author: BARRY, Judge.

text:
    STATE of Louisiana v. Henry DEFRAITES.
    No. KA-1213.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 29, 1984.
    Rehearing Denied April 25, 1984.
    Writ Denied June 15, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., William R. Campbell, Jr., Asst. Dist. Atty., New Orleans, for plaintiff-appellee.
    Arthur A. Lemann III, Lemann, O’Hara & Miles, New Orleans, for defendant-appellant.
    Before BARRY, AUGUSTINE and CI-ACCIO, JJ.
   BARRY, Judge.

The defendant was convicted of public bribery in Orleans Parish, LSA-R.S. 14:118, and now argues double jeopardy and re-urges his motions to quash and for a new trial based on improper venue.

FACTS

On May 7, 1980 the defendant was stopped in New Orleans by Officer John Morse and questioned regarding the sale of fake jewelry. The defendant was taken to the police station for questioning where he allegedly offered Morse $400 to avoid being arrested.

On May 14th the defendant and Morse had a pre-arranged meeting in Jefferson Parish. According to Morse, the defendant gave him $400.00 and they discussed the F.B.I.’s investigation of the jewelry scam.

On June 26th the defendant and Morse again met in Jefferson .Parish and Morse claims the defendant offered him “... a couple of hundred dollars ..." for a copy of the F.B.I. report on its jewelry investigation. The defendant denied making the offer or asking for a copy of the report. After that meeting Morse contacted the F.B.I. and arranged for a bogus report.

On October 21st Morse told the defendant by telephone that he had the report and they met that afternoon in New Orleans. The telephone conversation and meeting were secretly recorded and several police officers watched from surveillance points. Morse gave the defendant an envelope that contained the F.B.I. “report” and Morse said the defendant told him to retrieve $250.00 from inside a book that was behind the driver’s seat of defendant’s pick-up truck. Defendant claims the book did not contain money but was related to a poster he had given to Morse. The State argues the taped conversation reveals that Morse asked, “This, the money?”, while the defendant maintains he said, “This, the book?”.

After leaving the truck, Morse fanned a handful of currency which was a signal to make the arrest. The defendant says Morse took the money from his own pocket, not from the book. Police officers searched Morse prior to his meeting the defendant and all of the money was removed from his pockets.

The defendant was also charged with public bribery in Jefferson Parish and acquitted before his instant conviction.

DOUBLE JEOPARDY

Defendant’s first assignment of error focuses on the similarities and factual overlays between the Jefferson and Orleans charges. Essentially, defendant contends he was tried in Jefferson Parish for both alleged bribes — the $400 on May 14th and the offer on October 21st — and this constitutes double jeopardy.

R.S. 14:118 defines public bribery:

Public bribery is the giving or offering to give, directly or indirectly, anything of apparent present or prospective value to any of the following persons, with the intent to influence his conduct in relation to his position, employment, or duty:
(1) Public officer or public employee;

Tracking this statutory language, the Jefferson bill of information charged that defendant:

[0]n or about the FOURTEENTH day of MAY in the year of our Lord One Thousand Nine Hundred EIGHTY with force and arms, in the Parish aforesaid [Jefferson] and within the jurisdiction of the Twenty-Fourth Judicial District Court of Louisiana, in and for the Parish aforesaid, violated R.S. 14:118 by giving and offering to give %]00.00 in U.S. currency to Detective John R. Morse, an officer of the New Orleans Police Department, with the intent to influence the conduct of the said John R. Morse in relation to his position, employment and duty,.... (Our emphasis)

The short form indictment in Orleans charged that defendant:

[0]n the twenty-first of October in the year of our Lord, one thousand, nine hundred EIGHTY in the Parish of Orleans aforesaid, and within the jurisdiction of the Criminal District Court for the Parish of Orleans did wilfully [sic] and unlawfully commit public bribery by giving or offering to give, directly or indirectly, the sum of two hundred fifty dollars {%250.00) to one JOHN MORSE, a policeman employed by the New Orleans Police Department, with the intent of influencing the conduct of the said JOHN MORSE with regards to his position and duty as a police officer of the New Orleans Police Department,.... (our emphasis)

Thus, the information and indictment differ as to dates, locations, and amounts of money. Nonetheless, defendant contends it is unclear whether the acquittal on the Jefferson charge concerned only the alleged $400 payoff or also encompassed a bribery offer during the May 14th meeting. Defendant argues that, because the Jefferson charge does not specify the “object” of the bribe, i.e., his “non-arrest” or the F.B.I. report, and because Officer Morse testified at the Jefferson trial that defendant inquired about the F.B.I. report during their May 14th meeting, the Jefferson trial judge may have found defendant did not pay $400 or offer a bribe for the F.B.I. report. Therefore, defendant contends the Jefferson acquittal should have barred his subsequent prosecution in Orleans for the October 21st payoff involving the same object— the F.B.I. report.

Defendant’s argument rests on several suppositions: (1) that the crime of public bribery is a “continuous offense” as used in C.Cr.P. Art. 596 prohibiting consecutive prosecutions for different acts constituting a single offense; (2) that the crime of pub-lie bribery is complete upon the making of an offer to give something of value to influence official conduct and “any subsequent giving is merely evidence of the already completed crime”; and (3) that if the “same evidence” test is applied to determine double jeopardy, the acquittal in Jefferson precludes prosecution in Orleans.

C.Cr.P. Art. 596 provides that:

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

Defendant argues that public bribery is either a “continuous offense” or is completed when an offer to bribe is made, regardless of whether the bribe is paid later. Thus, prosecution in Orleans for the October 21st payoff should be barred because of the prior prosecution in Jefferson for the alleged offer. We note, however, that R.S. 14:118 condemns two distinct acts, the “offering to give” and the “giving” of a bribe, either or both of which constitute violations. In State v. Hebert, 402 So.2d 675, 677 (La.1981), the court declared:

As we read the statute it proscribes both the giving and the offering to give without a provision that the offer and the taking shall together constitute a single offense.

In State v. LeBlanc, 305 So.2d 416, 417 (La.1974), relied on by defendant, the court stressed that the charge was an offer and did not include a giving. The LeBlanc court referred to six later telephone conversations concerning the mechanics of the kickback scheme agreed upon earlier and found the calls were not part of a continuing offense or separate offenses, noting that:

[N]one of the six calls, or any other evidence, indicates a later separate or a renewed offer to accept a bribe.

Thus, even if, as defendant argues, the Jefferson acquittal encompassed a possible offer to bribe Morse for the F.B.I. report on May 14th, it does not negate a separate offense if defendant later made another offer and paid to procure the report.

A review of the Jefferson and Orleans records persuades us that each prosecution dealt with an entirely separate offense. On its face, the Jefferson charge involved a “giving and offering to give” $400 to Morse on May 14, 1980. Although the purpose of the bribe is not stated in the information, the only evidence at trial concerned the $400 not to arrest the defendant. Morse testified that defendant:

A. removed a roll[ed] up packet of money, which I later learned to be four one hundred dollar bills and he handed it to me.
Q Did he tell you what that money was for?
A Yes, sir. He stated at that time that this was for the other day, for helping — he said for helping us.
Q And what was the help supposed to be?
A Not arresting him, Ronnie Laport and Adam Bagstan in New Orleans.
Q And would you tell us what the purpose of your being given these four one hundred dollars was?
A For not placing him under arrest on May the 7th 1980.

All of the Jefferson trial focused on the money allegedly offered on May 7th and paid on May 14th for the non-arrest. Defendant points to a single segment of Morse’s testimony which immediately followed his description of the $400 payoff:

Q Was there any other conversation between you and the defendant at that time?
A Yes, sir, there was. He asked me if I was familiar with an F.B.I. agent by the name of John Watson. He stated that Mr. Watson had been following him around for several days and that he understood that the P.B.I. was conducting an investigation on him and would like to find out if they had any reports or what the reports might contain. He stated if I could find that out it would be worth something to me.
Q Did you understand him to mean that it would be worth money to you?
MR. AMATO:
I’m going ...
THE WITNESS:
Yes, sir.
MR. AMATO:
... to object, Your Honor. I think now we’re beyond the scope of what he believed. Exactly what occurred is what we’re interested in, not what Officer Morse believed.
MR. LOEB:
Your Honor, the defendant is charged with public bribery and it is important for the court to know what the understanding was between the parties at the time of the transaction and the understanding is founded on prior conversations as well as the conversation which occurred that evening.
THE COURT:
Objection overruled.
MR. LOEB:
Q I’ll ask you again, was it your understanding when the defendant indicated to you that it could be worthwhile to you — that phrase indicated to you that it would be worth money to you?
A Yes, sir.

It is obvious this testimony was elicited merely to show, by defendant’s pattern of activity, that his intention in giving the $400 was not innocent. We note the Jefferson case was a bench trial and find no indication that the trial judge, the defendant, or the attorneys believed the defendant was on trial for offering a bribe for the F.B.I. report.

Louisiana’s “same evidence” test was discussed in State v. Didier, 262 La. 364, 263 So.2d 322, 327 (1972):

As quoted with approval in the Official Revision Comment to Article 596, Louisiana has followed a form of the “same evidence” rule, which is stated in State v. Roberts, 152 La. 283, 93 So. 95, 96 (1922), as follows:
“[Ijdentity of the offense is an essential element in support of a plea of autre fois. By this is not meant formal, technical, absolute identity: the rule is that there must be only substantial identity, that the evidence necessary to support the second indictment would have been sufficient for the first.
“Whether the facts are the same in both trials is not a true test: the test is rather whether the acquittal on the first charge necessarily involves an acquittal on the second charge.” (Emphasis ours.)

A similar formulation was applied in State v. Steele, 387 So.2d 1175 (La.1980):

If the evidence required to support a finding of guilt of one crime would also have supported conviction of the other, the two are the same offense under a plea of double jeopardy, and a defendant can be placed in jeopardy for only one. The test depends on the evidence necessary for conviction, not all the evidence introduced at trial.

