author: CRAIN, Judge. LANIER, Judge,

text:
    STATE of Louisiana v. Oris JOHNSON.
    No. 83 KA 0910.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.
    Writ Denied April 23, 1984.

      Ossie B. Brown, Dist. Atty., by Jesse Bankston, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    M. Michele Fournet, Appellate Counsel, Asst. Public Defender, Baton Rouge, for defendant-appellant.

      Before SHORTESS, LANIER and CRAIN, JJ.
   CRAIN, Judge.

This is an appeal by defendant of his conviction and sentence for armed robbery.

Defendant, Oris Johnson, Jr., was charged by bill of information with having committed armed robbery in violation of La.R.S. 14:64. After pleading not guilty, defendant was tried by a jury and found guilty as charged. The trial judge sentenced defendant to ten (10) years at hard labor without benefit of probation, parole or suspension of sentence. Defendant now appeals his conviction and sentence, alleging thirteen assignments of error.

FACTS

Michael Harrell was a night security guard for a commercial building. His job was to keep loiterers away during the night hours. Harrell’s employer furnished him with a gun, which he picked up when he went to work and returned when he left. The employer kept the gun loaded. While making his rounds of the exterior of the building during the early hours of October 19, 1982, Harrell encountered defendant at a corner of the parking lot. It was about 1:00 a.m. Harrell approached defendant and told him he had to leave the premises. Defendant questioned Harrell about the whereabouts of defendant’s cousin who, defendant said, worked at the same job. Harrell replied that he did not know defendant’s cousin. After about thirty minutes, defendant and Harrell drove off in Harrell’s car. Harrell was let out of his car on a main thoroughfare. He then called police and reported that he had been robbed of about $80.00 in cash, his car, a gun and a portable television. Harrell’s car was found some four weeks later. The gun and portable t.v. were never recovered.

At trial Harrell testified that a short time after defendant first spoke to him defendant pushed him against a company van on the parking lot, took the gun from his pocket and forced him to enter his own car at gun point. Defendant went around the car to the driver’s seat. While holding the gun to Harrell’s head, defendant robbed him of all his money and then drove to a house where he spoke quietly with someone while seated in the driver’s seat of the car still holding the gun to Harrell’s head. Then defendant drove away, stopped at Baton Rouge High School and ordered Harrell out of the car. Harrell immediately called the police.

Defendant testified that after Harrell explained he did not know defendant’s cousin, he and Harrell chatted together for about 30 minutes. Harrell offered to take defendant to get some beer. They both entered Harrell’s car, and Harrell drove them to a convenience store where they purchased beer. They then returned to the site of Harrell’s job and consumed the beer. They then drove to the house of a friend of defendant where defendant got out of the car and spoke to his friend. Harrell remained seated in the car with the engine running. When defendant re-entered the car, they returned to Harrell’s job site. While still in the car Harrell made homosexual overtures to defendant. Defendant got out of the car, slammed the door and walked home. About three hours later, the police, accompanied by Harrell, arrested defendant at his home.

ASSIGNMENTS OF ERROR

Assignments no. 1, 2, 3, 4, 5, 6, 8, 10, 11 were not briefed nor argued. Therefore, these assignments of error are considered abandoned. Rule 2.12-4, Uniform Rules — Courts of Appeal, State of Louisiana; State v. Trevathan, 432 So.2d 355 (La.App. 1st Cir.1983), writ denied, 437 So.2d 1141 (La.1983).

ASSIGNMENT OF ERROR NO. 7:

Defendant contends that the trial court erred when it refused to sustain defendant’s motion for mistrial based upon the prosecution’s mention of defendant’s prior municipal conviction. In attempting to impeach defendant’s testimony the state asked defendant whether he had pled guilty to the municipal charge of “failing to leave the premises”. Defense counsel objected on the grounds that a conviction of a municipal offense is not admissible for the impeachment of a witness and cited State v. Ramos, 390 So.2d 1262 (La.1980). Defendant’s objection was sustained. Defense counsel then moved for a mistrial. At that point the trial judge admonished the jury to disregard the prosecutor’s question and denied defendant’s motion for a mistrial.

Impeachment of a witness by evidence of the witness’s conviction of a municipal offense is not permitted because a municipal offense is not a crime. In Ramos, 390 So.2d at 1264, appears the following:

A municipal offense is not a crime within the meaning of La.R.S. 15:495, which provides that “(e)vidence of conviction of crime” is admissible for impeachment of a witness’s credibility under prescribed circumstances. Crime is defined in La. R.S. 14:7 as “that conduct which is defined as criminal in this Code, or in other acts of the legislature, or in the constitution of this state.” It was intended to exclude from the designation “crime” all offenses established by municipal ordinances. See Reporter’s comment, L.S.A.-R.S. 14:7.

Since reference to the municipal offense conviction was inadmissible defendant argues that a mandatory mistrial should have been granted under La.C.Cr.P. art. 770(2). That article prohibits reference by a judge, a district attorney, or a court official to other crimes by the defendant as to which evidence is not admissible under penalty of mandatory mistrial. Reference to a conviction for a municipal offense is not reference to “another crime” for the same reason that a municipal offense is not a crime for purposes of impeachment. Consequently, the error of attempting to impeach by evidence of conviction of a municipal offense was properly cured by the trial judge by sustaining the objection and admonishing the jury. This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 12

Defendant contends that the sentence imposed by the trial court is excessive, arguing that the use of defendant’s arrests as well as convictions under the guidelines set forth in La.C.Cr.P. art. 894.1(B)(7) is in direct conflict with La.R.S. 15:495 which forbids the use of arrests for impeachment purposes during trial.

Generally, a sentence is excessive if it is grossly out of proportion to the severity of the crime or if it is nothing more than the purposeless and needless imposition of pain and suffering. State v. Parkerson, 415 So.2d 187 (La.1982). Prior criminal activity which the court may consider when sentencing a defendant is not limited to prior convictions. State v. Marchese, 430 So.2d 1303 (La.App. 1st Cir.1983); State v. Williams, 412 So.2d 1327 (La.1982); State v. Burns, 441 So.2d 1294 (La.App. 1st Cir.1983). The trial court is given wide discretion in the imposition of sentences within statutory limits, and a sentence should not be set aside as excessive in the absence of a manifest abuse of discretion. Marchese, 430 So.2d at 1308.

Our examination of the record reveals that the trial judge when sentencing defendant considered the guidelines of La. C.Cr.P. art. 894.1, noting that defendant has a significant history of prior criminal activity, including numerous arrests and several convictions. Moreover, defendant is a second felony offender and not eligible for probation, and the penalty provisions for armed robbery mandate defendant’s sentence to be without probation, parole or suspension of sentence.

There is no conflict between La.R.S. 15:495 and La.C.Cr.P. art. 894.1(B)(7). La. R.S. 15:495 applies to conduct at trial where guilt is the issue. La.C.Cr.P. art. 894.1(B)(7) applies to sentencing a criminal offender after guilt is determined.

There is no merit to this assignment of error.

ASSIGNMENT OF ERROR NO. 13:

Defendant complains that the evidence presented at trial is contrary to the law and/or the evidence and insufficient to support a verdict of guilty of armed robbery. He argues that the state failed to prove that a dangerous weapon was used at the time of the alleged offense and also failed to prove the offense was committed with the intent to commit theft.

When reviewing the sufficiency of evidence, it must be determined whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. La.C.Cr.P. art. 821; State v. Korman, 439 So.2d 1099 (La.App. 1st Cir.1983). Where there is conflicting testimony as to factual matters the resolution of which depends on a determination of the credibility of the witnesses, this is a matter of the weight of the evidence, not its sufficiency. Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982); State v. Kent, 434 So.2d 1258 (La.App. 1st Cir.1983). A determination of the weight of the evidence is a question of fact. This court has no appellate jurisdiction to review questions of fact in criminal cases. La. Const, of 1974, art. V, Sec. 10(B). Thus,-a determination of the weight of the evidence rests solely in the sound discretion of the trier of fact and is not reviewable on appeal. Korman, 439 So.2d at 1101.

Testimony of the victim herein is in conflict with that of defendant. The testimony of other witnesses called at trial corroborates to some extent some of the victim’s testimony and also, to some extent, the testimony of defendant. In finding defendant guilty, it is obvious that the jury believed the victim rather than defendant. The testimony of the victim is sufficient to establish the elements of the offense. Applying the standards set forth above in Korman, 439 So.2d at 1101, there is nothing else for us to review. Accordingly, there is no merit to this assignment of error.

For the foregoing reasons we affirm the conviction and sentence.

AFFIRMED.

LANIER, J., concurs and assigns reasons.

LANIER, Judge,

concurring.

The holding in State v. Ramos, 390 So.2d 1262 (La.1980) that conviction of a municipal offense is not a conviction of a crime for purposes of impeachment within the purview of La.R.S. 15:495 appears to be in error and should be reconsidered by the Louisiana Supreme Court.

Prior to January 1, 1967, the violation of a municipal ordinance was not regarded as a “crime” under Louisiana law and jurisprudence. City of Hammond v. Conner, 250 La. 462, 196 So.2d 276 (1967); City of New Orleans v. Cook, 249 La. 820, 191 So.2d 634 (1966); City of New Orleans v. Adjmi, 249 La. 346, 186 So.2d 616 (1966); Charles v. Town of Jeanerette, 234 So.2d 794 (La.App. 3rd Cir.1970); Roberts v. American Employers Insurance Company, Boston, Mass., 221 So.2d 550 (La.App. 3rd Cir.1969); and the Reporter’s Comment under La.R.S. 14:7. This line of jurisprudence and law has been legislatively overruled by the provisions of the Louisiana Code of Criminal Procedure which went into effect on January 1, 1967. See Roberts, 221 So.2d at 553 n. 2. Louisiana Code of Criminal Procedure, Article 933(4) defines a misdemeanor for purposes of the Code as “any offense other than a felony, and includes the violation of an ordinance providing a penal sanction.” (Emphasis added). Official Revision Comment (d) under Article 933 provides as follows: “Misdemeanor” is defined in conformity with Art. 2 of the 1942 Criminal Code (R.S. 14:2), but is broadened to include specifically the violations of an ordinance.

(Emphasis added).

