author: LANIER, Judge.

text:
    Walter C. DUMAS v. Louis JETSON, et al.
    No. CE 83 1420.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1984.

      Norman Haymer, Jr., Charles C. Hayl-ing, III & Alvin Turner, Jr., Baton Rouge, for plaintiff-appellant Walter C. Dumas.
    Janice Clark, Baton Rouge, for defendant-appellee Louis Jetson.
    Steve Marks, Baton Rouge, for defendant-appellee H.M. Mike Cannon, Clerk of Court.
    Before COLE, CARTER and LANIER, JJ.
   LANIER, Judge.

On November 19,1983, Walter C. Dumas and Louis Jetson were candidates in the general election for the office of State Representative for District 61 of the State of Louisiana. This district is located in East Baton Rouge Parish. The parties stipulated that in the election 4,091 votes were cast for Jetson and 3,878 votes were cast for Dumas, a margin of victory of 213 votes for Jetson.

Dumas filed this election suit alleging fraud, voting by unqualified voters, improper assistance of voters by election commissioners, improper campaigning in polling places and improper conduct in polling places were sufficient to adversely affect the election’s outcome. Made defendants to the suit were Jetson; the Clerk of Court for the Parish of East Baton Rouge, H.M. Cannon; the Secretary of State of the State of Louisiana, James H. “Jim” Brown; and the Commissioner of Elections of the State of Louisiana, Jerry Fowler. Jetson responded to the suit by filing a peremptory exception pleading the objection of no cause of action. The district court sustained the exception and dismissed the suit. On appeal this court reversed that ruling and remanded to the district court for further proceedings. Dumas v. Jetson, 446 So.2d 744 (La.App. 1st Cir.1983). Jetson applied for a supervisory writ to the Louisiana Supreme Court which was denied. Dumas v. Jetson, 442 So.2d 462 (La.1983). After a trial on the remand, the district court rendered judgment in favor of the defendants and dismissed Dumas’ suit at his costs. The district court also determined the suit was filed frivolously. Pursuant to La.R.S. 18:1432(B), the district court awarded damages of $500 and an attorney fee of $3,500 to the Clerk of Court and damages of $1,225 and an attorney fee of $7,500 to Jetson. Dumas again appealed. Jetson answered the appeal and sought damages and attorney fees for a frivolous appeal. Jetson also filed a motion to dismiss the appeal alleging the appeal bond was not timely filed. This court ruled Dumas had failed to timely file his appeal bond within the time prescribed in La.R.S. 18:1409(D) and the timely filing of the appeal bond was essential to properly perfect the appeal and dismissed the appeal. Dumas v. Jetson, 446 So.2d 747 (La.App. 1st Cir.1983). Dumas took a supervisory writ to the Louisiana Supreme Court. In a per curiam opinion, the Supreme Court ruled as follows: (1) this case involved two separate civil actions, a principal action to void an election and an incidental action for damages and attorney fees; (2) the election suit was controlled by the appeal period of the election code but the claim for damages and attorney fees was controlled by the general articles of the Code of Civil Procedure; and (3) the election suit was properly dismissed but the appeal from the judgment on the claim for damages and attorney fees was timely. The Supreme Court remanded the district court judgment awarding damages and attorney fees to this court for review and denied the application for writs on the election suit. Dumas v. Jetson, 445 So.2d 424 (La.1984).

The only matters before us on this remand are the claims for damages and attorney fees under La.R.S. 18:1432(B), which provides as follows:

If the trial judge determines that an action contesting an election or objecting to candidacy was filed frivolously, he may award all costs of court, plus a reasonable attorney fee, plus damages, to the defendant.

Because La.R.S. 18:1432(B) is a penal statute, it must be strictly construed. Cf. Hart v. Allstate Insurance Company, 437 So.2d 823 (La.1983).

The district court made the following factual findings: (1) there was no evidence to show for whom any single vote was cast (not even the candidates); (2) there was no evidence to show any unqualified voter was improperly allowed to vote or any qualified voter was improperly denied the right to vote; (3) Dumas waived his right to contest the residency, qualifications of voters because he failed to exercise due diligence to determine residency and timely object; (4) there was no evidence a single person voted fraudulently; (5) there was no evidence commissioners actually cast votes for persons who were not disabled or illiterate; (6) there was no evidence any instructions given by commissioners to voters to show them the method to use to cast their votes in any way affected such votes; (7) there is no evidence improper conduct or campaigning in the polling places affected a single vote; (8) there is no evidence to show it is impossible to determine the result of the election; (9) Dumas did not have sufficient facts upon which to base an election suit; (10) the “entire case was one giant fishing expedition”; and (11) the suit was frivolously filed. After reviewing the record, we find these factual findings are not clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

The district court’s damage awards are not a clear abuse of its much discretion. La.C.C. art. 1934(3); Reck v. Stevens, 373 So.2d 498 (La.1979). The attorney fees awarded are reasonable and within the broad discretion of the district court. Cf. Orgeron v. Tri-State Road Boring, Inc., 434 So.2d 65 (La.1983); Leenerts Farms, Inc. v. Rogers, 421 So.2d 216 (La.1982). We adopt as our own and incorporate herein the reasons for judgment and the supplemental per curiam of the district court, which are attached hereto as Appendixes A and B respectively.

Jetson answered Dumas’ appeal and sought damages for frivolous appeal. La.C.C.P. arts. 2133 and 2164. The Louisiana Supreme Court ruled there were two appeals in this case, one from the election suit and the other from the incidental demand claiming damages and attorney fees for the frivolous filing of the suit. The election suit appeal was dismissed as not timely perfected. Because it was not timely perfected, we have no appellate jurisdiction over that matter and La.C.C.P. art. 2164 authorizing frivolous appeal damages is not applicable thereto. Knox v. Brown, 325 So.2d 295 (La.App. 3rd Cir.1976). The appeal of the La.R.S. 18:1432(B) awards of damages and attorney fees is not frivolous because the amounts awarded are reasonably subject to dispute. Accordingly, the claim by Jetson for damages for a frivolous appeal is denied.

For the foregoing reasons, the judgment of the district court determining that this election suit was frivolously filed and awarding damages and attorney fees is affirmed at the appellant’s costs.

AFFIRMED.

APPENDIX A

WALTER C. DUMAS VERSUS LOUIS JETSON, ET AL.

NUMBER 272,859 DIVISION L 19TH JUDICIAL DISTRICT COURT PARISH OF EAST BATON ROUGE STATE OF LOUISIANA

ORAL REASONS FOR JUDGMENT

December 16, 1983

DOUGLAS M. GONZALES, JUDGE PRESIDING

The Court has before it a challenge to an election in a general primary held on November 19, 1983 for election to the House of Representatives, District 61. The plaintiff in this case who challenges this election is Mr. Walter Dumas, who was a candidate in that election. He brings this action against his opponent, Mr. Louis Jetson, against the Clerk of Court, Mr. Cannon, the Commissioner of Elections, Mr. Fowler, and the Secretary of State, Mr. Brown. The defendants in this suit have answered and filed a reconventional demand. The Court had previously maintained an exception of no cause of action. That matter was reviewed by the First Circuit Court of Appeal, and upon review, the matter was remanded to this Court for trial, which trial has taken place over the last several days.

Generally, the petitioner makes various allegations in his original and two supplemental petitions. One allegation being generally that the election was conducted improperly by the election officials in allowing fraudulent votes, illegal votes, and also allowing unqualified voters to vote. It was stipulated by and between the parties that the difference between the candidates was two hundred and thirteen votes. The precincts that comprise District 61 were also stipulated to by and between the parties. It was also stipulated between the parties that there were no challenges to the qualifications of the voters either before the election, under the provision of the Election Code found in Section 191, et seq. of Title 18, or were they challenged on election day, pursuant to Section 565. In his answer, defendant Jetson raises the issue of damages and attorney fees.