Under any of these explanations, the Jefferson and Orleans charges would be considered distinct offenses. The “evidence necessary to support the second [Orleans] indictment” would have to show that on October 21, 1980 defendant offered or gave Morse $250 in Orleans Parish. This evidence would not “have been sufficient for the first” [Jefferson] charge that defendant offered or gave Morse $400 in Jefferson Parish on May 14, 1980. Likewise, because the two offenses pertained to defendant’s conduct in different locations on different occasions, an acquittal on the Jefferson charge does not “necessarily involve an acquittal on the second charge.”

Although both trials were held after the alleged incidents, the timing of the trials is not dispositive of a double jeopardy question.

Generally, prohibition against double jeopardy is to protect an individual from the hazards of trial and possible conviction more than once for the same offense. We are satisfied two distinct offenses were charged and defendant’s plea of double jeopardy is without merit.

VENUE

Defendant argues the trial court erred by denying his motions to quash and for a new trial because of improper venue. This contention also focuses on the lack of specificity in the indictment and on the perceived division of the crime into an “offer” made earlier in Jefferson and the “giving” months later in Orleans. Defendant maintains that the Orleans indictment charged defendant disjunctively with the offering or giving of $250, therefore his conviction might have been based on the offering in Jefferson.

We recognize the indictment improperly charged defendant disjunctively, instead of conjunctively, as provided in LSA-C.Cr.P. Art. 480. We also note, however, that defendant did not timely object to the duplicitous charge in his motion to quash, as required by C.Cr.P. Arts. 495, 521, 532, 535 and 536. Art. 495 provides:

The objections of misjoinder of defendants or misjoinder of offenses may be urged only by a motion to quash the indictment.

The Official Revision Comments make it clear that a duplicitous indictment is encompassed in Art. 495:

(a) This article is more comprehensive than Art. 221 of the 1928 Code, in that it specifically applies to objections of mis-joinder of defendants and offenses, as well as of duplicity. These objections, aimed at multifariousness in the indictment or counts thereof, are of a similar nature and should be urged in the same manner. Actually, they have always been so treated, and this article codifies the practice.
(b) The motion to quash is broad enough to permit the court to consider all objections to the indictment, including misjoinder or duplicity appearing on the face of the indictment.

A duplicitous indictment is also one of the grounds for a motion to quash specified in Art. 532. Art. 521 specifies that pretrial motions must be filed within 15 days of the arraignment unless the court fixes a different time. Under Art. 535, Part C “A motion to quash on grounds other than [certain specified grounds which do not include duplicitousness] shall be filed in accordance with Article 521.” Art. 535, Part D further provides, “The grounds for a motion to quash under Paragraphs B & C are waived unless a motion to quash is filed in conformity with those provisions.” Although defendant filed a pretrial motion to quash, he did not question the duplicitous indictment. Art. 536 provides:

A motion to quash shall ... specify distinctly the grounds on which it is based. The court shall hear no objection based on grounds not stated in the motion.

In State v. Richard, 245 La. 465, 158 So.2d 828, 830 (La.1963), the court refused to consider a duplicitous indictment, stating:

Raised for the first time by supplemental brief in this Court is the complaint that the indictment is duplicitous. The objection is not timely. It cannot be urged after the jury has been sworn....

The same result was reached in Gueldner v. Heyd, 311 F.Supp. 1168, 1176 (E.D. La.1970), affirmed U.S. ex rel. Charbonnet v. Heyd, 432 F.2d 91 (5th Cir.1970), where the court held:

Therefore, we conclude that the objection of duplicity was not timely raised before the trial, and therefore petitioners have waived this defense. See State v. Richard, 245 La. 465, 158 So.2d 828 (1964); State v. Blankenship, 231 La. 993, 93 So.2d 533 (1957).

Our jurisprudence has traditionally viewed duplicitous indictments as defects of the same character as misjoinder of offenses and improper consolidation of offenses. State v. Mallett, 357 So.2d 1105, 1109 (La.1978), cert. den. 439 U.S. 1074, 99 S.Ct. 848, 59 L.Ed.2d 41 said:

The prohibition against misjoinder of offenses and improper consolidation of offenses for trial is grounded on the possible prejudice arising from a single trial on two or more offenses. The defects are not jurisdictional nor do they constitute a denial of due process. State v. McZeal, on rehearing, 352 So.2d 592 (La.1977); State v. Peters, on rehearing, 298 So.2d 276 (La.1974). Hence, misjoinder of offenses may be waived by the failure to timely assert it by a motion to quash, and improper consolidation of offenses for trial may be waived by the failure to object.

In State v. James, 305 So.2d 514, 518 (La.1974) our Supreme Court relaxed the formerly inflexible rule regarding technical defects in indictments and held:

The thrust of today’s ruling simply modifies prior jurisprudence that permitted, post-verdict, the questioning of the sufficiency of the indictment even though there was no actual lack of notice and no actual prejudice.
In the present case, no real surprise or lack of notice is shown or even claimed to have deprived the defendant of a lack of opportunity to plead, prepare, or try his defense. The only issue raised concerns the technical sufficiency of the indictment, if it is construed strictly, and this issue is first raised after the verdict.
We do not believe the essential constitutional purpose of protecting an accused against state abuse by vague indictment requires us, under modern conditions of pleading and practice, to permit a defendant after verdict to raise defects in an indictment, by which he was not truly prejudiced through á lack of notice and by which (see below) he is not truly subject to any jeopardy of further prosecution.

The purpose of the rule against duplicitous charges was stated in City of Shreveport v. Bryson, 212 La. 534, 33 So.2d 60, 61:

[A] defendant in a criminal prosecution is entitled to know what accusation against him is relied upon by the prosecution, and, further, if the offenses are charged disjunctively or alternatively, the precise accusation against the defendant is left uncertain....

The defendant did not complain of any uncertainty as to the charge until after trial. The technical defect could not have caused prejudice or difficulty in preparation of a defense. If the objection had been properly and timely raised, the State could have amended the indictment to change “or” to “and”. Since proof of an “offer” or “giving” charged conjunctively would have been sufficient to convict, we do not see how the disjunctive charge misled the defendant or the jury. Elevation of form to priority over substance should be avoided, especially here where remedy of this minor “form” error was effectively waived.

Defendant attempts to couple the technical defect in the indictment with the substantive argument that, because there was some evidence of an offer that occurred in Jefferson, the jury’s verdict may have related solely to an offer that did not occur in Orleans Parish.

However, the indictment alleged that the offenses occurred in Orleans, on a specific date, (October 21,1980), and that defendant offered a specific amount of money, $250. Those three facts had to be proven and were proven to occur only in Orleans. The testimony about the meeting in Jefferson Parish included a different date, (June 26, 1980) and no specific amount of money. Therefore, the Orleans jury could not have found appellant guilty of a bribery offer in Jefferson.

The overwhelming evidence at trial established that, on October 21, 1980 defendant gave Morse $250 for the P.B.I. report in New Orleans. The evidence also showed that, during that meeting defendant told Morse, “I want to give you something”, referring to the money defendant was offering in exchange for the report. The recorded telephone conversation earlier that day between Morse in New Orleans and defendant also evidenced an offer to bribe in Orleans Parish. Thus, the evidence supported both an offer and a giving of a bribe in Orleans Parish on October 21st.

A reviewing court may grant relief on grounds of improper venue only when there is no evidence that the offense occurred in the venue of the trial court. State v. Atkins, 360 So.2d 1341 (La.1978), cert. den. 441 U.S. 927, 99 S.Ct. 2041, 60 L.Ed.2d 402, reh. den. 442 U.S. 935, 99 S.Ct. 2871, 61 L.Ed.2d 305; State v. Dillon, 260 La. 215, 255 So.2d 745 (1971). This record amply supports the jury’s finding of proper venue and the other elements of public bribery delineated in R.S. 14:118.

The defendant’s conviction and sentence are affirmed.

AFFIRMED.


source: Caselaw Access Project

author: SAVOIE, Judge.

license: Public Domain

text:
    STATE of Louisiana, ex rel. Douglas JOHNSON v. MAGGIO, Warden.
    No. 82 KW 0799.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 1984.
    Writ Denied April 23, 1984.

      Ossie B. Brown, Dist. Atty. by Brett Grayson Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Kathleen Stewart Richey, Appellate Counsel-Asst. Public Defender, Baton Rouge, for defendant-appellant.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   SAVOIE, Judge.

This case is before us on remand by the Supreme Court, 440 So.2d 1336, for an expedited review of petitioner’s criminal mischief conviction. In his application, petitioner asserts three assignments of error, to-wit: (1) the trial court erred in requiring petitioner to represent himself during the State’s case-in-chief; (2) the trial court erred in failing to order a defense witness to be served with a subpoena; and (3) the trial court erred in finding the petitioner guilty without sufficient evidence of each essential element.

I. SELF-REPRESENTATION

The petitioner contends that at no time did he waive, expressly or impliedly, his 6th amendment right to counsel. In support thereof, he notes his motion for continuance which was received on June 30, 1982, but not acted upon until the date of the trial, July 19, 1982. He asserts that the court’s failure to act more promptly on the motion placed petitioner in the position of entering the trial uncounseled. Further, petitioner points out that at no time was self-representation ever mentioned.

Absent a knowing and intelligent waiver, no person may be imprisoned for any offense unless he was represented by counsel at his trial. Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). The determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience and conduct of the accused. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Further, if an implied waiver is found to exist, despite the defendant’s vocal protest not to waive counsel, defendant will not have been denied his constitutional right to counsel at trial. State v. McGowan, 359 So.2d 972 (La.1978).