Article 934(11) of the Louisiana Code of Criminal Procedure defines the terms “statute” and “criminal law” to “mean a criminal statute, a constitutional provision, or an ordinance of a city or other political subdivision of the state.” (Emphasis added). Official Revision Comment (k) under Article 934 provides in pertinent part as follows:

The definition of “statute,” taken from Sec. 1.13(1) of the A.L.I. Model Penal Code, includes city or parish ordinances, thus facilitating the application of Code provisions to city court cases. A similarly broad construction is intended when the phrase “criminal law” is employed. (Emphasis added).

Article 382 of the Louisiana Code of Criminal Procedure provides in pertinent part that “A prosecution for violation of an ordinance shall be instituted by affidavit.” Official Revision Comment (a) under Article 382 provides in pertinent part as follows:

Prosecutions in city courts are ordinarily by affidavit. .Prosecution for violation of an ordinance, must be instituted by affidavit.

An affidavit is defined in Article 385 of the Code of Criminal Procedure as “a written accusation of crime made under oath and signed by the affiant.” (Emphasis added). Violation of a municipal ordinance which has a penal sanction is a crime, and bringing formal charges against the violator by affidavit in a city court is a criminal prosecution. La.C.Cr.P. art. 381.

If violation of an ordinance with a penal sanction is a crime for purposes of the Code of Criminal Procedure, it should also be a crime for purposes of La.R.S. 15:495.

      . The friend was Willie James Dorsey who testified at trial substantially, the same as defendant.

      . La.C.Cr.P. art. 770 reads in pertinent part:
      Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:

      (2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;

      An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, requests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial.

      . Actually the holding in Ramos, 390 So.2d at 1264, is suspect since it is based on jurisprudence interpreting La.R.S. 14:7 which appears to have been legislatively overruled by La.C.Cr.P. art. 933(4). That article specifically includes the violation of an ordinance providing a penal sanction as a misdemeanor. Comment (d) under La.C.Cr.P. art. 933 notes that misdemeanor is being defined in conformity with La.R.S. 14:2(6), but is broadened to include the violation of an ordinance.
      La.R.S. 14:7 defines crime as conduct made criminal by the Code, other acts of the legislature or the constitution. It appears La.C.Cr.P. art. 933(4) does just that by defining municipal ordinances as misdemeanor crimes.
      In any event if violation of an ordinance is not a crime La.C.Cr.P. art. 770(2) is inapplicable to mention of violation of a municipal ordinance to impeach. If it is a crime use for impeachment was proper. If it is not a crime only for purposes of impeachment then the mandatory mistrial provision of La.C.Cr.P. art. 770(2) is not applicable because that article refers only to evidence of crimes which are inadmissible to show guilt of the crime charged.


source: Caselaw Access Project

author: SHORTESS, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Clinton J. FARBER.
    No. 83 KA 0929.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.
    Writ Denied May 4, 1984.

      Ossie B. Brown, Dist. Atty. by Richard Chaffin, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Sam J. D’Amico, Baton Rouge, for defendant-appellant.
    Before SHORTESS, LANIER and CRAIN, JJ.
   SHORTESS, Judge.

On January 26, 1983, Clinton Farber (defendant) was charged by indictment with possession with intent to distribute cocaine, in violation of La.R.S. 40:967(A) and (F). He later pled guilty, and pursuant to a plea bargain was sentenced to five years at hard labor without benefit of parole, probation or suspension of sentence and with credit for time served on this charge. Defendant appeals his conviction, alleging one assignment of error.

FACTS

On January 22, 1983, a confidential informant (C.I.) working with the East Baton Rouge Sheriffs Office provided deputies with a substance purchased from Ellis J. Hymel, Jr., which proved to be cocaine.

On January 25, 1983, the C.I. told deputies that Hymel was receiving a large shipment of cocaine later that night from a man coming from New Orleans and was to deliver five ounces of cocaine to him. Sgt. David Schultz set up a surveillance inside the C.I.’s apartment while Capt. Michele Fourrier and other deputies watched Hy-mel’s apartment located at 1221 Bob Pettit Avenue. As the night progressed, Hymel telephoned the C.I. and told him that his man from New Orleans had not yet arrived but would be there soon. After 11:00 p.m., Fourrier and his men saw a white Chevrolet automobile with a “B” license plate arrive at Hymel’s apartment. Defendant went into Hymel’s apartment carrying a nylon gym bag. Then Hymel called to tell the C.I. that the man was at his apartment but did not want to do the deal there because there were too many people in the apartment. Hymel told the C.I. that he would bring a sample over, which he did. Hymel then returned to his apartment. Schultz field tested the substance, and it proved to be cocaine. Fourrier and his men watched Hymel and also his apartment during the entire proceeding. Hymel again left his apartment about 12:30 to deliver the remaining four ounces of cocaine. Fourrier and Lt. Steve Doerner arrested Hymel a few blocks away from his apartment, near the intersection of Burbank and Jennifer Jean Streets. They found a bag of cocaine on the floorboard of Hymel’s car.

Meanwhile Schultz went to prepare a search warrant for Hymel’s apartment. Fourrier, accompanied by several deputies including Lt. Doerner and Deputy Mary Kuntz, returned to Hymel’s apartment. Kuntz was instructed to knock on Hymel’s door. She knocked and asked for Ellis. When the door opened Fourrier and the other deputies, with drawn guns, entered the apartment where they found defendant and four unnamed individuals. Defendant was standing in the kitchen holding a .45 caliber automatic. He was told to drop the gun, which he did. He and the others were arrested and handcuffed, and the apartment was secured. As defendant was arrested, the deputies noticed a nylon gym bag which was unzipped at his feet. Protruding therefrom was a plastic baggie containing a white powdery substance. After the apartment was secured and the occupants restrained, the deputies waited until Schultz called to advise that the warrant had been issued. The apartment was then searched. The substance seen in the gym bag proved to be cocaine.

ASSIGNMENT OF ERROR

Defendant contends that the trial court erred by denying his motion to suppress because the cocaine contained in the gym bag was seized unlawfully, as the deputies had no probable cause to arrest him, and exigent circumstances did not exist to excuse the warrantless entry into Hymel’s apartment.

A search conducted without a warrant issued upon probable cause is per se unreasonable and is subject to only a few specifically established exceptions. One of those exceptions is a search incident to a lawful arrest. This particular search, however, is limited to the area within the arrestee’s immediate control. State v. Drott, 412 So.2d 984 (La.1982). Here, the cocaine was between the feet of defendant in plain view and in an area within his immediate control. Thus, the evidence was the product of a valid search if defendant’s arrest was valid. We find that the issue presented here is whether the warrantless entry of Hymel’s apartment to make a war-rantless arrest of defendant was valid.

It is a basic principle of the U.S. Fourth Amendment that searches and seizures inside a home without a warrant are presumptively unreasonable. In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be erased without a warrant. Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 1380, 63 L.Ed.2d 639 (1980). A search warrant must also be obtained, absent exigent circumstances or consent, to enter the house of a third party to search for the subject of an arrest warrant. See Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981).

Although no arrest warrant was issued for defendant, La.C.Cr.P. art. 213 provides that a warrantless arrest may be made when there is “reasonable cause to believe that the person to be arrested has committed an offense, although not in the presence of the officer.”

The Louisiana Supreme Court in State v. Brown, 395 So.2d 1301, 1309 (La.1981), stated:

The standard for probable cause was recently enunciated in State v. Collins, 378 So.2d 928 (La.1980), where this Court reasoned:
“Probable cause to arrest exists when facts and circumstances within the arresting officer’s knowledge and of which he has reasonable and trustworthy information are sufficient to justify a man of average caution in the belief that the person to be arrested has committed or is committing an offense. State v. Wilkens, 364 So.2d 934 (La.1978); State v. Johnson, 363 So.2d 684 (La.1978); State v. Marks, 337 So.2d 1177 (La.1976). Although mere suspicion cannot justify an arrest, State v. Thomas, 349 So.2d 270 (La.1977), the.officer does not need sufficient proof to convict. State v. Randolph, 337 So.2d 498 (La.1976).
“One of the most important elements in determining whether probable cause existed is satisfied when the police know a crime has actually been committed. When a crime has been committed and the police know it, they only have to determine whether there is reasonably trustworthy information to justify a man of ordinary caution in believing the person to be arrested has committed the crime. In many cases the police do not know that a crime has been committed. When the arrest or search is made when the police do not know that a crime has been committed, more and better evidence is needed to prove that probable cause exists for the arrest than is the case when the police know a crime has been committed. State v. Johnson, supra.

The deputies were informed that someone arriving late that night from New Orleans would be delivering cocaine to Hy-mel. Defendant arrived after 11:00 p.m. in an automobile with a “B” license plate and entered Hymel’s apartment carrying a nylon gym bag. Shortly thereafter, Hymel delivered a sample of cocaine to the C.I. After Hymel left his apartment a second time, he was arrested and four ounces of cocaine were found in his car. Defendant remained in Hymel’s apartment. Given these facts, we agree with the trial judge that the deputies had reason to believe defendant was involved in the crime and had, in fact, supplied Hymel with the cocaine. The arrest .was legal.

A question also arises regarding the warrantless entry into Hymel’s apartment. While warrantless entries into a person’s home are “per se” unreasonable, Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), they may be justified where sufficient exigent circumstances exist. Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970); McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153 (1948).

Fourrier testified that he went immediately back to Hymel’s apartment without a warrant because:

Well, we stopped him, like I said before, at this Jennifer Jean, uh, Burbank area which is a straight street from the Tiger-land Apartment Complex area into the rest of the town, as it were, and I knew the traffic patterns. I knew if anybody would happen to know Mr. Hymel and see us stopping his car right there — I mean it was obvious who we were — that word may get back to the apartment. And I also knew that Mr. Farber was from New Orleans and there was a chance he may leave your jurisdiction. He had committed a crime and I thought it prudent for us to go and make sure he didn’t leave.

Fourrier further explained his actions as follows:

That’s true, we did not have the warrant on the premises, that’s correct. I thought it prudent to use a ruse because previous dealings with people who are dealing with cocaine, which is worth a lot of money, I thought they would be armed. I also thought that there was a chance that the evidence could be destroyed. I thought that we should go in at the time when I ordered it because of the fact that we stopped Mr. Hymel in a high traffic area where a lot of people may know him living in the apartment complex, and also I believed Mr. Farber had committed a crime, and I believed he was from New Orleans. And I also believed that I should arrest him prior to him leaving our jurisdiction. And I also thought, you know that was the way I should handle the case.