As discussed in the argument on the exception of no cause of action, and throughout the trial, the proper standard for review by a court in an election contest suit is set out in Sections 1431, 1432 and 1433 of the Election Code.

Section 1433 deals with malfunctioning voting machines, and it was stipulated by counsel, and the record shows, that there are no allegations or facts relative to malfunctioning voting machines.

Section 1431 deals with fraudulent or illegal votes, and it requires the reviewing trial court to subtract votes from or to add votes to a particular candidate. It was stipulated by counsel, and the evidence shows, that there are no allegations or proof as to how any one single vote was cast, not even the votes of the candidates themselves was placed in the record.

The only possible section which could be applicable in this case is Section 1432, which provides three criteria for vesting in the court the discretion to order a new election. They are:

“If the trial judge in an action contesting an election determines that: (1) it is impossible to determine the result of an election, or (2) the number of qualified voters who were denied the right to vote by election officials was sufficient to change the result in the election if they had been allowed to vote, or (3) the number of qualified voters who were allowed to vote by the election officials was sufficient to change the result of the election if they had not been allowed to vote, or (4)a combination of the factors referred to in (2) and (3) herein would have been sufficient to change the result had they not occurred ...”

There is no allegation nor proof that any unqualified voter was improperly allowed to vote by an election official, or that any qualified voter was improperly denied the right to vote by an election official.

The only allegation which could possibly have any substance is that contained in Paragraph 6 of the plaintiff’s petition claiming more than three hundred unqualified voters were allowed to vote. The basis of these three hundred or so voters being unqualified, according to the plaintiff, is that, in violation of 18:110 B, these voters had a permanent residence outside of the precinct in which they voted for more than ninety days prior to the election on November 19th.

In ruling on the admissibility of this evidence, the Court has already stated that a challenge to the qualification of a voter who fits into this category, according to the Election Code, must be at one of two times, either prior to the election through the process set up in Section 191, et seq., wherein two citizens may, by affidavit, challenge the qualification of voters through the Registrar of Voters Office, or through Section 565 which allows anyone, commissioner, poll watcher, or voter, to challenge the qualifications of a voter based on his residency in a precinct.

The simplest review of the jurisprudence would reveal that these statutes mean exactly what they say, and the simplest review of the Election Code would show that the burden for challenging voters who live outside of their precinct is upon candidates and other parties and not upon election officials and that the failure to urge these challenges timely results in their waiver. Section 1434 specifically reads:

“An objection to the qualifications of a voter or to any irregularity in the conduct of the election which, with the exercise of due diligence, could have been raised by a challenge of the voter or objections at the polls to the procedure is deemed waived.”

These articles merely codify what has been the law of this state for some time. A simple and cursory review of the annotations under these statutes would show the case of Veuleman v. O’Con, 417 So.2d 131, which says:

“The jurisprudence construing these statutes holds that voters who have not properly registered and qualified to vote must be formally challenged either before or at the time they offer to vote. In the absence of a formal challenge according to the statutory procedure, the qualification of a voter cannot be collaterally attacked in an election contest after the election has been completed.”

The Court, in the Veuleman case (La.App. 3d Cir.1982) was quoting from Fontenot v. Lee, 359 So.2d 1091 [1071 (La.App. 3d Cir.1978)]. A simple inspection of the jurisprudence would have revealed that the facts in Fontenot v. Lee are similar to the allegations in this case. In the Fontenot case, there were broad, general, conclusional allegations about unqualified voters who were allowed to vote. There the Court said:

“When this case was previously before us, we found that plaintiff had stated a cause of action as to the fraud and irregularities discussed above, so we did not reach the allegations of plaintiffs petition in Paragraph 10(3), (4) and (5) which are quoted in our previous opinion. Sub-paragraph (3) alleges that four named voters lived outside District C but nevertheless voted. Subparagraph (4) alleges that fraud and irregularities were committed during the absentee voting, but no specific irregularities are alleged. Sub-paragraph (5) alleges that other irregularities would be proved at trial, but these are not specifically alleged.
“After the case was remanded, the district judge refused to allow plaintiff to introduce evidence regarding the allegations in Paragraph 10(3), (4) and (5). On this appeal, plaintiff contends this was error, and he reurges these grounds.”

That is the same issue that is before this Court and has been the basis of this Court not allowing the testimony in Paragraph 6(i), (j) and (k) of the second supplemental and amending petition. Returning to Fontenot v. Lee, the Court said:

“As to subparagraph (3), our statutory law provides the procedure for attacking the improper registration of voters prior to the election and provides for challenge at the polls by a commissioner or any other person who may contend a voter is not properly registered. LSA-R.S. 18:245 and 18:352.
“Jurisprudence construing these statutes holds that voters who have not properly registered and qualified to vote must be formally challenged either before or at the time they offer to vote.”

The Fontenot case cites Timberlake v. Lindsey as authority for that proposition.

In Timberlake v. Lindsey, 430 [140] So.2d 406 [ (La.App. 3d Cir.1962) ], the Court says:

“In our opinion, the district court correctly held that the contestant’s failure to challenge the qualifications of the electors in writing and according to the procedure mandatorily required by the cited statutes, prevents him from raising the question of their disqualification by reason of non-residency after he has lost the election.”

The research that this Court just did on this matter took about forty minutes. Those prior cases make it clear that it has always been the law of this state that qualifications based on non-residency in a precinct must be raised prior to the election or at the polls. A simple reading of the Election Code would show that those principles have been codified. The only possible changes are some procedural methods by which challenges are made now as opposed to how they may have been made in the past.

That being the legal conclusion of the Court with regard to what the Court has called the major allegation of the plaintiff’s petition, it only leaves two other areas that this Court should address, namely, the allegation that voters were given general assistance in voting and that some electioneering occurred during the course of the election.

With regard to the assistance, the Court has already spoken to that issue many times and I have construed that the procedure for assisting voters set out in the Code is limited to those voters who are completely unable to cast their own vote because of a physical handicap or illiteracy — they cannot read a number or a name or they do not have the physical ability to pull a lever or mark a ballot. In those situations, the law allows for election officials to take on a very sacred trust, namely, to cast the vote for the voter. And it sets out a specific procedure as to how that is to be done (18:564). And in those circumstances, that procedure must be followed. The Court finds none of those circumstances in the evidence of the record before it. On the contrary, the Court finds that some general assistance was given to voters in demonstrating how voting machines operate, in demonstrating how to open and close the curtains, and other general directions on voting procedures. The Court is of the opinion that this is not prohibited but on the contrary is required of election officials. The Court further notes that the record is totally, absolutely, completely void of any showing that this general assistance changed or affected the vote of any voter who cast his vote on that day.

With regard to the complaints of electioneering, this Court does not have to decide whether or not the conduct presented by evidence in this record constitutes electioneering. It may or it may not. That issue addresses itself to the prosecuting authority of this state. Persons who are aggrieved of that activity have a remedy at law by'having the parties who are guilty of those transgressions prosecuted. This Court would only be interested in such conduct if it had some effect on the vote on November 19th. This Court finds as a fact that the record is totally, absolutely, completely void of any evidence whatsoever which would suggest, if electioneering did in fact take place, that it had any effect not only on the outcome of the race, but on any single, individual voter. At best, these complaints of electioneering can be classified as “sour grapes” by a candidate who was not successful.

Applying the standards of Section 1432, there is no evidence in the record which would make it impossible to determine the results of the election. The results of this election are that candidate Louis Jetson received 4,091 votes and candidate Walter Dumas received 3,878 votes. And there is not one single piece of evidence to indicate to the contrary. There is not one single piece of evidence to indicate that the will of the electorate was in any way tampered with or thwarted.