As a general proposition, a person accused in a criminal trial has the right to counsel of his choice. If indigent, he has a right to a court-appointed counsel. However, an indigent defendant does not have the right to have a particular attorney appointed to represent him. His right to choose counsel extends only insofar as to allow the accused to retain the attorney of his choice, if he can manage to do so. One’s right to counsel is not absolute and cannot be manipulated so as to obstruct orderly procedure in our courts or used to thwart the administration of justice. State v. Harper, 381 So.2d 468 (La.1980).

The Minutes of the Court reflect that the accused was formally arraigned on June 11, 1982. At that time, he was advised of his right to counsel. Thereupon, the court advised the accused that if he subsequently decided that he desired counsel, he could contact the court. The accused then entered a plea of not guilty. The court assigned the case for trial on July 19, 1982, and handed notice thereof to the accused.

On July 19, the matter came up for trial. The accused was present in court. When asked by the court if he had retained counsel, he replied, “No, I need time.” He stated that he had contacted his brother about the matter, and his brother was working on it. The trial court asked if the accused wanted appointed counsel, and he replied, “No, sir.” The judge remarked that if he continued to put the trial off, it would be continually put off as long as the accused was unable to retain counsel. The accused replied, “Well, I am able to get one.” At this time, the court stated that the trial date was today and the trial would be held today. The court proceeded, noting that the accused had filed an application for a writ of habeas corpus, a motion to recuse the trial judge, and a motion for continuance. Upon the court’s inquiry, the State objected to granting the motion for continuance. The court observed that the motion for continuance had two bases, (1) the need of more time to file pre-trial motions and prepare a defense, and (2) to retain counsel. As to the first, the court pointed out that the time for filing pre-trial motions had lapsed. The judge reiterated that the accused was entitled to retain counsel but that the accused had previously been advised to have his counsel here today. The court then asked the accused in what manner could justice best be served by a continuance. The accused stated: “... This lawyer you plan on giving me this morning ... uh ... he haven’t discussed my case.” The court replied that it had not intended on giving the accused a lawyer that morning but was planning on going to trial. The accused responded that he had no lawyer and wanted one. Thereupon, the court inquired whether the accused wanted an attorney appointed. The accused said, “No.” The court noted that although the accused was entitled to his own attorney, he was advised to have that attorney with him today and the court was not going to let the accused hold up the proceedings. Subsequently, all the pleadings were denied. The court then proceeded to try the case. Defendant attempted to waive his presence and refused to be seated at counsel table. The trial court queried the accused whether he understood that he was entitled to be present at the trial, and to be represented by an attorney, and that he had refused appointed counsel. The accused answered, “Yes.”

It is apparent from the above that the trial judge felt the accused’s refusal of appointed counsel was merely an attempt to delay the proceedings. It is equally clear that the assistance of appointed counsel was offered the accused at arraignment and trial but these offers were refused by the accused. We believe that the totality of petitioner’s actions in this matter constituted a waiver of his right to counsel. As noted in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), to force a lawyer on an accused can only lead him to believe that the law contrives against him.

Since petitioner continually refused court-appointed counsel, and failed to retain private counsel, it can be presumed that he thereby chose to represent himself in this proceeding. Accordingly, this assignment of error is without merit.

II. ISSUANCE OF A SUBPOENA

Lastly, petitioner contends the trial court erred in failing to subpoena a defense witness. The record shows that on July 29, petitioner filed a “Motion to Subpoena Additional Witness,” W.B. Christenbery, which was received by the court on August 3. Attached thereto was an “Order” for the District Attorney to appear and show cause why the motion should not be granted. This order is unsigned. However, the record contains a certified copy of a criminal court subpoena issued to W.B. Chris-tenbery. The subpoena was issued on August 3. Further, the subpoena indicates it was issued in the case of State v. Douglas Johnson, case No. 4-82-393, charge: Criminal Mischief. Thus, it appears that the subpoena was issued by the court upon petitioner’s request and, therefore, this assignment of error is meritless.

III. PROOF OF ESSENTIAL ELEMENTS OF THE CRIME

Petitioner was convicted of the crime of criminal mischief, as defined under L.S.A.R.S. 14:59. That statute provides, in pertinent part, that:

“Criminal mischief is the intentional performance of any of the following acts:
* ⅜ * * * *
“(5) Giving of any false report or complaint to a sheriff, or his deputies, or to any officer of the law relative to the commission of, or an attempt to commit, a crime; or

Petitioner contends that he was erroneously convicted because the State failed to prove all the essential elements of the crime, including petitioner’s criminal intent.

In reviewing appellate claims of insufficiency of evidence, the applicable standard is whether any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could find the essential elements of the crime charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), State v. Shapiro, 431 So.2d 372 (La.1983), on rehearing. However, if circumstantial evidence is the basis of the conviction, the rule is: Assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence. L.S.A.-R.S. 15:438; State v. Shapiro, supra.

The crime of criminal mischief requires the “intentional” performance of certain acts — in this case, giving a false report to an officer of the law relative to the commission of a crime. This “intentional” performance refers to general criminal intent as the required mental element for this crime. See L.S.A.-R.S. 14:11. General criminal intent is present whenever the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences to result from his act or failure to act. L.S.A.-R.S. 14:10. Though intent is a fact, it need not be proven as a fact, but may be inferred from the circumstances of the transaction. L.S.A.-R.S. 15:445.

A review of the relevant facts are as follows: (1) Before noon, on January 28, 1982, Officer Thompson spotted the alleged stolen car parked in front of the Acadian Motel, (2) Petitioner fled from the scene, (3) The car was taken by Officer Thompson and stored at the regional office, (4) At noon, a caller identifying himself as Douglas Johnson, reported the car stolen, (5) Officer Thompson left his card with Johnson’s mother, requesting that Johnson get in touch with Officer Thompson, and (6) Later that evening, a caller, identifying himself as Johnson, contacted Officer Thompson and was told by Officer Thompson that he (Officer Thompson) had taken the car.

The record does not reflect the exact time Officer Thompson took the vehicle to storage nor the exact time he left his card with Johnson’s mother. It is conceivable that Officer Thompson removed Johnson’s car from the parking space at the Acadian Motel before the car was reported stolen. Further, there is no indication that Johnson knew the vehicle was in police custody rather than having been stolen before he (allegedly) made his report. In fact, the only evidence on this point shows that the car was reported stolen before Officer Thompson informed Johnson that the police had custody of the car. We find the requisite intent cannot be inferred from the circumstances, particularly to the exclusion of every reasonable hypothesis of innocence.

Due to the State’s failure to exclude every reasonable hypothesis of innocence herein, the evidence is insufficient under our law to support the conviction and, therefore, defendant’s conviction must be reversed.

For the foregoing reasons, the petitioner’s conviction and sentence are reversed.

REVERSED.

      . A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).

      . Such implied waiver could conceivably arise in a case where defendant, clearly able to secure retained counsel, persists in demanding court-appointed counsel and desists from employing an attorney despite a reasonable opportunity to dó so. State v. McGowan, 359 So.2d 972, 973, 974 (La.1978).

      . Trial commenced on July 19, 1982. The State introduced its evidence and rested at that time. Upon the trial court's inquiry, defendant requested that a witness be subpoened. For this reason, the trial was continued until July 22, 1982, so the witness could be served. On July 22, 1982, the witness failed to appear. Thereupon, the court ordered the trial to be continued until August 26, 1982, and for the subpoena to be reissued.

      . Petitioner claimed that two other essential elements of the crime were not proved, one being that he made the phone call reporting the car stolen, and the other being that the report was false. We pretermit decision thereon because we find merit in petitioner's contention that the State failed to prove petitioner’s criminal intent.


author: PONDER, Judge.

text:
    DEPARTMENT OF CORRECTIONS, LOUISIANA STATE PENITENTIARY v. Billy W. FREEMAN.
    No. 83 CA 0453.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 1984.
    Rehearing Denied May 21, 1984.

      Cynthia G. Eyre, Dept, of Corrections, Baton Rouge, for appellant.
    Charles E. Griffin, II, Stan Branton & Associates, Inc., P.C., St. Francisville, for appellee.
    Robert R. Boland, Jr., Civil Service Legal Counsel, Dept, of State Civil Service, Baton Rouge, for plaintiff-appellant Herbert L. Sumrall, Director of the Dept, of State Civil Service.
    Before PONDER, WATKINS and CARTER, JJ.
   PONDER, Judge.

The Department of Corrections, Louisiana State Penitentiary, appealed from the decision of the Civil Service Commission ordering the restoration of appellee to his previous position of Corrections Security Officer II and returning him to his previous level of pay.

The issues are the sufficiency of proof that appellee violated the rules of the Penitentiary.

We reverse and render.

Billy W. Freeman, a Corrections Security Officer II, was riding a horse and carrying a rifle across the saddle when the horse shied against a post while going through a gate. When Freeman shifted his weight to the other side, the saddle girth gave way and Freeman fell. The horse ran about fifty yards and Freeman followed. While attempting to regain control, Freeman struck the horse with the rifle butt, holding the rifle like a baseball bat and swinging it. The rifle was severely damaged when it was turned in at the armory.

Sections (j) and (n), Rule 13, of the Rules and Procedures of the Department of Corrections read as follows:

(j) No employee shall willfully or through gross negligence destroy nor cause to be lost the property of others or of the state;
(n) Employees shall handle all assigned weapons safely and in accordance with department and institution policy-

Freeman contended, and the Commission found, that the Department had not proved that the gun was damaged by striking the horse rather than by the weight of Freeman upon the gun when he fell from the horse. We have examined the record and find no error in that conclusion.

However, the Commission made the following finding of fact:

“When appellant reached the water trough, he attempted to grasp the reins of the horse. The horse reared its head up and down to keep appellant from being able to grasp the reins. Appellant took his rifle, held it by the barrel, and struck the horse across the front of the head on the bony part of the nose, ‘in an attempt to show the horse who was in charge.’ The blow was not sufficient to break the skin on the nose of the horse or leave any swollen area, but was sufficiently hard to finish breaking the cracked stock completely off of the rifle.”

