississippi State Bar, 361 So.2d 503 (Miss.1978); and Netterville v. Mississippi State Bar, 397 So.2d 878 (Miss.1981). Yet we must always be conscious that a vigorous complaints committee cannot even begin to do the job alone. The ultimate and primary source of discipline of attorneys is, and always will be, self-discipline.

In view of- the disposition made of the central issue in this appeal, the other points raised by the parties need not be addressed.

REVERSED ON DIRECT APPEAL AND COMPLAINT DISMISSED WITH PREJUDICE; AFFIRMED ON CROSS-APPEAL.

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

HAWKINS and PRATHER, JJ., take no part.

      . Nothing said here is inconsistent with the outcome of the civil action brought by James W. Wilson against Levi and Denham. See proceedings in Case No. 34,929 on the docket of the Chancery Court of Jackson County. Levi effected an out of court settlement with Wilson pursuant to which he paid Wilson $6,500.00. A decree was entered November 27, 1979, which recites that “the Court does not find evidence of fraud or misrepresentation”. On March 25, 1980, a final decree was entered in favor of Wilson and against Denham in the amount of $5,988.49. The Court in effect found that the $35,930.96 should be treated as a fee derived from the Padgett case within the meaning of the dissolution agreement Denham had with Wilson. The amount of the judgment has been paid by Denham. No finding of fraud or misrepresentation was made. Beyond that, any findings of fact implicit in these civil proceedings were necessarily made only by a preponderance of the evidence. In any event, the Bar makes no collateral estoppel argument, which of course would be inconsistent with this Court’s peculiar role as fact finder in bar disciplinary matters.

      . In this connection, we call attention to Ethical Consideration 5-5, from the Code of Professional Responsibility of the Mississippi State Bar, approved March 15, 1971, by this Court as amended March 16, 1983, which reads, in pertinent part, as follows:
      EC 5-5 A lawyer should not suggest to his client that a gift be made to himself or for his benefit. If a lawyer accepts a gift from his client, he is peculiarly susceptible to the charge that he unduly influenced or overreached the client. If a client voluntarily offers to make a gift to the lawyer, the lawyer may accept the gift, but before doing so, he should urge that his client secure disinterested advice from an independent, competent person who is cognizant of all the circumstances.


text:
    Jerry FUGITT v. Johnny EDWARDS, et al.
    No. 53876.
    Supreme Court of Mississippi.
    Aug. 17, 1983.
    Langston & Lott, Duncan Lott, Boone-ville, for appellant.
    Mitchell, Eskridge, Voge, Clayton & Beasley, Claude F. Clayton, Jr., Tupelo, for appellees.
   Appeal from Circuit Court, Prentiss County; Thomas J. Gardner, III, Judge.

Before PATTERSON, C.J., and HAWKINS and PRATHER, JJ.

AFFIRMED.


text:
    Lanora Kathleen HENRY (Formerly Known as Lanora Kathleen England) v. Alton Wayne ENGLAND.
    No. 53838.
    Supreme Court of Mississippi.
    Aug. 17, 1983.
    Lee B. Agnew, Jackson, for appellant.
    Waller & Waller, Bill Waller, Sr., Jackson, for appellee.
    Before PATTERSON, C.J., HAWKINS, J., and SUGG, Retired Justice, for the Court.
   Appeal from Chancery Court, Hinds County; Paul G. Alexander, Chancellor.

AFFIRMED.


text:
    Scott Brian ALBRITTON v. STATE of Mississippi.
    No. 54113.
    Supreme Court of Mississippi.
    Aug. 17, 1983.
    David Oliver, Gulfport, for appellant.
    Bill Allain, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Harrison County; Kosta N. Vlahos, Judge.

Before BROOM, P.J., and PRATHER and ROBERTSON, JJ.

AFFIRMED.

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

HAWKINS, J., not participating.


text:
    Sidney Don SEELEY v. STATE of Mississippi.
    No. 54280.
    Supreme Court of Mississippi.
    Aug. 17, 1983.
    Thomas L. Kesler, Columbus, for appellant.
    Bill Allain, Atty. Gen. by Robert D. Find-ley, Sp. Asst. Atty. Gen., Jackson, for appel-lee.
   Appeal from Circuit Court, Lowndes County; Harvey Buck, Judge.

Before BROOM, P.J., and ROY NOBLE LEE and BOWLING, JJ.

AFFIRMED.

PATTERSON, C.J., WALKER, P.J., and HAWKINS, DAN M. LEE, PRATHER and ROBERTSON, JJ., concur.


author: WALKER, Presiding Justice,

text:
    Christopher RICHARDSON v. STATE of Mississippi.
    No. 53873.
    Supreme Court of Mississippi.
    Aug. 17, 1983.
    Smith, Downs, Ross, Trapp & Coleman, Corinth, J. Price Coleman, Jackson, for appellant.

      Bill Allain, Atty. Gen., by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before WALKER, P.J., and DAN M. LEE and ROBERTSON, JJ.
   WALKER, Presiding Justice,

for the Court:

This is an appeal from the Circuit Court of Alcorn County wherein the appellant was indicted, tried and convicted of attempted armed robbery and aggravated assault. The trial judge sentenced him to serve two 10-year terms, one for each offense, in the custody of the Mississippi Department of Corrections. The terms were to run concurrently. We reverse.'