In State v. Hathaway, 411 So.2d 1074, 1079 (La.1982), the Louisiana Supreme Court stated:

Probable cause alone does not justify the entry into an area otherwise protected by the Fourth Amendment of the United States Constitution and the Louisiana Constitution, Article 1, Section 5. There is a justified intrusion of a protected area if there is probable cause to arrest and exigent circumstances. State v. Rudolph, 369 So.2d 1320 (La.1979). Exigent circumstances are exceptional circumstances which when coupled with probable cause justify an entry into a “protected” area that, without those exceptional circumstances, would be unlawful. Examples of exigent circumstances have been found to be escape of the defendant, avoidance of a possible violent confrontation that could cause injury to the officers and the public, and the destruction of evidence.

The trial judge, denying the motion to suppress, stated:

What was Fourrier to do, take the chance that someone familiar with Hy-mel witnessed his arrest in the vicinity of his apartment and send for an arrest warrant and hope that Farber would not leave in the meantime. A confrontation outside of the apartment could have been violent, placing lives in great jeopardy. If ever there be exigent circumstances they certainly are presented in the circumstances surrounding this arrest.

We agree that exigent circumstances existed. Since Hymel was arrested only a few blocks away, there was a possibility that someone would witness the arrest and alert defendant, who remained nearby in the apartment. As a result, the evidence might have been destroyed. In addition, there was a possibility of a violent confrontation. Finally, defendant knew how long it took Hymel to deliver the first sample of cocaine. Any unusual delay in his return would have further aroused defendant’s suspicion, and he could have quickly left the apartment and the deputies’ jurisdiction.

Exigent circumstances necessitated the warrantless entry into Hymel’s apartment. The deputies had probable cause to arrest defendant. So the evidence was properly seized, and the trial court was correct in denying the motion to suppress. Defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . In pleading guilty, defendant reserved his right to seek appellate review of the ruling which denied his motion to suppress. See State v. Crosby, 338 So.2d 584 (La.1976).

      . A Louisiana license plate which has a "B” in the number indicates that at the time of issuance it was registered to someone residing within the State Police Troop B area which includes New Orleans.


author: LANIER, Judge.

text:
    STATE of Louisiana v. Henry SANFORD.
    No. 83 KA 1010.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.
    Ossie B. Brown, Dist. Atty. by Jeffrey Hollingsworth, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    M. Michele Fournet, Appellate Counsel, Asst. Public Defender, Baton Rouge, for defendant-appellant.
    Before SHORTESS, LANIER and CRAIN, JJ.
   LANIER, Judge.

The defendant, Henry Sanford, was jointly indicted for aggravated rape in violation of La.R.S. 14:42 and armed robbery in violation of La.R.S. 14:64. He pled not guilty, was tried by a jury and found guilty as charged. On the aggravated rape charge, he was sentenced to be committed to the custody of the Louisiana Department of Corrections at hard labor for life without benefit of probation, parole or suspension of sentence. On the armed robbery charge, he was sentenced to be committed to the custody of the Louisiana Department of Corrections at hard labor for ninety-nine years without benefit of parole, probation or suspension of sentence. The trial court ordered that the sentences be served consecutively to each other and consecutively “to any other sentence that the defendant may be condemned to serve at this time.” This appeal followed.

FACTS

On November 23, 1982, a male student (companion) and a female student (victim) from Louisiana State University, who had been dating each other for some time, went to lunch at a local restaurant in Baton Rouge, Louisiana. At approximately 2:00 p.m. after lunch was completed, the couple went to the Picnic Hill area of the City Park on Dalrymple Drive. While the couple was sitting in the park, they observed a man (subsequently identified as Henry Sanford) approaching with a dog following him. The man pointed a gun (which appeared to be a small caliber automatic pistol) at the couple and asked the companion if he were “Billy”. The companion advised that he was not “Billy” and showed the man identification. The man ordered the couple to walk back to the companion’s car (a brown four door 1974 Toyota Corona with a South Dakota plate) to wait for “Billy”.

After arriving at the car, the man ordered the couple into a small storage shed nearby. Inside the shed, the man kept the gun pointed at the couple and told them to “freak out”. He then made the couple strip and perform oral sex on each other. He then ordered the victim to lay on the ground. The man told the companion not to move or the victim would die. He then had intercourse with the victim while he held the gun to her head.

After the rape, the man ordered the couple to dress. After the couple dressed, the man ordered the companion to empty his pockets. The companion produced his car keys, wallet and some change. He also had a checkbook and an A & P check cashing card belonging to the victim which he was holding for her. The man took all of these items.

The man told the couple to remain in the shed because he had a partner on the outside who would kill them if they attempted to leave. When leaving the shed, the man put a stick in the door latch to keep the couple in. He then drove off in the companion’s car. Immediately thereafter, the couple escaped from the shed and called the police.

On the evening of November 23, 1982, the companion’s car was found abandoned in another location in Baton Rouge, Louisiana. Fingerprints were lifted from the inside surface on the driver’s door glass and from the windshield wiper knob of the car. These fingerprints were subsequently identified as the left index and right thumb prints of Lawrence Pierre.

On November 24, 1982, the victim identified Henry Sanford from a photographic lineup. Based on this information, a warrant was issued for Sanford’s arrest on that same date.

On November 29, 1982, the companion also identified Sanford from a photographic lineup.

Sanford was arrested by the Baton Rouge City Police on December 20, 1982. After being advised of his Miranda rights, he voluntarily gave a statement to Investigator Charles Mondrick contending that he did not commit the crime and asserted that it was committed by a person who looked like him named Lawrence Pierre. Because of this statement and the fact that Pierre’s fingerprints were found on the recovered vehicle, Pierre was arrested on December 21, 1982. On December 22, 1982, the police conducted two separate physical lineups in the presence of the victim. Each lineup had six persons with similar appearances. Lawrence Pierre was placed in the first lineup and Henry Sanford was placed in the second. The victim picked Sanford from the second lineup and identified him as the person who committed the crimes. The victim and companion also made in-court identifications of Sanford.

At the trial, Lawrence Pierre testified that on November 23, 1982, at approximately 2:00 or 3:00 p.m., he saw Henry Sanford at the Tombstone Baseball Park near Port Allen, Louisiana, driving a little brown car that might' have been a Toyota. Pierre (who previously knew Sanford) looked at the car and got in it on the passenger’s side. Thereafter, Sanford left the area of the park and Pierre also left.

Barbara Venable, a worker for the Louisiana State University Traffic Department, testified that she knew Henry Sanford and Lawrence Pierre. She saw Lawrence Pierre on November 23,1982, between 3:30 and 5:00 p.m. at the Tombstone Lane driving a small brown car. Venable was talking to Henry Sanford at that time. Pierre asked Sanford to go for a ride but he declined. Pierre then drove off.

OTHER CRIMES EVIDENCE

Sanford contends that the trial court committed prejudicial error when it allowed the state to introduce evidence that a check belonging to the victim which was taken from the companion was forged and cashed at the A & P Food Store located at 3380 Government Street in Baton Rouge, Louisiana, on November 23, 1982. Sanford contends that the evidence of the forgery is not part of the res gestae and should have been excluded.

At the trial, the victim and companion testified that after Sanford took the victim’s checkbook from the companion he asked the victim if she could cash a check. She responded that she could not because there was no money in the account. Sanford then said that he had a woman friend who could cash a check at A & P. He told the couple he was going to the A & P to cash a check and would be back in twenty minutes. The victim testified that she had a share draft account with her father at the Ethel Employees’ Federal Credit Union. When the checkbook was taken, checks 492 through 500 were in the book. Counsel for the state gave check No. 492 (State Exhibit S-7) to the victim and she identified it as the next unused check from her checkbook. The victim examined check No. 492 and said that it had been filled out by someone other than herself or her father. All of this testimony was received without objection.

When the state called Donald Massey, the Co-manager of the A & P Food Store located at 3380 Government Street in Baton Rouge, Sanford’s counsel objected on the grounds that the purpose of his testimony would be to show the cashing of check No. 492 and that this would be inadmissible evidence of other crimes (forgery). The court overruled the objection and counsel for Sanford made the objection continuing to all. further evidence on this issue. Massey then testified that check No. 492 was presented at his store for the purchase of food on November 23, 1982. An inquiry was made to “Checkfack’s” to see if the check would clear and, when a positive response was given, he initialed it and approved it. An A & P check cashing card number was placed on the check by the cashier. Massey had no independent memory of who issued the check.

The state then called Joseph B. Crawford, the Manager of the A & P store at 3380 Government Street. He testified that in December of 1982, he contacted Sergeant Fred Sanders of the Baton Rouge City Police about a forged check (No. 492) and subsequently gave the check to Sanders. The state called Sergeant Fred Sanders of the Baton Rouge City Police who testified that on December 20, 1982, he went to the A & P Food Store and got the check from the Manager, J.B. Crawford. Sanders put his initials, the date and his case file number on the check. The handwriting on the check was not analyzed.