The only issue remaining is whether or not the petitioner had sufficient enough factual information on which to bring this suit. The Court is of the opinion that he did not, that this action was frivolously brought. A simple review of the statutes and jurisprudence would have made it clear to the plaintiff that a challenge to an election based on residency was too late. A simple review of the statutes would have made it clear that a challenge based on general assistance at the precinct is not an irregularity at all. But more importantly, the plaintiff has totally failed to prove, or even attempted to prove, that the irregularities complained of had any effect on the election result.

The presentation of the evidence shows that the plaintiff was entirely unfamiliar with the evidence that would be presented by his witnesses. His entire case was one giant fishing expedition.

In his pleadings, the plaintiff claimed fraud, and in argument asserted that some persons who voted on November 19th were in fact not the actual registered voters. He presented evidence of three witnesses supposedly to that effect, but all three directly refuted the allegations of his petition and testified directly to the contrary. It was obvious to the Court and to all present that at all times throughout this trial, the plaintiff has been searching for evidence in the judicial process on which to base his case, as opposed to finding facts prior to filing this suit. I believe this is exactly the sanction and exactly the type of case the Legislature had in mind when it provided for damages and attorney fees for frivolous suits. Election suits are extremely unusual processes. They are extraordinary suits. They work within an extraordinary time frame. The Court system is required to set aside all that it does and move this suit, this type of suit, by preference and priority. Because it is so extraordinary in nature, it requires both extraordinary pleadings and proof. It is not an ordinary lawsuit. The ordinary standards applicable to a lawsuit did not apply to it. The remedies that it brings about are extraordinary. These suits should not be filed for light, transient or petty reasons. When that is done, when they are filed for those reasons, the law requires an examination of both the allegations and the evidence presented to determine whether or not there ever was any basis for contesting this election. This Court finds that there never was any, and that this suit should not have been brought.

There is little jurisprudence to guide the Court in determining what are damages. Whether damages may be awarded to all defendants or only to political contestants is not clear. However, being aware of the extraordinary procedures required to accommodate an election suit both by the Court and public officials, and being aware that this type of suit places everyone else who is seeking justice in this courtroom back a few days, a few hours, or even a few weeks, the Court believes that damages should be awarded to all that are affected thereby, the election officials as well as the contestants.

Accordingly, the Court will award damages as follows: to the Clerk of Court for its extraordinary expenses which are attributable only to this lawsuit, the sum of five hundred dollars; to counsel for the Clerk of Court, the sum of three thousand, five hundred dollars; to the defendant, Mr. Louis Jetson, the sum of one thousand dollars; to the attorneys for defendant Louis Jetson, seven thousand, five hundred dollars. Further, to the attorneys for defendant Mr. Jetson, the sum of two hundred twenty-five dollars for expenses. The Court does not believe that the claim for expenses such as duplicating services and office supplies are extra expenses. The Court believes that those are normal expenses attributable to the profit and/or overhead portion of the attorneys’ regular time that they charge by the hour.

For the foregoing reasons, the motion for dismissal — I believe improperly termed a directed verdict — will be granted, and the relief sought by the defendant will be granted.

All costs of these proceedings are to be borne by plaintiff. Counsel for the prevailing party will prepare a judgment as soon as possible. The appeal period for that judgment will be within twenty-four hours of its signing. Counsel for the plaintiff will be notified of the date and time of the signing of ,the judgment.

This Court is adjourned.

APPENDIX B

WALTER C. DUMAS VERSUS LOUIS JETSON, ET AL

NUMBER 272,859 DIVISION “L” 19TH JUDICIAL DISTRICT COURT PARISH OF EAST BATON ROUGE STATE OF LOUISIANA

SUPPLEMENTAL PER CURIAM

December 19, 1983

During the course of trial, the Court pointed out to counsel for the plaintiff on several occasions that it would not be necessary to challenge the qualification of voters prior to election or at the polls if a showing was made that with the exercise of due diligence he could not have learned of sufficient facts on which to challenge voters. Despite the Court’s comments, there was not even an attempt made to show that Mr. Dumas did not know that many voters had residence out of the precinct where they had registered for more than ninety days prior to the election.

There are numerous ways this information can be obtained. A simple comparison of the voter lists with the telephone directory, the city directory or a criss-cross service would reveal numerous changes of address. Mailing political advertisements or ballots to the address on the voter list by first class mail would likewise produce hundreds of returned letters not delivered and thus would disclose a change in address. This court commented many times during closing argument that there was a total failure on the part of the plaintiff to show what diligence, if any, was used to learn of the potential disqualification of voters. The rule of law applicable here is that evidence within the control of a party and not produced by him is presumed not be in his favor. All that was necessary was for Mr. Dumas to have taken the stand and said why he could not discover these facts.

Certainly, his own testimony was within his control: Since he put on no evidence on this issue, nor did he take the stand, the presumption is that he knew of the facts or made no effort to learn them until after the elections. The Court is informed that counsel and plaintiff now tells the news media he did not learn of the disqualification until after the election. He can not supplement what is missing from the record. A statement to the press or in argument to the Court of Appeal does not constitute evidence in the record nor can this critical evidence be supplied by the appellate court from conjecture. La.R.S. 18:1434 requires either a challenge to a voter or a showing that due diligence failed to produce information that would form the basis of a challenge.

The Court notes that Section 111 of the election code makes a woman, under certain circumstances, not a legal registrant. (See 18:111) If plaintiff’s theory is correct a candidate who has lost a close race (say by 10 votes) could simply check the polls for 10 women who met the disqualifications of Section 111 and after the fact, challenge them and ask for a new election on the basis it was now impossible to determine the result. Such a practice would have courts determine every close election and would place enormous power in the hands of the civil trial judges in East Baton Rouge Parish, the seat of state government. No such attack on elections was ever intended by this legislature.

Baton Rouge, Louisiana, this 19th day of December, 1983.

/s/ Douglas M. Gonzales DOUGLAS M. GONZALES JUDGE, DIVISION “L”

      . Sec. 562 of the Election Code, subsection D states:

        "Identification of Voters.

      A voter need not have his registration certificate or any other instrument in his possession in order to vote in a primary or general election. The commissioner shall identify each applicant in the presence and view of the bystanders in the following manner:
      "... (2) In parishes where the computer system is used, (East Baton Rouge is in this category), by comparison with the descriptive information on the computer voting list."

      It is clear from these sections that a commissioner cannot require any driver's license, credit cards or other type of identifying papers. His only method of identification is by comparison with the descriptive information on the computer voter list. Registrar of Voters, Nathaniel Bankston, testified what this information is and that it is determined by state law and the Federal Voters Rights Act. The federal law prohibits racial identification (as does state law) and state law requires date of birth, address, sex and voter certificate number. (See Sec. 104). Since no "registration certificate or any other instrument" need be in the possession of a potential voter, and since the commissioners can only identify a voter by the comparison process, it is clear that no further challenge can be made to a prospective voter by a commissioner. It is equally clear that the law places the burden of challenging unqualified voters on the candidates or other interested parties.


source: Caselaw Access Project

author: COLE, Judge. LANIER, Judge,

license: Public Domain

text:
    Carroll MATHERNE v. TERREBONNE PARISH POLICE JURY.
    No. CA 84 0306.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1984.
    Writs Denied Feb. 15, 1985.

      William Stark, Grady C. Weeks, Houma, for plaintiff and appellee Carroll Matherne.
    Joseph G. Kopfler, Jerry L. Hermann, Houma, William J. Doran, Jr., Baton Rouge, for defendant and appellant Terre-bonne Parish Police Jury.
    R. Gordon Kean, Jr., Baton Rouge, for Louisiana Mun. Assn.
    Before COLE, CARTER and LANIER, JJ.
   COLE, Judge.

