author: GUIDRY, Judge.

text:
    CANE RIVER SHOPPING CENTER, Plaintiff-Appellant, v. Glen MONSOUR, d/b/a Cane Country Casuals, et al., Defendants-Appellees.
    No. 83-23.
    Court of Appeal of Louisiana, Third Circuit.
    May 25, 1983.
    On Rehearing Aug. 15, 1983.
    Writ Denied Nov. 11, 1983.
    Whitehead & McCoy, Kenneth D. McCoy, Jr., Natchitoches, for plaintiff-appellant.

      Smith, Ford & Clark, Chris Smith, III, Daryl Gold, Leesville, for defendants-appel-lees.
    Before GUIDRY, STOKER and LA-BORDE, JJ.
   GUIDRY, Judge.

Plaintiff, Charles M. Gremillion-781, a Louisiana partnership in commendam, d/b/a Cane River Shopping Center (hereafter Cane River), filed this suit against Glen Monsour, William Harrel West and Iva Lois Davis West to collect delinquent rental payments due under a contract of lease. Monsour subsequently filed for and obtained relief under Chapter 7 of the United States Bankruptcy Code. Thereafter, he was not pursued as a party defendant in this matter. Mrs. West answered, setting forth a defense of general denial, together with affirmative defenses of the assignment of the lease, release and estoppel. Mr. West also answered setting forth the same defenses, and filed an alternative third party demand against Mrs. West (from whom he was divorced) for indemnity. At the close of the evidence, the trial judge ruled in favor of Mr. and Mrs. West and against Cane River, dismissing its demand; and, in favor of Mrs. West against Mr. West dismissing his third party demand. Cane River appealed; Mr. and Mrs. West neither appealed nor answered the appeal.

The facts of this case are undisputed. On January 19, 1978, Mr. and Mrs. West leased the premises identified as Shop “L” of the Cane River Shopping Center in Natchitoches, Louisiana, from Charles M. Gremillion. This lease was for a five year term and provided for a rental of $6,656.25 per year, payable in monthly installments of $554.68, plus $14.79 per month for common area maintenance. Subsequently, Gremillion assigned the lessor’s interest in the lease to Charles M. Gremillion-781, a Louisiana partnership in commendam, d/b/a Cane River Shopping Center.

Mr. and Mrs. West operated a business known as “The Fox Trot”, on the leased premises until they sold the business and assigned their leasehold interest to Glen Monsour on September 30, 1980. Pursuant to the specific terms of the lease, the lessee was contractually bound to obtain the consent of the lessor in order to assign or sublet to a third party. Monsour obtained written consent to the assignment from Cane River. Thereafter, Glen Monsour began operation of a business known as “Cane Country Casuals” on the leased premises. Monsour began to experience financial difficulty in the operation of his business and became delinquent in making his monthly rental payments. In an effort to help Monsour financially, on February 20, 1982, Cane River agreed to a termination of the lease for Shop “L” and entered into a new lease with him for a new location. At that time, a total of $5,080.84 unpaid rental had accrued under the original lease. This is the amount for which plaintiff sues.

There was no contact between Cane River and the Wests from September 30, 1980, the date of the assignment, until May of 1982, when a demand letter was sent by Cane River’s attorney.

The only issues presented on appeal are whether (1) the trial court erred in finding that the Wests had been discharged from their obligations under the lease of January 19,1978; and, (2) if so, whether the circumstances of this case warrant application of the doctrine of estoppel.

The trial judge did not favor us with written reasons for judgment. The majority of his oral reasons are devoted to finding that the transaction between the Wests and' Monsour was an assignment rather than a sublease, even though that fact was not in dispute. At any rate, the trial judge’s reasons do not make clear whether he based his dismissal of plaintiff’s claim on the legal conclusion that lessee’s assignment of his leasehold interest to a third party with the lessor’s consent, without more, discharges the original lessee, or whether he reached the factual conclusion that the circumstances surrounding the transaction clearly indicated the intent of the lessor to novate. The former conclusion would be clearly contrary to the law and jurisprudence of this state. LSA-C.C. Art. 2130 and Arts. 2185 et seq, infra. Counsel for Mrs. West contends that the trial judge’s decision is based on the latter conclusion.

The following articles of the Louisiana Civil Code are applicable:

“Art. 2130. Methods of extinguishment. Obligations are extinguished:
By payment.
By novation.
By voluntary remission.
By compensation.
By confusion.
By the loss of the thing.
Art. 2185. Novation, definition. No-vation is a contract, consisting of two stipulations; one to extinguish an existing obligation, the other to substitute a new one in its place.
Art. 2189. Methods of effecting novation. Novation takes place in three ways: ...
2. When a new debtor is substituted to the old one, who is discharged by the creditor.
Art. 2190. Capacity for novation; presumption against novation. Novation can be made only by persons capable of contracting; it is not presumed; the intention to make it must clearly result from the terms of the agreement, or by a full discharge of the original debt.
Art. 2191. Novation by substitution of new debtor. Novation by the substitution of a new debtor may take place without the concurrence of the former debtor.
Art. 2192. Discharge of original debt- or. The delegation, by which a debtor gives to the creditor another debtor who obliges himself towards such creditor, does not operate a novation, unless the creditor has expressly declared that he intends to discharge his debtor who has made the delegation.
Art. 2194. Indication of another person to make or receive payment. The mere indication made by a debtor of a person who is to pay in his place, does not operate a novation.
The same is to be observed of the mere indication made by the creditor of a person who is to receive for him.”

In Placid Oil Company v. Taylor, 325 So.2d 313, at 316 (La.App. 3rd Cir.1975), writ refused, 329 So.2d 455 (La.1976), we set out the following considerations in determining whether a novation has been effected:

“The determining factor in deciding whether a novation has been effected is the intention of the parties. The intention to novate may be shown by the character of the transaction, and by the facts and circumstances surrounding it, as well as by the terms of the agreement itself. The burden of proof to establish novation is on the person who claims it Antoine v. Elder Realty Company, 255 So.2d 625 (La.App. 3 Cir.1971); Midlo & Lehmann v. Kotz, 195 So.2d 383 (La.App. 4 Cir.1967).”

While the testimony at trial shows that the Wests may have believed they had been discharged from their obligations under the lease, they failed to bring forth convincing proof that Cane River intended to effect a novation by consenting to the assignment. There was no express declaration of novation or discharge. LSA-C.C. Arts. 2185, 2192 and 2196, supra. A letter agreement submitted by the attorney for Monsour, which was accepted by Charles Gremillion on behalf of Cane River provides only consent to the assignment of the lease from the Wests to Monsour, with Monsour to assume the lease payment. It does not declare the intent of the creditor to discharge the Wests. The pertinent language is as follows:

“In consideration of the commitment made by our client to see that the required annual sales reports are filed, you have agreed that you will consent to an assignment of the lease from Mr. and Mrs. West to our client, with our client to assume lease payments commencing October 1, 1980.”

The consent to the assignment and Mons-our’s assumption of the payments is merely the acceptance of a new debtor and in and of itself does not expressly declare an intent to discharge the debtor. Jacobs v. Calderwood, 4 La.Ann. 509 (1849); Knapp v. Guerin, 144 La. 754, 81 So. 302 (1919); Grundmann v. Trocchiano, 13 La.App. 277, 127 So. 748 (La.App.Orl.Cir., 1930); LaNasa v. Bancroft Investment Corp., 306 So.2d 831 (La.App. 4th Cir.1975).

The circumstances surrounding the transaction are also insufficient to show that a novation was intended by the creditor. The circumstances relied on by Mrs. West are the facts that (1) Cane River dealt solely and completely with Monsour until the time of demand; (2) Cane River suffered Monsour’s default on the rent for several months before making demand on the Wests; and, (3) Cane River agreed to terminate the lease with Monsour without consulting with the Wests. These actions on the part of Cane River are, at best, ambiguous. Mr. Sidney Gremillion, the manager of Cane River, testified to other circumstances surrounding the agreement. He testified that the Wests never specifically requested to be discharged from responsibility under the lease, and that such a discharge would have required further investigation of Monsour, and if satisfactory, would have been effected by a customary lease cancellation. Mrs. West agrees that she never specifically asked the Grem-illions for a cancellation of the 1978 lease.

Under the clear provisions of LSA-C.C. Art. 2190, supra, novation cannot be presumed, the intention to make it must clearly result from the terms of the agreement or the facts and circumstances surrounding the agreement. The Wests have simply failed in their burden of proving the clear intent of Cane River to novate.

The Wests alternatively contend that Cane River is estopped from recovering against them because of its failure to notify and inform them of Monsour’s rent delinquency. Three elements are necessary before the defense of equitable estop-pel will defeat the assertion of a claim. There must be (1) some representation by the claimant by conduct or word; (2) justifiable reliance on the claimant’s representation by defendant; and, (3) a change in the defendant’s position to his detriment because of his reliance on the claimant’s representation. Wilkenson v. Wilkenson, 323 So.2d 120 (La.1975). We find none of these elements present in this case. The conduct of Cane River in attempting to first collect the rent from Monsour and its forebearance in hopes of restoring Monsour’s financial stability is not inconsistent with its intention to ultimately collect from the Wests. What the Wests relied on was their unjustifiable belief that they had been discharged from their obligations under the lease. Finally, there was no change in the defendants’ position. In fact, the record supports the proposition that the plaintiff attempted to minimize the burden on defendants. Otherwise, the Wests would be obligated for substantially more than $5,080.84. We therefore conclude that the circumstances of this case do not warrant application of the doctrine of estoppel.