The general law applicable to other crimes evidence is found in State v. Haarala, 398 So.2d 1093, 1097 (La.1981) as follows:

As a general rule, the prosecution may not introduce evidence of other criminal acts of the accused unless the evidence is substantially relevant for some purpose other than to show that the accused is a bad man and thus more likely to have committed the crime. State v. Monroe, 364 So.2d 570 (La.1978); State v. Sutfield, 354 So.2d 1334 (La.1978). This rule results from the belief that admission of this type character evidence creates a great risk of unjust convictions because the jury is likely to give the evidence excessive weight and convict the defendant merely because he is a bad man, because the defendant may well be unprepared to face such attacks, and because the jury is likely to be confused by proof of collateral issues. State v. Prieur, 277 So.2d 126 (La.1973); Comment, Other Crimes Evidence in Louisiana, 33 La.L.Rev. 614 (1973).
The general prohibition against the use of other crimes evidence does not bar admission of criminal acts which are an inseparable part of the whole deed. 1 Wigmore, Evidence § 218 (3d ed. 1940). In Louisiana, such acts are denominated as part of the res gestae and admitted under the authority of La.R.S. 15:447-48. A very close connexity between the charged offense and the other crimes evidence sought to be introduced under the res gestae exception is required. See State v. Schwartz, 354 So.2d 1332, 1334 (La.1978) and cases cited therein. This close connexity in time and location is essential to the exception because no notice of the state’s intention to introduce evidence of offenses which are part of the res gestae is required. See La.C. Cr.P. art. 720; State v. Prieur, supra; Pugh, Louisiana Evidence Law 100-01-(Supp.1978) excerpting 35 La.L.Rev. 525, 526-27 (1975).
This Court has approved the admission of other crimes evidence when it is related and intertwined with the charged offense to such an extent that the state could not have accurately presented its case without reference to it. State v. Boyd, 359 So.2d 931, 942 (La.1978); State v. Clift, 339 So.2d 755, 760 (La.1976). In such cases, the purpose served by admission of other crimes evidence is not to depict the defendant as a bad man, but rather to complete the story of the crime on trial by proving its immediate context of happenings near in time and place. McCormick, Law of Evidence 448 (2d ed. 1972). The concomitant other crimes do not affect the accused’s character, because they were done, if at all, as parts of a whole; therefore, the trier of fact will attribute all of the criminal conduct to the defendant or none of it. And, because of the close connection in time and location, the defendant is unlikely to be unfairly surprised. 1 Wigmore, Evidence § 218 (3d ed. 1940).

See also State v. Kahey, 436 So.2d 475 (La.1983) and State v. Craddock, 435 So.2d 1110 (La.App. 1st Cir.1983).

Sanford was indicted for the armed robbery of the companion. Armed robbery is defined in La.R.S. 14:64 as follows:

Armed 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, while armed with a dangerous weapon.

One of the items taken from the person of the companion by Sanford was the victim’s checkbook containing check No. 492. Check No. 492 is direct evidence of what was taken during the armed robbery of the companion. It is not essential to the crime of armed robbery that the checkbook and check were owned by the victim; it is only essential that Sanford was not the owner and that the companion had a greater right to possession of the checkbook and cheek at the time of the taking than did Sanford. State v. McClanahan, 262 La. 138, 262 So.2d 499 (1972); State v. Morales, 256 La. 940, 240 So.2d 714 (1970); State v. McGuire, 173 La. 871, 138 So. 867 (1931); State v. Babineaux, 146 La. 290, 83 So. 558 (1919). The fact that the check was negotiated is also direct evidence that it was something of value. The state is permitted to present to the jury the criminal act charged in its entirety, for to hold otherwise would require that the state present only a part of the sequence of events which formed the criminal transaction. State v. Brown, 428 So.2d 438 (La.1983). The state had a right to show how the items taken in the armed robbery (car and check) were recovered. Because the stolen check was cashed a short time after the armed robbery, that event formed one continuous chain of events with the crime and was within the res gestae. State v. Molinario, 383 So.2d 345 (La.1980).

This assignment of error is without merit.

DECREE

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

AFFIRMED.

      . After Sanford presented evidence contradicting his identification by the victim and the companion as the perpetrator, this evidence also could be used to corroborate their testimony. La.R.S. 15:484 and 485; State v. Talbot, 408 So.2d 861 (La.1980).


author: CUTRER, Judge.

text:
    STATE of Louisiana In the Interest of A MINOR.

    No. 83-944.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1984.
    Rehearing Denied April 3, 1984.

      F. Clay Tillman, Jr., Leesville, for defendant-appellant-appellee.
    Richard Lynn Ducote, New Orleans, for plaintiff-appellee-appellant.
    James R. Mitchell, Leesville, for minor.
    Before CUTRER, LABORDE and KNOLL, JJ.

      . At the request of the State, this case has been re-captioned to preserve the confidentiality of this matter. The mother’s name is not set out herein for the same reason.

   CUTRER, Judge.

This is an appeal from a trial court judgment in a juvenile proceeding which terminated the parental rights of the appellant-mother as to her eight-year-old daughter. The State originally petitioned for termination of the parental rights of both the child’s father and mother; however, prior to trial, the father voluntarily surrendered his rights under the provisions of LSA-R.S. 9:401-402. The mother appeals, alleging that the State failed to meet the proof requirements of the statute relative to the termination of parental rights.

The Louisiana Department of Health and Human Resources (Department), which had maintained custody of the minor from five years prior to trial and with whom custody presently rests, appeals that portion of the trial court judgment which casts it with the attorney’s fees ($300.00) awarded to the attorney appointed by the court to represent the minor. We affirm the termination order, but we reverse the judgment assessing the Department with the attorney’s fees.

FACTS

The child in question was born in Korea on July 10,1975; her mother is Korean and her father is an American, who was stationed as a soldier in Korea. The family subsequently resided at an Army post in Louisiana. In September 1977, the local Welfare Department was informed that witnesses had seen the mother physically abuse her then-two-year-old daughter. According to one of those witnesses, the incident occurred at a restaurant and began when the mother, with her closed fist, struck the child forcefully on the arm. The child began crying and, shortly thereafter, the witness saw the child “go flying past the window, and land on the cement on the stomach.”

The young girl was taken to the Army hospital for examination, where it was decided that her parents would be allowed to take the child home, but they were to receive family service counseling on a weekly basis. The examining physician opined that the problem consisted “of the mother not being able to handle some of the frustrations of living with a two-year-old child.” In June 1978, the Department received a report that the child (still two years of age) was seen with bruises, welt marks and scratches on her face.

The child was again taken to the Army hospital where a physical examination revealed the following: a bruise over the left cheek, multiple areas of scratches, a deeper abrasion over the left side of the back, multiple contusions and abrasions over the lower extremities, multiple linear scarring over the buttocks and small circular scars, resembling cigarette burns, on the torso and left eyebrow. The diagnosis of the examining physician was “Battered Child Syndrome.” Pursuant to these findings, a judicial hearing was held and, on July 7, 1978, custody of the child was transferred to the Department.

The Department retained custody of the child during the five years prior to trial. The young girl spent most of that time in foster homes. Attempts were made by the Department to reunite the mother and daughter, but, because of the child’s increasing emotional problems and the mother’s failure to satisfactorily comply with the Department’s plan for reunion, a petition was filed in April 1983, seeking to terminate the parental rights of both father and mother.

The degree of involvement between the father and the Department is not clearly revealed by the trial record, but he apparently was often in trouble, spending some time in jail. However, before the trial in September 1983, the father surrendered his parental rights in an act executed in Illinois, and this appeal, therefore, addresses the termination of only the mother’s rights.

THE TERMINATION OF PARENTAL AUTHORITY

The State petitioned for the termination of the mother’s rights under the authority of LSA-R.S. 13:1601(D), which sets forth the elements necessary for termination thusly:

“D. (1) The child has been in the custody of a child welfare department or other person, pursuant to a judicial order, for a period of at least one year.
(2) The child was removed from the custody of the parents by judicial order due to the parent’s abuse or neglect of the child.
(3) The parent is unfit to retain parental control and there is no reasonable expectation of reformation on the part of the parent or parents.
(4) The child is an abused or neglected child, the Department of Health and Human Resources has made every reasonable effort under the circumstances' to reunite the child with his parents, and the department recommends that it would not be in the best interest of the child to be reunited with his parents.

These elements “must be proven by clear and convincing evidence,” [R.S. 13:1603(A)], and it must be proven “that the best interest of the child dictates termination of parental rights.” R.S. 13:1602(D). The trial court held that the requisite burden of proof was met. We agree.

As we address each element we find that the Department has fully met its burden of proof.

(1) The child has been in the custody of a child welfare department or other person, pursuant to a judicial order, for a period of at least one year.

The record clearly reflects that a judicial order was rendered on July 7, 1978, placing the two-year-old child in the custody of the Department. Custody has continuously remained in the Department for over five years.

(2) The child was removed from the custody of the parents by judicial order due to the parent’s abuse or neglect of the child.

The evidence is clear that the 1978 custody order resulted from the two occurrences in September 1977, and June 1978. At least one person saw the infant in 1977, when she was struck forcefully by her mother’s fist and apparently thrown to the cement in anger outside a restaurant. At that time the only action taken by the Department included a physical examination of the child and counseling services for the mother and father. The examining physician in his report stated that the problems were caused by maternal deficiencies, which were to be treated.

In 1978, a doctor’s examination revealed that the child had suffered bruises, scratches, abrasions, contusions, and scarring, some of which indicated the inflictions of cigarette burns. When the social worker examined the child, she had been left unattended in the guest house where she had been staying with her parents. When the mother returned and was confronted with her daughter’s injuries, she said that she had struck the child with a brush.

The psychologist who examined both the mother and daughter between 1979 and 1982, testified that the child told others that her mother had burned her with cigarettes. The mother also admitted that she pulled her daughter’s hair excessively and that she was sorry for that. The Army physician who examined the child prior to the 1978 custody hearing and transfer diagnosed her as being “battered.”

The trial judge found as a matter of fact that the child’s custody had been transferred due to physical abuse. We agree with that finding which is clearly supported by the record.

(3) The parent is unfit to retain parental control and there is no reasonable expectation of reformation on the part of the parent or parents.

An unfit parent is one “who has abused the child by inflicting physical or mental injury which causes severe deterioration to the child....” R.S. 13:1600(6). The evidence reflects that the mother is unfit.

After inflicting the initial physical abuse previously alluded to, the mother was referred to a counseling service and, less than one year later, the more serious physical abuse was detected. According to the mother, her daughter was a “bad, bad child” who would not mind her.

The psychologist who examined the mother testified that, although the mother wanted her child to live with her, she realized that this arrangement might not be best for her daughter. Further, it was noted that the mother placed too much responsibility on her child, which often resulted in inflictions of excessive punishment. Although the psychologist stated that the mother and child were “attached to each other,” she noted that it was “very traumatic” for them to be involved with one another.

While the child was in the custody of the Department, the mother was allowed to visit her. After each of these visits the young girl would become very hyperactive,, requiring the administration of drugs to control her activity.