The principal issue here presented is the proper measure of damages for the use of land pursuant to La.R.S. 38:113, which provides for the control of public drainage channels and the preservation of their efficiency. In this case the defendant parish governing authority was made to compensate the plaintiff landowner for the use of his land in an amount in excess of its actual value. Also presented for our review is the correctness of awards for other damages alleged to have occurred as a result of the land usage.

Flooding and drainage problems in the northern and western reaches of Terre-bonne Parish caused the Terrebonne Parish Police Jury (Police Jury) in the early 1980’s to develop a project for the dredging and cleanout of Ouiski Bayou and Little Bayou Black from Savane Road southward. The Police Jury, by resolution, on October 27, 1982, designated Ouiski Bayou and Little Bayou Black as public drainage channels. On November 5, 1982, by letter, the Office of Public Works for the Department of Transportation and Development accepted these bayous as public drainage channels.

In order to facilitate this project, the Police Jury attempted to secure right-of-way agreements from the landowners adjacent to the bayous. Accommodations were obtained from landowners on the west side of the bayous. The land on the east side of the bayous is owned by plaintiff, Mr. Carroll Matherne. Attempts were made to contact Mr. Matherne concerning negotiations for a right-of-way, but the attempts never came to fruition.

The Police Jury, after serious deliberations, decided to proceed with the required dredging from the east side of the bayous even though no accommodation had been obtained from Mr. Matherne. As authority for this action, the Police Jury invoked a servitude of 100 feet along the drainage channel pursuant to La.R.S. 38:113. The contractor for the Police Jury, Ronald Adams, proceeded to dredge the channel depositing what amounted to 50,000-60,000 cubic yards of spoil along the 100 foot servitude on Mr. Matherne’s farm. During this process, over 1000 trees were uprooted from the 100 foot strip of land bordering the bayou.

Initially, Mr. Matherne sought to enjoin these operations on his property, attacking the constitutionality of La.R.S. 38:113 as constituting a taking of his property without due process of law in violation of Article I, Section 4 of the Louisiana Constitution of 1974. The Police Jury reconvened, seeking an injunction in order that it could proceed with its project operations. The district court rendered judgment denying Matherne’s injunction and granting the Police Jury an injunction “restraining, enjoining and prohibiting him [Matherne], ... from preventing reconvenor [Police Jury], ... from exercising a one hundred (100') foot servitude of use on either side of Little Bayou Black and Ouiski Bayou in Terrebonne Parish, Louisiana, for the purpose of maintenance work on said public drainage channels pursuant to ... Louisiana Revised Statute 38:113.” (Emphasis added). This judgment was not appealed and is now final.

Mr. Matherne then filed suit against the Police Jury seeking compensation for these activities. His petition also alleged the spoil caused 22 thoroughbred mares to slip their foals and sought damages for this aspect as well. Lemire v. New Orleans Public Service Inc. and Sewerage and Water Board of New Orleans, 458 So.2d 1308 (La.1984).

The district court after a lengthy trial granted judgment in favor of Mr. Matherne and against the Terrebonne Parish Police Jury. The judgment contained the following awards:

Lost use of property.$ 350,000.00
Replacement cost for trees — .$ 535,570.00
Cost to remove spoil.$ 725,000.00
Amount already paid to remove spoil.$ 75,000.00
Loss of foals.$ 880,000.00
Cost of pump.$ 1,439.66
Expert fees...$ 1,000.00
TOTAL...$2,568,009.66

Defendant appeals from this judgment as punitive in nature and not sustained by the evidence presented at trial. We agree and find it necessary to reverse in part, amend and, as amended, affirm the judgment of the district court.

I.

La.R.S. 38:113 provides:

“The various levee and drainage districts shall have control over all public drainage channels within the limits of their districts and for a space of one hundred feet on each side of the channel, selected by the district and recommended and approved by the Department of Public Works, whether the drainage channels have been improved by the levee or drainage district, or have been adopted without improvement as necessary parts of or extensions to improved drainage channels, and may adopt rules and regulations for preserving the efficiency of the drainage channels.”

This provision was properly invoked by the Police Jury because it was determined the process of dredging the bayous would promote the efficiency of the drainage channel. . However, the Louisiana Supreme Court has determined, in a related case, “[La.R.S. 38:113] does not authorize the taking or damaging of private property without just compensation or without due process of law-” Terrebonne Parish Police Jury v. Matherne, 405 So.2d 314, 317 (La.1981), cert. denied, 456 U.S. 972, 102 S.Ct. 2234, 72 L.Ed. 845 (1982).

In Matherne, the court indicates the use of 100 feet on each side of the channel, provided for by La.R.S. 38:113, is for “ordinary maintenance.” Although the trial record shows the dredging must be performed only once every fifty years, the duration and extent of the land use in this instance demonstrates the actions of the defendant were not ordinary maintenance. Exerting control over the 100 foot strip adjacent to the drainage channel for six months by depositing 50,000 cubic yards of spoil and uprooting trees constitutes a taking and damage for which compensation is due.

Due process of law guarantees a property owner a judicial review of whether the government acted arbitrarily, capriciously or in bad faith in determining the taking or damage of property was necessary. State, Etc. v. Jeanerette Lumber & Shingle, 350 So.2d 847 (La.1977), on rehearing. The trial record is replete with references to right-of-way agreements on the west bank of the bayous. According to plaintiff, because these right-of-way agreements were not exercised, the defendant’s determination to conduct dredging operations from the east bank under the authority of R.S. 38:113 must have been unnecessary and, therefore, in bad faith.

However, plaintiff has a heavy burden of proof in this regard. He must show the defendant’s action “was ‘without adequate determining principle or was unreasoned.’ ” State, Etc. v. Jeanerette Lumber & Shingle, 350 So.2d at 863. As indicated in Jeanerette Lumber & Shingle, the existence of an alternative does not cause the chosen method to become arbitrary or in bad faith. The contractor, Ronald Adams, testified as follows:

“... I personally, along with the engineer and a representative of the Parish, walked every bit of the project, looked at the right-of-way agreements and basically made a decision as to which trees remained, why we had to stay on one side and get the pluses and minuses. We didn’t just start the project and go on one side or the other one because we felt like we wanted to go right or left. We walked the project, we looked at all the obstacles. We tried to make a decision based on all the information.”

Further testimony reveals the west bank was wired with high powered overhead electrical lines; in close proximity to a high speed highway; and developed with residential homes and landscaping. The east bank was an undeveloped pastureland. We find the plaintiff has not sustained his burden of proof in showing arbitrary, capricious or bad faith conduct on the part of the defendant.

II.

Consideration must now be given to determining what constitutes just compensation in this matter. In Matherne, the court states the lawful method for the taking of property or prevention of its enjoyment in order to promote the overall efficiency of a drainage system is through an expropriation. 405 So.2d 314, 317. An expropriation did not occur in the present case. The taking and damaging of property occurred as a result of the defendant exceeding the scope of authority granted it by La.R.S. 38:113. Therefore, the issue is raised as to the proper measure of damages stemming from the defendant’s excess.

The district court found the proper basis for damages caused by an exercise of authority granted by La.R.S. 38:118 to be La.Civ.Code art. 2315. The measurement of recovery for property damages under La.Civ.Code art. 2315 was found by the district court to be the cost of restoration and the value of the lost use of the property, citing Coleman v. Victor, 326 So.2d 344 (La.1976). We find this measure to be in error and the reliance on Coleman misplaced.

In Reymond v. State, Department of Highways, 255 La. 425, 433, 231 So.2d 375, 383 (1970), the Louisiana Supreme Court states, “Since a taking or damaging of property may in fact occur without expropriation proceedings by a public body through oversight or lack of foresight, there must be some proceeding whereby an owner may seek redress when his property is damaged or taken without the proper exercise of eminent domain. Such an action is often referred to as ‘inverse condemnation’ ...” Reymond involved structural damage to a residence caused by piledriv-ing activity and the court held the proper measure of damages whether in condemnation or inverse condemnation is the difference between market value of the property before and after the damaging.

