author: DENNIS, Justice.

text:
    STATE of Louisiana v. Eric Frank PRUDHOLM.
    No. 82-KA-1528.
    Supreme Court of Louisiana.
    Jan. 16, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Henry N. Brown, Dist. Atty., James M. Bullers, Asst. Dist. Atty., for plaintiff-appellee.
    R. Judge Eames, Baton Rouge, for defendant-appellant.
   DENNIS, Justice.

Defendant, Eric Frank Prudholm, was convicted by a jury of armed robbery, La. R.S. 14:64, and aggravated rape, La.R.S. 14:42. He was sentenced to serve fifty years at hard labor without benefit of parole, probation or suspension of sentence for armed robbery and life imprisonment for aggravated rape. We affirm.

In this opinion we refer to the victims of the crimes as Mr. and Mrs. Victim in order to protect the identity of the woman who was raped.

On June 8, 1981, at approximately 5:15 a.m., Mrs. Victim was brutually raped by two black men in her motel room in Bossier City, Louisiana. Mrs. Victim, her husband, and their two children were guests of the Drummer’s Inn. In the early morning hours Mr. Victim was forced from the bathroom of his motel room at gunpoint by a black man. Mr. Victim was forced to lie on his children’s bed while another black man raped his wife on the adjacent bed. During the rape, Mr. Victim’s car keys and wallet were thrown to a third black man standing near the door of the room. After the rape was completed, Mr. Victim’s captor switched places with the first rapist and raped Mrs. Victim again. The third man left the motel room, presumably to search the car for valuables. Two of the men then bound the family securely and left the scene, taking with them Mr. Victim’s wallet and some jewelry.

After a brief struggle, Mr. Victim freed himself and phoned the police. Several officers arrived and collected physical evidence from the scene, including several partial fingerprints and the bedclothes from the bed on which Mrs. Victim had been raped. The officers also obtained a description of the perpetrators of the crime from her, but because she was in an emotional state of shock this description was limited to general characteristics including height, skin tone, and hair style and length.

Mrs. Victim was taken to a local hospital and examined by the coroner of Bossier Parish. Test results revealed that Mrs. Victim had recently had sexual contact, and the presence of live sperm suggested that this contact was more -recent than the voluntary intercourse she had engaged in with her husband the previous evening. The coroner noted that Mrs. Victim was in an emotional but coherent state and that while she could answer specific questions she could not fully assist him in showing him where her assailants had touched her. Several physical samples were taken from Mrs. Victim, including blood, saliva, vaginal washings, and pubic hair.

In late August, policemen presented Mrs. Victim with a photographic line-up at her home. She identified James Gladney, a co-defendant in this case, as one of her assailants. Gladney had become a suspect after his arrest for another offense. In September, three and one-half months after the attack, Mrs. Victim was presented with two more photographic line-ups from which she identified the defendant as the other man who raped her and co-defendant Reggie Hicks as the third participant in the robbery. Mrs. Victim testified that she broke down in tears when she saw Pru-dholm’s photograph. Prudholm and Hicks had become suspects due to their association with Gladney.

The three co-defendants were tried jointly. Mr. Victim testified that he was unable to provide any identification of the perpetrators of the crime because during most of the time the crime was in progress he was facedown on the bed. Mrs. Victim provided the central piece of state’s evidence by positively identifying Gladney and Pru-dholm as the men who raped her and Hicks as the third man present in the room. She testified that there was sufficient light in the motel room to see the three men. Although it was dark outside when Mrs. Victim awakened she was able to see all three men while the outside door was open. During part of the time the assailants were in the victims’ room, an outside light shone in through the open door. Further, Mrs. Victim testified that light from the bathroom door permitted her to see Prudholm while he held a gun on her husband on the adjoining bed prior to his raping her.

The remaining evidence against the defendant consisted of testimony by a criminologist who had examined the samples taken from Mrs. Victim, the physical evidence secured from the motel room, and blood, saliva and public hair samples taken from the three co-defendants. Of the partial fingerprints taken, only two were of sufficient clarity to be useful. However, of these two, neither contained more than three of the minimally required eight “points” or traits for a positive identification. The three points did not match any of the three codefendants.

Five negroid pubic hairs found on the bed sheet taken from the motel room were compared with samples taken from the co-defendants. Of these, four did not come from any of the codefendants, but one was sufficiently similar to support the conclusion that it could have come from Pru-dholm.

The laboratory samples taken from Mrs. Victim revealed that one of her attackers was a secretor and had blood type B. The other was possibly a secretor with blood type 0, but because Mr. Victim was also a secretor with blood type 0, it was impossible to be certain. Comparison of these findings with the samples taken from the codefendants revealed that both Glad-ney and Prudholm could have been among the rapists, the former being a secretor with blood type B and the latter a secretor with blood type 0. Hicks was found to be a non-secretor.

The defendant filed a motion for a new trial based on newly discovered evidence which refutes the victim’s identification. A hearing was held on this matter, and the following testimony was adduced.

Mrs. Sue Prudholm, the defendant’s mother, testified that the defendant lived with her in Compton, California. She testified that the defendant did not leave California to come to Louisiana until July 5, 1981, well after the June 8 attack upon the victims. She said a birthday party was held for Prudholm and his younger brother at her home on June 27 and Prudholm attended. She stated that Prudholm came to Louisiana against her wishes on July 5 with Fredrick Hicks, codefendant Hicks’ brother. After Prudholm was arrested in September and formally charged on October 1, his mother allegedly attempted unsuccessfully to contact Prudholm’s court appointed attorney, and she came to Louisiana for the scheduled trial of her son on November 24, 1981. When the trial date was continued, she returned to California with the belief that she would be contacted when her son was to be tried.

Defendant’s brother-in-law, William Harold McKinney, Jr., a self-employed contract machinist with a Bachelor of Arts in History and a Masters of Arts in theater from UCLA, corroborated Mrs. Prudholm’s testimony. McKinney stated that he knew Prudholm was in California throughout June of 1981 because he could remember three specific instances in which he saw him: (1) June 6, 1981 at the Kool Jazz Festival in San Diego, (2) one week later at the National Technical School in Los Ange-les, where Prudholm had gone to observe McKinney while he was teaching auto mechanics, and (3) the birthday party at Mrs. Prudholm’s home. McKinney also testified that there were many occasions in June on which he saw Prudholm, but he could pinpoint no dates. At that time McKinney was dating Prudholm’s sister, and he frequently visited the Prudholm home.

Reggie Hicks, the codefendant who was convicted of armed robbery but not for rape, testified at the hearing on the motion for a new trial. He recanted his trial testimony that he had not been present during the commission of the crimes, and admitted his complicity in the affair. He stated at the hearing on the motion that he was guilty of the robbery, but that Prudholm was not present during the commission of the crimes. He named as his accomplices and as the rapists Gladney and Kirk Johnson. Hicks described Johnson as a light skinned black man, about five feet eight or nine inches tall, who had a long afro. Johnson’s appearance matched Prudholm’s with the exception that Prudholm had large acne pocks on his face and tattoos on his forearms and at the” time of the rape, Pru-dholm did not wear his hair in an afro, as described by Mrs. Victim to the police; rather his hair was worn in a Jeri curl, a style resembling Caucasian hair which has been permed.

Aside from the live witness testimony educed at the motion for a new trial, defense introduced affidavits of several relatives, among them defendant’s grandmother, two sisters and an aunt who all stated that they had seen and talked to Prudholm in California during June and early July. Fredrick Hicks executed a statement which said that he and his wife left Louisiana for California on June 23,1981 and returned on July 5 accompanied by Eric Prudholm.

Prudholm’s trial attorney, M. Randal Fish, was called as a witness at the hearing on the motion. He testified that Prudholm had told him that he possibly was in California at the time of the offense, but that he could not remember with any certainty when he came to Louisiana with Hicks. Prudholm had told him that it was late spring or early summer. The attorney stated that his pursuance of the possible California alibi was limited because his investigator had been terminated due to budget cuts in his office. The attorney spoke with Fredrick about the travel dates from California to Louisiana and Hicks suggested that his employer would know the dates. Hicks’ employer told the attorney that April, not late June, was the time when Hicks took time off. Further, the trial counsel thought that his secretary had checked with the airline which Hicks used to go to California and the airline records coincided with the employer records. The attorney testified that he never received any messages from Mrs. Prudholm, and that his contacts with Prudholm prior to trial included an initial interview in early October 1981 and a fifteen minute visit to jail and on arraignment day, November 3, 1981. He stated that he had seen Mrs. Prudholm in the hall of the courthouse, but that he only spoke with her briefly because he was late for a court appearance. Fish also attempted to have Fredrick Hicks sequestered in case he needed to call him as a witness, but Hicks protested vehemently that he knew nothing and refused to cooperate.

Assignments of Error Numbers 16, 17, 18 and 20

On appeal, defendant alleges 22 assignments of error which comprise six arguments. Assignments of error 16, 17, 18 and 20 form defendant’s arguments that the trial court erred in denying defense motion for a new trial based on newly discovered evidence and that Prudholm's court appointed counsel performed ineffectively.

Louisiana Code of Criminal Procedure article 851 provides in pertinent part that:

The court, on motion of the defendant, shall grant a new trial whenever: ...
(3) New and material evidence that notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict of judgment of guilty....

This rule contains the four generally recognized requisites for the motion for a new trial based on newly discovered evidence: (1) the evidence must have been discovered since the trial; (2) failure to learn of the evidence at the time of trial was not due to defendant’s lack of diligence; (3) it must be material to the issues at the trial; (4) it must be of such a nature that it would probably produce an acquittal in the event of retrial. State v. Talbot, 408 So.2d 861, 884 (La.1981) (on rehearing); Moore, 8A Federal Practice § 33.03[1] at pp. 33-18 and 33-19 (2d ed. 1983); Wright, 2 Federal Practice and Procedure: Criminal § 557, p. 515 (2d ed. 1982).