Counsel for the mother argues that the trial judge erred in his finding that the mother had engaged in prostitution. We disagree. The evidence supports the lower court’s finding. The Department concluded that the mother was earning income as a prostitute, but it did not believe that this would necessarily reflect upon the mother’s ability to meet her child’s needs. In one of the ninety-day agreement plans, wherein the Department was attempting to reunite the mother and child by scheduling regular visits upon the mother’s agreement to fulfill certain obligations, the mother agreed “not to have men in the home for business purposes” while the child was present.

It was the opinion of the psychologist that the young girl had viewed adult sexual activity. She also observed that the young child, at an early age, had developed a distrust for men. Obviously the mother’s chosen means of income and lifestyle has contributed to her daughter’s developing emotional problems.

The mother requested that visits with her child be scheduled on any days other than military pay days. The Department complied with this wish and requested that the mother not entertain men at home while the child was present. At one time, visitation rights were stopped because the young girl was present during some of these episodes. Under these facts, the third element of proof was clearly met.

(4) The child is an abused or neglected child, the Department of Health and Human Resources has made reasonable efforts under the circumstances to reunite the child with his parents, and the Department recommends that it would not be in the best interest of the child to be reunited with his parents.

There is no question that the child was abused. Counsel for the mother primarily argues that the Department has not made every reasonable effort to reunite the mother and daughter. We find that the Department had made every reasonable effort to effectuate a reunion.

The child’s custody was transferred to the Department when she was two years of age. By the time of trial the minor was eight. During that period she remained in the Department’s custody, spending most of that time with foster parents. The Department entered into numerous visitation plan agreements with the mother, attempting to gradually return the child to her. Testimony from the involved social workers was that their only goal was to achieve the reunion of mother and child.

Various visitation schedules were made, and the mother usually made these visits. However, there was one period of time when the Department did not even know the mother’s whereabouts. As the Department began scheduling more visits between the two, including overnight ones, in preparation for a permanent return, the mother would begin to balk and become uncooperative. The Department concluded that the mother wanted to visit but did not want the responsibility of caring for the child.

The trial judge concluded that the child should-not be left in a “state of limbo.” The Department was acting in the best interests of the child in seeking to terminate parental rights for, once done, the child will be available for adoption. LSA-R.S. 13:1605. The examining psychologist categorically believed the child’s best interests would be served by severing her relations with her mother. Her opinion, in short, was the following:

“I think that it would be very destructive to [child’s namel emotional adjustment to return to an environment that is unstable such as that provided by her mother.”

This statement was consistent with the Department’s position. The record fully supports the trial judge’s termination of the parental rights.

ATTORNEY’S FEES

The Department appeals that portion of the trial court’s judgment casting it with the payment of $300.00 attorney’s fees for the attorney appointed to represent the minor. Under R.S. 13:1602(C), the trial court is required to appoint an attorney “to represent the sole interest of the child....” Title 13 is silent as to who shall pay the fees of the appointed attorney. Proceedings under Title 13 for the termination of parental rights are juvenile proceedings. As we turn to the Code of Juvenile Procedure we find a provision which also requires the appointment of counsel to represent a child in juvenile proceedings and makes provision for the payment of the fees. We shall apply this provision to these proceedings.

LSA-C.J.P. art. 95 provides as follows:

“A. A child shall be entitled to counsel in the following proceedings:
(1) A hearing to determine continued custody;
(2) An appearance to answer a petition which requests that the child be adjudicated to be a delinquent;
(3) A transfer hearing pursuant to R.S. 13:1571.1 et seq.;
(j) An adjudication hearing if the petition requests that the child be adjudicated to be a delinquent;
(5) A disposition hearing if the child has been adjudicated to be a delinquent;
(6) A hearing on a motion to modify the judgment of disposition in delinquency proceedings if the motion is filed by the district attorney or probation officer, unless the motion requests that the disposition be less restrictive;
(7) An appeal if the child has been adjudicated to be a delinquent.
B. The child shall be entitled to counsel in any other proceeding.
C. If the parents of the child are financially unable to afford counsel, the court shall appoint counsel in accordance with R.S. 15:1 jl et seq.
D. If the parents of the child are financially able to afford counsel but fail to employ counsel, the court may appoint counsel to represent the child at the expense of the parents....” (Emphasis supplied)

Under the provisions of this procedural article, the Department is not responsible for the fees of the court appointed attorney who represents the child. Article 95 provides that, if the parents are unable to afford counsel, the court shall appoint one under the provisions of the indigent defender law. LSA-R.S. 15:144 et seq. If the parent is able to pay the fees of the appointed counsel, LSA-R.S. 15:148 authorizes the court to order the parent to reimburse the district indigent defender board according to the parent’s ability to pay.

Having come to the conclusion that LSA-C.J.P. art. 95 is applicable, we shall reverse that portion of the trial court judgment which orders the Department to pay the $300.00 fee and order that the trial court proceed according to the provisions of art. 95 in establishing the payment of the fee.

For these reasons, that portion of the trial court judgment ordering the Department to pay the court appointed attorney’s fees in the amount of $300.00 is reversed and set aside. The case is remanded to the trial court for the limited purpose of establishing the payment of the court appointed attorney’s fees according to LSA-C.J.P. art. 95.

In all other respects, the judgment of the trial court is affirmed. The mother-appellant shall pay the costs of this appeal.

AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

      . At this time the Department existed under the name of the Office of Human Development.


author: BYRNES, Judge.

text:
    James C. CRAIG v. John C. MABRY, Debbie Mabry, Fair Grounds Corporation, Garnishee.
    No. CA 1258.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1984.

      Floyd J. Reed, Reed & Reed, New Orleans, for plaintiff-appellant.
    William S. Vincent, Jr., New Orleans, for defendants-appellees.
    Before KLEES, BYRNES and WILLIAMS, JJ.
   BYRNES, Judge.

This case involves a garnishment. James C. Craig, plaintiff-appellant obtained a judgment against Debbie Mabry in an action on a promissory note. Mabry is a horse trainer and Craig, believing that Ma-bry was owed money by the Fair Grounds, filed for garnishment proceedings against “Fair Grounds Race Track”. The Fair Grounds filed an exception urging that its name was Fair Grounds Corporation not Fair Grounds Race Track. This exception was maintained and Craig amended his petition to name Fair Grounds Corporation as garnishee. The Fair Grounds filed an answer to garnishment interrogatories admitting a $29.00 debt to Mabry. This answer was signed by the Fair Grounds attorney but was not sworn. Craig then moved for judgment under C.C.P. Art. 2413 in the amount of $13,000.00 plus attorney’s fees and costs based on the Fair Grounds failure to comply with C.C.P. Art. 2412 which requires a sworn answer to garnishment interrogatories to be filed within 15 days of service of the interrogatories.

On the day of the hearing on Craig’s motion the Fair Grounds sought to file an affidavit which outlined its debt to Mabry. The trial judge did not allow this affidavit into evidence because he ruled that the unsworn answer filed by the attorney for the Fair Grounds was sufficient to satisfy C.C.P. Art. 2412. In support of his position the trial court cited Legier v. Legier, 357 So.2d 1203 (La.App. 4th Cir.1978). That case held that an attorney may sign the answer • to garnishment interrogatories. However, the answer in that case was sworn. We find the answer in the present case was insufficient as it was unsworn. See Mid South Packing v. Hunter, 382 So.2d 266 (La.App. 4th Cir.1980).

Under C.C.P. Art. 2413 failure to file a sworn answer to garnishment interrogatories creates a' prima facie case against the garnishee. However, C.C.P. Art. 2413 also provides that the garnishee against whom this presumption is raised may rebut the prima facie case by presenting evidence of its actual debt to the defender. In such a case, the judgment is limited to the amount shown to be owed by the garnishee plus a mandatory award of costs and attorney’s fees to the plaintiff. C.C.P. Art. 2413.

The Fair Grounds clearly failed to comply with C.C.P. Art. 2412 by filing an un-sworn answer to garnishment interrogatories. Under Article 2413, a prima facie case was established against the Fair Grounds and they should have been given an opportunity to present evidence of its actual debt. This was not done in this case.

Accordingly, we reverse the judgment of the trial court and remand the case for a hearing to be conducted in accordance with C.C.P. Art. 2413.

Costs of this appeal are to be borne equally by the parties.

REVERSED AND REMANDED.


author: GUIDRY, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Edward D. KIRTS, Defendant-Appellant.
    No. CR83-436.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 1983.
    On Rehearing March 7, 1984.
    Rehearing Denied March 29, 1984.
    Stephen Everett, Alexandria, for defendant-appellant.
    G. Earl Humphries, III, Asst. Dist. Atty., Alexandria, for plaintiff-appellee.
    Before GUIDRY, FORET and KNOLL, JJ.
   GUIDRY, Judge.

On July 31, 1982, the defendant, Edward D. Kirts, was arrested and charged with forcible rape, a violation of LSA-R.S. 14:42.1. He was tried before a jury of 12 persons who found him guilty as charged by a vote of 11 to 1. After multiple offender bills were filed, and following a pre-sen-tence investigation and hearing, the defendant was sentenced to serve 35 years at hard labor, the first 25 years to be served without probation, parole, or suspension of sentence.

At the commencement of his trial, the defendant moved to quash the jury venire due to a lack of blacks in the venire available for selection as jurors. The motion was denied. After the trial, the defendant filed a motion for new trial alleging irregularity in the “excuse” of jurors from the prospective panel, and asked for an evidentiary hearing thereon. Both of defendant’s motions were denied.

The defendant appeals the denial of said motions and has submitted written briefs alleging two assignments of error. However, defendant’s assignments of error were not perfected as required by LSA-C. Cr.P. Art. 844. Therefore, even though the assignments were briefed by the defendant, this case is subject only to a review for errors patent on the face of the record. State v. Zeno, 322 So.2d 136 (La.1975) and State v. Spears, 350 So.2d 603 (La.1977).

We have carefully examined the record in this case pursuant to the mandate of LSA-C.Cr.P. Art. 920, and finding no errors patent on the face of the record, we affirm the defendant’s conviction and sentence imposed.

AFFIRMED.

ON REHEARING

On July 31, 1982, the defendant, Edward D. Kirts, was arrested and charged with forcible rape, a violation of LSA-R.S. 14:42.1. On February 16, 1983, he was convicted by a twelve-person jury, by a vote of 11 to 1. After multiple offender bills were filed, and following a pre-sen-tence investigation and hearing, the defendant was sentenced to serve 35 years at hard labor, the first 25 years to be served without probation, parole, or suspension of sentence.