Further, in Gray v. State, Department of Highways, 250 La. 1045, 202 So.2d 24 (1967), the removal of 120,000 cubic yards of dirt took place from an unexpropriated portion of land. This dirt was used in the construction of a highway even though a borrow pit had been expropriated under the law, but left unused on another portion of the land. An action ex delicto was filed by many landowners for damages from an alleged trespass. The Louisiana Supreme Court responded, in part, by stating:

“... the constitutional guarantee of adequate compensation to the owner vouchsafes payment of the price to which a willing seller and purchaser would agree in the case of a voluntary sale and this is exactly the measure of compensation— market value of the property and severance damages — to be applied in condemnation proceedings. And it makes no difference in determining the amount to be awarded that the property was appropriated and not formally expropriated. Albeit in appropriation cases the condemning authority does not obey the mandate of the law that the compensation be paid before the taking, the noncompliance of this condition precedent to the condemnation does not subject the appropriator to a penalty, for when the owner recovers just compensation, he recovers all the law gives him. To hold otherwise would be to inflict punitive damages upon the condemnor which is not permissible under our civil law system.” Gray, 202 So.2d at 30.

The cases of Reymond and Gray illustrate the proper measure of damages due in this instance to the plaintiff. Even under tort theory, which the district court sought to apply, recovery is to be calculated in a similar manner. In Coleman, a case involving damage to an automobile, what the Louisiana Supreme Court held was the plaintiff could only recover the amount necessary to repair and restore the vehicle and not the greater amount of market value at the time of accident minus salvage value which the plaintiff sought. The court did note market value at the time of accident would be the maximum limit to the plaintiffs recovery. We do not, therefore, find the holding in Coleman contrary necessarily to the theory of Reymond and Gray. More analogous, however, are those cases involving the tortious conversion of property. It has been held the measure of damages for tortious conversion is the value of the property wrongfully appropriated or detained. Importsales, Inc. v. Lindeman, 231 La. 663, 92 So.2d 574 (1957). See also, Gurst v. City of Natchitoches, 428 So.2d 502 (La.App. 3d Cir.1983). See also, Ewell v. Petro Processors of Louisiana, Inc., 364 So.2d 604 (La.App. 1st Cir.1978), writ denied, 366 So.2d 575 (La.1979), wherein the court, treating concepts very similar to those here involved (albeit a suit against non-public entities by landowners), found the proper measure of damages to be the diminution in value of the affected property. In Ewell, full value was awarded when it was determined the affected property was rendered useless.

Only in the most egregious cases of willful and wanton disregard for the interest of the property owners will trial court discretion exist to apply a different measure of damages. See, Pearce v. L.J. Earnest, Inc., 411 So.2d 1276 (La.App. 3d Cir.1982), writ denied, 414 So.2d 377 (La.1982); Daniel v. Dept. of Transp. & Development, 396 So.2d 967 (La.App. 1st Cir.1981), writ denied, 400 So.2d 1385 (La.1981). Such is not the case here. The dredging of the drainage channel satisfies the public purpose requirement of La. Const, art. I § 4. The defendant is a public body with power of expropriation according to La.R.S. 19:1 et seq. The defendant proceeded under authority of La.R.S. 38:113 and a court order in initiating and conducting the operations. To apply any other measure of damages under these circumstances would be punitive in nature as stated by the court in Gray. Further, efforts were made to preserve the more valuable trees on the 100 foot strip. These efforts were also noted by the district court during the injunction hearing. All operations were limited within the 100 foot delineation. We therefore hold the proper measure of damages in the present instance is the lesser of either the market value of the property and severance damages minus any residual value or the cost of restoration to the property’s condition at the time the taking was initiated. The proper measure can not be both as was found by the district court.

In applying the above formula, the valuations discerned by the district court should be given great weight. As well, the evidence presented by the trial record should be considered. Initially, the extent of the property involved should be determined.

The areas of land to be examined break down into three discrete segments. The first area, tract 1, is property situated adjacent to Ouiski Bayou. It begins at the Southern Pacific Railroad and extends eastward and northward for more than one-half mile to the northern boundary of Mr. Math-erne’s property. This 100 foot strip of land contains 6.3 acres. (A portion is situated behind the property of one Hunt Downer.)

The second area, tract 2, is property situated adjacent to Little Bayou Black and the small portion of Ouiski Bayou west of the railroad tracks. It begins at the southern boundary of Mr. Matherne’s property and extends northward generally for more than two-thirds of a mile to the point where tract 1 commences. This 100 foot strip of land contains 8.45 acres.

It is disputed whether compensation must be provided for a third area, tract 3. Tract 3 is the property situated between the Southern Pacific Railroad and Little Bayou Black which is not included in the 100 foot strip adjacent to the bayou. Tract 3 contains 7.25 acres according to testimony given by Mr. Craig Stanga, plaintiff’s expert real estate appraiser. Mr. Stanga testified tract 3 is removed from commerce because without the adjoining acreage in tract 2 it is too narrow for development and could only be used as pastureland. Defendant contends no compensation should be provided for tract 3.

Compensation for the lost use of tract 3 would constitute severance damages, which, under the rationale in Gray, are a recoverable element. However, Mr. Stan-ga, in reference to tract 3 being removed from commerce, testified:

Q. “Well, you mean some of that area in there is not suitable for residential? It’s too small, isn’t it?
A. “Not before the servitude, no.
Q. “I’m not talking about the servitude. I’m talking about from the bayou to the railroad track. You said it’s a hundred and twenty-five feet there?
A. “In depth?
Q. “Yeah.
A. “At places.
Q. “Well, is that too small for residential lots?
A. “Is one hundred and twenty-five feet in depth too small? No.
Q. “Okay.”

Mr. Stanga’s testimony indicates severance damages should only arise when the area between Little Bayou Black and the Southern Pacific Railroad is less than 225 feet in depth. This accounts for both the 100 foot strip and the 125 feet necessary to develop residential lots. Applying Mr. Stanga’s conclusions, we have made our own calculations from the trial record, using particularly a survey map exhibit labeled “Matherne-11.” Thusly, we find the area to contain only 3 acres, not 7.25 acres as Stanga indicated. We therefore use this lesser acreage for valuation purposes as regards tract 3.

Along with testimony by Mr. Stanga, Mr. Logan Babin qualified for the defendant as an expert real estate appraiser. Opinions were provided by both men as to the value of the appropriated acreage. The district court, seeking to do equity, took an approximate average of these opinions as damages for the lost use of Mr. Matherne’s land. However, a more exact reckoning of the acreage value must be made.

Mr. Stanga testified as to the value per acre of 22 acres. His acreage total was a composite figure of tract 1, tract 2 and his rendition of tract 3. Mr. Babin gave distinct values per acre for tract 1 and tract 2 with a great disparity between the value per acre of each tract: $6,500 compared to $24,500, respectively. Mr. Stanga’s value per acre figure was approximately midway between these valuations, at $16,600 for each of the 22 acres. This indicates that Mr. Stanga’s value per acre is correct for neither tract 1 nor tract 2. Even though it may be a true composite, the valuation is of no use to this court in determining compensation because exactitude is required. We, therefore, use the valuations of Mr. Babin and since tract 3 is in essence the same property as tract 2 we apply a like valuation to it. Summarizing, tract 1 is valued at $6,500 per acre and tracts 2 and 3 are valued at $24,500 per acre.