The application of these precepts to newly discovered evidence by the trial judge, although a question of law, is entitled to great weight, and his discretion should not be disturbed on review if a reasonable man could differ as to the propriety of the trial court’s action. See, e.g., State v. Talbot, supra at 885; State v. Jackson, 253 La. 205, 217 So.2d 372 (1968); State v. Truax, 222 La. 463, 62 So.2d 643 (1952). On the other hand, the discretion vested in the trial court must be exercised in whole-hearted good faith and be guided by the statutes, not by the court’s private opinion of what the statute ought to be. State v. Talbot, supra, at 885; State v. Gilmore, 332 So.2d 789 (La.1976); State v. Randolph, 275 So.2d 174 (La.1973). The trial judge’s duty is not to weigh the new evidence as though he' were a jury determining guilt or innocence, rather his duty is the narrow one of ascertaining whether there is new material fit for a new jury’s judgment.

Applying these tenets to the case at hand we find no abuse of the trial judge’s discretion in denying the defendant’s motion for a new trial. A review of the record shows that much of the alibi evidence offered by witness testimony and by sworn statements of defendant’s relatives was neither new nor, with ordinary diligence, undiscoverable at trial. While there was some newly discovered evidence material to Prudholm’s defense, we cannot say that it would probably have produced an acquittal in the event of retrial.

Alibi evidence urged on the motion for a new trial is not “ ‘newly’ discovered if it could have been discovered” before or during trial. See, e.g., U.S. v. Iannelli, 528 F.2d 1290 (3rd Cir.1976). If a defendant was aware before trial of the facts which tend to show an alibi included within affidavits in support of a motion for a new trial, the facts are not “newly discovered evidence” supporting a new trial motion. Cleary v. U.S., 163 F.2d 748 (9th Cir.1947) cert. den. 333 U.S. 864, 68 S.Ct. 736, 92 L.Ed. 1143). Despite defendant’s memory lapse concerning his trip to Louisiana, his first visit to the state which had occurred by all accounts within six months prior to his arrest, we believe that he should have known his whereabouts in June, especially after his attorney attempted to prompt his memory.

Furthermore, we conclude that the defendant failed to carry his burden of proving that his failure to learn of the new evidence was not due to his lack of reasonable diligence. Whether sufficient diligence was exercised must be determined from the composite knowledge and conduct of both the accused and his counsel. Wright, 3 Federal Practice and Procedure: Criminal § 557, pp. 327-329 (2d ed. 1982). Although the defense counsel’s performance was adequately diligent, the defendant himself lacked the requisite diligence in discovering his alibi evidence and in assisting counsel in developing that defense. Prudholm testified at the hearing for a new trial that he only told his lawyer he could not remember when he came to Louisiana with Fredrick Hicks but perhaps his mother or grandmother could recall the date of his California departure. He testified several times that he was unconcerned about telling his attorney anything more concerning his alibi because he thought he was going to be released at a preliminary hearing. Despite continued incarceration without being called to a preliminary hearing, defendant did not inquire of Fish’s associate, Pat Phillips, who visited him in prison to discuss a plea bargain, whether his alibi was being investigated. The derelictions by Prudholm defeat any claim that the evidence presented at the motion for a new trial was not discoverable with the exercise of reasonable diligence before or during the time of trial.

Similarly, we find no error in the trial judge’s refusal to order a new trial based on Reggie Hicks’ recantation of his earlier testimony and statement at the motion for a new trial that Prudholm was not present at the rape scene and had not raped Mrs. Victim, but that another man, Kirk Johnson, had actually committed the crime. In considering Hicks’ recantation, we adhere to our previous view that recantations are highly suspicious and, except in rare circumstances, a motion for new trial should not be granted on the basis of a recantation since that disclaimer is tantamount to admission of perjury so as to discredit the witness at a later trial. State v. Clayton, 427 So.2d 827 (La.1982). Since there are no special circumstances which would suggest that Hicks’ latest testimony is truthful, the trial judge reasonably could have concluded that Hicks’ recantation would not have created a reasonable doubt of guilt in the mind of any reasonable juror.

Hicks attributed his recantation to his desire to prevent an innocent man from going to jail. However, the record shows that Hicks had already been convicted and sentenced on the simple robbery charge, therefore, any potential retribution for perjury would have been minimal. That Hicks' testimony incriminated his close friend Gladney carries little weight since Hicks knew that Gladney had recently been convicted of an unrelated rape and sentenced to life in prison. Moreover, that Hicks’ sister was Prudholm’s girlfriend suggests that Hicks’ may have acted at her behest. We agree with the trial judge that Hicks would not have been a credible witness and that the repudiation of his testimony would not have been persuasive before a new jury.

While we do not necessarily find that Prudholm’s court-appointed counsel lacked diligence, we find possible merit in defendant’s claim that the attorney was hampered by a recent budget cut which left him overworked and without an investigator. While defendant’s mother criticized Mr. Fish’s effectiveness at the new trial hearing because she claims she made repeated unsuccessful attempts to contact him to discuss her son’s case, the indigent defender stated that he never received any of her messages, and he only spoke with her once in the hallway of the courthouse as he hurried to another trial. Whether the constraints imposed on Mr. Fish caused his performance to be sub-standard so as to deprive defendant of his constitutional right to reasonably effective assistance of counsel cannot be determined from the record on appeal. Rather, defendant’s remedy is through post conviction relief in the trial court where the quality of the attorney’s assistance can be fully developed and explored. See La.C.Cr.P. art. 924 et seq.

Assignments of Error Numbers 4, 7, 12 and IS

Through assignments of error 4, 7, 12 and 13, defendant argues that the trial court erred in denying his motion for a mistrial based on the prosecution’s failure to disclose exculpatory evidence pursuant to La.C.Cr.P. art. 718.

Prior to trial defendant filed a general request for production of all exculpatory evidence and information. The State’s initial answer failed to disclose the existence of any exculpatory evidence. However, at 3:00 p.m. on Friday, December 11, prior to the opening day of trial the following Monday, the State supplemented its answer by revealing the results of analysis of five negroid hairs found on the bed linen where the rape occurred as those hairs compared with pubic hair collected from Prudholm and his eodefendants. Tests showed that four of the five hairs had not come from any of the defendants. The fifth hair was sufficiently similar to Prudholm’s hair so that it could have come from him. Despite the State’s tardy production of evidence, the hair analysis results were introduced and submitted to the jury for inspection during the close of the state’s case. Defendant contends that had he known about the dissimilar hairs in advance of trial, he perhaps could have obtained witnesses who would have testified that the bed linens were changed the day before the rapes. This would have made more effective, he argues, the argument his attorney made to the jury that the identification of at least one of the defendants as the perpetrators was incorrect, because four of the five specimen hairs did not come from any of the defendants. Since his motion for a continuance to supplement his defense was denied, Prudholm claims he was surprised and unduly prejudiced by the belated evidence.

The right to be protected against the prosecution’s failure to reveal its possession of exculpatory evidence is founded upon the due process clause and is designed to assure a fair trial. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). In United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) the Supreme Court established categories of evidence to which the Brady rules apply and set forth standards of review in conjunction with these categories. See, also, State v. Willie, 410 So.2d 1019 (La.1982). The undisclosed evidence in Prudholm’s case falls into Agurs’ “general request” category. If a general request, or no request at all, is made for exculpatory materials a conviction will only be overturned if the omitted evidence creates a reasonable doubt that did not otherwise exist. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. However, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt.

Disclosure by the state must be made at such a time as to allow the defense to use the favorable material effectively in the presentation of its case. U.S. v. Pollack, 534 F.2d 964 (D.C.Cir.1976). However, the trial judge must be given a wide measure of discretion in determining whether a tardy disclosure jeopardizes effective utilization of the evidence and what remedy, if any, should be granted. Id.

We cannot say that the trial judge abused his discretion in determining that the timing of the state’s disclosures had not deprived the defense of effective use of the evidence and in denying a continuance. The additional value of evidence that the bed linens in the Victims’ room had been changed the day before the rapes to Pru-dholm’s theory would have been quite limited. Since it could be expected that the motel would have changed linens before the Victims checked into their room, the defense attorney could and did make a vigorous misidentification argument almost as effectively as he could have with the additional evidence. Furthermore, even if the defense could have obtained such evidence within the period of a reasonable continuance, it would not have diminished appreciably the possibility that one of the pubic hairs found in the room was Pru-dholm’s. Whatever additional evidence favorable to the defense could have been produced by earlier revelation of the pubic hair evidence would not have introduced an element of reasonable doubt of Prudholm’s guilt into the jury deliberations.

Assignments of Error Numbers 8, 8 and 19

Defendant argues through Assignments of Error 3, 8 and 19 that the procedure relating to photographic identification of Prudholm was suggestive and, therefore, tainted any later identification of Pru-dholm. Prudholm argues that while he is light skinned, seven of the nine photographs included within the array depicted dark-complexioned persons which unfairly singled him out. Additionally, the defendant challenges Mrs. Victim’s identification since the lighting in the hotel room where the rape occurred was dim and because her photo identification of defendant occurred three and one half months after the crime, too late for her to clearly recall her attacker’s appearance.