On initial consideration of the defendant’s appeal, our examination of the record indicated that the defendant had not perfected any assignments of error as required by LSA-C.Cr.P. Art. 844. Therefore, the case was subject only to a review for errors patent. As none were present, this Court affirmed the defendant’s conviction and sentence. However, on application for rehearing, it was shown that the defendant’s assignments of error were in fact properly perfected, but due to a clerical error were not forwarded with the record to this court. We granted a rehearing in order to properly review the defendant’s assignments of error. The defendant was given the opportunity to file an additional brief, which was not filed. Appellant relies on the arguments previously submitted.

On July 30, 1982, the victim and her husband were traveling through Alexandria. While stopping for gas at a convenience store, in downtown Alexandria, the two commenced to argue. This resulted in the victim becoming stranded at the store. She called long distance to her mother, who agreed to purchase a bus ticket for her to get home. She also called the Alexandria police asking if they could locate her car and husband. She spoke to several persons at the convenience store, including the defendant, concerning directions to the bus station. As the victim began to walk in the direction of the bus station, the defendant came up from behind and put what she thought was a knife to her throat. She was forced under the Murray Street bridge and allegedly raped by the defendant. After being arrested, the defendant was identified as the perpetrator, in a live lineup, by the victim.

It is from his subsequent conviction that the defendant has, upon this appeal, perfected two assignments of errors. He urges that the trial court erred:

(1) in denying the defendant’s motion to quash the jury venire; and,
(2) in denying the defendant’s motion for a new trial.

ASSIGNMENT OF ERROR NO. 1

The defendant argues that the trial court erred in denying his motion to quash the jury venire. On the morning of the trial, counsel for defendant observed what he felt to be a racial imbalance in the make-up of the petit jury venire. It was contended that the venire available for the defendant’s case was not a fair cross-section of the community. Counsel for defendant admitted that he has no explanation for the situation, but felt that a new venire should have been obtained in order to assure the defendant a fair and impartial trial.

As pointed out by the State, LSA-C.Cr.P. Art. 419 provides:

“A general venire, grand jury venire, or petit jury venire shall not be set aside for any reason unless fraud has been practiced or some great wrong committed that would work irreparable injury to the defendant.
This article does not affect the right to challenge for cause, a juror who is not qualified to serve.”

This article is intended to prevent frivolous attacks upon venires resulting from good faith efforts by jury commissions to comply with legal requirements for selecting juries. LSA-C.Cr.P. Art. 419, Official Revision Comment (a).

The defendant has the burden of establishing fraud or that some irreparable injury has been caused by the jury selection process. State v. Liner, 397 So.2d 506 (La.1981). In the present case, there are no allegations of fraud, and the record is devoid of any indications of such.

The record indicates that the jury venire is randomly selected by a computer. The defendant has failed to show any systematic exclusion from the jury venire of members of his race. In fact, the record points to the voter registration rolls as a racially neutral source for prospective jurors. The record is devoid of any prima facie showing of discrimination.

This assignment is without merit.

ASSIGNMENT OF ERROR NO. 2

By this assignment, the defendant urges that the trial court erred in denying his motion for new trial. The defendant propounds two arguments in support of this assignment. The first concerns the sufficiency of evidence to support the defendant’s conviction. As this issue is not briefed, it is considered abandoned. State v. Dewey, 408 So.2d 1255 (La.1982).

The second argument raised in connection with this assignment calls into question the method by which the trial court excused members of the petit jury venire in advance of trial. In conjunction with the motion for new trial, the defendant sought an evidentiary hearing to determine the trial court’s reasons for excusing members of the petit jury venire in advance of trial. As we understand the defendant’s argument, the hearing was sought in an attempt to show that blacks were routinely excused by the trial court without a proper showing of undue hardship, thus denying the defendant a trial before a fair cross-section of the community. He asserts that, without a hearing to determine the reasons for the excusáis, there is no method to determine whether the trial court abused its discretion in this regard.

LSA-C.Cr.P. Art. 783 provides:

“A. The court may excuse a member of the petit jury venire at any time prior to the time he is sworn as a juror to try a particular case. The panel shall be selected from the remaining members of the petit jury venire. The court, either on its own motion, or that of the state or a defendant, may order the attachment of an absent and unexcused petit jury venireman.
B. If jury service, whether criminal or civil, would result in undue hardship or extreme inconvenience, the district court may excuse a person from such service either prior to or after his selection for the general venire, jury pool, or jury wheel. The court may take such action on its own initiative or on recommendation of an official or employee designated by the court.
C. No person or group of persons shall be automatically excused.
D. In the event a person is excused because jury service would result in undue hardship or extreme inconvenience, the court may order that person’s name be placed again in the general venire or in a central jury pool.”

In State v. Brown, 414 So.2d 726 (La.1982), the Supreme Court summarized the state of the law regarding the broad discretion afforded the trial court in excusing members of the petit jury venire:

“The court is authorized to excuse a person from jury service either prior to or after his selection for the general ve-nire, jury pool or jury wheel if such service would result in undue hardship or extreme inconvenience. The court may take this action on its own initiative or on the recommendation of an official or employee designated by the court. See C.Cr.P. art. 783(B). We have held that a defendant need not be present when the trial judge excuses prospective jurors before his case is called for trial. State v. Edwards, 406 So.2d 1331 (La.1981); State v. Sheppard, [350 So.2d 615 (La.1977) ], supra. The trial court is vested with broad discretion in excusing prospective jurors for undue hardship. State v. Ivy, 307 So.2d 587 (La.1975). This discretion to release prospective jurors in advance of voir dire examination is not to be disturbed unless there is a showing of fraud or collusion resulting in prejudice to the accused. State v. Edwards, supra; State v. Sheppard, supra.

The evidentiary hearing sought by the defendant is neither provided for nor contemplated by the Code of Criminal Procedure. The onus is clearly on the defendant to show that fraud or collusion in the excu-sal of prospective jurors resulted in prejudice, but this does not entitle a defendant to an evidentiary hearing when the record is absolutely devoid of any indication that the trial court abused its discretion in excusing prospective jurors.

The record shows that the list of excused jurors was available to the defendant. Had the defendant been able to establish, through independent investigation, that a disproportionately large number of the excused veniremen were black, he might, upon affirmatively alleging such disparity in the motion for an evidentiary hearing, been entitled to relief. The defendant herein makes no allegation of fraud or collusion, and has presented no evidence of such. He seeks, however, an evidentiary hearing, in the nature of a “fishing expedition”, in the hope that some evidence of fraud or collusion will appear. The Code of Criminal Procedure does not provide for, nor can we sanction, the granting of a hearing with no showing that it is necessary or warranted. We thus conclude that the trial court was correct in denying the defendant’s motion. This assignment lacks merit.

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

AFFIRMED.

      . LSA-R.S. 14:42.1 provides:
      "Forcible rape is a rape committed where the anal or vaginal sexual intercourse is deemed to be without the lawful consent of the victim because the victim is prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believes that such resistance would not prevent the rape.
      Whoever commits the crime of forcible rape shall be imprisoned at hard labor for not less than two nor more than forty years. At least two years of the sentence imposed shall be without benefit of probation, parole, or suspension of sentence."


author: LABORDE, Judge. PER CURIAM.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Arthur SMITH, Jr., Defendant-Appellant.
    No. CR83-417.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 1984.
    Rehearing Granted March 7, 1984.
    On Rehearing April 9, 1984.

      Nolan J. Edwards, Edwards, Stefanski & Barousse, Crowley, for defendant-appellant.
    Glenn B. Foreman, and Robert T. Cline, Asst. Dist. Attys., Crowley, for plaintiff-ap-pellee.
    Before DOMENGEAUX, DOUCET and LABORDE, JJ.
   LABORDE, Judge.

Defendant, Arthur Smith, Jr., was charged by bill of information with negligent homicide. LSA-R.S. 14:32. Following a bench trial, defendant was found guilty and sentenced to four years at hard labor. Defendant now appeals on the basis of six assignments of error. Considering that the record fails to show that defendant knowingly and intelligently waived his right to trial by jury, we reverse and remand for new trial.

FACTS

At approximately 6:30 p.m. on March 7, 1982, a vehicular collision occurred on Louisiana Highway 13, south of Eunice in Acadia Parish. As a result of this collision, Mr. Glenn Macip was killed.

It was established at trial that Mr. Ma-cip, along with two passengers, was traveling north on Highway 13 towards Eunice. Defendant was traveling south at a very high speed. As the defendant’s vehicle approached a bridge, it struck an abutment ricocheting into the northbound lane of traffic. The vehicle then collided head-on with the victim’s vehicle. Mr. Macip was pronounced dead at the scene.

Following the accident, defendant was given a field sobriety test, which he failed. Reportedly, defendant threw beer cans out of his automobile moments after the collision. A medical examination of the defendant revealed that he was not injured in the collision. He was subsequently arrested by a state trooper, and tried and convicted by the trial judge for negligent homicide. LSA-R.S. 14:32.

PATENT ERROR: LSA-C.Cr.P. Art. 920(2)

An error patent which is discoverable upon mere inspection of the pleadings and minutes may be asserted at any time, and even if not asserted may be noted éx proprio motu. LSA-C.Cr.P. art. 920(2); State v. Buttner, 411 So.2d 35 (La.1982). Upon initial review of the record, we note the following patent error:

Defendant was charged with negligent homicide which entitled him to a trial by jury. LSA-Const. art. 1 section 17.

One who is entitled to a jury trial may knowingly and intelligently waive that right and receive a trial by judge; however, such waiver shall not be presumed in the absence of a contemporaneous record setting forth the articulated apprisal of that right followed by a knowingly and intelligent waiver by the accused.

In this instance, the record is silent as to whether defendant was informed of his right to a jury trial. Nor is there any contemporaneous record that defendant knowingly and intelligently waived this constitutional right. LSA C.Cr.P. art. 780.