For these reasons, we conclude that the judgment of the trial court dismissing plaintiff’s claim must be reversed and judgment rendered in favor of Cane River and against the Wests.

Upon dismissing the main demand, the trial judge also dismissed the third party demand of Mr. West against Mrs. West for indemnity. Even though Mr. West neither appealed nor answered the appeal of Cane River, we consider the merits of this demand to be viable and before us on appeal. Bond v. Commercial Union Assurance Co., 387 So.2d 617 (La.App. 3rd Cir. 1980); affirmed in part, reversed in part and remanded on other grounds, 407 So.2d 401 (La.1981).

In support of his demand for indemnity, Mr. West relies on the community property settlement between the Wests, dated December 9, 1981 which provides in pertinent part as follows:

“IVA LOIS DAVIS WEST receives and WILLIAM HARREL WEST grants, bargains, sells and conveys, with full guarantee of title and with complete transfer and subrogation of all rights and actions of warranty against all former proprietors of the property herein conveyed, unto IVA LOIS DAVIS WEST all of his right, title and interest in and to the following described property, to-wit: ...
(S) That certain business known as “The Fox Trot, located in Leesville, Louisiana, together with all merchandise, stock, furniture and fixtures and accounts connected therewith.
It is agreed and understood that Iva Lois Davis West assumes sole liability and responsibility for any indebtedness thereon or in connection therewith, and indemnifies and holds William Harrel West harmless from any claim thereon;
(⅝) That certain promissory note, secured by chattel mortgage, made by Glen Monsour in the original amount of $10,000.00, dated September, 1980, and payable to Iva Lois Davis West and William Harrel West.

By the terms of this agreement, Mrs. West expressly agreed to indemnify Mr. West for any claim in connection with the business known as “The Fox Trot”. This contract is the law between the parties. We are provided with no reasons why it should not be enforced as written. Fidelity & Deposit Co. of Maryland v. Thieme, 193 So. 496 (La.App. 2nd Cir.1940); Cormier v. Rowan, 549 F.2d 963 (C.A. 5, 1979).

For the above and foregoing reasons, the judgment of the trial court is reversed and it is accordingly ordered that there be judgment in favor of Cane River Shopping Center and against William Harrel West and Iva Lois Davis West in the principal sum of $5,080.84, with legal interest thereon from date of judicial demand until paid. It is further ordered that there be judgment in favor of William Harrel West and against Iva Lois Davis West for any sums paid by William Harrel West on the judgment rendered in favor of Cane River Shopping Center.

Costs of these proceedings at the trial level and on appeal are assessed to the defendant, Iva Lois Davis West.

REVERSED AND RENDERED.

ON REHEARING

We granted a rehearing in this case limited to the issue of the correctness of our judgment on the third party demand filed by William Harrell West against Iva Lois Davis West for indemnity.

On original hearing, we reversed the trial court’s dismissal of William Harrell West’s third party demand for indemnity relying on the terms of a community property settlement agreement between Mr. and Mrs. West dated December 9, 1981, and particularly the following provision thereof:

“IVA LOIS DAVIS WEST received and WILLIAM HARREL WEST grants, bargains, sells and conveys, with full guarantee of title and with complete transfer and subrogation of all rights and actions of warranty against all former proprietors of the property herein conveyed, unto IVA LOIS DAVIS WEST all of his right', title and interest in and to the following described property, to-wit: ...
(3) That certain business known as “The Fox Trot,” located in Leesville, Louisiana, together with all merchandise, stock, furniture and fixtures and accounts connected therewith.
It is agreed and understood that Iva Lois Davis West assumes sole liability and responsibility for any indebtedness thereon or in connection therewith, and indemnifies and holds William Harrel West harmless from any claim thereon; ...”

On rendition of our original judgment, we failed to observe that by the terms of the aforementioned settlement agreement, Iva Lois Davis West agreed to indemnify William Harrell West for all liability and responsibility for any indebtedness in connection with “The Fox Trot” business located in Leesville, Louisiana. The indebtedness involved in this litigation arises in connection with “The Fox Trot” business located in the Cane River Shopping Center in Natchitoches, Louisiana. Since the agreement to indemnify applies only to the Fox Trot business located in Leesville, Louisiana, we clearly erred in awarding William Harrell West judgment over against Iva Lois Davis West for any part of the indebtedness owed to the plaintiff, Cane River Shopping Center. For these reasons, we amend and recast our original judgment to read as follows:

The judgment of the trial court is reversed insofar as it dismissed plaintiffs demand and it is now ordered, adjudged and decreed that there be judgment in favor of Cane River Shopping Center and against William Harrell West and Iva Lois Davis West in the principal sum of $5,080.84, with legal interest thereon from date of judicial demand until paid. The judgment of the trial court insofar as it dismisses the third party demand of William Harrell West against Iva Lois Davis West is affirmed.

Costs of these proceedings at the trial level and on appeal are assessed to the defendants.

REVERSED IN PART AND AFFIRMED IN PART.

      . Mr. West did not file a brief.


source: Caselaw Access Project

author: EDWARDS, Judge.

license: Public Domain

text:
    John C. WILLIAMS v. CROWN ZELLERBACH CORPORATION.
    No. 83-CW-0707.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 30, 1983.
    Rehearing Denied Dec. 7, 1983.
    Clint L. Pierson, and Margaret Kern, Covington, for plaintiff.

      Stewart E. Niles, Jr., New Orleans, for defendant.
    Before EDWARDS, WATKINS and SHORTESS, JJ.
   EDWARDS, Judge.

Plaintiff filed suit in St. Tammany Parish, his domicile, against defendant (a foreign corporation), alleging that because of defendant’s negligence he was injured by exposure to toxic materials. Plaintiff transported the toxic materials from defendant’s plant in Washington Parish, which is also defendant’s principal place of business.

Defendant filed a declinatory exception of improper venue, arguing that under La. C.C.P. art. 42(4) the only proper venue is Washington Parish. In response, plaintiff alleged that although the direct exposure to the toxic materials occurred in Washington Parish, the effects of the exposure continued at his residence in St. Tammany Parish and subsequently resulted in his contracting of lung disease. Thus, plaintiff argues that venue is proper in St. Tammany as the parish “where the damages were sustained” under La.C.C.P. art. 74. After a hearing, the trial court denied defendant’s exception. Defendant applied for supervisory writs, which we granted alternatively. Subsequently, the trial judge and plaintiff made known their opposition, prompting this opinion.

Initially, it must be pointed out that La. C.C.P. art. 74 is an exception to the general rules of venue established by La.C.C.P. art. 42, and as such, art. 74 must be strictly construed. Dupre v. Pelotto, 336 So.2d 329 (La.App. 1st Cir.1976); Richardson v. Moore, 304 So.2d 425 (La.App. 1st Cir. 1973). Plaintiff’s only basis for contending that venue is in St. Tammany under art. 74 is his argument that “the damages were sustained” there. In support of this contention plaintiff argues in brief that the corrosive effect of the Washington Parish exposure continued at his residence in St. Tammany causing his lung disease, and thus his damages were “sustained” there. Yet plaintiff has not alleged or introduced any evidence that his damages were sustained in St. Tammany Parish.

Under the circumstances in this record, we feel plaintiff has not alleged or shown any facts that would support application of the art. 74 exception to the general venue rules of art. 42. We therefore order that the alternative writ previously issued be made peremptory, and the trial judge is ordered to recall and vacate his ruling denying the exception of improper venue, and to maintain same.

WRIT MADE PEREMPTORY.


author: CUTRER, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Edwin YOUNG, Defendant-Appellant.
    No. CR 83-12.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 9, 1983.

      Ronnie K. Banks, Sr., Lake Charles, for defendant-appellant.
    Leonard K. Knapp, Jr., Dist. Atty. and F. Wayne Frey, Asst. Dist. Atty., Lake Charles, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   CUTRER, Judge.

On November 4, 1982, defendant, Edwin Young, was convicted by a twelve person jury of armed robbery, in violation of LSA-R.S. 14:64. The trial court sentenced the defendant to eight years at hard labor in the Louisiana Department of Corrections without benefit of parole, probation or suspension of sentence.

FACTS

On May 13, 1982, at approximately 11:30 P.M., a man dressed in black and wearing a mask entered Frank & Emile’s Restaurant in Lake Charles, Louisiana. The restaurant was closed and the only persons present were four employees. Armed with a pellet rifle, which resembled a shotgun, the intruder entered a back door, turned off the lights and ordered the manager, Roxanne Fontenot, to open the safe. Taking approximately $2,000.00 in cash, the robber fled the premises. While in the restaurant, the robber appeared comfortable and familiar with his surroundings; therefore, the police focused their initial investigation on past and present employees.

On May 19, 1982, the defendant, who was then employed at Frank & Emile’s, was approached by Calcasieu Parish sheriff’s deputies about the armed robbery. At this time the officers had no firm suspects, although they felt the defendant was a “good suspect,” because Ms. Fontenot had stated that the defendant was the only employee whose physical description matched that of the robber’s. The investigating officers decided to request the employees of Frank & Emile’s to submit to a polygraph examination. The defendant initially declined to take the exam, but, when he learned that one of his co-employees had already taken the exam and that others were receiving the same request, he agreed to go to the sheriffs office and to submit to the examination.