A defendant attempting to suppress an identification must prove both that the identification itself was suggestive, and that there was a likelihood of misiden-tification as a result of the identification procedure. State v. Chaney, 423 So.2d 1092, 1098 (La.1982); Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). In Manson, the court considered these five factors in determining whether the identification was suggestive: (1) the witness’s opportunity to view the defendant at the time the crime was committed; (2) the degree of attention paid by the witness during the commission of the crime; (3) the accuracy of any prior description; (4) the level of the witness’s certainty displayed at the time of identification; and (5) the length of time elapsed between the crime and the identification.

Applying the Manson factors to the present case we find that the identification procedure did not produce the likelihood of misidentification. Mrs. Victim’s assailants remained in the hotel room between 30 and 45 minutes, ample time for her to observe Prudholm and his accomplices so that a later accurate identification was possible. While the victim testified that she was instructed to keep her eyes closed, she explained that she repeatedly opened her eyes and watched the intruders. The record shows that Mrs. Victim particularly observed the intruder whom she identified as Prudholm, since she first saw him holding a gun to her husband’s head and later as he confined Mr. Victim to the adjoining bed with the couple’s children. Further, Mrs. Victim was face-to-face with the rapist during the assault with his face only inches away. Since this witness was the rape victim, as opposed to a mere observer, and since the record shows that she paid close attention to the three men who burst into her hotel room, there is sufficient evidence to show that the requisite degree of attention was present for a later identification.

The victim’s description immediately following the crime was general. She told police that the man with the gun who later raped her was tall with light skin and had a tight afro. Police testified that the victim had a “blank look on her face” at the time she gave the description, suggesting emotional shock. The coroner’s account of the woman just after the attack revealed that she was in an emotional state so that he could only obtain limited information from her. The defendant’s appearance conforms to her post-offense description to the extent that he is tall and light skinned. That Prudholm wore a slightly different hair style than what the victim described and had acne pocks, which she failed to mention, carries little weight considering her state of mind after the crime.

Considering the fourth Manson factor, the victim’s unwavering certainty that Pru-dholm was the second rapist is most compelling. When the police officer took the photo array to Mrs. Victim’s house he told her only that he had some pictures for her to see and that she might or might not recognize someone. He did not suggest that she might identify Prudholm. When the officer arrived he gave the woman a stack of nine photographs which included the defendant’s picture somewhere in the middle of the group. The woman laid the photographs out on her kitchen table and carefully picked up each one to examine it. After returning to Prudholm’s likeness several times to reexamine it, she recognized him and became so emotional that she ran to her bedroom to compose herself. The record shows that this identification took place within five minutes. Mrs. Victim was firm in her testimony at the motion to suppress and at the trial that Prudholm was actually one of the intruders who raped her.

Finally, we do not believe that the three and a half month period which elapsed between the June rape and the victim’s September identification would likely have erased or blurred her memory of her assailant’s face on that traumatic occasion.

Therefore, in view of all five factors indicative of a suggestive identification, we believe that the record supports Mrs. Victim’s identification of Prudholm as her attacker. Further, we do not believe that the photographs themselves produced a tainted identification. While Prudholm criticizes the photographs within the array as too dissimilar to produce a fair identification, Mrs. Victim later testified that she thought four of the nine men depicted were light-skinned. However, there is little merit in defendant’s criticism of the photographs mainly because Mrs. Victim was not told that she was necessarily looking for Prudholm or someone of his general description. She was told that she might or might not see someone she recognized. Too, there were three intruders in her hotel room and the line-up could have included photographs of the other two men. Even assuming arguendo that the photographs were suggestive, considering other relevant factors, e.g., the victim’s opportunity to view her attackers and her certainty that Prudholm raped her, we find no evidence that the photo line-up led to misidentification, which is essential to a successful attempt to suppress evidence.

Assignments of Error Numbers 6 and 10

Through assignments of error 6 and 10 defendant complains that the trial judge’s refusal to provide a transcript of Mrs. Victim’s pre-trial statement for use during defense cross-examination contravened his constitutional rights of cross examination and confrontation.

Following the rape, Mrs. Victim described her assailants to police officers who repeated it in their crime report. On the day before trial the woman read her initial statement to refresh her memory. At trial the judge denied defense counsel’s request to review a copy of the report. However, the officers who recorded the initial statement, testified to Mrs. Victim’s original statement, and their testimony was consistent with the woman’s testimony given at trial.

La.R.S. 15:279 provides that a witness may refresh his memory by reference to prior testimony or memoranda so long as after the inspection the witness can testify to fact. While our courts have compelled production of police reports used during trial to refresh memory, see e.g., State v. Valentine, 375 So.2d 1378 (La.1979), such production has not been mandated when the witness refreshed his or her memory pre-trial. State v. Payton, 294 So.2d 211 (La.1974). See also, State v. Franks, 363 So.2d 518 (La.1978).

Even assuming that the law required production in this case, we would nonetheless find the error harmless. The two officers who compiled the police report which included the description testified to Mrs. Victim’s statement describing her assailants, and her own testimony conformed to theirs. Accordingly, this assignment of error has no merit.

Assignments of Error Numbers 1, 2, 9, 11, 14, 15 and 20

Defendant’s final argument, embodied within assignments of error 1, 2, 9, 11, 14, 15 and 20, is that a new trial should have been granted as a result of the trial court’s failure to sever his trial from that of code-fendants Hicks and Gladney.

The pretrial motion for a severance was based on the general allegation that the defenses of the three defendants were antagonistic. The contentions on the motion for a new trial were that Prudholm was convicted by “guilt by association” with Gladney, who two months earlier had been convicted of another rape and robbery, and that defendant was unconstitutionally deprived of his right of confrontation since he was barred from calling his codefendant Gladney as a defense witness.

Defendant specifically claims that a police officer witness’s testimony mentioning “other crimes” charges against Gladney caused the jury to view Prudholm unfavorably as an associate of criminals. When defense counsel asked the officer to pinpoint the time of his first contact with defendant Hicks, the witness responded that it was shortly after Gladney was arrested on a separate charge. The officer had already stated that he talked to Hicks in August, and it was only when defense counsel urged him to give a more specific answer that he mentioned the other non-speeified charge against Gladney. After this testimony Prudholm’s counsel objected and moved for a mistrial, but the judge overruled the motion and admonished the jury to disregard the answer.

La.C.Cr.P. art. 704 provides that jointly indicted defendants shall be tried jointly unless: (1) The State elects to try them separately; or (2) The court, on motion of the defendant, and after contradictory hearing with the district attorney, is satisfied that justice requires a severance. Louisiana’s settled jurisprudence interpreting art. 704 is that a trial judge’s determination of whether to grant or deny severance rests in his sound discretion, and this court will not reverse his ruling absent clear abuse. State v. Jenkins, 340 So.2d 157, 166 (La.1976).

Whether justice requires a severance must be determined by the facts of each case. State v. Turner, 365 So.2d 1352 (La.1978). A severance is necessary if the defenses of the codefendants are mutually antagonistic to the extent a codefendant attempts to place the blame on the other, causing each defendant to defend against his codefendant as well as the State. Turner, supra, at 1354. However, the mere unsupported allegation that defenses will be antagonistic is not sufficient to require a severance. State v. Turner, supra.

We find no abuse of discretion in the judge’s denial of the pretrial motion to sever since defendant failed to support his general assertion that the defenses would be antagonistic.

Similarly, we find no error in the trial court’s rejection of Prudholm’s motion for a new trial based on his inability to call codefendant Gladney as a witness. The bare assertion that a joint trial would deprive defendant of the right to call code-fendants as witnesses is not of itself a sufficient ground to grant a severance. State v. Turner, supra at 1354; State v. Medlock, 297 So.2d 190, 193 (La.1974). Granting a severance under such circumstances would be futile since codefendants can still plead the privilege against self-incrimination at separate trials. State v. Turner, supra; State v. Medlock, supra. Rather, the defendant must make some showing that his eodefendant is willing to testify in his behalf if a severance is granted. State v. Jenkins, supra, at 166-167. Having made no showing that Gladney would have willingly testified in his behalf, a new trial based on refusal to sever was properly denied.

Further, we find no error in rejecting the request for a mistrial based on the police officer witness’s allusion to other charges against Gladney. The record reflects that the reference to the other charges was volunteered by the witness in an unresponsive answer to defense counsel’s question. Prudholm argues that the officer’s remark cast him in an unfavorable light as a person who associated with criminals.

Since the challenged remark was made by a witness, as opposed to the judge or another court official, a mistrial is not mandated by the Code of Criminal Procedure. La.C.Cr.P. art. 770. A judge may grant a motion for a mistrial if a witness’s remark is so prejudicial that an admonition to the jury to ignore the statement is not sufficient to assure the defendant a fair trial. La.C.Cr.P. art. 771. See also, La.C. Cr.P. art. 775. In the instant ease there is no indication that the judge’s admonition was inadequate so that the gratuitous remark effectively prejudiced Prudholm or jeopardized his due process right to a fair trial. Therefore, Prudholm’s argument that failure to sever his trial from that of his codefendants entitles him to a new trial is meritless.

Decree

Accordingly, the defendant’s conviction and sentences are affirmed.

AFFIRMED.

      . A secretor is a person who secretes his blood group typing substance into his body fluids.

      . Mrs. Victim had previously identified Gladney from a photographic array and identified Hicks from an array presented to her on the same day that police officers visited her to show her the Prudholm array. Although it is likely that she was looking for someone who looked like Pru-dholm, the police did nothing to indicate that she should focus her attention on his photograph more than the others.


source: Caselaw Access Project

author: DIXON, C.J., CALOGERO & WATSON, JJ.,

license: Public Domain

text:
    STATE ex rel. Johnny TAYLOR, Jr., v. John T. KING, Secretary of Department of Correction, and Ross Maggio, Warden State Prison.
    No. 84-KP-0370.
    Supreme Court of Louisiana.
    Feb. 24, 1984.
   In re JOHNNY TAYLOR, JR., applying for writ of Habeas Corpus and STAY ORDER to the 24th Judicial District Court, Parish of Jefferson, Number 80-2388, Division “D”

Denied.