A valuation must also be given to the residual worth of the properties. Mr. Stan-ga provided a figure of $1,200 per acre as pastureland; Mr. Babin provided a figure of $3,000 for the same use. In considering the probative value of each figure, this court gives credence to the original purchase price of the land in 1977. Mr. Math-erne paid $2,000,000 for 785 acres of pastureland. This reduces to $2,548 per acre. Land is generally not depreciative in nature, therefore the $3,000 per acre figure appears most reasonable as residual value based upon use as pastureland.

However, the residual value can only be noticed as to tract 3. Tract 1 and tract 2 are inundated by a quagmire-like spoil. Testimony establishes the tracts are of no use to Mr. Matherne in such a condition. Although it is obvious the tracts have some residual value, no evidence to rebut plaintiff’s contention of no residual value has been provided by the defendant. We, therefore, apply no residual value to tract 1 or tract 2. Tract 3, not being covered by the spoil, retains a residual value of $3,000 per acre as pastureland.

It must be reiterated at this time La.R.S. 38:113 does not by its terms constitute a taking. See Matherne, 405 So.2d at 317. Damages in this case stem from the presence of the spoil on the land and the concomitant loss of use. The formula must still be applied to find if the market value of the land minus residual value is less than the cost of spoil removal and tree valuation.

The following calculations shall determine the proper compensation for Mr. Matherne ⅛ lost use of his land due to the Police Jury’s operations:

Tract 1 $ 6,500 per acre X6.3 acres 40,950
—0 residual value $ 40,950
Tract 2
$ 24,500 per acre X8.45 acres 207,025
—0 residual value $207,025
Tract 3
$ 24,500 per acre X3 acres 73,500 —9,000 residual value ($3,000 per acre multi- $ 64,500 plied by 3 acres)
Tract 1 $ 40,950
Tract 2 $207,025
Tract 3 $ 64,500
Total $312,475 (Value of lost use of land)

Fifty to sixty thousand cubic yards of spoil were deposited upon the 100 foot strip. After testing, the spoil was found to possess a 30% water content. It was described as being like quicksand. An attempt was made by Mr. Clark Porche, the plaintiffs nephew, to remove the spoil. Mr. Porche was paid $75,000 for moving 5,000 cubic yards of the spoil. A bid was made by Mr. Larry Hebert to remove the spoil for $14.50 a cubic yard. Based upon this evidence the district court found it would cost $725,000 to remove the remaining spoil. In addition to the $725,000, the district court awarded the $75,000 paid to Mr. Porche. Although we agree with the district court’s findings of fact here, we find both awards to be in error.

The cost of restoration must be compared with the market value of the land. The lesser figure is the only award which can be made. Since the market value with severance damages minus the residual value amounted to $312,475, it is the lesser figure and the upper limit of an award resulting from damage to the plaintiff’s land.

The $75,000 paid to Mr. Porche was done at the initiative of the plaintiff. The results of this initiative inured to the plaintiff’s benefit. The area of land from which the spoil was removed will regain some prior worth. Additionally, plaintiff had the spoil deposited alongside one of his barns on the farm. However, no award above the lost use of land can be made because undesirable consequences would follow. The plaintiff would have the capability to determine his own measure of damages. A cumulation of damages would occur in contradiction to the rationale of Reymond and Gray. Therefore, no recovery for the $75,-000 paid by plaintiff to Mr. Porche can be allowed by this court.

An award was made by the district court for the replacement of 1,093 trees. This award amounted to $535,570. Although this court doubts the propriety of such an award for tree loss, whether the award has a proper basis is an issue which this court need not discuss. The replacement cost of the trees must be added to the cost to remove the spoil ($725,000) to obtain a total restoration cost for the land. The cost to remove the spoil is already established as greater than the lost use value of the land. Therefore, even if the tree award were a single dollar it would not change the amount of damages because the lesser figure of $312,475 must prevail. The award of spoil removal costs and tree replacement costs by the district court are reversed accordingly.

III.

The plaintiff contends the dredging operations and spoil deposit were responsible for the miscarriages of 22 thoroughbred mares. The district court perceived the testimony of the plaintiff’s veterinary expert to be uncontroverted. The expert indicated the operations of defendant were the cause of the miscarriages. Therefore, an award of $40,000 per unborn foal was presented totaling $880,000. We disagree with the judgment of the district court on this point and therefore reverse.

An act will be deemed a cause-in-fact of an accident only when it is concluded to be a substantial factor in bringing about the harm. LeJeune v. Allstate Ins. Co., 365 So.2d 471 (La.1978). Dr. Salvatore Lococo, plaintiff’s veterinary expert, testified as to the cause of the miscarriages.

“Q. Why, in your opinion, your expert opinion, did these six foals slip — that you saw when you were down here?
A. I would say it’s probably from them fighting over food, getting too close — because mares are very protective of whatever foals that are there, or eating and so forth — they’re probably fighting and probably from some malnutrition associated with that, not being able to get to the food when they should you know, and just general fighting and biting, and you get low-grade infections from various bites and lacerations on them. The horses were in fairly bad shape when I saw them.
Q. And in your opinion, this was because they were penned up in this small area?
A. Too small of an area.”

Dr. Lococo testified further:

“Q. And when you got there, had any of the horses that you had checked in Kentucky slipped their foals?
A. He had lost approximately six foals that we could determine and they were in various degrees of development, and the other horses were in bad shape I guess because of the close proximity of the horses and feeding them in that area. You usually isolate them. He had more horses jammed in there than I thought. You usually isolate in-foal mares, and barren mares, which are mares that are not in foal, yearlings, weanlings — you usually isolate these.”

Therefore, the direct cause-in-fact for the miscarriages was the overcrowding due to placement in a small pen (30 acres) and the failure to separate the in-foal mares from the barren mares which led to internecine warfare among the mares.

However, it may be considered in determining whether an actor’s negligence is a substantial factor in bringing about the harm “whether the actor’s conduct has created a force or series of forces which are in continuous and active operation up to the time of the harm....” Restatement of Torts, 2d, Section 433(B) (1965); LeJeune, supra. Therefore, if the dredging operations and spoil deposit were a force in requiring the pregnant mares to be overcrowded, causation may be found.

The plaintiff claimed he isolated the horses in the thirty acre pen on Wayne Avenue relying upon the warning of Dr. Lococo. Dr. Lococo corroborated the warning to isolate the horses from the spoil was indeed communicated to the plaintiff. Based upon this communication the district court found causation between the dredging operations and the miscarriages.

However, the plaintiff, Mr. Matheme, contradicts his own testimony to the effect the horses were isolated because of this communication. The horses were isolated in' the Wayne Avenue pen prior to the communication by Dr. Lococo and prior to the start of the dredging operations. The plaintiff testified:

“Q. When you brought your horses down from Kentucky before the Police Jury went on the property, you had them penned up on Wayne Avenue, didn’t you?
A. Well, the end of Wayne Avenue.
Q. Yes, sir.
A. That is correct.
Q. You had them penned up in one paddock right there, didn’t you?
A. That is correct.”

The plaintiff in further testimony indicated the reason for this penning of the horses:

“Q. So I understand, when the Police Jury went on your property, was it November of ’82 and you had a court order to get them off your property, right?
A. That is correct.
Q. Okay. Now at that time, your horses were still up there on Wayne Avenue in that paddock?
A. I believe they were. You see, I sold the big farm I had in Kentucky. I had two farms in Kentucky and I sold them, and when I sold the farm I had to bring the horses down here. I couldn’t go back to Kentucky with them, I had no farm and Dr. Lococo claimed he couldn’t find a place to put them in the Wintertime (sic).”