After he had finished the polygraph examination, the defendant was read his Miranda rights by Deputies Alfred Allemond and Joseph Payne, and he signed a standard form waiving those rights.

Shortly after commencement of the questioning, the defendant confessed to the armed robbery, and a typed five page statement was prepared from the defendant’s oral statements. Subsequent to his confession, the defendant signed a “search consent” form granting the deputies permis-. sion to search his vehicle. A search of the vehicle produced tangible, incriminating evidence, corroborating the defendant’s confession.

The defendant moved to suppress all in-culpatory, tangible and written, evidence. After a hearing the trial court denied the motion, at which time the defendant applied to this court for a writ of certiorari. Subsequently, the writ was denied by this court. After a jury trial on the merits, the defendant was convicted of armed robbery, in violation of LSA-R.S. 14:64. Judge W. Ellis Bond sentenced the defendant, on November 12, 1982, to serve eight years at hard labor without benefit of parole, probation or suspension of sentence. From this conviction, the defendant has appealed perfecting five assignments of error:

(1) The trial court erred in denying the defendant’s motion for continuance;
(2) The trial court erred in denying the defendant’s motion for a new trial on the ground that the prosecutor made at least one comment during the trial which was highly prejudicial to the jury;
(3) The trial court erred in denying the defendant’s motion to suppress the tangible and written evidence obtained by the defendant’s consent to search and by his confession;
(4) The trial court erred in denying the defendant’s motion for a new trial on the basis of new and material evidence; and
(5) The trial court erred in denying the defendant’s motion for a new trial on the ground that the verdict is contrary to the law and evidence.

The defendant has failed to either brief or argue assignments of error numbers 1, 2, 4 and 5. They are, therefore, deemed abandoned upon appeal. State v. Washington, 430 So.2d 641 (La.1983); State v. Simpson, 371 So.2d 733 (La.1979).

ASSIGNMENT OF ERROR NUMBER 3:

This assignment of error is based on the same issue previously brought before us in the defendant’s writ application; i.e., whether the trial court erred in failing to suppress the defendant’s confession. This court is not precluded from re-evaluation of this identical issue by the earlier denial of the defendant’s writ application. A denial of supervisory review is merely a decision not to exercise the extra-ordinary powers of supervisory jurisdiction, and it does not bar consideration on the merits of the issue denied supervisory review, when an appeal is taken from the final judgment. State v. Smith, 322 So.2d 197 (La.1975).

As are other constitutional rights, the Miranda [Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ] rights, which have been incorporated into Article I, § 13 of the Louisiana Constitution of 1974, are subject to being waived. However, the courts “indulge in every reasonable presumption against the waiver of fundamental constitutional rights.” State v. Thucos, 390 So.2d 1281, 1284 (La.1980). As a result, the jurisprudence has placed a heavy burden on the State to prove beyond a reasonable doubt that the defendant waived his constitutional rights. The Supreme Court commented on the State’s burden in State v. Davis, 407 So.2d 666, 670 (La.1981):

“Whenever a statement is taken without the presence of an attorney, a heavy burden rests upon the State to demonstrate that the accused knowingly and intelligently waived his privilege against selfincrimination and his right to to have counsel present_ Moreover, before a confession or incul-patory statement may be introduced into evidence, the State must prove affirmatively and beyond a reasonable doubt that the statement was free and voluntary and not made under the influence of fear, duress, menaces, threats inducements or promises.

In demonstrating that defendant’s waiver was knowing and intelligent the State must prove that defendant was read his Miranda rights and that he understood them and appreciated the possible consequences of their waiver. State v. Anderson, 379 So.2d 735 (La.1980). In Anderson, the defendant was a seventeen-year-old illiterate with the mentality of an eight year old. An expert witness testified that defendant’s mental ability was in a state of continual regression. Noting these factors and that the arresting officers testified that defendant had a difficult time comprehending his rights, the court held that he was incapable of knowingly and intelligently waiving his Miranda rights. However, the opinion implicitly recognized that low mentality and illiteracy alone will not vitiate an otherwise valid waiver of Miranda rights. The court made this clear in a later opinion when it stated the following:

“Although Dr. Quillin testified that he didn think Lewis genuinely understood all of his constitutional rights as contained in the waiver, the trial judge weighed all the factors and ruled that the defendant did make a knowing and intelligent waiver of his rights and that the statement was freely and voluntarily given. The trial judge’s decision was based on the jurisprudence of this state where this court has repeatedly held that moderate mental retardation and low intelligence do not of themselves vitiate the ability to knowingly and intelligently waive constitutional rights and make a free and voluntary confession. State v. Anderson, 379 So.2d 735 (La.1980).

State v. Lewis, 412 So.2d 1353, 1355 (La.1982).

In State v. Ross, 320 So.2d 177, 179 (La.1975), the court stated:

“Low mentality and illiteracy in themselves are not grounds for ruling a confession involuntary. They are merely, like other factors, to be considered in the totality of the evidence on the issue. Here it is clear that Ross obeyed the innate compulsion to confess his transgression of the law. He understood he was giving a statement regarding his participation in the crime. He was, moreover, fully advised of his rights and admitted that he understood them. His later change of heart does not render the confession involuntary.

And, the Supreme Court reiterated this position in State v. Neal, 321 So.2d 497, 499 (La.1975), as follows:

“The mere fact of illiteracy does not preclude a knowing and voluntary confession. Cf. State v. Nicholas, No. 56,-438 on the docket of this Court, decision rendered 10/1/75, 319 So.2d 361 (La.1975). In the instant case, Deputy Holcomb testified under oath that he orally explained to defendant all of the rights of which an accused must be informed prior to interrogation, and that defendant understood these rights. Defendant presented no evidence to contradict this testimony. Under these circumstances, defendant’s inability to read and write does not affect the voluntary nature of the confession. See State v. Sears, 298 So.2d 814 (La.1974). ”

These opinions clearly establish that, in determining whether a defendant’s waiver of Miranda was knowing and intelligent, the focus is on whether the defendant was able to understand the rights being explained to him. State v. Lewis, supra, at 1355.

Defendant does not contend that his confession was the result of threats, promises or any other forms of coercion. Rather, he contends that his waiver was invalid because he did not understand what he was waiving due to his limited mental capacity. He draws the court’s attention to the facts that he cannot read and can write only his name. At the time of the robbery, the defendant was twenty-six years of age. On direct examination his counsel read to defendant the Miranda rights, and the following colloquy occurred between the two:

“Q. Having read those same rights to you that was allegedly read to you on that particular night and the statement following the waiver of rights, would you attempt to explain to the Court what is the meaning? Do you understand those words?
A. I understand the rights, but I don’t understand the meaning of the words.
Q. Do you understand me reading those words to you?
A. Yes, sir.
Q. Okay. But do you understand what the words mean in the context in which they are used?
A. No, sir.”

The defendant’s stepmother, Mrs. Geraldine Young, testified that the defendant could only write his name and that, because he could not read, the defendant enrolled in special education classes during his elementary school years. Mrs. Young testified that the defendant had never been found to be mentally retarded, nor was she aware that he had ever been treated for any mental defects. Defendant did not produce any expert testimony to support his contention that his limited intelligence precluded a knowing and intelligent waiver of his rights.

The State’s evidence indicates, however, that the defendant fully understood his rights and the consequences of waiving them. The deputies testified that, not only did they read the defendant’s “rights” to him, they explained each particular right to the defendant in “plain English” and answered the questions that he raised. According to the deputies, defendant did not appear confused at any time, and, in their opinion, he was “street wise.” They told defendant that the document he was about to sign was a waiver of his rights and that the possible consequences might include arrest and a jail sentence. In fact, Deputy Allemond even read to the defendant the possible term of imprisonment he was subjected to — ninety-nine (99) years at hard labor without benefit of probation, parole or suspension of sentence. LSA-R.S. 14:64. The defendant admitted that, when he signed the waiver form, he told the deputies that he did understand his rights.

At the hearing on the motion to suppress, the district attorney read through the list of Miranda rights, pausing after each to ask the defendant if the deputies had made these privileges known to him. To each query the defendant responded “yes.” That the defendant did understand the nature of his rights and chose to voluntarily waive those rights in confessing to the crime is best revealed by the cross examination of the prosecuting attorney:

“Q. You understood what you were telling the deputies, is that correct?
A. Yes, sir.
Q. And you understood that you didn’t have to tell them that?
A. Yes, sir.”

In denying the motion to suppress, the lower court found that the defendant had validly waived his rights prior to the confession. In the absence of a clear abuse of discretion, this decision will not be overturned. State v. Trudell, 350 So.2d 658 (La.1977). We can find no abuse of discretion under the instant facts.

Accordingly, we find that the trial court did not err in determining that the defendant had freely, voluntarily, knowingly and intelligently waived his Miranda rights. Therefore, this assignment of error is without merit.

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

AFFIRMED.

      . The items seized included cash, a black pouch and beer the defendant said he bought with his loot.

      . See Writ K82-539, State v. Edwin Young, denied on October 25, 1982.

      . Upon this appeal and in the previous writ application, no argument by the defendant has been made concerning the consent to search given by the defendant. We do not, therefore. address that issue, although we note that it is governed by the same principles applying to the defendant's confession.