The Commission later refers only to “the charges” and discusses only the damage to the stock of the rifle without specific discussion of the facts in regard to the handling of assigned weapons safely and in accordance with department and institution policy.

We believe the Commission erred. It is difficult to contend that the use of a rifle like a baseball bat in disciplining a horse is safe and in accordance with department and institution policy.

There was some testimony that the rifle would not fire because there was no live round in the chamber. There was other testimony that anything can happen when the rifle is so used. We prefer to believe the latter. Furthermore, the question of safety should not be confined to the immediate discharge of the rifle.

For these reasons, the decision of the Commission is reversed and there is now judgment upholding the action taken by the appointing authority. Costs are assessed against the appellee.

REVERSED AND RENDERED.


author: SHORTESS, Judge.

text:
    HEIRS OF Edith HUTTON a/k/a Self v. Fannie T. SELF.
    No. 83 CA 0474.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 1984.
    Rehearing Denied May 21, 1984.
    Charles B.W. Palmer, Amite, for plaintiff-appellant.
    Richard Kilbourne, Clinton, for defendant-appellee.
    Before LOTTINGER, EDWARDS and SHORTESS, JJ.
   SHORTESS, Judge.

Plaintiffs-appellants, the Heirs of Edith Hutton Self, filed this petitory action seeking to be recognized as the owners of a certain tract of land located in St. Helena Parish. Defendant-appellee, Fannie T. Self, answered the suit, denied plaintiffs’ allegations and claimed ownership. After trial on the merits, judgment was rendered dismissing plaintiffs’ suit and this appeal followed.

Plaintiffs claim ownership of the subject property by virtue of a judgment of possession rendered in the succession of Edith Hutton Self on March 18, 1975, which placed them in possession as owners of the property in question. Soon after the judgment of possession was rendered, Fannie Self filed a possessory action seeking to be recognized as possessor of the subject tract and ordering the heirs of Edith Hutton Self to assert their claim of ownership in a petitory action within sixty days after judgment or to be thereafter precluded from doing so. This court in Self v. Hutton, 395 So.2d 382 (La.App.lst Cir.1981), affirmed the trial court’s decision in favor of plaintiff which found that she had been possessing the property as owner for several years.

From the record and exhibits in this appeal the following facts are apparent. Booker Self married Irand Bryant in 1925 and was divorced from her in 1940. Sometime between 1940 and 1946, Booker Self married Edith Hutton Self who subsequently died in 1959. In October, 1960, Booker Self married Fannie T. Self and remained married to her until his death in 1973. After the death of Booker Self, defendant continued to live on the property claiming ownership. In 1975, the heirs of Edith Hutton petitioned and obtained from the court the above mentioned judgment of possession in the succession of Edith Hutton Self. Defendant responded to the disturbance in her possession with the above mentioned possessory action. Additionally, the last will and testament of Booker Self bequeathing all the property he died possessed of to Fannie Self and naming her testamentary executor was probated in 1975, however, no judgment of possession is in this record.

The property in question was initially bought by Booker Self from Percy C. Till-ery by authentic act dated April 24, 1946. In this act of sale, Booker Self was described as having been married twice, first to Irand Bryant from whom he was divorced, and second to Edith Hutton with whom he was presently living and residing. One year later, on April 24, 1947, Booker Self sold the property to J.H. Hutton, brother of Edith Hutton, by authentic act. Again, Booker Self was described as being divorced from his first wife and presently married to Edith Hutton. On March 19, 1950, J.H. Hutton sold the property to Edith Hutton Self, described as wife of Booker Self. This act of sale declared that, “The purchaser, Edith Hutton Self, does purchase above described property with her separate and paraphernal funds for the use and benefit of her own separate estate to be separately administered by her.” This act of sale was, however, signed only by the vendor, John Henry Hutton, and the notary public.

The trial court concluded that Edith and Booker Self were validly married and had established a community of acquets and gains. It went on to find that since the property was purchased during the existence of the community, the presumption arose that the property fell into the community regardless of the declaration in the deed from J.H. Hutton to Edith Self. Having determined that the presumption had not been overcome, upon the death of Edith Self, the ownership of the property passed to her surviving spouse, Booker Self, in its entirety.

We are mindful of the fact that no marriage certificate was produced showing the marriage of Edith and Booker Self. However, it has long been held that a marriage can be proved by reputation. Succession of Leduc, 153 So.2d 581 (La.App.4th Cir.1963). Additionally, we note that there is evidence in the record that Booker Self was divorced from his first wife, thus removing any possible impediments to the marriage to Edith Hutton. As noted in Baker v. Williams, 176 So.2d 766 at 767 (La.App.3rd Cir.1965),

Under our jurisprudence, where a man and woman have lived together publicly as husband and wife for a period of time, there arises a presumption that they are lawfully married, and this presumption is one of the strongest known to our law. Succession of Leduc, (La.App.4 Cir., 1963), 153 So.2d 581. Under these circumstances, persons asserting that there was no marriage have the burden of proof.

We find nothing clearly erroneous in the trial court’s ruling that Edith and Booker Self were validly married.

At the time the property was purchased in the name of Edith Self, LSA C.C. art. 2402 (As amended by Acts 1902, No. 68) provided that property purchased, “... even although the purchase be only in the name of one of the two and not of both, ...” became community property. The jurisprudence further recognized that the presumption which arises from the purchase of property during the community of acquets and gains is not overcome by a mere declaration in a deed to the wife that she is purchasing the property with her separate and paraphernal funds. Taylor v. Dunn, 233 La. 617, 97 So.2d 415 (La.1957). We agree with the trial court that plaintiffs simply failed to rebut the presumption that this was community property.

Plaintiffs’ burden in the petitory action is denoted in LSA C.C.P. art. 3653 which provides:

To obtain a judgment recognizing his ownership of immovable property or real right therein, the plaintiff in a petitory action shall:
(1) Prove that he has acquired ownership from a previous owner or by acquisitive prescription, if the court finds that the defendant is in possession thereof; or
(2) Prove a better title thereto than the defendant, if the court finds that the latter is not in possession thereof. When the titles of the parties are traced to a common author, he is presumed to be the previous owner.

Article 3653 was amended by Acts 1981, No. 256, § 1, effective September 11, 1981. The Comments found under Article 3653, which do not form a part of the article but which do clearly state the legislative intent, provide that the amendment, “... brings the procedural law, relative to proof of ownership of immovables, in line with the substantive law contained in Civil Code Articles 531 and 532.” Although plaintiffs’ petition was filed in May, 1981, amended Article 3653 is clearly procedural, and thus, can be applied retroactively to these facts. Dripps v. Dripps, 366 So.2d 544 (La.1978). It is clear that plaintiffs have failed to meet their burden regardless of which version of Article 3653 is applied.

Plaintiffs in this case have never alleged acquisitive prescription. As noted above, defendant was in possession at the time this suit was commenced. It was, therefore, plaintiffs’ burden to show that they acquired ownership from a previous owner. Plaintiffs allege that they have traced title to a common author, Edith Self, which if proven, would satisfy the requirements of LSA C.C.P. art. 3653. However, given our finding that the trial court was correct in determining that the property was community property which passed to Booker Self upon Edith’s death, we find that plaintiffs have failed to prove any ownership interest in the subject property.

The decision of the trial court which dismissed plaintiffs-appellants’ petitory action is affirmed at appellants’ costs.

AFFIRMED.


author: ALFORD, Judge.

text:
    Mrs. Rena HOGAN, et al. v. STATE FARM AUTOMOBILE INSURANCE COMPANY, et al.
    No. 83 CA 0480.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 1984.
    Rehearing Denied May 21, 1984.

      Stephen Elliott, Metairie, for plaintiffs, appellants.
    R. Henry Sarpy, Jr., New Orleans, for Western Cas. & Sur. Ins. Co., appellee.
    Michael Guillory, New Orleans, for defendants, appellees.
    Gary M. Zwain, New Orleans, for third party defendant-appellee Magnolia Const. Co., Inc., appellee.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   ALFORD, Judge.

This is an appeal from a judgment of the Twenty-Second Judicial District Court, Parish of St. Tammany, granting a motion for summary judgment in favor of defendant-appellee, Western Casualty and Surety Company. Plaintiffs-appellants, Rena Hogan, widow of decedent Kenneth Leslie Hogan, and decedent’s daughters, Pamela Hogan Phea, Laurie Hogan Carter and Lois Lynne Hogan filed suit for damages resulting from the accident which lead to decedent’s death. In their amended petition, appellants named Western as a defendant alleging that decedent was covered under the uninsured motorist provisions of a policy issued by appellee.

Mr. Hogan died as the result of injuries he sustained when he was struck by an automobile in Slidell, Louisiana, while waiting for his truck to be unloaded. The policy in question was issued to Midwestern Distribution Inc., a truckline company for whom decedent was either a contract driver or an employee. The trial court determined that policy # 620-16-44 issued by Western to Midwestern Distribution covered only a specific fleet of vehicles which did not include decedent’s vehicle. Additionally, the court found that the decedent was not a named insured or a designated insured under the policy, and thus, Western was entitled to summary judgment as a matter of law. We agree.

LSA C.C.P. art. 966 provides in pertinent part, “The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” However, any doubt must be resolved against granting summary judgment and in favor of trial on the merits to resolve any disputed facts. Blount v. Exxon Corp., 395 So.2d 355 (La.App. 1st Cir.1981).