In addition to the above, there appears to be other factors which led to the necessity of penning the horses in the small Wqyne Avenue pen. A large paddock of some 600 acres was being fenced in by plaintiff but was not completed when the transfer of the horses from Kentucky occurred. Left loose, seven horses were hit by cars on Hollywood Road. The horses also risked injury from the trains which traversed the plaintiff’s property. The plaintiff had filled all his available barnspace and had not yet completed a new barn. Therefore, substantial reasons existed for the plaintiff to pen up the horses, even the pregnant ones, together in the Wayne Avenue pen. The plaintiff testified he had placed 13 more valuable pregnant mares in separate barn stalls. This indicates plaintiff possessed the knowledge the in-foal mares should be separated from the rest of the herd, particularly the barren mares.

This court is not satisfied that causation would have been present even if the plaintiff relied on Dr. Loeoco’s warning to isolate the horses from the spoil. Dr. Lococo testified the need to isolate the horses from the spoil arose because he assumed hydrocarbons were present in the spoil based upon a previous experience several years prior. The doctor also stated bacteria could be present in the spóil.

No tests were performed on the spoil to determine if it was dangerous to the horses. Also, the horses were exposed to other areas on the farm where the bacteria complained of was present. Testimony from others indicates some spoil was spread on various places throughout the farm and plans existed for the placement of even greater amounts. We infer the plaintiff himself did not believe the spoil to be contaminated.

Further, the plaintiff failed to avoid his damages although he had several options by which to do so. The work on his large fenced area stopped because of an unavailability of pipe. However, plaintiff could have closed in a small area of this fencing solely for the use of his in-foal mares. The plaintiff made only abbreviated attempts to obtain alternative accommodations for his 22 valuable charges. The evidence indicates a failure to pursue possible accommodations. We find, therefore, the plaintiff has failed to sustain his burden of proving the dredging operations and spoil deposit constituted a force or series of forces in requiring the pregnant mares to be overcrowded which, in turn, caused them to slip their foals. As well, we reverse the district court’s taxing as cost, against defendant, $500 as expert fees to Dr. Lococo because La.R.S. 13:3666 requires these costs to be taxed against the party cast in judgment.

DECREE

We reverse the district court as to the awards for spoil removal, tree replacement, loss of foals and expert fees to the veterinarian. We amend the award for the lost use of property by reducing same to the sum of $312,475.00. We affirm all other items awarded by the district court. Our review of this matter results in a net award to plaintiff of $314,414.66. Costs of this appeal are to be divided equally between the parties.

REVERSED IN PART; AMENDED AND, AS AMENDED, AFFIRMED.

LANIER, J., concurs and assigns reasons.

CARTER, J., concurs for reasons assigned by LANIER, J.

LANIER, Judge,

concurring, with whom CARTER, Judge, joins.

We respectfully concur in the result.

The Terrebonne Parish Police Jury (Jury) designated Ouiski Bayou and Little Bayou Black as public drainage channels on October 27, 1982. This designation was accepted by the Office of Public Works of the Department of Transportation and Development of Louisiana (DOTD) on November 5, 1982. On November 24, 1982, Carroll Matherne filed a suit against the Jury seeking to enjoin it “from cutting trees on his property and from causing dredged spoil to be deposited on his property.” Matherne contended, in part, that the action of the Jury constituted a taking of his property without due process as prohibited by La. Const, of 1974, art. I, § 4.

By a letter pre-dating the filing of suit, but received by Matherne after he filed suit, the Jury advised him of its action of October 27,1982, DOTD’s action of November 5, 1982, transmitted copies of the project map and La.R.S. 38:113 and informed him it would pay “for any actual damages done to the property”. The Jury answered Matherne’s petition and reconvened to enjoin Matherne from preventing the Jury “from utilizing the one hundred foot (100') servitude on either side of Oui-ski Bayou and Little Bayou Black from (sic) maintaining those public drainage channels.” The Jury conceded it had gone on Matherne’s property and cut some trees and, if successful in this litigation, would continue to cut trees and would dredge the two bayous where they traversed Math-erne’s property. The Jury contended it was authorized to do this work by La.R.S. 38:113.

A hearing was held on these claims on November 30, 1982, written reasons for judgment were issued on December 2, 1982, and a judgment was rendered on December 3, 1982. The district court found this case involved “the utilization of a statutory servitude as opposed to expropriation or the taking of any property in any form.” The court quoted from Terrebonne Parish Police Jury v. Matherne, 405 So.2d 314 (La.1981) and stated:

This is not a situation where there will be a taking or damaging of private property without just compensation or without due process of law. The Jury in its letter of transmittal to Matherne (Exhibit P-5) in addition to furnishing him with the requisite information relative to the fact that Ouiski Bayou and Little Bayou Black were going to be maintained in accordance with the Statute, also informed Matherne that he would in fact be compensated for whatever damages he might suffer in the course of said maintenance work.

The court rejected Matherne’s contention that the Jury’s actions were unconstitutional under La. Const, of 1974, art. I, § 4 with the'following language:

As previously observed in this instance there is no taking of property but rather the use of property under the terms of the servitude created by Legislative authority. There will obviously be damage to Matherne’s property but there will equally as obviously be compensation paid to him for that damage.
Thus the Court finds that in this instance rather than a taking of property there is a utilization of the servitude with a concurrent damage occurring during the course of the utilization of that servitude.

The court then reached the following conclusions:

The Court must therefore conclude that there is no irreparable injury being suffered or likely to be suffered by Matherne, that R.S. 38:113 provides the Jury with full authority to do what it has done and what it proposes to do, that R.S. 38:113 applies in all respects to Matherne’s property, and that Math-erne’s remedy is to seek compensation under Civil Code Article 2315 for whatever damage he may suffer. (Emphasis added).

The court rendered judgment rejecting Matherne’s request for an injunction to stop the Jury “from cutting trees on his property and causing spoil to be deposited” thereon, and granted an injunction in favor of the Jury prohibiting Matherne from preventing the Jury “from exercising a one hundred (100') foot servitude of use on either side of Little Bayou Black and Oui-ski Bayou in Terrebonne Parish, Louisiana, for the purpose of maintenance work on said public drainage channels pursuant to State Project No. 503-55-06 and Louisiana Revised Statute 38:113.” (Emphasis added). This judgment was not appealed and is final.

It appears the interpretation given to La.R.S. 38:113 by the district court in the injunction proceedings is similar to that given it by this court in Terrebonne Parish Police Jury v. Matherne, 394 So.2d 1302 (La.App. 1st Cir.1981). This broad interpretation was specifically rejected in Math-erne, 405 So.2d at 316-317. The Louisiana Supreme Court recognized that a local governing body could utilize 38:113 to send workers and equipment on to private property to prevent obstruction of public drainage channels and perform ordinary maintenance necessary for the efficient operation of such channels, but expressly held 38:113 did not authorize the taking or damaging of private property without just compensation or without due process of law. The court further observed that while it may be desirable and in the public interest to take property or prevent its enjoyment to promote the overall efficiency of a drainage system, the lawful method to achieve this is through expropriation. However, since the judgment in the injunction proceedings is now final, it is the law between the parties.

In the instant case, the Jury performed its work on Matherne’s property by authority of a final judgment which granted it injunctive relief to do so and denied Math-erne an injunction to stop it. This relief was granted pursuant to what we consider to be an erroneous interpretation of 38:113, but because the judgment is final, this fact is no longer relevant. Because the Jury did its work pursuant to a final judgment, the discussion in Section I of the lead opinion about whether this work was “ordinary maintenance” and whether the Jury acted in “bad faith” is unnecessary to the opinion.

We do not agree with the statement in Section II of the lead opinion that “[t]he taking and damaging of property occurred as a result of the defendant exceeding the scope of authority granted it by La.R.S. 38:113.” The work was done lawfully pursuant to a final judgment, albeit a judgment based on an erroneous interpretation of 38:113.