      .LSA-Const. Art. 1, § 13 provides, in pertinent part:
      "Section 13. When any person has been arrested or detained in connection with the investigation or commission of any offense, he shall be advised fully of the reason for his arrest or detention, his right to remain silent, his right against self incrimination, his right to the assist-anee of counsel and, if indigent, his right to court appointed counsel.”


text:
    STATE of Louisiana, Plaintiff-Appellee, v. Glenn Allen HEBERT, Defendant-Appellant.
    No. CR83-164.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 9, 1983.
    Writ Denied Jan. 6, 1984.

      L. Paul Gianfala, Lafayette, for defendant-appellant.
    Jack Derrick Miller, Asst. Dist. Atty., Acadia Parish, Crowley, for plaintiff-appel-lee.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   CUTRER, Judge.

The defendant, Glenn Allen Hebert, was indicted for aggravated rape, in violation of LSA-R.S. 14:42. Defendant’s jury trial resulted in a verdict of guilty as charged. The trial judge imposed the mandatory statutory penalty of life imprisonment at hard labor without benefit of probation, parole or suspension of sentence. Defendant appealed his conviction on the basis of eleven assignments of error. Two of the assignments of error were abandoned and will not be considered by us. The remainder are submitted for consideration.

FACTS

The incident upon which the defendant was convicted occurred during the early morning hours of April 26, 1981, as the sixteen year old victim, Carla Jean Tupper, and defendant were returning to Crowley in an automobile driven by Carla’s boyfriend, Wayne Courville.

On Friday, April 24th, Courville had introduced Ms. Tupper to his friend, the defendant. Courville, Ms. Tupper and defendant decided to do some partying by patronizing some of the local night clubs the following night.

The partying began on the evening of April 25th (Saturday). There were initially three other individuals with the defendant, Courville and Ms. Tupper. However, several hours and several lounges later, the party had been reduced to the latter three. While they were at a lounge in Duson, Louisiana, the defendant, according to Ms. Tupper, made her very uneasy by his constant staring at her and by his remarks that he wished that he had someone like her. At approximately 4:00 A.M. (April 26th), the trio were returning to Crowley, when defendant asked Courville to stop the car on the side of the road in order for him to respond to a call of nature. Courville stopped and both he and defendant went to the rear of the car for the same purpose. By this time the party-goers had consumed an undetermined amount of beer and had smoked several “joints” of marijuana. Ms. Tupper testified that she was waiting in the front seat of the car for the two to return, when the defendant suddenly appeared at the front passenger side of the vehicle. The defendant then pushed her on her back and ripped off her pants, threatening to kill her if she refused to submit to him sexually.

According to Ms. Tupper, the defendant then proceeded to rape her. Courville had remained behind the car after defendant proceeded to the front of the car. After hearing Ms. Tupper’s cries for help, Cour-ville went around to the driver’s side of the car and attempted to pull the defendant away from the victim. Defendant was a large man physically. Courville, being a small man, was unable to remove defendant. Courville then ran for help to a nearby house.

When the defendant heard Courville returning to the car, he struggled briefly with the victim, who was able to free herself and jump from the car. Hebert then fled the scene in Courville’s car. Ms. Tup-per’s testimony was corroborated by Cour-ville’s; the State also produced the testimony of the two men from whom Courville had sought aid and who had called the sheriff’s office.

The defendant’s version of what occurred naturally differed from the above-mentioned account, and it was, obviously rejected by the jury. Defendant testified that the victim had been promising him a “good time” all evening and that she was fulfilling that promise when, for a reason unknown to him, she began screaming “Rape.” He stated that her cries caused him to panic, that he pushed her from the car and that he then fled in Courville’s car. The defendant was arrested several hours later in Lafayette.

ASSIGNMENT OF ERROR NUMBER 1

By this assignment the defendant alleges that the trial court erred in allowing the State, just before the beginning of trial, to notify the defendant of its intention to introduce an oral inculpatory statement made by the defendant upon his arrest. The defendant contends that such a short period of notice violated the spirit and intent of Article 768 and 2 of the Code of Criminal Procedure.

As the record fails to indicate that the defendant had access to any pretrial discovery, art. 768 requires the State to provide the defendant with notice of its intent to use his oral inculpatory statement ;prior to the beginning of the State’s opening statement. In the instant case, the notice was given on July 15, 1982, prior to the selection of the jury. The State’s opening statement was not given until the next day — July 16th. The statutory protections imposed by art. 768 were, therefore, clearly complied with by the State.

We choose, however, to decide this issue, not on the grounds of adequate compliance with C.Cr.P. art. 768 but, on the basis that the defendant failed to timely object as required by LSA-C.Cr.P. art. 841. The record reflects that the defendant failed to raise his notice objection either at the time notice was given or at the time his statement was introduced. This issue, being raised for the first time upon appeal, is not, therefore, properly before us. State v. Williams, 346 So.2d 181 (La.1977). This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER 2

Defendant contends that the trial court erred in failing to allow him to fully and completely cross-examine the victim on her prior sexual conduct and reputation for chastity. Defense counsel, in his brief, urges that the trial court indicated, early in the proceedings, that the victim’s prior sexual conduct and reputation for chastity were not to be inquired into by the defendant.

In response to the State’s motion in li-mine based upon LSA-R.S. 15:498, the trial judge stated that he would not make a ruling on such evidence prior to trial. He informed counsel that he would rule on such issues as they may arise during trial.

Also, defense counsel was allowed at trial to question Ms. Tupper about the fact that she was living with Wayne Cour-ville. The defense did not carry its questioning any further. It is clear that the trial judge had not automatically ruled against such testimony prior to trial. Defense counsel simply did not seek to elicit any further testimony on the subject. This assignment has no merit.

ASSIGNMENT OF ERROR NUMBER 4

Defendant alleges that the trial court erred, on the basis of LSA-R.S. 15:451, in allowing into evidence the inculpatory statement made by the defendant. LSA-R.S. 15:451 requires the State prior to its introduction into evidence of any inculpato-ry statement to affirmatively show that the statement “was free and voluntary, and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises.”

Pursuant to R.S. 15:451, a hearing was held outside the presence of the jury to establish the voluntariness of the defendant’s statements to the arresting officers. Deputies. Johnny Meyer and Wayne Melan-con stated that the defendant, after being informed of his Miranda rights, had freely spoken with the officers, but he had refused to sign anything.

Determinative to the disposition of this issue is the following colloquy between the trial judge and defense counsel occurring after the State had introduced evidence of the factual circumstances surrounding the taking of defendant’s statement:

“BY THE COURT:
Alright. Let’ ... Let’s bifocate [sic] the problem as it were.
Problem Number One (1) with respect to the admissibility vel non of the statement as far as it being a free and voluntary statement as such. You have an objection now upon the basis predicated upon one (1) of those — one (1) of those requisites, Mr. Defense Counsel?
BY MR. BEARB:
No, Your Honor, I don’t have any objection.”

This express failure to object on the basis of R.S. 15:451 precludes consideration of the matter upon appeal. LSA-C.Cr.P. art. 841. This assignment is without merit.

ASSIGNMENT OF ERROR NUMBER 5

Defendant by this assignment alleges that reversible error occurred when the trial judge allowed Deputy Meyer to make an “improper comment” in the presence of the jury. Defendant argues that Meyer’s response to certain questions upon both direct and cross-examination improperly attempted to establish the defendant’s bad character and that he had committed offenses other than those upon which he was being tried.

The questions and the replies complained of are set forth below:

“Q. What did he ... What did you tell him after he said he understood his rights but didn’t want to sign anything? And I want you to use the exact words.
A. Knowing Glenn ... I know Glenn like that. I had dealt with him before....
Q. He wasn’t very talkative, was he?
A. Just like usual. Like I’ve talked to him several times before.”

On this appeal defense counsel argues that R.S. 15:481 and R.S. 15:495 were violated by Deputy Meyer’s remarks which may be inferred to have been reference to past acts of misconduct by the defendant. The statements by Meyer were clearly unresponsive to the questions asked of him and are, at most, ambiguous references to other crimes by the defendant.

This issue has not been properly preserved for appeal, however, as no contemporaneous “other crimes” objection was raised at trial. State v. Rochon, 393 So.2d 1224 (La.1981); LSA-C.Cr.P. art. 841. Nor did the defense, pursuant to LSA-C.Cr.P. art. 771, ever request the jury to be admonished by the trial judge concerning Meyer’s remarks. Article 771 mandates a request for admonishment by the trial judge. There is, therefore, no reversible error when an admonishment is not provided in the absence of a request for same. State v. Tribbet, 415 So.2d 182 (La.1982). There is no merit to this assignment.

ASSIGNMENT OF ERROR NUMBER 6

Defendant contends the trial court erred in allowing the district attorney to cross-examine the defendant about alleged other crimes on the basis that it was to establish the defendant’s state of mind. The transcript indicates that defense counsel objected to this line of questioning by the State on the grounds that it called for a legal conclusion by the defendant. On appeal, defense counsel urges that the testimony was in contravention of LSA-R.S. 15:481 and LSA-R.S. 15:495, supra. Defense counsel, at trial, did not object to the testimony on the grounds that it violated these statutes. LSA-C.Cr.P. art. 841 precludes consideration of an objection upon appeal when the basis for that objection was not first brought to the trial judge’s attention in order to allow him to cure the alleged defect. State v. Feeback, 414 So.2d 1229 (La.1982).