DIXON, C.J., CALOGERO & WATSON, JJ.,

concur in the denial for the following reasons:

It is true that the jury argument on the sentencing phase is brief and would appear to be ineffective. That argument was effectively terminated by the trial judge, who had heard the argument earlier on the guilt phase.

On the guilt phase defendant’s lawyers had argued vigorously that, at most, the case against defendant was close, and that a close case is not an appropriate case for the death penalty. Defendant’s lawyers specifically pleaded for defendant’s life in the guilt phase.

The record does not disclose any interruption between the verdict on the guilt phase and the argument on the penalty phase of the trial. The plea for defendant’s- life should have been fresh in the minds of the jurors. There is no sign of lawyer indifference to the capital verdict. Defendant was not abandoned to the jury with no defense to the death penalty. Although counsel did not succeed, it does not appear that the quality of defense in counsels’ efforts before the jury was below constitutional standards.


text:
    Mrs. Shirley TILLMAN, Individually and on Behalf of Her Minor Children, Teaka Noel Tillman, Geno Farantino Tillman, Lachina Marie Tillman, and Jetson Earl Tillman, III, and Daisy Taylor on Behalf of Her Minor Children, Samuel Lee Taylor, Darnell Taylor, Regina Taylor, Tammy Taylor and Tandia Taylor and Mrs. Martha Tillman and Henry Hawkins, Sr. v. Karen L. Massey, Wife of/and Gregory MASSEY, Harold Massey and Safeco Insurance Company.
    No. 84-C-0256.
    Supreme Court of Louisiana.
    March 9, 1984.
   In re Mrs. Shirley Tillman, Individually and on Behalf of her Minor Children Teaka Noel Tillman, Geno Farantino Tillman, La-china Marie Tillman and Jetson Earl Tillman, III and Daisy Taylor on Behalf of her Minor Children Samuel Lee Taylor, Darnell Taylor, Regina Taylor, Tammy Taylor and Tandia Taylor and Mrs. Martha Tillman and Henry Hawkins, Sr., applying for a writ of certiorari or review to the Fourth Circuit Court of Appeal, No. CA-0526, from the Civil District Court, Parish of Orleans, No. 78-8201.

Case below: 445 So.2d 749.

Denied.

CALOGERO and DENNIS, JJ„ would grant the writ.


author: PER CURIAM. LANIER, Judge,

text:
    Walter C. DUMAS v. Louis JETSON, H.M. “Mike” Cannon in His Capacity as Clerk of Court For the Parish of East Baton Rouge and James H. “Jim” Brown, Secretary of State.
    No. CE 83 1347.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 5, 1983.
    Norman L. Haymer, Jr., Baton Rouge, Alvin Turner, Jr., Gonzales, for plaintiff-appellant.
    Janice Clark, Alfred Williams, Steve Marks and Glenn Lorio, Kenneth DeJean, Baton Rouge, for defendant-appellee.
    Before LOTTINGER, EDWARDS, PONDER, COLE, SHORTESS, CARTER, SA-VOIE, LANIER and CRAIN, JJ.

       Chief Judge Covington and Judges Watkins and Alford did not participate.

   PER CURIAM.

This is an election contest proceeding wherein plaintiff, Walter C. Dumas, a candidate for the Louisiana House of Representatives from District No. 61, alleges that irregularities and/or fraud exist in regard to the general election held on November 19, 1983, sufficient to affect the outcome of the election. In said election defendant received 4091 votes and plaintiff received 3878 votes, a difference of 213 votes. From a judgment maintaining an exception of no cause of action, plaintiff appeals. Defendant answers the appeal insofar as the trial court dismissed an exception of prescription.

NO CAUSE OF ACTION

In plaintiffs original and second supplemental and amending petitions, plaintiff alleges:

5.

Petitioner alleges that irregularities and/or fraud exist in regard to the election on November 19, 1983, including but not limited to the casting of votes, tabulation and counting of votes cast in the General Election which irregularities and/or fraud effected the outcome of the election as regards to petitioner and defendant cited herein such that petitioner would have won the election held on November 19, 1983, as more specifically set forth hereinafter.

6.

Petitioner specifically alleges on information and belief that the conducting of the election, especially by the commissioners, the casting, handling, and tabulation in the November 19, 1983, General Election were irregular, fradulent, incorrect and that the said irregularities and/or fraud effected the outcome of the election as related to petitioner cited herein, including, but not limited, as example:

a) At precinct 10, ward 1, a commissioner, JERRY JOHNSON, despite protest from petitioner’s poll watcher, ERNEST STEPHENS, and request from the commissioner-in-charge, CARRIE TEMPLE, electioneered and campaigned all day November 19, 1983, inside the polling place and in the voting booth for defendant, LOUIS JETSON, and intimidated petitioner’s poll watcher, all in violation of R.S. 18:1461, et seq. and other applicable State and Federal laws prohibiting such acts within the restricted area surrounding the polling place;
b) Commissioners, JERRY JOHNSON AND JOHN B. SIBLEY, at precinct 10, ward 1, despite protest from petitioner’s poll watcher went into the voting booth with voters who were not entitled to nor requested assistance in violations of R.S. 18:563 and other applicable State and Federal laws;
c) At precinct 70, ward 1, eommissioner-in-charge, WILLIE SPEARS, was unable to be located from 8:00 to 12:00 noon. He was also unavailable from 12:30 p.m. to 3:00 p.m. during which times commissioners assisted voters in the voting booth who were not entitled nor requested any assistance in violations of R.S. 18:563 and other applicable State and Federal laws;
d) At precinct 32, ward 1, the commis,sioner-in-charge, J.P. WILLIAMS, consumed alcoholic beverages while conducting voting. Further, while one voter was voting, he opened the curtains, and told her to vote number 51, all in violation of R.S. 18:564, et seq. The eommissioner-in-eharge left this precinct at least six (6) times during the times votes were being cast;
e) At precinct 32, ward 1, commissioner-in-charge J.P. WILLIAMS, yelled out vote 51 to voters inside the polling »place. Further he yelled out flight 51 is arriving;
f) At precinct 32, ward 1, eommissioner-in-charge, J.P. WILLIAMS, gave to voters political ballots that contained defendant, LOUIS JETSON’S number;
g) At precinct 32, ward 1, commissioner-in-charge, electioneered and campaigned inside the polling place for defendant, LOUIS JETSON;
h) At precinct 63, ward 1, the commissioner-in-charge, RITA O’CONNER, was not qualified to serve as a commissioner. Further, she permitted commissioners to assist voters in the voting booth who were not entitled nor requested any assistance in violations of R.S. 18:563 and other applicable State and Federal laws;
i) At precinct 32, ward 1, commissioners despite protest from petitioner’s poll watcher went into the voting booth with voters who were not entitled to nor requested assistance;
j) At precinct 10, ward 1, GERALDINE DAVIS AND JERRY JOHNSON, were not qualified to serve as a commissioner.
k) At precinct 10, 32, 63 and 70 over 300 votes were illegally and/or fraudently cast for defendant, LOUIS JETSON;
l) At precinct 10, 32, 63 and 70 over 300 people voted who were unqualified to vote at said precincts;
m) More votes were tabulated at precincts 10, 32, 63 & 70 than persons signing the polling list to vote.

We conclude that plaintiff has stated a cause of action. Each individual allegation cannot be read separately, but rather must be read together. Importantly, after alleging various acts of misconduct, plaintiff alleges that over 300 votes were illegally cast, which if proven would necessitate a new or restricted election as authorized by La.R.S. 18:1432 A.

PRESCRIPTION

This suit was filed on Monday, November 28,1983, at 5:27 P.M., some nine (9) days after the election. La.R.S. 18:1405 B provides a six (6) day time period after the election within which to file an action contesting the election. In computing the time, Sundays and other legal holidays are included, except that if the final day falls on a Sunday or legal holiday, then the next legal day shall be the final day. La.R.S. 18:1413.

We conclude that under La.R.S. 1:55 the Friday, November 25, 1983, after Thanksgiving is a legal holiday. Thus since November 25, 1983, was the sixth and last day, plaintiff had until Monday, November 28, 1983, to file suit. Therefore, the trial judge was correct in overruling the exception of prescription.

Therefore, for the above reasons, the judgment of the trial court is affirmed in part and reversed in part and remanded for further proceedings.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

LANIER, J., concurs in part and dissents in part for reasons to be assigned.

COLE, J. respectfully dissents. Appellant has plead only conclusions of law and now seeks to make a collateral attack upon the legality of votes cast without protest.

CARTER, J., dissents for reasons assigned by COLE, J.

LANIER, Judge,

concurring in part and dissenting in part.

I concur with the holding of the majority on the issue of prescription.

I dissent from the holding of the majority that the petition states a cause of action as presently drafted. Pursuant to the Louisiana Election Code, as amended by Act 506 of 1980, an unsuccessful candidate in an election suit cannot prevail unless he alleges and proves substantial irregularities or error, or fraud or other unlawful activities in the election caused him to lose. La.R.S. 13:1401(B).

La.R.S. 18:1406(B) provides as follows: The petition shall set forth in specific detail the facts upon which the objection or contest is based. If the action contests an election, the petition shall allege that except for substantial irregularities or error, fraud, or other unlawful activities in the conduct of the election, the petitioner would have qualified for a general election or would have been elected. The trial judge may allow the filing of amended pleadings for good cause shown and in the interest of justice. (Emphasis added).