Appellants maintain that there are genuine issues as to three material facts left unresolved by appellee’s offerings in support of its motion for summary judgment. First, it is appellants’ position that the affidavit of Western’s assistant manager in support of the motion does not affirmatively state that the company did not issue any other policies to Midwestern insuring their trucks. The affidavit referred to is that of Mr. Gary L. Rylander, who attests to the fact that he is the Assistant Manager-Automobile for Western and that the attached policy, UC 620-16-44, is a certified copy of the policy that was in effect on the date of the accident. We are of the opinion that as written, the affidavit does state that Western only had the one policy in effect at the time in question. Additionally, we note that appellants were allowed an extension of time to pursue any additional policies Western may have issued to Midwestern. This additional discovery revealed one other policy which had clearly expired by the time of decedent’s accident.

Appellants next maintain that decedent was an employee of Midwestern, the named insured, and thus was himself a named insured for the purposes of uninsured motorist coverage under the policy. In support of this position, appellants cite Employer's Insurance Co. of Wausau v. Dryden, 422 So.2d 1243 (La.App. 1st Cir.1982). Appellee has on the other hand continually maintained that decedent was not an employee of Midwestern, but rather, was a contract driver. There is obviously a factual dispute as to decedent’s employment status, however, it is not material to a resolution of this case. Appellants’ argument fails to consider the fact that the policy in question only covered a specific fleet of vehicles which did not include Mr. Hogan’s truck. The cover page of the policy clearly reads, “COVERAGE APPLIES IN ACCORDANCE WITH THE FLEET SCHEDULE ATTACHED TO THIS POLICY.” Therefore, regardless of decedent’s employment status, the fact that he was not using an insured vehicle precludes coverage under this policy.

Finally, appellants maintain that there is a genuine issue as to whether a truckman endorsement incorporated into the policy which provides bodily injury coverage to a person who transports property for the named insured over a route the named insured is authorized to serve applies to decedent. Appellants’ reliance on this endorsement is without merit. The endorsement clearly provides that it applies, "... with respect to the automobile described below or designated in the policy...” At the bottom of the endorsement under the heading, “Description of Automobile” decedent’s vehicle is simply not described.

Therefore, for the foregoing reasons, the judgment of the trial court granting the summary judgment in favor of Western Casualty and Surety Insurance Company is affirmed. Costs of this appeal are to be borne by appellants.

AFFIRMED.


author: WATKINS, Judge.

text:
    Katherine Bridges JETT v. John Alfred JETT, Sr.
    No. 83 CA 0488.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 1984.
    Rehearing Denied May 21, 1984.
    Joseph H. Simpson, Amite, for plaintiff-appellee.
    J.R. Schmidt, Hammond, for defendant-appellant.
    Before LOTTINGER, EDWARDS and WATKINS, JJ.
   WATKINS, Judge.

The husband-appellant appeals from a decision of the trial court awarding the wife-appellee fifty percent of the husband’s military retirement benefits.

The facts found in the record which are relevant to this appeal are as follows: Katherine Bridges and John Jett, Sr. were married on January 2, 1956. On January 14, 1980, Mrs. Jett filed a petition for separation and was awarded a judgment on March 28, 1980. The spouses were declared to be co-owners in indivisión of all community property. Later, on August 26, 1980, a petition for the settlement of the community was' filed and on January 6, 1983, the husband filed a suit for divorce which was granted the same day. Subsequently, on February 14, 1983, the trial court issued a judgment partitioning the community property. In this judgment, the trial judge ruled that the wife was entitled to receive fifty percent of the husband’s military retirement benefits. It is from this judgment that the husband appeals.

The husband grounds his position on the holding of the United States Supreme Court in McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 68 L.Ed.2d 589 (1981), which was decided after the filing by Mrs. Jett of her petition for separation on January 14, 1980. In McCarty, the Supreme Court held that the federal scheme of military retirement benefits pre-empts state community property law, and that the federal law precludes a state court from dividing military retirement benefits pursuant to state community property laws. The McCarty case was cited as controlling by our Supreme Court in Dedon v. Dedon, 404 So.2d 904 (La.1981).

Subsequent to the McCarty decision, and before the disposition of this case at the trial level, the United States Congress enacted Public Law 97-252, Title X, Section 1002(a), 10 U.S.C.A., Section 1408(c)(1), effective February 1, 1983. Among other things, this act provided that a court may treat military retirement pay either as property solely of the retired member, or as property of the member and his spouse in accordance with applicable state law. This law legislatively overruled McCarty. Thus, McCarty was controlling for only a brief period beginning after the community was dissolved by the filing of the suit for separation and ending before the judgment partitioning the community was rendered on January 6, 1983.

In the very recent case of Rohring v. Rohring, 441 So.2d 485 (La.App. 2d Cir. 1983), the court discussed the McCarty holding in light of the above Congressional enactment and concluded that a court is permitted to treat military retirement pay in accordance with applicable state law, and that in Louisiana military retirement pay is community property. We agree the former conclusion is mandated by the Congressional enactment and the latter by Louisiana jurisprudence. Sims v. Sims, 358 So.2d 919 (La.1978); T.L. James & Co., Inc. v. Montgomery, 332 So.2d 834 (La.1976); Rasbury v. Baudier, 410 So.2d 262 (La. App. 4th Cir.1982); Rogers v. Rogers, 401 So.2d 406 (La.App. 1st Cir.1981), on remand 408 So.2d 359; DeDon v. DeDon, 390 So.2d 937 (La.App. 2d Cir.1980), affirmed 404 So.2d 904 (La.1981); Swope v. Mitchell, 324 So.2d 461 (La.App. 3d Cir.1975). Thus, the husband’s retirement pay was community property at the time the suit for separation was filed, and at the time the judgment awarding the wife fifty percent of the benefits was rendered, as we have stated.

Because we find no error in the decision of the trial judge, we affirm the decision below at appellant's cost.

AFFIRMED.


author: CARTER, Judge.

text:
    STATE FARM GENERAL INSURANCE COMPANY v. KENTWOOD SPRING WATER, INC.
    No. 83 CA 0508.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 1984.
    Rehearing Denied May 21, 1984.

      C.T. Williams, Metairie, for defendant and appellant Kentwood Spring Water, Inc.
    Robert B. Butler, III, Houma, for plaintiff and appellee State Farm General Ins. Co.
    John L. Lanier, Thibidaux, for defendant and appellee Riekes Container Corp.
    Before LOTTINGER, EDWARDS and CARTER, JJ.
   CARTER, Judge.

This is a very unusual case wherein two-five gallon clear glass bottles of water belonging to the defendant-appellant, Kent-wood Spring Water, Inc. (Kentwood), allegedly caused a fire at a mobile home owned by the plaintiff-appellee’s insured. Subrogated to the claims of its insured, plaintiff-appellee, State Farm General Insurance Company, filed this suit based on theories of negligence and strict liability. After a trial on the merits, the lower court awarded judgment in favor of the appel-lee. Kentwood appeals the decision alleging three specifications of error which present only one issue for this court’s review: Was the evidence presented at trial sufficient to carry the plaintiff’s burden of proof?

On February 2, 1981, a fire occurred at the mobile home of Richard and Louise Fortson in Houma, Louisiana. The evidence tends to suggest the fire started in the mid-afternoon, and there is no question but that the day was very bright, cool, and with little humidity. The Fortsons were not at home.

Pat Adams, a neighbor of the Fortsons discovered the fire while walking past the Fortson’s mobile home. Adams noticed what appeared to him to be “a cigarette burn and a little tiny smoke” on the outside of the trailer behind two five-gallon glass water jugs. The water jugs belonged to Kentwood and had been placed on the Fort-son’s front porch by the appellant’s deliveryman on January 23, 1981. Adams testified there was nothing between the sun and water jugs to prevent the sunlight from striking the glass jars; similarly there were no obstructions between the glass jugs and the outside wall of the mobile home.

Rushing over to the trailer, Adams first checked to see if anyone was at home, then, after calling to a neighbor to summon the fire department, Adams checked the trailer a second time before spraying the outside wall of the trailer with water. A few minutes later the fire department arrived and extinguished the blaze.

An investigation into the origin of the fire began soon thereafter. The central question raised in the investigation, and the only issue contested at the trial, was the location of where the fire began. The ap-pellee contended the fire started as a result of the passage of a concentrated beam of sunlight through one or both of the water bottles. Appellee claimed the heat generated by the concentration of light caused the outside wall to begin burning.

The appellant denied this but had no explanation of its own. There was some argument that an electrical receptacle may have been the origin of the fire, but the evidence tending to prove this was unconvincing.

The trial judge found that the evidence proved more probably than not, “that the fire was caused by the alteration or concentration of sunlight as it passed through one or both of two glass bottles of Kentwood drinking water.” Additionally, he found that “the weight of the physical evidence and the testimony of those witnesses who either discovered the fire, fought the fire, or actually visited and inspected the mobile home leads to this conclusion.”

It is important to note that in his excellent written reasons for judgment, the trial judge made the following observations which are very helpful in addressing Kent-wood's argument on appeal,

The court notes that the plaintiffs expert witnesses inspected the mobile home either immediately after or shortly after the fire, whereas the defendant’s expert witnesses inspected the mobile home only after a substantially longer time period subsequent to the fire, after repairs had begun or were completed, or did not visit the mobile home at all.

This passage is, of course, a comment on the evidence presented at trial. It reflects a sincere attempt by the lower court to evaluate the credibility of the witnesses, and to come to some factual conclusions as to the origin of the fire.

Thus, based upon the testimony and evidence presented at the trial, the lower court came to the factual conclusion that the fire was precipitated by the heating-up of the outside wall of the trailer because of the passage of sunlight through one or both of the Kentwood bottles. The trial judge’s evaluation of the credibility of the witnesses, together with his conclusions with respect to the efficacy of the tests run, and observations made, by the various expert and lay witnesses, led him to conclude that the appellee had carried its burden of proof. Our close review of the record and the evidence presented at trial convinces us of the correctness of the trial judge’s studied opinion. His factual conclusions (and evaluations of credibility) find ample support in the record and do not represent an abuse of discretion. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring Company, 283 So.2d 716 (La.1973). It is well settled that the reviewing court must give great weight to the factual conclusions of the trier of fact, and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed. The trial judge was satisfied with the sufficiency of the evidence establishing the sunlight and Kentwood bottles as the source of the fire. We cannot say he was clearly wrong. Baach v. Clark, 442 So.2d 514 (La.App. 5th Cir.1983); Pearce v. Rogers, 423 So.2d 83 (La.App. 1st Cir.1982).