In any event, defendant’s objection is without substance as testimony had been given of the fact that defendant had served time in Angola. This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER 7

Defendant alleges that reversible error occurred when the trial judge allowed the district attorney to cross-examine the defendant regarding his failure to categorically deny to the arresting officer that he had committed the rape at issue. The defense argues that this questioning violated his privilege • against self-incrimination guaranteed by the Fifth Amendment to the United States Constitution and as interpreted by the United States Supreme Court in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976).

The issue of whether the prosecutor impermissibly referred to the defendant’s decision to invoke this privilege against self-incrimination was never raised by objection or otherwise at the trial level, and it is well settled that it may not now be raised. State v. Webb, 419 So.2d 436 (La.1982); LSA-C.Cr.P. art. 841. The defendant has, accordingly, waived his objection, and this assignment has no merit.

ASSIGNMENT OF ERROR NUMBER 8

The defendant argues by this assignment that the trial court erred in allowing the district attorney to ask the defendant on cross-examination whether he had threatened anyone concerning the present case. The question posed by the State and the defendant’s answer are as follows:

“Q. Haven’t you told people that you intend to obtain some revenge in this matter? Think about that good now.
A. It all depends what was said and to who [sic].”

The State never attempted to follow up on this line of questioning, through the use of testimony or otherwise.

Had the defendant been prejudiced by the State’s question, his proper procedural vehicle would have been a request for the trial' judge to admonish the jury to disregard the prejudicial question. LSA-C.Cr.P. art. 771.

No objection to the question was made at the trial level, nor was there a request for an admonishment to the jury. Defendant has, therefore, waived any objection upon appeal. This assignment is without merit.

ASSIGNMENT OF ERROR NUMBER 10

Defendant contends that reversible error was committed by the trial judge’s denial of the jury’s request to view, during its deliberations, a “chart” used by the prosecutor in his closing argument.

The appropriate codal provision is LSA-C.Cr.P. art. 793, which states as follows:

“A juror must rely upon his memory in reaching a verdict. He shall not be permitted to refer to notes or to have access to any written evidence. Testimony shall not be repeated to the jury. Upon the request of a juror and in the discretion' of the court, the jury may take with it or have sent to it any object or document received in evidence when a physical examination thereof is required to enable the jury to arrive at a verdict.”

The “chart” requested by the jury is not in the record, therefore, we could not rule upon whether the trial court abused its discretion. We do not find it necessary to make such a ruling because no contemporaneous objection was made to the trial judge’s ruling, and it is, thereby, not before us on appeal. LSA-C.Cr.P. art. 841. There is no merit in this assignment.

ASSIGNMENT OF ERROR NUMBER 11

Defendant’s final assignment alleges that the trial court erred in denying his motion for a continuance made less than one week prior to the beginning of defendant’s trial. The record fails to indicate that a motion for continuance was ever made by defense counsel, but, in denying a motion to withdraw by defendant’s retained counsel, the trial judge ruled that a continuance on the grounds set forth in the motion to withdraw was also denied. We shall, therefore, consider the merits of defendant’s allegations.

The defendant was initially provided with two appointed attorneys on May 13, 1981. On March 31, 1982, Sidney P. Landry, Jr., retained by the defendant, was enrolled as defendant’s counsel of record. However, on Friday, July 9, 1982, a hearing was held on Mr. Landry’s motion to withdraw as defendant’s counsel due to the defendant’s failure to pay Mr. Landry’s fee. At this time the trial was set to begin on Wednesday, July 14th.

In his ruling the trial judge denied Landry’s motion to withdraw from the case as it was filed so close to the trial date that to allow the withdrawal would have the effect of setting the trial date aside. He also stated that a continuance on these grounds was denied.

At the motion for withdrawal, defendant was represented by Mr. Caliste Beard. Mr. Beard, along with Mr. Landry, represented the defendant at trial.

We cannot find that the trial court, in denying the motion for withdrawal and continuance, abused his discretion under the instant facts, nor has there been any showing that the defendant was prejudiced. Accordingly this assignment lacks any substance or merit.

The defendant’s conviction and sentence are herein affirmed.

AFFIRMED.

      . Courville testified that he and defendant had become acquainted when they were serving time at Angola. No objection was made to this testimony.

       Defendant is represented on this appeal by a newly-appointed counsel.

      . LSA-C.Cr.P. art. 768 provides:
      "Unless the defendant has been granted pretrial discovery, if the state intends to introduce a confession or inculpatory statement in evidence, it shall so advise the defendant in writing prior to beginning the state’s opening statement. If it fails to do so a confession or inculpatory statement shall not be admissible in evidence."
      LSA-C.Cr.P. art. 2 provides:
      "The provisions of this Code are intended to provide for the just determination of criminal proceedings. They shall be construed to secure simplicity in procedure, fairness in administration, and the elimination of unjustifiable delay.”

      .LSA-C.Cr.P. 841 provides:
      "An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. A bill of exceptions to rulings or orders is unnecessary. It is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take, or of his objections to the action of the court, and the grounds therefor.
      "The requirement of an objection shall not apply to the court’s ruling on any written motion.”

      . Defendant did object to the relevancy of the inculpatory statements and to any reference in them to other crimes committed by the defendant. However, it is well established that a new basis for an objection may not be raised upon appeal. State v. Feeback, 414 So.2d 1229 (La.1982).

      . LSA-R.S. 15:498 provides:
      “Evidence of prior sexual conduct and reputation for chastity of a victim of rape or carnal knowledge shall not be admissible except for incidents arising out of the victim’s relationship with the accused.”

      . The trial judge did not expressly rule that the statements were freely and voluntarily given, but his decision that they were admissible into evidence was an implicit ruling on this issue, as the State had initially requested the matter to be heard on the grounds of LSA-R.S. 15:451.

      . LSA-R.S. 15:481 provides as follows:
      "The state is permitted to introduce testimony of the bad character of the accused only in rebuttal of the evidence introduced by him to show good character."

      . LSA-R.S. 15:495 states:
      "Evidence of conviction of crime, but not of arrest, indictment or prosecution, is admissible for the purpose of impeaching the credibility of the witness, but before evidence of such former conviction can be adduced from any other source than the witness whose credibility is to be impeached, he must have been questioned on cross-examination as to such conviction, and have failed distinctly to admit the same; and no witness, whether he be defendant or not, can be asked on cross-examination whether or not he has ever been indicted or arrested, and can only be questioned as to conviction, and as provided herein.”

      .LSA-C.Cr.P. art. 771 reads as follows:
      "In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
      (1) When the remark or comment is made by the judge, the district attorney, or a court official, and the remark is not within the scope of Article 770; or
      (2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770.
      In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.”

      . The prosecuting attorney’s questions focused on the defendant’s knowledge of the elements of the crime of carnal knowledge of a juvenile. LSA-R.S. 14:80. There was the intimation that the defendant had been previously involved in such a crime.

      . In brief, defendant says that the "chart” contained the charged crime, its elements and responsive verdicts. The record does not contain such a "chart.”

      . Apparently defendant’s two appointed counsel were withdrawn, although the record only reflects that one of them was officially withdrawn as counsel of record.

      . Mr. Landry's motion was originally filed on July 6, 1982.

      .Apparently Mr. Beard was retained by the defendant, anticipating Mr. Landry’s withdrawal. Mr. Beard was formally enrolled as counsel of record on the day of trial, July 15th. Both Beard and Landry were present during defendant’s trial, although the former appears to have conducted the defense. Upon this appeal, defendant is represented by another (appointed) counsel.


author: DOMENGEAUX, Judge.

text:
    STATE of Louisiana v. Glenn A. HEBERT.
    No. CR83-212.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 9, 1983.
    James P. MacManus, Lafayette, for defendant-appellant.
    Charles Brandt, Asst. Dist. Atty., Lafayette, for plaintiff-appellee.

      Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   DOMENGEAUX, Judge.

Defendant, Glenn A. Hebert, was charged by bill of information with the crime of forcible rape, a violation of La. R.S. 14:42.1. On September 21, 1982, defendant’s trial began before a twelve person jury. On September 23, 1982, after approximately an hour and forty minutes of deliberation, the jury reached a unanimous verdict of guilty as charged. On January 14, 1983, defendant was sentenced to forty (40) years at hard labor. Defendant now appeals on the basis of four assignments of error.

FACTS

On April 26, 1981, at approximately 6:00 a.m., Glenn A. Hebert allegedly raped Cha-ro Lozado Hebert, his sister-in-law. According to the testimony of Mrs. Hebert, she was awakened by a knock at the front door of her apartment on the date in question; thinking it may have been her husband returning from work, she approached the front door to see who it was. She stated that she opened the door slightly and defendant “slammed the door” open and ran to the bedroom where the alleged victim’s two year old child was sleeping. Fearing for her child, Mrs. Hebert followed.

According to Mrs. Hebert, defendant grabbed her by the arm and put his finger around her throat to prevent her from screaming. Defendant then threw her on the bed and slapped her. Defendant proceeded to remove Mrs. Hebert’s clothing and told her “shut up or I’ll kill you.” Defendant then raped Mrs. Hebert, according to her testimony.

After defendant had left the premises, Mrs. Hebert called the apartment manager of the complex in which she lived. Through the efforts of the apartment manager, police officials were notified of the incident. Later that morning, Mrs. Hebert was taken to the emergency room of Lourdes Hospital for an examination. After the examination, Mrs. Hebert was interviewed by Detective Johnson of the Lafayette City Police Department.