Paragraph 5 of the petition generally tracks the language of La.R.S. 18:1401(B) and 1406(B) and alleges that irregularities and/or fraud in the election affected its outcome. Paragraph 5 does not set forth in specific detail the facts upon which these claims are made, but does state that the claims will be “more specifically set forth hereinafter.”

Paragraph 6 of the petition is apparently intended to be the specific statement of facts required by La.R.S. 18:1406(B). Sub-paragraphs (a) through (j) of Paragraph 6 assert various illegal acts and irregularities but do not specify in detail how this conduct affected the votes cast or the result of the election. Sub-paragraphs (k), (l) and (m) generally contend that over 300 votes were illegally cast for the appellant’s opponent in four designated precincts but do not specify in detail why or how the votes were illegal. In my view, such allegations are essential to comply with the specific fact pleadings required by La.R.S. ís-.uoejB).

Pursuant to the authority of La.R.S. 18:1406(B), this matter should be remanded to the trial court to allow the appellant an opportunity to file an amended petition to specify how the election irregularities affected its outcome and to specify how or why the over 300 votes were illegally cast. If the appellant can amend to properly state a cause of action, this matter should proceed to a trial on the merits. If he fails to do so, his petition should be dismissed. La.C.C.P. art. 934.

      . The petition need not state the names of the persons whom it is alleged cast illegal votes. Garrison v. Connick, 291 So.2d 778 (La.1974); Brunet v. Evangeline Parish Board of Supervisors of Elections, 376 So.2d 633 (La.App. 3rd Cir.1979), writs denied 377 So.2d 1240 (La.1979) and 380 So.2d 623 (La.1979).


author: LANIER, Judge.

text:
    Walter C. DUMAS v. Louis JETSON, et al.
    No. CE 83 1420.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1983.

      Norman Haymer, Jr., Charles C. Hayl-ing, III and Turner, Jr., Baton Rouge, for plaintiff-appellant Walter C. Dumas.
    Janice Clark, Baton Rouge, La., for defendant-appellee Louis Jetson.
    Steve Marks, Baton Rouge, for defendant-appellee H.M. Mike Cannon, Clerk of Court.
    Kenneth DeJean, Baton Rouge, for James H. Brown, Secretary of State.
    Before LOTTINGER, EDWARDS, PONDER, COLE, WATKINS, SHORTESS, CARTER, SAVOIE, LANIER, CRAIN and ALFORD, JJ.

      . Covington, C.J. did not participate.

   LANIER, Judge.

This is an election suit by Walter C. Dumas, an unsuccessful candidate for the office of State Representative from District 61, alleging that irregularities and/or fraud in the conduct of the election were sufficient to affect its outcome. Louis Jetson, the successful candidate, responded to the suit by filing an exception of no cause of action. The district court sustained this exception and dismissed the suit. Dumas appealed that decision.

On appeal this Court ruled that Dumas’ petition stated a cause of action and remanded the case for trial. Dumas v. Jetson, 446 So.2d 744 (La.App. 1st Cir.1983). After the trial, the district court rendered judgment in Jetson’s favor dismissing the suit at Dumas’ costs (including expert witness fees of $200). The district court also determined that the suit was filed frivolously and awarded statutory penalties of damages and attorney fees as follows: (1) Clerk of Court of East Baton Rouge Parish — extraordinary expenses attributable to this suit of $500 and an attorney fee of $3,500; and (2) Louis Jetson — damages of $1,000, attorney fee of $7,500 and $225 for attorneys’ expenses. This appeal followed. Jetson answered the appeal and sought damages and attorney fees for a frivolous appeal. Jetson also filed a motion to dismiss the appeal alleging that the appeal bond was not timely filed.

FACTS

On November 19, 1983, Dumas and Jet-son were candidates in the general election for the office of State Representative for District 61 of the State of Louisiana. The parties stipulated that in the election 4091 votes were cast for Jetson and 3878 votes were cast for Dumas, a margin of victory of 213 votes for Jetson.

TIMELINESS OF APPEAL

The following dates and times are pertinent for deciding the motion to dismiss the appeal:

(1) December 12, 1983, at 5:07 p.m.— judgment rendered by the district judge La.R.S. 18:1409(J);
(2) December 13, 1983 — Dumas filed his order of appeal at 4:53 p.m. and it was signed by the district judge at 4:58 p.m.; and
(3) December 13, 1983 — the appeal bond of $5,000 was filed by Dumas at 5:29 p.m.

La.R.S. 18:1409(D) provides in pertinent part as follows:

Within twenty-four hours after rendition of judgment, a party aggrieved by the judgment may appeal by obtaining an order of appeal and giving bond for a sum fixed.by the court to secure the payment of costs.

Courts have the duty to interpret laws as legislated and, when possible, to honor the clear meaning of a statute as revealed by its language, purpose and history. Clark v. Board of Commissioners, Port of New Orleans, 422 So.2d 247 (La.App. 4th Cir.1982). Prior to January 1, 1981, La.R.S. 18:1409(B), the predecessor of La.R.S. 18:1409(D), provided that an appellant in an election suit could appeal by obtaining an order of appeal and giving bond within “one day” after rendition of judgment. By Act 506 of 1980, La.R.S. 18:1409(B) was redesignated La.R.S. 18:1409(D) and the words “twenty-four hours” were substituted for the words “one day”. Obviously, the purpose of this amendment was to more specifically define the period of time within which the requisite procedural actions must be taken in order to perfect an appeal in an election case. It would also appear that this amendment was intended to facilitate the expeditious handling of such appeals.

The words of a law are to be understood according to the common and approved usage of the language. La.R.S. 1:3; La.C.C. art. 14; State v. Brady, 310 So.2d 593 (La.1975). When a statute is clear and unambiguous, its language must be given effect as written. La.R.S. 1:4; La.C.C. art. 13. The language of La.R.S. 18:1409(D) is clear and unambiguous and provides that for a party to appeal a trial court judgment in an election suit, he must perform two procedural acts: (1) obtain an order of appeal; and (2) give bond for a sum fixed by the court. These procedural steps must be taken “[Wjithin twenty-four hours after rendition of judgment...”. The preposition “within” means anytime before, not beyond, not exceeding or not later than. Thomas v. Department of Corrections, L.T.I., 430 So.2d 1153 (La.App. 1st Cir.1983) writs denied, 435 So.2d 432 (La.1983) and 438 So.2d 566 (La.1983) and the authorities cited therein. In the instant case, the district judge rendered judgment at 5:07 p.m. on December 12, 1983. Pursuant to La.R.S. 18:1409(D), Du- , mas had until 5:07 p.m. on December 13, 1983, to obtain an order of appeal and give bond for a sum fixed by the court. Dumas filed his order of appeal on December 13, 1983, at 4:53 p.m. and this order was signed by the district judge at 4:58 p.m. that same date. However, Dumas did not file his appeal bond in the amount fixed by the court until 5:29 p.m., December 13, 1983, twenty-two minutes after the time period provided in the statute expired. Because Dumas has failed to accomplish the two required procedural acts within the time period established by La.R.S. 18:1409(D), his appeal has not been properly perfected and is untimely.

Our research in the limited time allowed us to decide this case has failed to reveal jurisprudence which squarely considers the issue presented by the motion to dismiss. However, there is jurisprudence that holds that where the timely filing of an appeal bond is essential to properly perfect the appeal, the appeal may be dismissed if the appeal bond is not timely filed. Tadlock v. W.H. Hodges & Company, Inc., 357 So.2d 1268 (La.App. 3rd Cir.1978); Jones v. Galloway, 259 So.2d 623 (La.App. 1st Cir.1972). Cf. Knox v. Brown, 325 So.2d 295 (La.App. 3rd Cir.1976). By analogy, since Dumas failed to timely give (file) the bond, this court is without jurisdiction to consider this appeal. The judgment of the trial court is now final. Cf. Guilliot v. City of Kenner, 326 So.2d 359 (La.1976).

DECREE

For the foregoing reasons, the motion to dismiss the appeal is granted and the appeal is dismissed at appellant’s costs.

APPEAL DISMISSED.

      . "Giving" bond is synonymous with "filing” bond. Calvert Fire Insurance Company v. Jones, 93 So.2d 44 (La.App.Orl.1957); Montaldo Ins. Agency v. Bonck, 43 So.2d 555 (La.App.Orl.1950).


author: CARTER, Judge. PONDER, Judge,

text:
    Vernell HAYNES v. Mary L. WILLIAMS, H.M. “Mike” Cannon, Clerk of Court For the Parish of East Baton Rouge, et al.
    No. CE 83 1353.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 9, 1983.
    Curtis A. Calloway, Baton Rouge, for plaintiff-appellant.
    Michael R. Wheeler, Steve M. Marks, Kenneth DeJean, Andre LaPlaee, Baton Rouge, for defendants-appellees.
    Before EDWARDS, PONDER, CARTER, SAVOIE and LANIER, JJ.
   CARTER, Judge.

This is an election contest proceeding wherein Vernell Haynes, candidate for the office of Justice of the Peace in Ward 2, District 3, East Baton Rouge Parish, alleges that irregularities and errors, sufficient to affect the outcome of the election, exist in regard to the run-off election held on November 19, 1983. Plaintiff-appellant, Vernell Haynes received an unofficial total of 3,374 votes and defendant-appellee, Mary L. Williams received an unofficial total of 3,379 votes in the November 19, 1983 election, a difference of only five votes. At the trial of plaintiffs suit on November 30, 1983, defendant moved for a directed verdict at the close of plaintiffs case. The motion was granted on December 1, 1983. From the judgment granting defendants’ motion for directed verdict, plaintiff appeals.