Defendant was therefore denied the fundamental right to trial by jury since there is no record that he was informed of the right or that he knowingly and intelligently waived that right. State v. Laurendine, 439 So.2d 398 (La.1983); State v. Muller, 351 So.2d 143 (La.1977); Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

Accordingly, defendant’s conviction and sentence must be reversed and remanded for a new trial so that defendant may exercise his right to be tried by a jury or to knowingly and intelligently waive it.

Because of this patent and reversible error, we need not consider defendant’s assignments of error.

For the above and foregoing reasons, defendant’s conviction and sentence is reversed and the case is remanded for a new trial.

REVERSED AND REMANDED.

ON REHEARING

PER CURIAM.

Following our judgment reversing defendant’s conviction and remanding the case to the district court for a new trial, the State of Louisana through the District Attorney of the district and parish herein, filed an application for rehearing. The application contained suggested reasons why the action of this Court was erroneous. Additionally, the district judge prepared a Per Curiam which touched upon the subject of whether or not the defendant in this case knowingly and intelligently waived his right to trial by jury.

We granted a rehearing in order to review our previous disposition of this matter.

After reviewing the record again, studying the briefs, and studying the applicable statutory law and jurisprudence, in addition to considering the State’s application for rehearing and the district judge’s Per Cu-riam, we conclude that we did not err in our previous deposition of this case.

Accordingly, the rehearing which was granted is hereby recalled, and our judgment which reversed defendant’s conviction and sentence and remanded the case for a new trial, is reinstated.


author: LOBRANO, Judge.

text:
    Frank LOCASCIO and Salvador Locascio v. Christopher MAURICE and City of New Orleans.
    No. CA-1103.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1984.

      Frank Locascio, in pro. per.
    Salvador Locascio, in pro. per.
    Thomas P. Anzelmo, Sr., Debra J. Fisch-man, McGlinchey, Stafford, Mintz & Cellini, New Orleans, for appellees.
    Before GARRISON, GULOTTA and L0-BRANO, JJ.
   LOBRANO, Judge.

This appeal arises out of an incident wherein Frank and Salvador Locascio allege they were physically and verbally abused by defendant Christopher Maurice, an officer of the New Orleans Police Department. After a trial on the merits, judgment was rendered in the defendant’s favor, dismissing plaintiffs’ suit at their costs. Plaintiffs perfected this appeal, the sole issue being of a factual nature.

The pertinent facts are as follows. On June 20, 1981 plaintiffs, while exiting the I — 10 at Franklin Avenue, were forced to go around a stalled vehicle in the left lane. While swerving to the right their vehicle nearly struck another vehicle being driven by defendant, Maurice. Both vehicles then stopped and defendant exited his car, carrying a revolver. Frank Locascio also exited his van while his son Salvador remained inside. Maurice’s four year old son and a cousin were in the defendant’s vehicle where they remained.

At this time, it appears that both parties began to engage in a verbal assault lasting several minutes. Defendant identified himself as a police officer and instructed Lo-cascio to remain on the scene until additional police could arrive to “impartially” handle the situation. Frank Locascio refused to stay and instead entered his son’s van and proceeded to leave the scene. Officer Maurice testified that the Locascios then disregarded a red traffic signal and upon seeing this decided to give chase. Additionally defendant stated he saw a revolver in Salvador Locascio’s hand through the open passenger window.

Defendant followed plaintiffs to their residence at which time he asked to see Salvador Locascio’s drivers license. After several requests and refusals, the defendant frisked him for a weapon and upon finding none left temporarily to phone for additional police assistance. Apparently Frank Locascio had entered the residence and had also phoned for the police.

The police arrived, searched for weapons, found none and after talking with the various parties departed.

In this appeal plaintiffs allege, first, that they were deprived of a fair trial because of inadequate representation by counsel. The lack of proper representation in a civil case is not an error committed by the trial court either in its appreciation of the facts or the application of those facts to the law. Thus it is not properly an issue before this court on appeal. If plaintiffs felt their representation in the lower court was improper they have additional avenues to seek relief.

Secondly plaintiffs cite as reversible error a “verbal accusation” allegedly made by the trial judge toward Frank Locascio while his son was testifying. The pertinent colloquy is as follows:

“The Court. Mr. Locascio, stop nodding.
Mr. Locascio. I am nervous Your Honor.
The Court. Your nodding is matching the answers I am hearing. It may not be intentional don’t do it.
Mr. Locascio. I didn’t mean to do it.
The Court. When I talk to you, you listen. I'm going to fix it somehow or other so that your son can’t see you. Your nodding is matching his answers. When you shake your head he answers, ‘No.’ When you do this (demonstrating) he answers ‘Yes.’ I am not accusing you but I am telling you to stop nodding. Do you understand what I am saying. Next question, Sir.”

The trial judge acted properly and within his discretion in attempting to prevent the elder Mr. Locascio from coaching his son in what answers to give the court.

Thirdly, plaintiffs argue that a subpoena duces tecum served on defendant was not complied with. The record clearly indicates that plaintiffs are mistaken in this regard. The following discourse between the court and counsel:

“The Court:
All right. We’ll take the matter up on the merits. Are there any subpoena duc-es tecums issued by plaintiff we can get a return on at this point?
Mr. Perry:
I have been given the complete folder that counsel assures me is the complete documents from the City of New Orleans.
The Court:
You are satisfied with the return? Mr. Anzelmo:
Yes.
Mr. Perry:
Yes, Your Honor.”

Finally, Locascio cites as error the trial court’s allowing and basing its decision on “conflicting testimony” amongst defendant and his witnesses during the trial. They are thus contending that based on defendant’s evidence, the trial court committed manifest error in holding Maurice’s actions to be justified under the facts and circumstances of the case.

Defendant testified that he saw Salvador Locascio with a revolver and searched him only after Locascio refused to show any identification. Under these facts and circumstances, the trial court held the defendant’s actions to be reasonable. We see no reason to disturb that finding. After carefully reviewing the entire record we cannot say that the decision of the trial court is clearly wrong.

For the above and foregoing reasons the judgment of the trial court is affirmed. Appellant to bear all costs of this appeal.

AFFIRMED.

      . We note that plaintiffs in their brief to this Court attach to same the investigation report of the Internal Affairs Division of the Police Department. This document was not introduced into evidence at the trial, and does not form part of the record. It has not been considered by this Court.


author: BARRY, Judge. REDMANN, Chief Judge,

text:
    Alberta WILLIAMS v. WINN DIXIE, XYZ Guard Service, and ABC Insurance Company.
    No. CA-1133.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 17, 1984.

      Reginald T. Badeaux, III, Student Practitioner, John B. Fox, Supervising Atty., New Orleans Legal Assistance Corporation, New Orleans, for plaintiff.
    Dan R. Dorsey, Terry M. Boudreaux, River Ridge, for defendants.
    Before REDMANN, BARRY and WILLIAMS, JJ.
   BARRY, Judge.

Alberta Williams sued Winn Dixie La., Inc. for damages due to an alleged unlawful detention by defendant’s security agents. Defendant filed a general denial, then an exception of res judicata based on a “release” plaintiff signed. The trial court sustained the exception and plaintiff now argues the release was invalid because she received no consideration, did not understand the document, and signed under duress.

On April 18, 1981 plaintiff shopped at Winn Dixie and was in the checkout line when she was stopped by a security guard. She was escorted to the rear of the store and detained by the officer and store manager for two-three hours.

Defendant introduced its release form which provides:

I voluntarily state and admit that I have today taken the items listed below from the premises of Winn Dixie Supermarket No. 1437, located at 2841 S. Claiborne, City of New Orleans, County of_, State of La.
ITEM RETAIL PRICE ITEM
Superbrand Cheese 2.48 One
I voluntarily sign this statement, of my own free will and without force, threats or promises. I understand that I release the above mentioned store or Company and all its agencies and representatives, individually and personally, from all types of civil liability.

Plaintiff, along with two witnesses, signed the document. Defendant also introduced a page from plaintiff’s deposition in which she admitted signing the release. Plaintiff did not testify, but submitted a memorandum and an affidavit declaring:

That she did not understand the contents nor the implication of the release that she signed with Winn-Dixie of Louisiana.
That she was under great duress and suffered from high blood pressure when she was detained by Winn-Dixie personnel on April 18, 1981 and perceived signing the release as the only way to gain her freedom.

No representative of Winn Dixie testified at the hearing. After oral argument the trial court dismissed plaintiffs suit without assigning reasons.

Plaintiff argues that the release must be supported by valid consideration in order to be res judicata. She correctly points out that a mere “unilateral ‘release,’ whereby without any shown or proven consideration one party receives nothing in exchange for the release of his claim, does not meet the legal requirements of a valid compromise which is res judicata between the parties.” Bielkiewicz v. Rudisill, 201 So.2d 136 (La.App. 3d Cir.1967). We agree the release must comply with C.C. Art. 3071 regarding compromise agreements. Bielkiewicz, supra.

At the time plaintiff signed the release, Art. 3071 provided:

A transaction or compromise is an agreement between two or more persons, who, for preventing or putting an end to a lawsuit, adjust their differences by mutual consent, in the manner which they agree on, and which every one of them prefers to the hope of gaining, balanced by the danger of losing.
This contract must be reduced into writing. (Emphasis ours).

Defendant’s release does not purport to be a bilateral contract reflecting mutual concessions or compromises. Plaintiff agreed to release Winn Dixie “from all types of civil liability,” but there was no specified consideration. Indeed, the form negated any consideration by providing “I voluntarily sign this statement, of my own free will and without force, threats or promises.... ”

In Bielkiewicz, supra at 191, a similar “unilateral release” was held insufficient to bar plaintiff’s lawsuit. The court held:

In the present case, however, the instrument relied upon — the Department of Public Safety (DPS) release form— cannot be considered to be a written compromise entitled to the binding force of the thing adjudged. A unilateral “release”, whereby without any shown consideration one party receives nothing in exchange for the release of his claim, simply does not meet the legal requirements of a valid compromise which is res judicata between the parties (see Haley v. Badon, La.App. 4 Cir., 98 So.2d 109):
A compromise is defined in LSA-C.C. Art. 3071 as an agreement by which the parties adjust their differences to prevent or to put an end to a law suit. Collier v. Administrator, Succession of Blevins, La.App., 4 Cir., 136 So.2d 774. A compromise is a bilateral contract. “When one party has all to gain and nothing to lose, no compromise results.” Comment, Compromise in Louisiana, 24 Tul.L.Rev. 282, at 285 (1940). Green v. National Life & Acc. Ins. Co., La.App. Orl.Cir., 183 So. 604.