At approximately 12:30 p.m. that same day, police officers observed defendant driving an automobile. The officers displayed the lights on the police car and initiated operation of the siren. Defendant accelerated and attempted to flee. A high speed chase ensued for approximately twenty minutes with the vehicles reaching speeds of ninety-five miles per hour. Defendant’s vehicle became disabled because he ran into two other automobiles head-on. Defendant alighted from his car and ran from the scene. Three police officers gave chase and after a struggle, defendant was apprehended.

MERITS

ASSIGNMENT OF ERROR NO. 1

Defendant contends the trial court erred when it found that one of the jurors could render a fair and impartial verdict. The transcript reflects that upon completion of Mrs. Hebert’s testimony, a recess was ordered by the trial judge. During the recess, one of the jurors approached the trial judge. Once court was reconvened, the trial judge allowed the juror to express his feelings before the court while the other jurors remained in the jury room. The juror stated that his wife was an “Hebert” but that he did not know “any of these Heberts.” Upon questioning by defense counsel, the juror stated:

“I could be ... I think I might be swayed by emotions. The reason I brought this up ... What it is, I didn’t want to let this trial go on and then, in — toward the end or at the end or anything, feel that I had a — a choice on emotion or something, which I — it could very well be with me, now.
I ... I’ve never been faced with this kind of responsibility before.”

The juror went on to say that having lived in Bolivia, which is the birthplace of Mrs. Hebert, and knowing many Bolivians, he might be prejudiced on her side. However, upon further questioning by the trial judge, the juror indicated that he could be impartial and decide according to the evidence presented and the instructions of the trial judge. At this point, defense counsel moved for a mistrial which was denied by the trial judge.

It is assumed that defense counsel relied upon La.C.Cr.P. art. 775 as authority for his request of a mistrial. La.C.Cr.P. art. 775 provides in pertinent part:

“A mistrial may be ordered, and in a jury case the jury dismissed, when:
(6) False statements of a juror on voir dire prevent a fair trial.”

This article permits the granting of a mistrial; however, such is not mandatory under La.C.Cr.P. art. 775.

Further inquiry into the matter indicates the trial judge was correct in denying the defense counsel’s motion for a mistrial based upon the prejudice of the juror. In State v. Meriwether, 412 So.2d 558 (La. 1982), the Louisiana Supreme Court was presented with a similar issue. After the trial had begun, it was brought to the trial judge’s attention that a juror was acquainted with the victim. Upon questioning by the trial judge, the juror stated that she could be impartial. The Court noted that the juror had inadvertently made a false statement on voir dire but the trial judge had not abused his broad discretion in failing to order a mistrial.

In the instant case, the record does not reflect that the juror made a false statement on voir dire. The juror expressed his apprehension about this matter after trial had begun; he felt his emotional feelings perhaps could prejudice his ability to be impartial. As noted earlier, upon further questioning by the trial judge, the juror asserted that he could be impartial and could put aside any apprehensiveness that he had. In State v. Tribbet, 415 So.2d 182 (La.1982), the Court noted that: “a mistrial is a drastic remedy and, except in instances in which it is mandatory, it is only warranted if substantial prejudice results which would deprive defendant of a fair trial.” In light of Tribbet, supra, the trial judge did not abuse his discretion in denying the motion for a mistrial. The record reflects no prejudice to defendant by denial of his motion.

ASSIGNMENT OF ERROR NO. 2

Defendant urges as error the trial court’s denial of his motion for a mistrial based upon the allegedly prejudicial statements made by the District Attorney concerning the lack of refuting evidence offered by the defense. During the prosecuting attorney’s closing remarks he stated:

“If what Charo Hebert told you ... And you have no reason, in this case, to assume that it’s not true. There’s no contradictory evidence saying that what happened in that apartment did not happen. The evidence that you have before you is what Charo Hebert testified to.”

At this point, defense counsel objected and moved for a mistrial. Upon removal of the jury, he stated:

“Your Honor, I believe that statement brings the jury’s attention to the Defendant’s right not to take the stand, points directly at it, brings their attention to it and it is a mandatory grounds for a mistrial, should the District Attorney do that. ‘No contradictory evidence.’ ”

The trial judge reserved his ruling until the closing arguments were completed. Upon return of the jury, the trial judge admonished them that the defendant was not required by law to call any witnesses or to produce any evidence. The defendant was not required to testify and that no presumption of guilt could be raised and no inference of any kind could be drawn from the fact that the defendant did not testify. Defense counsel accepted the substance of the admonishment but reserved his objection on the grounds that a mistrial was mandatory.

The trial judge in denying the motion for mistrial stated in part:

“I think that there are a number of cases, including State vs. Culberth, 390 So.2d 847, 1980; State vs. Henderson, 352 So.2d 206; State vs. Simms (sic), 346 So.2d 664; State vs. Frank, 344 So.2d 1039; State vs. Braxton, 241 So.2d 763, that, in effect, consistently recognized the propriety of the State’s commenting on the lact of refuting evidence, or in this case, evidence which was contradicted or uncontradicted, produced by a defendant.
It appears to this Court that the District Attorney’s references in his closing argument were not improper, since they were confined to the evidence adduced. The Court will note that there were many species of evidence, other than testimony by the Defendant. There was ... well, at issue, there was, for example, the testimony of the Defendant’s father and the Defendant’s father’s wife, with respect to visitation, overnight visitation, a relationship that they saw manifested by a friendly, if I may use that term, demeanor of the victim toward the Defendant, the request by the Defense Counsel for a recess so that he may seek the testimony of witnesses who had coffee with the Defendant and the Defendant’s brother, the husband of the victim, with respect to the same occurrences within the apartment. That is, whether or not the Defendant was a guest — a consistent or multiple-occasion guest, overnight at the apartment, the break of the chain.
All of these are species of evidence to which the District Attorney, I think, might very properly make illusion. It therefore, appears to me, that we do not have a remark that, in effect, would red arrow the Defendant’s failure to testify. And, for that reason, I’m going to deny your motion for mistrial.”

In the recent decision of State v. Latin, 412 So.2d 1357 (La.1982), the Louisiana Supreme Court noted:

“References made in closing argument that the State’s case stands uncontro-verted have been frequently upheld by this Court. See State v. Sims, 346 So.2d 664 (La.1977). A statement that the State’s theory of the case remains unassailed encompasses the entire case presented by the defense and does not focus on the defendant’s failure to take the stand. However, when the defendant is the only person who can dispute the testimony, a reference to the testimony as uncontroverted focuses the jury’s attention on the defendant’s failure to testify. See State v. Perkins, 374 So.2d 1234, 1237 (La.1979).”

The trial judge, in this case, took the position that the prosecuting attorney’s comments were designed to show the weakness of the evidence that the defense did put on, not the fact that the defendant did not testify. We agree with the trial judge because as noted in Perkins, supra, if the defendant is not the only witness that can refute certain testimony, a reference to this testimony as uncontroverted is not improper.

In the case sub judice, the defendant was not the only person who could absolve himself of fault. In fact, defendant did attempt to exculpate himself by calling to the stand some six witnesses. The defendant presented a weak defense and the District Attorney’s remarks were directed toward the insubstantial nature of the evidence adduced in aggregate. Such is not grounds for a mistrial. Therefore, this assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 3

Defendant contends the trial court erred in denying his motion for a new trial on the grounds of the lack of corroborating evidence which should have been provided to buttress the testimony of the victim. This assignment of error appears to be based on the issue of whether there was sufficient evidence adduced by the State to prove beyond a reasonable doubt all the essential elements of forcible rape. La.R.S. 14:42.1.

In Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the United States Supreme Court stated that the standard of review is:

“Whether the evidence, considered in the light most favorable to the prosecution, is sufficient to convince a rational trier of fact of the defendant’s guilt beyond a reasonable doubt of every element of the offenses.”

In this case, the victim testified that defendant had sexual intercourse with her without her consent and he threatened to kill her if she did not comply. There was no scientific evidence presented by the State to corroborate her claim of rape. In State v. Rives, 407 So.2d 1195 (La.1981), the Louisiana Supreme Court was faced with a similar issue. In Rives, supra, the testimony of the alleged victim was the only evidence of rape that was presented by the State; there was no scientific evidence presented. The Court stated:

“Despite the absence of scientific evidence of sexual intercourse, the testimony of the victim was sufficient to establish ‘sexual penetration’. La.R.S. 14:41 provides that ‘emission is not necessary’ and that ‘any sexual penetration, however slight, is sufficient to complete the crime’. The victim’s testimony also established she was prevented from resisting the act by force and threats of physical violence. La.R.S. 14:42.1.”

In light of Rives, this assignment of error lacks merit. The testimony by the alleged victim was sufficient to prove the essential elements of the crime of forcible rape. La. R.S. 14:42.1. The evidence, taken as a whole, meets the constitutional standard set forth in Jackson v. Virginia, supra.

ASSIGNMENT OF ERROR NO. 4

Defendant urges the trial court erred in denying his motion for a new trial based on the possibility of prejudice and bias implanted by a newspaper article, which the defendant did not become aware of until after trial. Defense counsel does not set forth the substance of this newspaper article in his brief, therefore only a statement of the jurisprudence on this issue will follow:

In State v. Charles, 350 So.2d 595 (La.1977), the Louisiana Supreme Court noted:

“Prejudice against an accused because of newspaper coverage is normally a ground for change of venue, but not for a new trial. State v. Carricut, 157 La. 140, 102 So. 98 (1924). It is only when the defendant shows that the evidence could not have been discovered by the use of reasonable diligence before the verdict that the Code of Criminal Procedure authorizes the granting of a motion for new trial.”