Plaintiff complains of the following irregularities and/or malfunctions of voting machines in three precincts:

1) At Precinct 2-13A qualified voters were prevented from voting for a candidate for Justice of the Peace because of the misconfiguration (improper lockout) of voting machines;

2) At Precinct 2-13B certain substantial voting irregularities occurred when a voting machine malfunctioned on two occasions; and

3) At Precinct 2-22 qualified voters were denied the right to vote by election officials in violation of LSA-R.S.. 18:1432(2) and voting machine malfunction, within the meaning of LSA-R.S. 18:1433, substantially affecting the result of the election.

For purposes of clarity, we will address plaintiff’s allegations of election code violations in each of the respective precincts.

ALLEGED VIOLATIONS IN PRECINCT 2-13A

Plaintiff alleges that several of the machines in Precinct 2-13A were improperly configured so that they locked out or prevented qualified voters from casting ballots.

A qualified voter complained to the commissioner-in-charge at approximately 6:05 a.m. that she was unable to cast a vote for justice of the peace because the keys on the machine locked when she attempted to cast a vote for that office. The problem was then corrected, and there is no evidence that it reoccurred. The parties stipulated that (1) three voters, who were qualified to vote for justice of the peace, were unable to vote for that office because of the improper configuration of the voting machines in this precinct, and (2) if they had been allowed to vote, they would have voted for plaintiff.

The record indicates that two additional voters cast ballots prior to this problem being discovered and corrected. However, there is nothing in the record to show that there were any irregularities relative to these two voters.

ALLEGED VIOLATIONS IN PRECINCT 2-13B

The record shows that on the date of the election, machine No. 10914 in Precinct 2-13B developed mechanical problems on two occasions. Shortly after the polls opened, the machine blew a fuse. A technician was called, and the repair was completed by 7:25 a.m. A second problem with the same machine occurred at approximately 8:15 a.m. A technician responded, corrected a problem with the shifter plates, and had the machine back in operation by 10:20 a.m.

Plaintiff alleges that these voting machine malfunctions resulted in substantial voting irregularities affecting the outcome of the election.

The record does not support this allegation. There was no evidence to show that either of these problems resulted in the machine not properly registering the votes cast on it. The commissioner-in-charge, Mr. Donald Ray Williams, testified as follows at pp. 167 & 168 of the record:

“BY MR. WHEELER:
Q. Mr. Williams, you said you had three machines—
A. Yes, sir.
Q. —at your precinct; did all three machines have the Justice of the Peace on them?
A. Yes, sir.
Q. Was there any voter that was turned away because you were unable to allow them to vote, for any reason?
A. No, sir. See, I was planning on using only two machines because it wasn’t that busy of an election, and I was just going to leave one open in case one malfunctioned, which happened. So, I just used the other two and there was plenty — nobody had to wait in line. There was no line that whole day.
Q. So no one was turned away for any reason?
A. No, sir.
Q. All right.
MR. WHEELER: No further questions.
BY THE COURT:
Q. You have a discretion what machines to use and how many, don’t you?
A. Yes, sir. We just more or less do it at random, you know, first person in, I usually take the first machine, and so forth.
Q. And if you have more machines than you need, you can shut one down?
A. Well, we don’t actually shut it down. We can only open it and close it when they—
Q. Not any of them.
A. —we just open it and we don’t utilize it all day.
Q. Don’t direct voters to that machine.
A. Right. And then at the end of the day we close it and it just has zeros for the totals on that machine.
Q. And with regard to this so-called malfunction, you were told by the mechanic that it did not affect the vote count, only affected the curtain.
A. Right.
Q. And you proceeded to check that out with your own vote and you saw that the protective counter did in fact register a vote.
A. Yes, sir.”

Under these uncontroverted facts, plaintiff has not shown that the malfunctions of the voting machine affected the outcome of the election or denied any qualified voter the right to vote. Additionally, it was not shown that any voter was even delayed or inconvenienced in casting a vote at this precinct.

ALLEGED VIOLATIONS IN PRECINCT 2-22

At approximately 7:30 p.m., an electrical power failure occurred at this precinct. Since the voting machines are electrically operated, they could not be used until they had been converted to manual mode. A mechanic was called to convert the voting machines to manual which was completed by approximately 8:30 p.m.

When the power failure occurred, all machines at this precinct were inoperable until converted from electrical to manual. Therefore, no one could vote from about 7:30 p.m. until about 8:30 p.m. During the power outage, several people arrived at the polls while the machines were inoperable. Of the five people who testified that they were either in line when the power went out or arrived during the power outage, several waited almost an hour and then left the polls without voting before the machines were once again operable. Other potential voters drove up to the polling place, saw there were no lights, and left without even getting out of their vehicles. After the machines were converted to manual, an opportunity to vote was offered to all those present who had not already voted. Three commissioners and two voters then cast their ballots.

LSA-R.S. 18:1433 provides as follows:

“Notwithstanding the provisions of R.S. 18:1432, if a discrepancy sufficient to change the result of the election between the total votes cast at an election and the votes counted for the candidates in the election occurs as a result of a voting machine malfunction, and an accurate count of the votes cast on the malfunctioning machine cannot be determined by the offering of circumstantial evidence or any other evidence, the court shall order a revote in the precinct where the voting machine malfunctioned, which shall be limited to those persons listed on the poll list as having cast their ballots in person at the polls in the election in which the machine malfunctioned. Those persons who cast their votes by absentee ballots in that election shall not be eligible to vote in the revote election. The votes cast by absentee ballot in the first election shall be retained, counted, and added to the voting machine totals in the revote election.”

Plaintiff alleges that the non-functioning of the voting machines due to the power failure was a malfunction under LSA-R.S. 18:1433. However, there is no discrepancy between the votes cast and the votes counted as a result of the power failure. Additionally, LSA-R.S. 18:1433 refers to actual votes and not potential votes. The five questioned votes were never cast, although the evidence is clear that the voters could have voted had they been willing to wait for the machines to be converted. In this respect, LaCaze v. Johnson, 310 So.2d 86 (La.1974) is clearly distinguishable. In LaCaze, supra, the voting machine failed to record votes which were actually cast.

For the aboye reasons, LSA-R.S. 18:1433 is inapplicable to the present case.

Plaintiff alleges that because a number of qualified voters, sufficient to affect the outcome of the election, were denied the right to vote by election officials, he is entitled to invoke the remedies provided in LSA-R.S. 18:1432.

Plaintiff contends that qualified voters were denied the right to vote by election officials, in that the commissioners failed to convert the voting machines to manual within a reasonable period of time. Plaintiff contends that except for the power failure and the failure of the election commissioners to properly handle the situation, he would have received additional votes in Precinct 2-22 to have changed the result of the election.

LSA-R.S. 18:1432 provides as follows, in pertinent part:

“If the trial judge in an action contesting an election determines that: (1) it is impossible to determine the result of election, or (2) the number of qualified voters who were denied the right to vote by the election officials was sufficient to change the result in the election, if they had been allowed to vote, or (3) the number of unqualified voters who were allowed to vote by the election officials was sufficient to change the result of the election if they had not been allowed to vote, or (4) a combination of the factors referred to in (2) and (3) herein would have been sufficient to change the result had they not occurred, the judge may render a final judgment declaring the election void and ordering a new primary or general election for all the candidates, or, if the judge determines that the appropriate remedy is the calling of a restricted election, the judge may render a final judgment ordering a new election and specifying the date of the election, the appropriate candidates for the election, and the office or other position for which the election shall be held.”

The actions of the commissioners following the power failure were proper and reasonable. They promptly notified a technician who responded to their call as quickly as possible, even though a storm was occurring with lightning, winds, and heavy rains. Furthermore, the procedure whereby a voting machine is converted from electrical to manual is somewhat complex and requires a knowledgeable person to accomplish. If the conversion is .not properly done, it can cause serious mechanical problems and malfunctions.

The commissioner-in-charge testified that she told several potential voters that they would be permitted to vote once the machines became operable. There is no evidence that any potential voter was told he would not be allowed to vote after the machines were converted.

Accordingly, we find that the actions of the commissioners were reasonable and proper and that no one at Precinct 2-22 was denied the right to vote by election officials or inoperable voting machines. Furthermore, no other portions of LSA-R.S. 18:1432 are remotely applicable to the instant case.

CONCLUSION

In non-jury cases, the appropriate standard for the trial court’s determination of a motion for directed verdict is whether plaintiff has presented sufficient evidence on the case in chief to establish a claim by a preponderance of the evidence. Thomas v. Thom, 408 So.2d 442 (La.App. 1st Cir.1981), writ denied, 412 So.2d 85 (La.1982). We conclude that plaintiff has not shown that a number of qualified voters sufficient to change the result of the election were denied the right to vote by election officials, as provided for in LSA-R.S. 18:1432(2), nor has he shown that he is entitled to relief under any other provision of the election code.

Even though a five vote margin in this election was reduced by the stipulation that three qualified voters were denied the right to vote by election officials, plaintiff was required to show that at least two other qualified voters were denied the right to vote by election officials. This he has failed to do.

Plaintiff also alleged that the trial court erred in not allowing the voters, who testified that they presented themselves at Precinct 2-22 but could not vote, to testify how they would have voted. We find it unnecessary to address this assignment because the record is totally devoid of any evidence that these potential voters were denied the right to vote.

Therefore, the judgment of the trial court is affirmed.