Winn Dixie contends it relinquished its right to prosecute plaintiff for shoplifting in exchange for her releasing it from civil liability. If there was such a promise or whether it would constitute valid consideration to support a compromise is a fact question involving the existence of probable cause to detain or arrest plaintiff. We cannot reach that question because there is no written evidence of such an undertaking by defendant as mandated by Art. 3071. In Senegal v. Delahoussaye, 311 So.2d 58, 60-61 (La.App. 3d Cir.1975), the court held:

The above article [3071] requires that every transaction or compromise be in writing. See Charbonnet v. Ochsner, 258 La. 507, 246 So.2d 844 (1971); Lytle v. Commercial Insurance Company of Newark, N.J., 285 So.2d 289 (La.App. 3rd Cir.1973); Stablier v. Partin, 278 So.2d 537 (La.App. 1st Cir.1973). Our jurisprudence is established that a writing evidencing a compromise must be complete in itself, that it must show the intention of the parties to compromise their differences, and that it must be independent of parol testimony to establish its meaning. A writing will not be considered to be a transaction or compromise if the court must receive parol evidence in order to reach that conclusion. Trask v. Lewis, 258 So.2d 603 (La.App. 1st Cir.1972); Bugg v. State Farm Mutual Automobile Insurance Company, 295 So.2d 194 (La.App. 4th Cir.1974).

Our Supreme Court in Bourgeois v. Franklin, 389 So.2d 358, 359 (La.1980) held:

While the statute itself does not provide for the consequences of failure to reduce a compromise agreement to writing, this Court has previously held that a compromise which is not reduced to writing is unenforceable. Jasmin v. Gafney, Inc., 357 So.2d 539 (La.1978).

Even under the amended version of Art. 3071, which allows proof of a compromise by verbal testimony “in open court,” defendant’s plea of res judicata could not be sustained. Neither plaintiff nor any representative of Winn Dixie or its security agents testified on the exception. There is no documentation of any consideration or agreement by Winn Dixie in exchange for plaintiff signing the release.

We must therefore conclude that defendant failed to discharge its burden of proving compromise. Whether plaintiff understood the release or was under duress at the time is a question of fact.

The judgment of the district court is reversed, the exception of res judicata is overruled, and we remand for further proceedings. Costs to be paid by defendant.

REVERSED; REMANDED.

REDMANN, C.J., concurs.

REDMANN, Chief Judge,

The law makes invalid any contract to which consent is obtained by threats of violence “such as would naturally operate on a person of ordinary firmness, and inspire a just fear of great injury to ... reputation ...,” La.C.C. 1851, unless “the violence used be only a legal constraint, or the threats only of doing that which the party using them had a right to do ...,” C.C. 1856. Thus if a contract is signed during detention and to avoid arrest and prosecution for shoplifting and purports to release the merchant from civil liability to the customer, that contract is only valid when the detention and threats of arrest and prosecution are within the rights of the merchant (in which case the merchant would not actually be civilly liable anyway). But such a contract is invalid, for lack of legal consent by the customer, if the merchant’s actions and threats were not within his rights. “An arrest without cause of action ..., or threats of such a proceeding ..., invalidate a contract made under their pressure,” C.C. 1857.

A merchant can therefore never obtain a valid remission or compromise of actual civil liability to a customer for shoplifting detention etc. while detention or threats continue.

Defendant’s “release” will not permit defendant to escape trial on the merits unless, at trial of the exception (or by other device such as motion for summary judgment), defendant establishes that it had the right to detain plaintiff and threaten her with arrest and prosecution for shoplifting. The record shows that, whether or not defendant had that right, defendant did not establish it at the hearing on the exception, and the exception should therefore have been overruled.

      . Art. 3071 was amended in 1981 to allow a compromise to be proven by oral testimony in open court, but that amendment was not effective until July, 1981, after the incident herein.


author: SEXTON, Judge.

text:
    Diane Brewton BEAM, Plaintiff-Appellant, v. INTERCONTINENTAL LIFE INSURANCE COMPANY and Joseph C. Tauzin, Defendants-Appellees.
    No. 15999-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 21, 1984.

      Edmund M. Thomas, Shreveport, for appellant.
    Lunn, Irion, Switzer, Johnson & Salley by James B. Gardner, Shreveport, for Tauz-in & American Home Assur. Co.
    Deutsch, Kerrigan & Stiles by Francis G. Weller, New Orleans, for Intercontinental Life Ins. Co.
    Before HALL, FRED W. JONES, Jr. and SEXTON, JJ.
   SEXTON, Judge.

Diane Brewton Beam, widow of Michael W. Beam, appeals from a judgment rejecting her demands against Intercontinental Life Insurance Company, its general agent, Joseph C. Tauzin, and Tauzin’s errors and omissions carrier, American Home Assurance Co. Finding no error in the district court’s judgment, we affirm.

Joseph C. Tauzin was a general agent for Intercontinental Life Insurance Company. Previously, Tauzin had sold life insurance policies from other companies to Michael W. Beam, a practicing attorney in the Bossier City area.

Diane Brewton Beam was designated as the owner and named beneficiary on an application for a $500,000 life insurance policy, and as such, brought suit to recover thereunder. Alternatively, she sought recovery of $200,000 under the terms of the conditional receipt. As a third alternative, she sought recovery against Joseph C. Tauzin in the amount of $500,000 as damages for his failure to procure the insurance.

The trial court rejected her demands, reasoning that the policy was never in effect and finding that while some of Mr. Tauzin’s actions were substandard, he was not negligent in failing to procure the policy.

The circumstances giving rise to this cause began at a breakfast meeting on May 6, 1981, between Tauzin and Beam. At that meeting Tauzin proposed an additional $500,000 life insurance policy to be written by Intercontinental Life Insurance Company. Beam agreed and signed a blank application for the policy. He also signed a bank authorization to permit Intercontinental to draw drafts for premium payments from Bossier Bank and Trust Company, and a medical authorization form. When Tauzin returned to his office, he completed the first page of the application form.

The next day, Tauzin obtained from Beam’s secretary Beam’s check for $77.08, representing the amount of one month’s premium for $500,000 coverage. He also obtained a second bank authorization card. At this time Mrs. Beam signed the application. Tauzin did not give the Beams a copy of the application form or a conditional receipt. Tauzin testified that he realized that he was not authorized to issue a conditional receipt because Intercontinental would not allow him to bind coverage on insurance applications in excess of $200,-000.

The incomplete conditional receipt form along with the partially completed application and bank authorization card was sent to Intercontinental on May 7, 1981. Tauzin retained in Beam’s file the check for $77.08 and the second bank authorization card.

The second page of the application called for a medical examination and health history. Several appointments were set up for the medical examination which were not kept by Beam. About three months after the application was taken, and before the required medical information was furnished or a policy issued, Beam died.

The policy application itself supports the finding that the insurance coverage was not in effect. The application clearly and unambiguously states that the application is not a contract of insurance. According to this document, a contract of insurance shall become effective:

“(1) only in accordance with the terms of a policy issued on this application and (2) only if such policy is issued and the full first premium thereon is actually paid (a) during the lifetime of all persons proposed for insurance under- such policy and (b) while the insurability and condition of health of all such persons remain the same as stated in this application provided however, that if payment is made in cash at the time of signing of this application, the terms of the Conditional Receipt shall apply hereto and are agreed to.”

In our opinion, the language quoted from the above document signed by Beam negates any claim that Tauzin, as an agent for Intercontinental, had actual or apparent authority to immediately bind Intercontinental in the amount of $500,000.

Since the policy was never issued, plaintiffs only contractual recourse against Intercontinental would be under the provisions of the conditional receipt. According to the insurance application, the terms of the conditional receipt are triggered if the first full premium is paid in cash. A discussion of whether the first month’s premium was actually paid by the unnegotiated check for $77.08 may, however, be pretermitted. The conditional receipt states that in order for coverage to exist prior to issuance of the insurance policy, both the agent and owner must sign the receipt. Neither Joseph Tauzin nor Diane Brewton Beam’s signature appears. Further, the conditional receipt states the provisional coverage exists under its terms for up to sixty days from signature of the application form. Michael W. Beam died more than three months after his application for coverage.

Mrs. Beam’s remaining theory of recovery is that Tauzin was negligent in that he breached his fudiciary obligation to procure the insurance coverage. In order to recover for loss arising out of the failure of an insurance agent to obtain insurance coverage, the plaintiff must prove:

(1) an undertaking or agreement by the insurance agent to procure insurance;
(2) failure of the agent to use reasonable diligence in attempting to place the insurance and failure to notify the client promptly if he has failed to obtain the insurance; and
(3) the actions of the agent warranted an assumption by the client that he was properly insured.

Redmond v. National Union Fire Ins. Co. of Pittsburgh, 403 So.2d 810 (La.App. 2d Cir.1981); Porter v. Utica Mut. Ins. Co., 357 So.2d 1234 (La.App. 2d Cir.1978). See also Karam v. St. Paul Fire & Marine Insurance Company, 281 So.2d 728 (La.1973).

The facts elicited at trial show that Mr. Tauzin undertook the procuring of this insurance by having Mr. Beam fill out the application for the insurance coverage. The record reflects that Mr. Tauzin used reasonable diligence in attempting to place the insurance policy with Intercontinental. The partially completed application was forwarded to Intercontinental from Tauzin on May 7, 1981. Intercontinental received the application on May 14, 1981 and began to process it by obtaining reports from Equifax and the Medical Information Bureau. Tauzin made several efforts to have Beam submit to the medical examination required for completion of the application, but Beam never complied with these requests.

The record is silent as to any action by Tauzin which would warrant an assumption by Beam, an attorney, that he was properly insured. However, Tauzin’s numerous attempts to have Beam submit to the required medical examination underscore the fact that the application remained incomplete at Beam’s death, and Beam must have been aware of that fact.

We conclude that the factual determinations made by the trial court are amply supported by the record and will not be disturbed by us on appeal. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). For the reasons stated above, the opinion of the trial court is affirmed.

AFFIRMED.