A decision on the motion for a new trial rests within the sound discretion of the trial judge and his ruling will not be disturbed on appeal in absence of a clear showing of abuse of discretion. State v. Quimby, 419 So.2d 951 (La.1982). In light of the foregoing, this assignment of error lacks merit.

DECREE

For the above and foregoing reasons defendant’s conviction and sentence for the crime of forcible rape are affirmed.

AFFIRMED.

      . La.C.Cr.P. art. 770 provides in pertinent part: "Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
      (3) The failure of the defendant to testify in his own defense;”

      . Although this Court is obligated to follow the Jackson standard as mandated by the Louisiana Supreme Court, the author of this opinion has expressed opposition to this standard because it relegates the reviewing power of the appellate courts to nothing more than "second-guesswork” of the triers of fact. See State v. Anderson, 440 So.2d 205 (La.App. 3rd Cir.1983), concurring opinion, and cases cited therein.


text:
    STATE of Louisiana v. Robert D. MITCHELL.
    No. CR83-222.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 9, 1983.
    Writ Denied Jan. 6, 1984.
    Ulysses Gene Thibodeaux, Newman, Thi-bodeaux & Marshall, Lake Charles, for defendant-appellant.
    Leonard K. Knapp, Jr., Dist. Atty. and F. Wayne Frey, Asst. Dist. Atty., Lake Charles, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   DOMENGEAUX, Judge.

Defendant, Robert D. Mitchell, was charged by bill of information on June 15, 1981, with two counts of possession of a controlled dangerous substance in violation of LSA-R.S. 40:967(C) and 40:969(C). (Count 1, Pentazocine; Count 2, Phenme-trazine). Defendant pled guilty to both counts on January 23, 1983, reserving his right to appeal the denials of his motions to suppress and to compel disclosure of the identity of the confidential informant, which denials occurred on December 3, 1982.

Defendant was sentenced to serve two and one-half (2V2) years in the Louisiana Department of Corrections on each count to run concurrently. Defendant appeals as error the lower court’s denial of the motions as stated above.

PACTS

On May 15, 1981, Calcasieu Parish deputy sheriffs received information from a confidential informant that two subjects were in the Lake Charles area on Pine Street, between Boston Alley and Enterprise Boulevard across from Big Al’s. Both were said to have controlled dangerous substances in their possession. The confidential informant advised the deputies that defendant, Robert D. Mitchell and one Mack Rogers, were across from Big Al’s and that Mitchell was wearing brown short pants, a white T-shirt, blue tennis shoes and blue and white socks. The informant also stated that Mitchell had a matchbox containing precludes and that the informant had been with Mitchell only minutes before he made this call. The informant also described what Mr. Rogers was wearing.

Having received reliable information in the past from this informant, the deputies went to the described location and found the defendant and Mack Rogers in the said location, dressed as the informant had described. Mr. Rogers attempted to flee but was stopped and found to have controlled dangerous substances in his possession. Upon searching the defendant’s person, the deputies found a matchbox which contained a quantity of precludes. Defendant was then formally placed under arrest and advised of his constitutional rights as per Miranda. En route to the sheriff’s office defendant remarked “I'd sure like to know who snitched me off.”

Defendant was charged by bill of information with two counts of possession of a controlled dangerous substance. On December 3, 1982, the trial court denied defendant’s motion to suppress and motion to compel disclosure of the confidential informant’s identity. On January 26, 1983, defendant pled guilty to both counts and was sentenced as hereinabove indicated.

ASSIGNMENT OP ERROR NO. 1

Defendant claims by this assignment that the trial court erred in denying defendant's motion to suppress the evidence seized in a search incident to a warrantless arrest. Defendant argues that the pat-down search, which resulted in discovery of the matchbox of pills, was conducted after the arrest was made, but that, before finding said pills, the officers did not have probable cause to arrest defendant.

There can be no doubt that “a search conducted without a warrant issued upon probable cause is per se unreasonable.” Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); State v. Tomasetti, 381 So.2d 420 (La.1980); State v. Bourgeois, 388 So.2d 359 (La.1980). An exception to this rule is where the search, incident to a lawful arrest, is made of the person and of the area under his immediate control. State v. Tomasetti, supra at 423; Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).

“Such a search is justified in order to discover weapons that may threaten the safety of the arresting officer and to prevent the concealment and destruction of evidence. It has been recently confirmed that an arrest made in a public place without a warrant is valid if founded on probable cause, regardless of the presence or absence of exigent circumstances. United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976). State v. Tomasetti, supra at 423.” [Emphasis added by the Court],

Of course, in order to justify the search made of defendant Mitchell’s person, the arrest must have already been made and the arrest itself must have been based on probable cause. State v. Marks, 337 So.2d 1177 (La.1976); State v. Tomasetti, supra; State v. Thomas, 349 So.2d 270 (La.1977); State v. Arceneaux, 425 So.2d 740, 743 (La.1983).

The warrantless arrest of defendant was based on probable cause. The Louisiana Code of Criminal Procedure, art. 213 provides in part:

“A peace officer may, without a warrant, arrest a person when:
******
(3) The peace officer has reasonable cause to believe that the person to be arrested has committed an offense, although not in the presence of the officer.
******

Reasonable cause, which we have treated under this article as consonant with the probable cause concept, exists when the facts and circumstances known to the arresting officer and of which he has reasonably trustworthy information are sufficient to justify a man of ordinary caution in believing that the person to be arrested has committed a crime. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); State v. Drew, 360 So.2d 500 (La.1978). Probable cause may be judged by the probabilities and practical considerations of everyday life on which average men, and particularly average police officers, can be expected to act. State v. Drew, supra. Compliance with these standards is in the first instance a substantive determination to be made by the trial judge from the facts and circumstances of the case. Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); State v. Drew, supra.

State v. Arceneaux, supra at 743.

The arresting officers had received trustworthy information upon which to base their belief that defendant was engaged in an ongoing commission of a criminal act. This information came from someone who had just been with the defendant minutes earlier. The informant had given reliable information in the past which had led to at least ten arrests and five convictions. Moreover, the officer testified that this informant had never given erroneous information. He had accurately described the location where defendant and Rogers could be found. He accurately described what defendant and his associate were wearing. He even pinpointed that the illegal substances could be found in a matchbox on the defendant. There is no doubt that officers may arrest or search an individual on the basis of hearsay information when such information

“eontain[s] underlying circumstances and details sufficient to provide a substantial factual basis to conclude both (1) that the informant is credible and (2) that the information so furnished ... was obtained under circumstances or from sources factually indicating its veracity.” (Citation omitted)
State v. Wilson, 366 So.2d 1328, 1331 (La.1978).

Given the fluid nature of narcotics trafficking, the officers did not have time to secure a warrant. At the mere sight of a police car, defendant’s associate broke out running. Realizing that all of the informant’s information had proved to be accurate, and seeing defendant’s associate take flight, the arresting officers clearly had probable cause to restrain the defendant, i.e., to arrest him and conduct a search incident thereto. In spite of these facts, defendant argues that the officers should have tried to obtain a warrant for defendant’s arrest. But, the right of an officer to arrest someone upon probable cause does not depend on the officer’s inability to obtain an arrest warrant. State v. Linkletter, 345 So.2d 452, 456 (La.1977), cert. den. 434 U.S. 1016, 98 S.Ct. 733, 54 L.Ed.2d 760. In Gerstein v. Pugh, 420 U.S. 103, 114, 95 S.Ct. 854, 863, 43 L.Ed.2d 54 (1975), the United States Supreme Court declared that

“it has never invalidated an arrest supported by probable cause solely because the officers failed to secure a warrant.”

See also, U.S. v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976); State v. Johnson, 319 So.2d 786 (La.1975); State v. Terracina, 309 So.2d 271 (La.1975); State v. Shaffer, 257 So.2d 121 (La.1971); State v. Linkletter, supra. Thus the State established that there was probable cause to arrest defendant based on the information received by the sheriffs deputies together with what deputies saw as they attempted to confront the defendant.

Defendant also argues by this assignment that the pat-down search of defendant’s person did not come under the search-incident-to-arrest exception to war-rantless searches because it was conducted before defendant Mitchell was in fact under arrest at the time that the pat-down search was made.

The Louisiana Code of Criminal Procedure, art. 201 defines arrest as:

“... the taking of one person into custody by another. To constitute arrest there must be an actual restraint of the person. The restraint may be imposed by force or may result from the submission of the person arrested to the custody of one arresting him.”

This definition of arrest is keyed to the concept of “restraint.”

“It is the circumstances indicating an intent to effect an extended restraint on the liberty of an accused, rather than the precise timing of an officer’s statement: ‘You are under arrest,’ that are determinative of when an arrest is actually made.” (Citations omitted).

State v. Tomasetti, supra, at 423.

The facts, as shown on the record herein, indicate that defendant was under arrest when the pat-down search was made. Deputies, acting on information from a reliable informant who had just been with the defendant, upon arriving at the scene described by the informant, saw one of the suspects take flight. When the police cars approached Mr. Rogers and defendant, one car took out after the fleeing Mr. Rogers and one pulled up to defendant to ensure he could not escape.