Indeed, the evidence presented at trial clearly weighs in appellee’s favor. In addition to the testimony of Pat Adams, Louise Fortson testified that no electrical appliances were plugged into any receptacles which may have been located opposite the area found burning by Adams. Of even more importance to the trial judge was the testimony of Thomas Guidry, assistant chief of the fire department responding to the fire and the only expert who actually observed the fire burning. Guidry first suspected the fire was electrical in origin, but on more detailed analysis changed his mind. Three factors convinced Guidry the fire was caused by the concentration of sunlight passing through the bottles: First, Guidry’s investigation into the fire led him to several houses where the walls had been scorched by sunlight passing through other Kentwood bottles. Photographs of these scorched walls clearly show burn marks on the outside. Second, a 2" X 4" wooden stud centered perfectly behind the hole on the outside wall was burned significantly more on the outside than on the inside. This was true even though Pat Adams extinguished the blaze on the outside much sooner than the fire department extinguished the blaze on the inside. This convinced Chief Guidry that the fire burned longer and/or hotter on the outside portion of the 2" x 4" stud than on the inside. Finally, Guidry, testified that the fire did not have enough of a “v” pattern to indicate a receptacle fire.

Appellee also presented the testimony of Harold Myers, an engineer with expertise in the field of fire and explosion investigation. Myers made several points which apparently influenced the trial judge. First, he agrees with Guidry that the burn pattern of the fire did not suggest its point of origin was a receptacle. Second, from his review of the fire scene he questioned whether there was any receptacle or electric wire in the area of the fire at' all. Third, and once again in agreement with Guidry, Myers noted the heavy burning on the outside but not the inside of the wooden stud, and he further suggested that the geometric configuration of the hole in the outside wall indicated the fire started on the outside. Myers noted that the configuration of the burn followed exactly the arc made by the sun at that time of day.

Additionally, Myers made two further points of interest. First, using one of the bottles found at the scene of the fire, and simulating conditions as on the day of the fire as best he could, Myers was able to scorch some cardboard in a short period of time. Myers noted that once a wood or wood type product is scorched, very little supplemental heat is necessary to flame it. The outside wall of the Fortson’s mobile home was made of Masonite, a wood derived product. Second, Myers testified that after a wood or wood-type product has been subjected to numerous periods of heating, its kindling temperature decreases. Thus, because the Masonite was heated and re-heated every time the sun passed through the bottles, (for the 11 days the bottles remained on the porch) the temperature required to flame the wall was significantly lowered. In sum, Myers was quite confident the concentration of sunlight theory was the correct one.

Of particular significance was the testimony of M.A. Roohi, Vice-President and General Manager of Kentwood. Called on direct-examination by the appellant, Roohi was asked:

Q. Mr. Roohi, in the course of your experience in the bottle water industry ... have you ever heard of this [a fire caused by the passage of sunlight through glass bottles] occurring before?
A. Not at all. Not in the five gallon bottles....
Q. Now, you said with respect to the five gallon bottles?
A. That’s correct.
Q. Were you ever aware of any other incident with any other containers where it might have scorched something?
A. That’s correct. In a small one gallon container used to be used ... I experienced when I was running the plant that we were using wooden cases and I saw many scorches on the wooden cases....

On cross-examination this line of questioning was expanded upon by appellee’s trial attorney:

Q. Now, tell me about the scorching of the wood that you observed with theone (sic) gallon bottles? Where was this?
A. Sitting in our yard over the weekend. ...
Q. And you observed this on a number of occasions?
A. That’s correct. I observed that on a number of occasions, and at times I would cover them.
Q. You would cover them?
A. With a cardboard box or something.
Q. And that would be to keep the sunlight off so they wouldn’t damage the crates.
A. That is correct_
Q. So when was it you saw this scorching of the wooden crates?
A. I guess I notice (sic) it during the time that I was plant manager. When it was directly my responsibility, I observed that.
Q. That was before the fire in this case?
A. Oh, yes.
Q. This scorching that we are talking about, you could actually see the wood blackened and charred?
A. That’s right.
Q. And it was significant enough for you to cover these crates to try to keep the sun off of them?
A. That’s correct.

In defense of appellee’s action Kentwood presented several witnesses. The most significant testimony was elicited from two experts, Dr. Robert Morris, a physics professor at Tulane University, and Mr. George Pappas, a chemical engineer. With respect to the testimony of these witnesses, it should be pointed out that neither expert had an explanation for the cause of the relatively simple fire. The testimony of Morris and Pappas was limited to refuting the concentration-of-sunlight theory as an explanation, and apart from an almost offhanded assertion that the fire was probably electrical in origin, these witnesses provided very little aid to the court in its search for the origin of the blaze.

The testimony of Dr. Morris consisted almost wholly in an explanation of various tests he conducted in an attempt to determine, if the passage of sunlight through one or both of the bottles could have generated sufficient heat to catch the Masonite on fire. Basically, the tests run by Dr. Morris were quite simple. Placing a Kentwood bottle filled with water between the sun and various wooden objects, including Masonite, Dr. Morris would attempt to measure the temperature of the sunlight passing through the glass bottles and striking the wood-type product.

Dr. Morris ran two series of test. In the first series, Morris testified that he was able to generate a temperature of 200° Fahrenheit (F), then later 270° F. On cross-examination, Morris was questioned about a report he wrote explaining the import of this first series of test:

Q. Now, you wrote a report as a result of the first series of test, is that correct?
A. Yes.
Q. And I am referring to a report dated January 7, 1982 in which you state “More precise temperature estimates would necessitate further work including other measuring techniques. However, based on the present work, I would conlucde that it is indeed possible that Kentwood glass bottles filled with water could have generated temperatures high enough to have triggered the fire. Needless to say, there are many variables, such as height of sun, direction of sun with respect to bottle, type of material under and behind bottle and weather conditions which are very important. But I have demonstrated that the proper combination of these factors along with the Kentwood clear glass bottle filled with water, can start a fire.”
A. That’s correct.
Q. And you agree with that?
A. Yes. I started a fire with a dry leaf.
Q. As a matter of fact, you went further and made a recommendation to Kentwood, did you not?
A. Yes.
Q. You said in that report, “I would recommend that Kentwood discontinue the use of clear glass bottles in direct sunlight, if indeed they are still using them.”
A. Yes.
Q. If a different glass bottle should be used in the future, it should be either tinted so as to absorb some of the light or have a roughened surface, frosted or ground, so as to difuse (sic) light. The unrestrained focusing capability of the bottle is to be avoided? (sic)

A. That’s correct. And I stand by that. The second series of test resulted in the measurement of the same temperature as the first — 270° F. In Dr. Morris’ opinion this was the maximum temperature that could be generated by passing sunlight through the bottles. Further tests by Dr. Morris later revealed that the flame temperature of the Masonite was, allegedly, around 730° F. Thus, it was Morris’ position that sunlight passing through the bottles simply could not have flamed the Masonite.

On cross-examination the appellee’s attorney brought to light several discrepancies and weaknesses in Morris’ testimony. First was the letter noted above. Second, Dr. Morris admitted that some of the original measurements were significantly off the mark and therefore subject to question. Furthermore, Morris conceded that he did not know whether the Masonite he tested (which allegedly came off the Fortson’s trailer) was in the same condition as at the time of the fire, and he admitted that it would be impossible to exactly simulate conditions as they existed on the day of the fire.

In the final analysis, while we note that Dr. Morris had impressive credentials and conducted his tests with sincerity, we agree with the trial judge that there existed too many discrepancies in his testimony to convince the court that Dr. Morris had the definitive answer to the question of whether the sunlight and bottles could have instigated the fire. The trial judge made a reasonable evaluation of credibility in discounting Morris’ testimony and we see no abuse in his decision. Arceneaux, 365 So.2d at 1333.

Appellant’s second expert was Mr. Pap-pas. Mr. Pappas, like Dr. Morris, felt that it would have been impossible for the sunlight and bottles to have started the fire on the outside of the trailer. Pappas supposed the fire to have been electrical in origin, yet it is curious that Pappas simply could not give a credible accounting of how an electrical fire could have resulted in the various burn patterns noted in the trailer. On cross-examination and rebuttal, appel-lee’s attorney pointed out other weaknesses in Pappas' testimony which the court need not particularize here.

Quite illustrative of the expertise with which the trial judge handled this case is his observations regarding a test heavily relied upon by appellant. At one point Mr. Pappas used a blow torch to attempt to burn through some Masonite. Although he succeeded, the length of time it took to burn through the materials (five minutes at a temperature of approximately 2000° F.) suggested that the relatively low temperatures capable of being generated by the concentration of sunlight simply could not have ignited the Masonite. As regards this test the trial judge noted:

“I think that Mr. Pappas’ theory that the fire started from the inside out because of the blowtorch test he did can be challenged because of the fact that the blowtorch test would not produce the same effects that a magnifying lens would and the fact that he simply used a sheet of the material, whereas in the actual conditions it was boxed in and closed in from the back, which I am certain is a variable that could change the results.”

This observation by the trial judge can serve as an illustration of the weaknesses in appellant’s evidence throughout the trial. The tests run by the appellant’s experts simply could not properly account for all of the factors which existed on the day of the fire. Scientific facts are always subject to the protocol and simulation problems and, like the trial judge, we find such problems in this case: Perhaps this is one reason why the appellant’s experts were diffident when positing an explanation for the cause of the blaze. Simply put, the tests run by Morris and Pappas were unpersuasive in light of the more relevant and clearer explanation for the fire suggested by the testimony and exhibits of the appellee. In short, we find that the appellee proved by a preponderance of the evidence that the fire started on the outside of the trailer as a result of the passage of a concentrated beam of sunlight through one or both of the Kentwood water bottles. The decision of the lower court is supported by the clear weight of the evidence and will not be disturbed on appeal. Baach, 442 So.2d at 518; Pearce, 423 So.2d at 87.