AFFIRMED.

PONDER, J., dissents and assigns reasons.

PONDER, Judge,

dissenting.

I respectfully dissent believing that the unavailability of a voting machine at 7:30 p.m., just before the polls close at 8:00 p.m., for an hour when it should have taken only a short time to convert from electrical to manual power, is a denial of the right to vote.

I disagree with the majority’s conclusion that the conversion from electrical to manual operation was either difficult or dangerous. I think the distinction between a malfunction and a non-function is a tenuous one, and should not be used to affect one’s right to vote and have that vote counted.

      . The granting of the directed verdict at the close of plaintiff’s case was procedurally correct under LSA-C.C.P. art. 1810(B).

      . Plaintiff alleged three assignments of error committed by the trial court. We are of the opinion that we have adequately addressed all three assignments in the main body of this opinion.

      .Precinct 2-13A is a split precinct, in that all persons registered to vote in this precinct are not qualified to vote in the Ward 2, District 3 Justice of the Peace race. The record does not reflect whether these two voters qualified to vote for justice of the peace or, if qualified, whether they desired to cast their ballot for one of the candidates.

      . Commissioner-in-charge, Mrs. Susan Pearce, testified as follows at pp. 185-188 of the record:
      "Q. And now, Mrs. Pearce, you were the Commissioner in Charge at Precinct 2-22 on November 19, 1983. Were — would you tell the Court what happened at that precinct that was out of the ordinary?
      A. Well, it had been a long election, all day long. We were watching the clock, getting ready to go home, and I had just looked at the clock because lightning had flashed. It was 7:20, and I said, 'Oh, no, the lights are fixing to go out.' So, the electricity went off, and I went back to the back in the office and called the voting machine mechanics and asked them to send someone out because it hadn’t— it wasn't time for the polls to close and I knew my Commissioners voted in that precinct and they had not yet voted. And, he said, ‘We will send someone out just as soon as we can. They are on their way.’
      Q. Okay. What time — you said the lightning flashed at about 7:20. What time did you call to report — what time — lightning flashed at 7:20; what time did the lights go out?
      A. They went out, just — I had just looked at the clock and the lights flashed and they went off again; so about 7:22 or 7:23 the lights went out again, permanently.
      Q. And approximately what time did you report this to the Clerk’s Office?
      A. About 7:30, because I waited about five minutes, hoping the electricity would come back on.
      Q. About 7:30, and the lights were not on that time. Do you know what time the lights came back on?
      A. The lights did not come back on. When I left that voting place at 9:00 o’clock, we took the voting machine tabulations with a flashlight.

      Q. This is after the lights went out?
      A. Yeah, after the lights went out. It was storming and raining. One man came in carrying an umbrella and sat up on the bleachers and I explained to him that the lights had gone out and that we were getting somebody to come put it on manually. And, the couple that came in, I explained the same thing to them.
      Q. They stayed?
      A. The couple stayed for a little while and then they left and the man finally left. He just — he wanted to know if he could come downtown and vote.
      Q. Did anyone vote on the machine manually, other than the Commissioners?
      A. Yes.
      Q. That’s after they were fixed.
      A. Yes.
      Q. Of course, no one voted while they were still on electric and before they were converted to manual; no one voted then?
      A. No.
      Q. But there were some people waiting, mainly the three you mentioned?
      A. But those three people did not vote. They were advised that they could vote when the machines were — when they got fixed.
      Q. Was there a line of people?
      A. There wasn’t a line. My four Commissioners were there, two poll watchers were there, and there was another man present. My husband was there with a flashlight; the Police Department was there.”

      . See footnote 4 supra.

      . See footnote 4 supra.


author: PONDER, Judge. CARTER, Judge,

text:
    ENVIRONMENTAL CONTROL COMMISSION v. BROWNING-FERRIS INDUSTRIES, Chemical Services, Incorporated.
    No. 83 CA 0855.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1983.
    Writ Granted Jan. 18, 1984.

      Leonard Knapp, Jr., Dist. Atty., Lake Charles, for amicus curiae.
    William G. Guste, Atty. Gen., Baton Rouge, and John Sheppard, Asst. Atty. Gen., Baton Rouge, for plaintiff-appellee.
    Samuel O. Buckley, III, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, for defendant-appellant Browning-Ferris Industries, Chemical Services, Inc.
    Before PONDER, WATKINS and CARTER, JJ.
   PONDER, Judge.

This is an appeal by Browning-Ferris Industries, Chemical Services, Inc. from an order of the Louisiana Environmental Control Commission, dated May 12, 1983. Paragraph X of the order directed BFI to cease the receipt of all hazardous materials for landfill cells and to initiate the closure of those cells at its disposal facility near Willow Springs Road in Calcasieu Parish by December 31, 1983.

The Willow Springs facility was originally developed as a waste disposal facility by prior owners in the 1960’s. BFI acquired the property in 1972, and obtained a permit from the Louisiana Department of Health and Human Resources in 1977 to conduct commercial landfill operations.

Upon passage of the Louisiana Environmental Affairs Act in 1979, LSA-R.S. 30:1051, et seq., BFI timely submitted applications for permanent permits. In 1980, the Commission issued BFI a compliance schedule but has not yet granted the permits. Prior to the hearing of March, 1983, BFI withdrew, in February, 1983, its application for permits. As a matter of fact, BFI expressed its intent to close the facility by 1985.

In the fall of 1982, a possibility that the cells at the facility had caused contamination of soils and an aquifer lying some 50 feet beneath the surface of the soil was found. This aquifer is connected at or near the site to the main aquifer supplying some 70,000 people. Pursuant to an order of the Commission, BFI employed an independent geotechnical consultant, Woodward-Clyde Consultants, to prepare a report on the site and the extent of the contamination. Upon receipt of the report, the Commission ordered a special hearing to be held on March 14, 1983, to consider the report and related geotechnical data, and also to consider the issuance of an updated or revised compliance order in light of the new data and BFI’s declaration of its intention to discontinue its landfilling operation in 1985, sent to the Commission in the interim.

After several sessions, the hearings were concluded on May 12, 1983, and the Commission issued a final order styled, “Compliance Order and Schedule for Closure”.

BFI perfected its appeal pursuant to LSA-R.S. 30:1072 B, setting forth the following specification of errors:

(1) The Commission’s Finding of Fact No. VI is manifestly erroneous to the extent that it finds or suggests that Respondent has withdrawn its pending application for hazardous waste landfill activities at Secure Cells 7 and 8 at this facility.
(2) The Commission’s Paragraph X of the Order is in violation of constitutional and/or statutory provisions in requiring that the respondent cease the receipt of all hazardous materials for landfill cells by December 31, 1983 and immediately thereafter initiate the closure of these cells.
(3) The Commission’s Paragraph X of the Order is in violation of its statutory and/or regulatory authority in requiring that the respondent cease the receipt of all hazardous materials for landfill cells by December 31, 1983 and immediately thereafter initiate the closure of these cells.
(4) The Commission’s action in Paragraph X of the Order, which effectively sets a December 31, 1983 closure date for landfill activities, is in violation of required statutory and/or regulatory procedural provisions as such actions can only be taken in appropriately noticed hearings, conducted for that purpose, and with appropriate Findings of Fact, none of which was done.
(5) The Commission’s decision, in Paragraph X of the Order, which effectively sets a December 31, 1983 closure date for landfill activities, is arbitrary and capricious as well as manifestly erroneous as there is no evidence in the record, supporting this closure date.
(6) The Commission’s action in Paragraph XI of the Order is ancillary to Paragraph X of the Order; to the extent it requires submission of a closure date for landfill activities on or about September 30, 1983 and to the extent to which it requires a permit resubmission excluding landfill activities, it is in violation of required statutory, regulatory and/or procedural provisions as well as arbitrary, capricious and manifestly erroneous.”

In summary, therefore, BFI seeks a reversal of paragraphs X and XI of the Commission’s Final Order, and a reversal of Findings of Fact No. VI.

We affirm.

BFI contends that, in effect, the Final Order of the Commission constitutes a revocation or denial of a permit, in violation of applicable statutory and regulatory procedural provisions, as such actions can only be taken in adjudicatory hearings, conducted for that purpose, after proper notice and with appropriate findings of fact; and that the Commission’s ordering cessation of landfill activities is arbitrary, capricious, manifestly erroneous, and not supported by the record as a whole.

The Commission contends its power to order the cessation of receipt of all hazardous materials at this site by December 31, 1983, is an essential part of the authority to issue a schedule of compliance or performance guidelines; does not constitute a revocation or denial of a permit, in violation of applicable statutory and regulatory provisions; and that the order is not arbitrary, capricious, manifestly erroneous, and unsupported by the record.

The Louisiana Environmental Affairs Act is incorporated into the Revised Statutes as LSA-R.S. 30:1051, et seq. The creation and authority of the Commission is set forth in R.S. 30:1062, et seq. Part VII of the Act, designated as the Hazardous Waste Control Law, is set forth in R.S. 30:1131, et seq. Pursuant to the authority granted under the Act, the Commission adopted Rules of Procedure, “to provide a procedural system governing the operation of the Environmental Control Commission and practice before the Commission in the administration and enforcement of the Louisiana Environmental Affairs Act (LSA-R.S. 30:1051, et seq.) and the Louisiana Administrative Procedures Act (LSA-R.S. 49:951-64).” In addition, the Commission adopted the Hazardous Waste Management Plan Rules and Regulations.