There is no doubt that defendant was being restrained by sheriff’s deputies while the two state troopers subdued Mack Rogers. That the officers did not say to defendant “you are under arrest for possession of controlled dangerous substances” right at that moment makes no difference. Defendant was therefore “under arrest” though no formal statement had been made by the arresting officer. Additionally, the officers were justified in making the pat-down search as it would be very easy for the defendant to dispose of a few pills if given the chance.

Thus it is clear that the deputies had probable cause to arrest the defendant and search defendant’s person incident to that arrest to prevent the concealment and destruction of evidence and for the deputies’ own safety.

For the reasons as stated above, this assignment lacks merit.

ASSIGNMENT OF ERROR NO. 2

By this assignment, defendant argues that the trial court erred in denying defendant’s motion to compel the disclosure of the identity of the confidential informant. Defendant argues that the identity of the informant here is “essential to a fair determination” of the issue of probable cause. Identification of the confidential informant is not necessary or even material to the determination of defendant’s guilt or innocence. There is no allegation that the informant in any way framed the defendant.

“When the issue is not guilt or innocence, but probable cause for an arrest or search, police officers need not invariably be required to disclose an informant’s identity, if the trial judge is convinced, by evidence submitted in open court and subject to cross-examination, that officers did rely in good faith upon credible information supplied by the informant.” (Citation omitted). [Emphasis added by the Court].
State v. Diliberto, 362 So.2d 566, 567 (La.1978).

Here, the issue is not guilt or innocence but is probable cause. Moreover, the trial judge below, in articulating his reasons for denial, makes it clear that, after viewing the testimony presented by the State in open court, he was convinced that the officers acted in good faith, on credible information, supplied by a trustworthy informant. As the discussion under assignment No. 1 makes clear, the informant gave detailed information on the description of defendant, his whereabouts, type of illegal substances he possessed, and where such substances were kept. Also, informant had given accurate information in the past which had led to several convictions. His reliability was enforced by the officers’ knowledge that this informant had never given erroneous information.

Defendant alleges no exceptional circumstances which would require the disclosure of the informant’s identity. All of defendant’s allegations as to why he would like to question the informant go only to the question of whether or not the officers had probable cause to arrest the defendant. These question, such as, “Was informant on the police pay roll?; Was he promised help or leniency for informing?, etc., were all answered in the trial court through the direct and cross-examination of Officer Becton. As defendant is unable to allege any exceptional reasons for disclosing the identity of the State’s confidential informant, the trial judge was correct in denying defendant’s motion for said disclosure.

“The court will order the disclosure of the name of the confidential informant only under exceptional circumstances for the prevention of an injustice. The burden is upon the defendant to show exceptional circumstances justifying disclosure. See State v. Rhodes, 308 So.2d 770 (La.1975); State v. Howard, 283 So.2d 197 (La.1973); and State v. Dotson, 256 So.2d 594 (La.1971). State v. Marks, 337 So.2d 1177 (La.1976).”

Contrary to defendant’s argument, it is not necessary to put the informant on the witness stand to determine the reliability of the information upon which the police acted. The facts as articulated in Officer Becton’s testimony led to no other conclusion but that informant’s information was fully accurate in every detail and, from past experience, that the informant was very reliable. The confidential informant not only told police that defendant was in possession of “some pills” but told police what types of controlled dangerous substances were in defendant’s possession.

The trial judge might also consider the officer’s testimony to the effect that defendant told officers en route to the sheriff’s office that he “sure would like to know who snitched me off.” This underscores the importance of keeping the identity of informants confidential unless they themselves are offering testimony against the accused. Confidentiality is the only means to truly ensure an informant’s safety. Had the trial judge ordered disclosure of informant’s identity he would have defeated the purpose of the government’s privilege to keep such identities secret and may well have endangered the health and welfare of the informant.

“What is usually referred to as the informer’s privilege is in reality the Government’s privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law.
The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law enforcement officials and, by preserving their anonymity, encourages them to perform that obligation.”
Roviaro v. United States, 353 U.S. 53, 59, 77 S.Ct. 623, 627, 1 L.Ed.2d 639 (1957).

For these reasons this assignment lacks merit.

DECREE

For the above and foregoing reasons defendant’s conviction and sentence for the crimes of possession of a controlled dangerous substance are affirmed.

AFFIRMED.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


author: YELVERTON, Judge.

text:
    Doyle Paul DOOLEY, Plaintiff-Appellant, v. Paula Prince DOOLEY, Defendant-Appellee.
    No. 83-253.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 9, 1983.
    Writ Denied Jan. 6, 1984.
    Haik, Haik & Minvielle, Richard T. Haik, New Iberia, for plaintiff-appellant.
    Haney, Akers & Segura, J. Phil Haney, New Iberia, for defendant-appellee.
    Before FORET, STOKER and YELVER-TON, JJ.
   YELVERTON, Judge.

The issue here is whether custody and child support awards granted in a separation judgment terminate upon reconciliation of the spouses. The trial court held that a reconciliation does not operate to terminate custody and child support awards and that, if following the reconciliation the spouses again separate, the spouse to whom child support had previously been awarded has a right of action against the other spouse to collect past due support payments accumulating since the second separation. From a judgment against him making executory these past due child support payments, the husband in this case has appealed. We reverse. We hold that a reconciliation effectually terminates a judgment for custody and child support. A judgment of custody (absent interdiction of a spouse) cannot, under our law, co-exist with the circumstances where married parents are neither judicially separated nor living separate and apart.

The facts are not in dispute. The parties were married in 1965 and lived together until they separated on March 9, 1978. A judgment of separation was signed on May 1, 1978, and in this judgment the wife was awarded the temporary custody of the minor child and $100 per week child support.

The parties reconciled early in 1980 and lived together for the next 18 months, physically separating once again in June 1981. Neither party thereafter filed a new separation suit nor did either party seek a further judicial determination of custody or child support.

When the parties separated the second time the child remained in the actual custody of the wife and the husband voluntarily resumed the payment of child support, but at a lesser amount than $100 a week. On December 21, 1982, the wife filed a petition which created the issue presently before us. She sued for past due child support along with attorney’s fees, alleging the husband had failed to pay the full amount due under the May 1978 child support order. On a showing that the husband had paid only $4,450 since the second separation, and that calculated on the basis of the earlier judgment the amount paid since the second separation should have been $7,200, the trial court awarded a judgment in favor of the wife for the amount of $2,750 with legal interest, plus attorney’s fees in the amount of $150.

The trial court based its decision that the judgment for child support was unaffected by the subsequent reconciliation on Lewis v. Lewis, 404 So.2d 1230 (La.1981). That case held that a judgment awarding support for a child has a legally independent basis and is not a mere incident of the separation decree, and that therefore it does not terminate upon the rendition of a judgment of divorce. The trial court was aware of earlier jurisprudence that when an action of separation is extinguished by reconciliation all decrees relating thereto (excepting that of dissolution of community) are extinguished, citing particularly Hickman v. Hickman, 218 So.2d 48 (La.App. 3rd Cir.1969), writ denied 253 La. 879, 220 So.2d 460 (1969), and Hickman v. Hickman, 227 So.2d 14 (La.App. 3rd Cir.1969), which held that an award of temporary custody can no longer stand if the separation suit is extinguished by reconciliation. Apparently, the trial court believed that Lewis impliedly overruled the Hickman eases and all others of similar import. The trial court understandably reached this result by reasoning that since Lewis stated that a support judgment has a legally independent basis and is not a mere incident of the separation decree, only the action of separation was extinguished by the reconciliation in the instant case and the judgments of custody and support were not.

We do not believe that the rationale of the Lewis case requires this result. True, La.C.C. art. 152 dealing with reconciliation by its terms extinguishes only the action of separation. Accepting the fact that the support decree was independent of the judgment of separation, however, does not mean that it survived the reconciliation. A reconciliation is a resumption or renewal of the former marriage relation. Martin v. Martin, 151 La. 530, 92 So. 46 (1922). Orders of custody and child support are in their nature subject to change or termination. They are subject to change according to the circumstances and will expire on the happening of certain events. For example, custody and child support awarded under La.C.C. arts. 146 and 157 expire upon the child’s majority (R.S. 9:309), as does parental authority under article 216. King v. Sanchez, 273 So.2d 45 (La.App. 4th Cir. 1973). Also, there are times when automatic termination occurs by operation of law. Halcomb v. Halcomb, 352 So.2d 1013 (La.1977). We find this case to be one where there has been an automatic termination by operation of law. We hold that custody in one spouse, the right to which depends upon a separation of the spouses, either de facto (R.S. 9:291) or de jure (La. C.C. arts. 146 and 157), cannot exist when the parents have become reconciled and there is no longer separation either de fac-to or de jure. The legal effect of the termination of the separation in the instant case was to cause the child to once more fall under the parental authority of both parents provided by La.C.C. art. 216. Legal custody in one spouse cannot co-exist with the parental authority of article 216. The order of child support, which is dependent on custody [Dubroc v. Dubroc, 388 So.2d 377 (La.1980)], likewise fell. The custody and support orders, having terminated, could not be resurrected by a subsequent return to living separate and apart.

The judgment making executory past due child support payments and awarding attorney fees, not being based upon an extant order of support, was in error and must be reversed.

For the reasons assigned, the judgment of the trial court is reversed and set aside, and the petitioner’s suit is dismissed at her costs.

REVERSED AND RENDERED.