For these reasons, we affirm the decision of the lower court in all respects at appellant’s costs.

AFFIRMED.

      . After the fire, State Farm General Insurance Company paid the claim of its insured. By the terms of the policy issued by State Farm it became subrogated to the insured’s rights to the extent of the policy.

      . Damages were stipulated.

      .Another party involved in the case was dismissed. Neither appellant nor appellee has raised this dismissal as an error at the appellate level.


author: CRAIN, Judge.

text:
    Stanley Allen McKEY, Jr. v. Kayla Mullin McKEY.
    No. 83 CA 0510.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 1984.
    Rehearing Denied May 21, 1984.

      Randall M. Alfred, Houma, for defendant and appellant Kayla Mullin McKey.
    Prentiss Cox, Houma, for plaintiff and appellee Stanley Allen McKey, Jr.
    Before SHORTESS, LANIER and CRAIN, JJ.
   CRAIN, Judge.

This is an appeal by Kayla Mullin McKey from a judgment of the trial court partitioning the community which existed between the appellant and Stanley Allen McKey, Jr.

FACTS

Kayla Mullin McKey and Stanley Allen McKey, Jr. were married on November 18, 1972, and were legally separated on August 7, 1981. On February 24, 1972, prior to the marriage, Mr. McKey purchased a house and lot on Wayne Street in Houma, Louisiana (Wayne Street property). This house was purchased for $17,500.00 and was occupied by the parties until February of 1978.

In February of 1978, the Wayne Street property was sold for $34,000.00, the entirety of which was applied toward the purchase of a new home on Central Avenue in Houma (Central Avenue property).

Mrs. McKey brought suit after the separation requesting a partition of the community property. The Central Avenue property was sold by the parties, as representatives of the community, to Mr. McKey for $89,000.00. The mortgage on the property of $15,254.08 was paid, and the balance of $73,745.92 was deposited into the registry of the court. The movable community property was voluntarily partitioned, leaving the sole issue remaining before the trial court the proper distribution between the parties of the net proceeds from the sale of the Central Avenue property.

After a hearing, the trial court granted judgment distributing to Mr. McKey the sum of $50,800.10 and to Mrs. McKey the sum of $22,945.82. That judgment reflected the following credits:

(1) $2494.50 to Mr. McKey for mortgage note payments and insurance paid after termination of the community on the Central Avenue property.
(2) $34,000.00 to Mr. McKey for separate property funds which were used as a down payment on the Central Avenue property.
(3) $8505.96 to Mrs. McKey representing the proceeds of an insurance check.

The trial judge’s denial of two additional credits claimed by Mrs. McKey constitutes the basis of this appeal. They are as follows:

(1) A $200.00 credit representing of alleged rentals Mr. McKey received from a person living in the Central Avenue house after McKey’s separation.
(2) A $8250.00 credit for ½ of the enhanced value of the Wayne Street property ($16,500.00).

ENHANCED VALUE OF HUSBAND’S SEPARATE PROPERTY

Appellant’s first and second assignments of error deal with her claim for reimbursement in the amount of $8250.00, which represents one-half of the increase in value of McKey’s separate property on Wayne Street during the marriage. Mrs. McKey alleges that the increase in value was the result of the uncompensated common labor or industry of the spouses. She claims reimbursement under La.C.C. art. 2368. That article provides:

If the separate property of a spouse has increased in value as a result of the uncompensated common labor or industry of the spouses, the other spouse is entitled to be reimbursed from the spouse whose property has increased in value one-half of the increase attributed to the common labor.

Prior to January 1, 1980, the effective date of the latest matrimonial regimes revisions, La.C.C. art. 2408 supplied the standard in reimbursement cases for enhanced value of separate property. That article provided:

When the separate property of either the husband or the wife has been increased or improved during the marriage, the other spouse, or his or her heirs, shall be entitled to the reward of one half of the value of the increase of ameliorations, if it be proved that the increase of amelio-rations, be the result of the common labor, expenses or industry; but there shall be no reward due, if it be proved that the increase is due only to the ordinary course of things to the rise in the value of property, or to the chances of trade.

In interpreting La.C.C. art. 2408 the jurisprudence established four requirements which the party claiming reimbursement had to prove;

First. What was the condition of the property at the time of the marriage? Second. What would be the value of such property at the dissolution of the community, in the state in which it was at the time of the marriage? Third. What was the real value of the said property, with all the improvements existing thereon, in the condition in which it was at the time of the dissolution of the community? Fourth. What is the difference between the two estimates? Deliberto v. Deliberto, 400 So.2d 1096, 1099 (La.App. 1st Cir.1981), citing Babin v. Nolan, 6 Rob. 508, 514 (1844).

It was subsequently held in Abraham, v. Abraham, 230 La. 78, 87 So.2d 735 (1956), that once the party claiming reimbursement under La.C.C. art. 2408 made a showing that the community labor, expenses or industry increased the value of the separate property, the burden shifted to the owner of the separate property to prove the enhancement was natural.

The 1979 revision of La.C.C. art. 2408 changed the measure of reimbursement, and thus, the required proof, in every reimbursement situation except one. The measure of reimbursement remains the same in a situation where the separate property of one spouse is increased “as a result of the uncompensated common labor or industry of the spouses”. La.C.C. art. 2368. In that situation only, the measure of reimbursement remains one-half of the enhanced value (increased value) of the other spouse’s separate property.

On the other hand, where the enhancement in value of the separate property results from use of community property as opposed to common labor or industry, the measure of reimbursement was changed to “one-half of the amount or value” that the community property had at the time it was used. This situation is now provided for in La.C.C. art. 2366.' Thus, the change was accomplished by making two articles of former La.C.C. art. 2408, and providing for reimbursement for “labor or industry” in La.C.C. art. 2368, and for “expenses” in La.C.C. art. 2366.

In a case occurring under La.C.C. art. 2368, the application of Babin is still correct. However, in a case falling under La.C.C. art. 2366, the required proof is different. In this case both situations are presented. Community improvements were made to the separate property. Additionally, a claim was made for enhanced value from uncompensated labor and industry of the spouses. However, the appellant would apparently have us apply La.C.C. art. 2368 and determine there must be an enhancement by simply showing community property was used on the separate property, since appellant offered no proof of the value of the community property used under La.C.C. art. 2366. We disagree. In order to give effect to both La.C.C. art. 2366 and 2368, we hold that where community property is used to improve separate property La.C.C. art. 2366 must be used to reimburse the claiming spouse. The basis for reimbursement is the actual value of the community property used. In order to claim reimbursement for enhancement of the value of the separate property, the claiming spouse must show enhancement by “uncompensated common labor or industry” separate and apart from the use of community property to improve the separate property. Then the provisions of La. C.C. art. 2368 become applicable.

The trial court was correct here in not applying La.C.C. art. 2366 because the value of the community property used to improve the separate property was not established. The question remains as to whether the trial judge was correct in holding appellant failed to carry her burden of proof under La.C.C. art. 2368. The record supports the trial judge’s finding in that Mrs. McKey did not prove the value of the property, minus the improvements, at the time of its sale. Mrs. McKey offered no evidence on this point at all. She simply proved that in 1978 the property sold for $34,000.00 which was obviously with the community improvements. This is of no assistance in determining the 1978 value without the improvements. Without such evidence, it is impossible to determine the enhanced value of the property for purposes of La.C.C. art. 2368. The plaintiff having failed in her burden of proof, the trial judge was correct in denying her request for a credit for the enhanced value of the Wayne Street property. This assignment of error is therefore without merit.

RENTAL OF COMMUNITY PROPERTY

Appellant asserts in her third assignment of error that the trial court erred in failing to award her a credit for the use of the family home by others. She alleges that Mr. McKey rented a portion of the Central Avenue house and that she is entitled to an accounting under La.C.C. art. 2369.

La.C.C. art. 2369 provides: “A spouse owes an accounting to the other spouse for community property under his control at the termination of the community property regime.”

At the hearing, Mr. McKey testified that he received up to $400.00 for telephone and utility bills from a Mr. Mixon, who resided along with McKey in the house for several months. Appellant claims that Mr. McKey did not produce any receipts, and therefore he failed in his burden to prove the money was not rent. As the trial judge pointed out in his reasons for judgment, Mrs. McKey had the burden of proof:

Mr. McKey testified that he did not receive any rent or other revenue from anyone who stayed at the Central Avenue property other than reimbursements for his expenses. Mrs. McKey has failed to carry her burden of proof to show that Mr. McKey received any rentals or other revenue.

Accordingly, we find no merit in this argument.

For the foregoing reasons, judgment of the trial court is affirmed. All costs of this appeal are to be paid by the appellant.

AFFIRMED.

      . Actually, the court calculated the credit as suggested by Mrs. McKey, by splitting the $34,-000.00 proceeds of the sale ½ to each spouse and then giving Mr. McKey a credit for ½ of the $34,000.00 down payment on the Central Avenue property. The result is the same.

      . This credit directly corresponds with the $34,-000.00 credit allowed Mr. McKey, representing the proceeds from the sale of the Wayne Street house.

      . 1979 La.Acts, No. 709, Sec. 1.

      . La.C.C. art. 2366 provides:
      If community property has been used for the acquisition, use, improvement, or benefit of the separate property of a spouse, the other spouse is entitled upon termination of the community to one-half of the amount or value that the community property had at the time it was used.

      . See Babin v. Babin, 433 So.2d 225 (La.App. 1st Cir.1983) For the situation where one spouse's separate funds have been used to improve the other spouse’s separate property.