The undisputed evidence establishes that John Wesley McKenzie entered Dee’s Grocery Store in Alcorn County on February 12, 1980. He pulled a .22 calibre pistol and announced: “This is a robbery.” Macon Bynum, Jr., the owner of the store, then pulled a pistol. In an exchange of gunfire, Mr. Bynum’s wife was shot in the hand and McKenzie was shot in the face. Both recovered.

The appellant is accused of being McKenzie’s accomplice in the attempted robbery and aggravated assault. At Richardson’s trial, McKenzie testified for the state. He stated that Richardson planned the crime and was to drive the getaway car.

Christopher Richardson took the stand on behalf of himself and denied any participation in the crime. He stated that on February 12,1980, McKenzie asked him for a ride to the school to meet a girl. The appellant took McKenzie to the school, which is approximately 150 yards from Dee’s Grocery. Although he saw no girl, he let McKenzie out and drove on home.

After hearing all of the evidence, the jury returned a verdict of guilty. Mr. Richardson perfected an appeal to this Court and assigns as error the following:

(1) Under the facts of this case, uncorroborated testimony of accomplice does not support verdict, therefore, defendant is entitled to directed verdict or, in the alternative, judgment notwithstanding the verdict; and

(2) Trial court erred in not allowing defendant’s counsel to testify as to prior inconsistent statement of chief prosecuting witness.

The defendant’s first assignment of error is without merit. Although the uncorroborated testimony of an accomplice should be viewed with great caution, it is sufficient to support a guilty verdict.

In the second assignment of error the appellant complains that the trial court refused to allow, his attorney to testify as to a prior inconsistent statement of the prosecution’s chief witness, John Wesley McKenzie.

On cross-examination John Wesley McKenzie denied making the statement that “I am going to tell it the way it is best for me.” The defense attorney then asked permission to testify that McKenzie had made this inconsistent statement.

In Gradsky v. State, 243 Miss. 379, 137 So.2d 820 (1962), this Court, holding that it was reversible error to refuse to allow the defendant’s attorney to testify, stated:

Sec. 26, Miss. Constitution 1890, guarantees that “In all criminal prosecutions the accused shall have a right * * * to have compulsory process for obtaining witnesses in his favor * * and this means, he may have his attorney, as well as other witnesses, summoned to give evidence in his favor, when his attorney has evidence vital to his defense. Moreover, accused cannot be denied this right on the ground that it may embarrass the attorney or violate etiquette of the court. Adams v. State, 202 Miss. 68, 30 So.2d 593, is not adverse to the holding in this case. We have pointed out in the case of Brooks v. State, 209 Miss. 150, 46 So.2d 94, that “Constitutional rights in serious criminal cases rise above mere rules of procedure.” The court may admonish an attorney when it appears that he knew in advance that he would be called upon to testify in a case, for taking active part in the trial of a case, but the court cannot refuse an accused the right to introduce competent evidence in his favor because it may appear that an attorney has violated an ethical rule. Miller v. Urban, [123 Conn. 331] 195 A. 193, 118 A.L.R. 951-954; 58 Am.Jur. 110, Witnesses, Sec. 152. (emphasis and footnote ours).

243 Miss, at 384, 137 So.2d 820.

It is clear that the trial court erred when it denied Richardson the right to call his attorney as a witness to testify as to the prior inconsistent statement made to his attorney by McKenzie. Even though the defendant’s father had testified to a similar statement made to him at a different time, we are of the opinion that the attorney’s testimony should not have been excluded on the grounds that it was cumulative. The testimony of a reputable attorney will have far greater weight with a jury than a defendant’s father, in all probability.

We do not reach the other assignments of error as the appellant will have the benefit of this information and evidence upon retrial.

For the above stated reason, the cause is reversed and remanded for a new trial.

REVERSED AND REMANDED FOR A NEW TRIAL.

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

      . The Code of Professional Responsibility of the Mississippi State Bar establishes the following rule regarding such testimony:
      DR5-102 Withdrawal as Counsel When the Lawyer Becomes a Witness [A] If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client, he shall withdraw from the conduct of the trial and his firm, if any, shall not continue representation in the trial, except that he may continue the representation and he or a lawyer in his firm may testify in the circumstances enumerated in DR5-101[B][1] through [4].
      The necessity of this rule is expressed in EC 5-9, wherein it is pointed out that:
      Occasionally a lawyer is called upon to decide in a particular case whether he will be a witness or an advocate. If a lawyer is both counsel and witness, he becomes more easily impeachable for interest and thus may be a less effective witness. Conversely, the opposing counsel may be handicapped in challenging the credibility of the lawyer when the lawyer also appears as an advocate in the case. An advocate who becomes a witness is in the unseemly and ineffective position of arguing his own credibility. The roles of an advocate and of a witness are inconsistent; the function of an advocate is to advance or argue the cause of another while that of a witness is to state facts objectively.
      We make no judgment as to whether the attorney was in violation of the Code of Professional Responsibility in this case.