Prior to the effective date of the Act and Regulations thereunder, BFI operated its facility under the authority of Chapter X of the Louisiana Sanitary Code. Under the provisions of LSA-R.S. 30:1146 BFI qualified as an existing facility and was allowed to continue operations under the prior authorization. Pursuant to the provision of Section 1146 that the operator comply with the requirements of Section 1137 of the Act, BFI timely submitted the required notices and in due course an application “for any necessary licenses, permits, schedules of compliance or performance guidelines.” On. December 30, 1980, the Commission issued a Compliance Schedule and Performance Guidelines. No hearing on BFI’s application for a permit has ever been held and consequently no decision has been made on granting or denying the permit under the new Act and Regulations.

BFI contends that as an existing facility in interim status its facility may continue its operations, and that the operations are to be governed by the Compliance Schedule issued in December of 1980 including all subsequent additions or revisions. It also argues that Section 1071 of the Act grants it the authority to continue to operate under its old permit issued under Chapter X of the Louisiana Sanitary Code, unless this old permit is revoked for cause, and that pursuant to the provisions of Sections 1071 and 1146 of the Act, its status should remain unchanged until such time as (1) the Commission undertakes to hold an adjudicatory hearing on its permit application and grants or denies a permanent operating permit, or (2) pursuant to Section 1071, cause is shown for revocation of its prior legal authority to operate this facility.

The Commission argues that under the language of Section 1146 the facility operates “only in accordance with the decision and subject to the terms and conditions imposed by the commission;” that once this first Schedule of Compliance had issued, BFI no longer had a permit, so that the provisions of Section 1071 are no longer applicable.

Sections 1071 and 1146 should be read as being coexistent and consistent with each other. We find that Section 1071 provides for the continuing existence of licenses and permits, unless revoked for cause, until the owner becomes subject to the terms of Section 1146.

The plain wording of Section 1146 allows the continuation until “the setting of a schedule or performance guidelines by the Commission and thereafter only in accordance with the decision and subject to the terms and conditions imposed by the Commission.” It is admitted that a schedule of compliance was issued on December 30, 1980. After this date, the permit issued by the prior agency was no longer effective. The order of May 12, 1983, therefore was the amendment of an existing schedule, that of December 30, 1980, or the issuance of a replacing one. We find no bar to that action, especially since BFI had neither a permit nor a pending application for one. The requirements of the statutes and regulations governing the revocation of a permit, therefore, are not relevant.

We find another reason that a full adjudicatory hearing is not required. When BFI notified the Commission of its intent to close in 1985, the question of a permit became moot until resubmission of its application. Whether BFI had a permit or not did not affect the Commission’s powers to control the process of closure. The issuance of a schedule was in order to protect the environment against excessive interim use of the facilities that would prevent the availability of the present capacity to insure the orderly and complete provisions for the closure of the pits. BFI’s contention that they should be allowed to continue filing the pits until 1985 would render toothless the Commission’s powers granted under Section 1066(4) when confronted with a closure. The Commission had not only the power but the responsibility to fulfill the aim of the legislation. The substitution of our judgment as to what might be required for the orderly and safe closure of the pits is neither desirable nor allowed. We do not adopt the contention that a schedule cannot be applied to a closure.

Of more than passing interest is the fact that BFI knew for months before the March hearing that the Commission would consider the issuance of a compliance order for the closure and cleanup of the landfill at the Browning-Ferris Industries’ Willow Springs facility, and neither objected to the consideration nor demanded an adjudicatory hearing. BFI made it impossible to hold an adjudicatory hearing on the application for a permit by withdrawing the application.

BFI’s facility was an existing one and the effect of the order was to allow the continued existence of that facility for only seven months more to be added to the thirty months BFI had already had. BFI was free to, and is still free to, submit an application for a permit covering Pits 7 and 8.

Furthermore, in brief, appellant has stated that the Commission has without authority and arbitrarily ordered the closure of its facilities. This is incorrect. BFI notified the Commission of its intent to close the facility. Thereafter, the Commission acted within its powers to supervise and control the procedure so as to cause the receipt of materials to cease with sufficient capacity remaining to insure a safe closure.

We have examined the entire record and find that the unanimous action of the Commission is supported by the record and is not arbitrary, capricious or manifestly erroneous.

For these reasons, the actions of the Environmental Control Commission are affirmed at appellant’s costs.

AFFIRMED.

CARTER, J., concurs and assigns written reasons.

CARTER, Judge,

concurring.

I am in agreement with the majority opinion and further set forth that, in my opinion, neither the United States Constitution, nor the Louisiana Constitution of 1974, guarantees to an individual or concern the right to poison the environment.

In the instant case, B.F.I. has been afforded substantive and procedural due process, both in the hearing of November 16, 1982, and the hearings commencing on May 14, 1983. On the other hand, B.F.I. has consistently pursued a course of conduct obviously intended to delay the closure of its facility until its selected date in 1985.

B.F.I. was aware of a possible closure hearing as early as November of 1982; and, by letter dated March 11, 1983, B.F.I. in effect requested the. hearing by stating:

We believe ... any plan for the orderly closure and cessation of landfilling activities should be considered during the March 14,1983 hearing scheduled on this matter ... it is contemplated that compliance and/or performance standards for an orderly closure will be established at that time. This is the appropriate procedural approach and the one set forth in the Hazardous Waste Management Plan Regulations.

B.F.I. got its hearing, and a fair one, with complete substantive and procedural due process rights; however, B.F.I. did not get the exact date which it sought for closure and now complains that legal technicalities were not observed. This position is ridiculous and of little solace to the populace subjected to poisoned air, surface and ground water.

LSA-R.S. 30:1146 and 30:1066 provided ample authority for the Environmental Control Commission to proceed and reach the results obtained herein.

      . The following notice of hearings is found in the record:
      "LOUISIANA ENVIRONMENTAL CONTROL COMMISSION STATE LAND AND NATURAL RESOURCES BUILDING
      MINERAL BOARD HEARING ROOM
      FIRST FLOOR
      625 NORTH FOURTH STREET
      BATON ROUGE, LOUISIANA 70804
      March 14, 1983
      9:00 a.m.
      AGENDA
      I. Consideration by the Commission of the arguments of GHR for an indefinite stay of the enforcement proceedings pending against GHR Energy Corporation.
      II. Consideration by the Commission of the issuance of a compliance order for the closure and cleanup of the landfill at the Browning-Ferris Industries’ Willow Springs facility.”

      . LSA-R.S. 30:1146
      The owner or operator of any facility or equipment in existence and being used on the effective date of the regulations promulgated under this Part, who is authorized by regulations or a permit issued pursuant to Chapter X of the Louisiana Sanitary Code or other applicable law to transport, treat, store, or dispose of hazardous wastes, and who complies with the requirements of Section 1137 of this Part, may continue to transport, treat, store, or dispose of such hazardous wastes in accordance with such permit or regulations or other applicable state laws until the issuance or denial of a permit or license or the setting of a schedule of compliance or performance guidelines by the commission, and thereafter only in accordance with the decision and subject to the terms and conditions imposed by the commission.

      . LSA-R.S. 30:1137
      A. No later than ninety days after the effective date of the regulations authorized by this Part, every person not otherwise exempt, who generates in the state, or who transports or desires to transport in the state any hazardous wastes, or who owns or operates or desires to own or operate a treatment, storage, or disposal facility which handles hazardous wastes within the state, shall file with the assistant secretary or commission a notification stating the nature and location of the activity conducted or desired to be conducted, and if required by regulations, a request for an application for any necessary licenses, permits, schedules of compliance, or performance guidelines.
      B. It shall be unlawful to initiate or continue the generation, transportation, treatment, storage, or disposal of hazardous wastes after the time period provided in Subsection A of this Section, except in compliance with the notice requirements thereof.
      C. Upon receipt of the notices required in Subsection A of this Section, or as soon as practicable thereafter, the commission shall initiate the procedures as required by this Part and the regulations applicable thereto for the issuance or denial of permits and licenses and the establishment of schedules of compliance and performance guidelines for facilities and equipment.
      D. Upon the issuance of a license or permit, or the establishment of a schedule of compliance or performance guidelines, it shall be unlawful to transport, treat, store, or dispose of hazardous wastes except in accordance with the terms and conditions thereof and the regulations applicable thereto.
      E. Except as provided in Subsection F of this Section, enforcement of this Part and the rules and regulations promulgated hereunder shall be in accordance with R.S. 30:1073.
      F. Any person who willfully or knowingly discharges, emits, or disposes of any substance in contravention of any provision of this Part, of the regulations, or of the permit or license terms and conditions adopted in pursuance thereof, or any person who otherwise knowingly violates any provision of this Part, shall, upon conviction be subject to a fine of not more than one hundred thousand dollars per day of violation and costs of prosecution, or imprisonment at hard labor for not more than ten years, or both.
      G. No person shall tamper with or cause to be tampered with any hazardous waste container or the contents thereof, nor discharge or cause to be discharged the contents of said container between the point of origin and point of destination listed in the manifest, nor discharge or cause to be discharged the contents of said container at any location other than that for which it is permitted unless ordered to do so by the office of environmental affairs, or otherwise allowed by this Chapter and rules or regulations promulgated thereunder. Any person willfully violating this Subsection shall be subject to the civil and criminal penalties provided by this Part.

      . LSA-R.S. 30:1071:
      All presently valid licenses, registrations, variances, or permits heretofore granted by the agency having prior jurisdiction over any activity covered by this Chapter shall continue in effect according to their present terms and conditions, unless revoked for cause.

      . LSA-R.S. 30:1066:
      (4) To issue such orders or determinations as may be necessary to effectuate the purpose of this Chapter, including but not limited to the issuance of cease and desist orders as provided in R.S. 30:1073 and to delegate the power to issue such orders to the assistant secretary.