      . Where both community improvements to separate property and enhancement of value by "uncompensated common labor and industry” are involved, as here, a formula must be devised to prevent the claiming spouse from reaping double benefit for the expenses. Although we do not reach this issue because of our conclusion here, a fair method of resolving the matter would be to determine the enhanced value according to the principles set forth in this opinion. Then determine the value of the improvements placed on the separate property and subtract that amount from the enhanced value before dividing enhanced value.

      . Since there is no proof of the value of the property without the improvements at the time of sale, we do not reach the problem of the burden of proving that the difference between the value with and without improvements was due solely to natural causes. We do note that the last sentence of La.C.C. art. 2408 has been omitted from La.C.C. art. 2368. It therefore appears that the party claiming reimbursement who has to prove enhancement from uncompensated labor and industry must also negative the natural enhancement.
      We further note that the sale in this case occurred prior to dissolution of the marriage, so the Babin formula is applied as of the time of the sale.


author: EDWARDS, Judge.

text:
    Allen J. KELLY and Ernest A. Kelly v. TERREBONNE PARISH POLICE JURY.
    No. 83-CA-0523.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 1984.
    Writ Denied May 25, 1984.

      Remy Chiasson, Thibodaux, Ernest A. Kelly, Houma, for plaintiffs and appellants Allen J. Kelly and Ernest A. Kelly.
    Herbert W. Barnes, John R. Walker,' Asst. Dist. Atty., Houma, for defendant and appellee Terrebonne Parish Police Jury.
    Before LOTTINGER, EDWARDS and CARTER, JJ.
   EDWARDS, Judge.

Allen J. and Ernest A. Kelly appeal the judgment denying their motion to hold the Terrebonne Parish Police Jury in contempt of court. We affirm.

The Terrebonne Parish Police Jury, ap-pellee, excavated a drainage canal across a certain tract of land co-owned by Allen J. and Ernest A. Kelly, appellants, without first securing a right-of-way. Appellants sued and obtained a judgment, signed on May 7, 1981, enjoining any further disturbances in appellants’ possession and ordering the Terrebonne Parish Police Jury to remove the drainage ditch by refilling it to ground level within six months of the date of the judgment, and to pay all costs including certain enumerated expert witness fees.

The Police Jury did not apply for a new trial or appeal that judgment, but, in the words of the trial court, did make “serious and repeated attempts to settle the matter,” through September 1, 1981. Two offers to purchase the right-of-way were “met with counter demands and conditions, which demonstrated a refusal to reach a negotiated settlement.”

Consequently, on September 16, 1981, the Police Jury authorized its attorney to institute expropriation proceedings. An expropriation suit was filed on October 23, 1981.

Appellants excepted to the expropriation petition on the grounds of prematurity and res judicata. Originally set for November 20, 1981, trial of the exception was continued for thirty days to allow the trial judge in that proceeding to review the record of the former possessory suit. Trial was resumed on February 4, 1982, but again continued, this time for ninety days, to allow the attorney for the Police Jury to obtain either an amendment of the May 7 judgment or supervisory relief from this court.

On March 4, 1982, the Police Jury filed a motion to amend the May 7 judgment, and also attempted to deposit in the registry of the court an amount of money it considered to be sufficient to compensate Allen J. Kelly for his interest in the property being expropriated. The trial judge denied the amendment, but ordered all parties to show cause on March 26, 1982, why the deposit should not be allowed. At the hearing on that date, the trial judge ruled that the May 7 injunction barred the Police Jury from bringing any expropriation proceedings and dismissed the expropriation suit which had been filed on October 23.

The Police Jury appealed. In a decision rendered February 22, 1983, this court reversed that dismissal holding that the Police Jury could not be enjoined from exercising its constitutional and statutory right to expropriate private property for public purposes. Terrebonne Parish Police Jury v. Kelly, 428 So.2d 1092 (La.App. 1st Cir. 1983).

In the meantime, on May 19, 1982, appellants herein filed the present motion which forms the basis of this appeal. They sought to enforce the injunction by holding the Police Jury in contempt for failing to fill the ditch by November 7, 1981, and to recover damages caused by that failure along with reasonable attorney fees and costs. The hearing on the motion was held on June 25, 1982, but the judgment, with written reasons, was not rendered until February 28, 1983, after this court had rendered its decision in Terrebonne on February 22, 1983.

In his reasons for judgment, the trial judge said that the Police Jury’s attempted settlement and subsequent institution of expropriation proceedings during the six months following the May 7 order were reasonable and practical actions conducted in good faith. The trial judge then listed three specific reasons why the failure to fill the ditch by November 7 did not constitute contempt of court. First, the Police Jury had satisfied the spirit of the judgment. Second, it did not wilfully disobey the court’s order. Third, the Police Jury could properly view the filling of the ditch as an expensive, foolish and vain thing to do, and a waste of taxpayers’ money, in light of its pending expropriation suit.

Finally, the court found that the plaintiffs-in-rule failed to carry their burden of proof on the issue of damages, and denied attorney fees and costs.

On appeal, appellants specify four assignments of error in this judgment.

In their third assignment of error, which we shall treat first, appellants contend that the trial court erroneously applied to the facts of this case LSA-C.C.P. art. 224(2), which requires a showing of wilful disobedience of a lawful judgment, order or mandate, rather than art. 3611, which they contend requires a showing of only disobedience or resistance to a permanent injunction, whether wilful or not.

We need not decide this issue. In Oakshire Realty Company, Inc. v. Bowman Business College, Inc., 386 So.2d 664 (La. App. 1st Cir.1980), writ denied, 387 So.2d 596 (La.1980), this court held that a district court could not hold in contempt a custodian of property, seized under a writ of fieri facias, for his failure to return the property to the sheriff after he had released the property to the owner who in turn had leased it to a third party. Requiring him to obtain the property or be held in contempt would be requiring him to do a vain and useless thing, which this court said it will not allow.

The reasoning in Oakshire supports the trial court’s judgment here. Indeed, in light of this court’s holding in Terrebonne, 428 So.2d 1092, that the police jury’s power to expropriate could not be enjoined, the trial court could not under Oakshire lawfully hold the police jury in contempt for failing to do a vain and useless thing. This assignment of error, therefore, lacks merit.

In their first assignment of error, appellants contend that by denying their contempt motion, the trial court allowed the Police Jury to collaterally attack the May 7 order by instituting expropriation proceedings and effectively granted a suspensive appeal of that judgment, which had become final and definitive. In their second assignment of error, they contend that the denial likewise effected a modification of the substance of the judgment without procedural authority because appellees had not filed a motion for new trial.

Appellants argue that the May 7 order to refill the ditch is a permanent injunction, or at least ancillary to one, authorized by LSA-C.C.P. art. 3663 and is enforceable under art. 3611 through contempt proceedings.

In American Cyanamid Company v. Roberts, 180 So.2d 810 (La.App. 4th Cir. 1965), the Fourth Circuit Court of Appeal held that a district court has inherent authority to modify or rescind a previously issued permanent injunction. The court reasoned at page 812:

No one can deny the court’s inherent power to enforce its injunctive decrees. This authority is not alone dependent upon LSA-C.C.P. art. 3611 which deals with disobedience of, or resistance to, temporary restraining orders, preliminary and final injunctions. We think the power also to modify its decree as conditions warrant, even to the extent of revocation, is equally inherent and logically included in the authority of enforcement. The source of this authority does not lie in specific statutory law. The principle upon which injunctive jurisdiction is founded is one of equity, the basic element of which is protection against irreparable damage or injury, and it is resorted to when there is no adequate remedy at law. By the same principle, if the party enjoined is caused to suffer an irreparable injury or damage by the continued enforcement of the injunctive decree when on account of changed circumstances it has served its intended purpose and is no longer needed, he should in all fairness have recourse to the very court which has enjoined him, and in the same proceeding, (emphasis added).

If a court’s authority to enforce its injunc-tive decrees includes the power to rescind them altogether when the circumstances require, it also includes the lesser power to suspend them for a specific period of time or indefinitely.

Under the circumstances of this case, the trial court could properly consider what effect a successful expropriation suit would have on the necessity of enforcing its previously issued order to fill in the ditch. Again, in light of Terrebonne, the trial court could hardly have done otherwise. Consequently, it did not commit error in denying appellants’ motion for contempt, regardless of the denial’s suspensive effect.

Assignments of error numbers one and two lack merit.

In their final assignment of error, appellants contend that the trial court erred in failing to award damages and attorney fees. After fully reviewing the evidence submitted at the hearing, we cannot say that the trial court was clearly wrong in finding that the appellants failed to carry their burden on the issue of damages. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Attorney fees are not recoverable in any event. Gwatney v. Miller, 386 So.2d 198 (La.App. 3rd Cir.1980).

We do not speculate on appellee’s success in the expropriation suit, nor offer appellants advice on the appropriate procedural response should appellee ultimately fail in that suit. We do note, however, that the institution of contempt proceedings is only one of three methods of executing judgments other than money judgments listed under LSA-C.C.P. art. 2502, and that a judgment creditor may even obtain specific performance by the sheriff or some other person appointed by the court under art. 2504.

For the foregoing reasons, the judgment is affirmed. All costs of these proceedings are to be paid by the appellants.

AFFIRMED.

       The first offer of $5,000.00 for the right-of-way was rejected by a letter dated July 24, 1981, from Ernest, counsel on behalf of himself and Allen. In that letter he made a counteroffer to sell the right-of-way for $100,000.00 in damages, plus costs of the proceedings, subject to the condition that the Police Jury name the ditch "The_Memorial Sewerage Ditch.” The name of the president of the Terrebonne Parish Police Jury at the time the drainage ditch was dug was to be inserted within the blank. The second offer of $7,000.00 made in August was rejected by letter dated September 2, 1981, reurging the demands of the previous letter.