Further, because the Jury went on the property and did the work pursuant to a final (and thus lawful) judgment, this conduct is not tortious. For La.C.C. art. 2315 to be applicable, there must be fault. Because the Jury had lawful authority to go on the property and do the work, this is not an inverse condemnation. Matherne is entitled to recover damages because the Jury agreed to pay damages, because the district court in the injunction proceeding found the Jury had an obligation to do so to render 38:113 constitutional and because all parties herein concede Matherne is entitled to such.

We agree with the method used in the lead opinion to calculate these damages and with the handling of the assignment of error in Section III thereof.

      . In this suit, Matherne did not contest the constitutionality of La.R.S. 38:113.

      . One acre equals 43,560 square feet.

      . La.R.S. 38:113 appears to establish a legal, predial servitude. La.C.C. arts. 646, 654, 659 and 665. Does not the statutory establishment of such a servitude constitute a taking for purposes of La. Const, of 1974, art. I, § 4?


author: JOHN S. COVINGTON, Judge Pro Tern.:

text:
    STATE of Louisiana v. Paul HOLMES.
    No. 84 KA 0360.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1984.
    Writ Granted April 12, 1985.
    Zach Butterworth, Asst. Dist. Atty., St. Francisville, for plaintiff.
    Jesse L. Means, Jr., Robert O. Butler, Jr., St. Francisville, for defendant.
    Before GROVER L. COVINGTON, C.J., and LOTTINGER and JOHN S. COVING-TON , JJ.

       Judge John S. Covington of the 19th Judicial District Court has been duly elected to this court; that term begins on January 1, 1985. In the interim, the Supreme Court has appointed him to this court pro tempore.

   JOHN S. COVINGTON, Judge Pro Tern.:

The defendant, Paul Holmes, was charged by bill of information with aggravated battery, a violation of LSA-R.S. 14:34. He filed a motion to quash the information on the grounds of double jeopardy, arguing that his previous guilty plea to a charge of simple arson was based on the same offense and precluded prosecution on the aggravated battery charge. The motion was denied, and after a jury trial defendant was found guilty as charged. The trial court determined defendant to be a third felony offender within the meaning of LSA-R.S. 15:529.1(A)(2)(b) and accordingly, sentenced him to life imprisonment at hard labor in the custody of the Department of Corrections. Defendant appeals his conviction, assigning as error the: (1) denial of his motion to quash and (2) insufficiency of the evidence to sustain the conviction.

We affirm the conviction but vacate the sentence imposed and reimpose sentence.

ASSIGNMENT OF ERROR NO. 1

Defendant contends that the trial judge erred in denying his motion to quash the bill of information. He argues that his previous guilty plea to simple arson and the prosecution for aggravated battery place him twice in jeopardy for the same offense.

The record reveals that on December 19, 1982 the defendant was an inmate at Louisiana State Penitentiary at Angola. Early that morning defendant threw a flammable liquid on another inmate, who was lying in bed, and ignited the liquid. The other inmate was severely burned and the bed was damaged. Defendant subsequently pled guilty to a charge of simple arson, a violation of LSA-R.S. 14:52, based upon this incident.

Both the Louisiana and United States Constitutions provide that no person shall be twice placed in jeopardy for the same offense. La. Const. (1974) Art. 1, § 15; U.S. Const.Amend. 5. Article 596 of the Louisiana Code of Criminal Procedure states that double jeopardy exists in a second trial only when the charge in that trial is:

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

Whether two offenses are the same for purposes of double jeopardy has been determined by Louisiana courts using various tests. One is the test established in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309 (1932), variously called the “Blockburger” or “distinct fact” test:

“The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.”

See, e.g., State v. Fontenot, 408 So.2d 919 (La.1981); State v. Doughty, 379 So.2d 1088 (La.1980).

Another test employed by Louisiana courts is the “same evidence” test, which holds that two offenses are the same for double jeopardy purposes if the same evidence is required for the conviction of each offense. If one offense requires proof of additional facts which the other does not, then the accused may be tried and convicted on both offenses, unless the gravamen of the second offense is essentially included within the offense for which first tried. State v. Knowles, 392 So.2d 651 (La.1980); State v. Solomon, 379 So.2d 1078 (La.1980); State v. Bonfanti, 262 La. 153, 262 So.2d 504 (1972). Both tests depend upon the proof required to convict, not the evidence actually introduced at trial. State v. Knowles, supra; State v. Doughty, supra.

Simple arson is statutorily defined as: “... the intentional damaging by any explosive substance or the setting fire to any property of another, without the consent of the owner...”. LSA-R.S. 14:52. Aggravated battery is defined as a battery (the “intentional use of force or violence upon the person of another or the intentional administration of a poison or other noxious liquid or substance to another”; LSA-R.S. 14:33) committed with a dangerous weapon. LSA-R.S. 14:34.

It is clear that the same evidence is not required for a conviction on both charges, and that each crime requires proof of an element that the other does not. Furthermore, the gravamen of the crime of aggravated battery is clearly not essentially included within the offense of simple arson. The fact that the two offenses arise from essentially the same conduct of the defendant does not preclude separate punishment for each offense. Applying either test discussed above, we are satisfied that the prosecution for aggravated battery is not subject to a plea of double jeopardy. Accordingly, this assignment of error has no merit.

ASSIGNMENT OF ERROR NO. 2

The defendant contends that the verdict of guilty is based on insufficient evidence to convict.

The proper procedure for raising the issue of insufficiency of evidence is by a motion for new trial or motion for acquittal, which the defendant has failed to do. However, we will consider the sufficiency of the evidence to determine whether it meets constitutional standards when the matter is raised by formal assignment of error as in the instant case. State v. Washington, 421 So.2d 887 (La.1982); State v. Gaston, 412 So.2d 574 (La.1982).

The scope of appellate review for the sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Fuller, 414 So.2d 306 (La.1982).

In this case, defendant was convicted of aggravated battery, defined for our purposes as the intentional use of force or violence upon the person of another, committed with a dangerous weapon. LSA-R.S. 14:34. Defendant does not deny that a flammable liquid can be considered a “dangerous weapon”, LSA-R.S. 14:2(3), nor does he contest the conclusion that the throwing of a flammable liquid, which is then ignited and burns an individual, constitutes the use of force or violence upon the person of another.

At trial defendant admitted that he poured a flammable liquid over the head of the bed where the victim lay sleeping or pretending to sleep. He claims, however, that he intended only to burn the bed to scare the victim, and did not intend to harm the man lying in the bed. He asserted that he hoped to scare the victim and the victim’s cousin into backing off from him, alleging that they believed he knew who had taken some items from their hobby shop box, and had threatened him. He also claimed that the victim had not been sleeping, but had displayed a screwdriver to him in a threatening manner a short while before he decided to set fire to the bed.

Aggravated battery is a general intent crime. State v. Fuller, supra; State v. Brumfield, 329 So.2d 181 (La.1976). General criminal intent is present “whenever there is specific intent, and also when the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act.” LSA-R.S. 14:10(2). We find that there was sufficient evidence from which a rational trier of fact could conclude that the defendant possessed the general intent to commit the crime of aggravated battery. This assignment of error is thus without merit.

However, we note a sentencing error patent on the face of the record: the trial judge failed to follow the mandate of LSA-R.S. 15:529.1(A)(2)(b) and qualify the defendant’s life sentence as being “without benefit of parole, probation, or suspension of sentence”.

LSA-C.Cr.P. art. 882, as amended by Act No. 587 of 1984 allows us to correct an illegal sentence at any time on review.

For the foregoing reasons, defendant’s conviction is affirmed; his sentence is vacated and reimposed as follows: “The defendant shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence.”

CONVICTION AFFIRMED; SENTENCE VACATED AND REIMPOSED.

      . The trial transcript indicates that the state submitted as an exhibit a written inculpatory statement made by defendant the day after the incident to Angola officials. However, the statement is not in the record either in its original form or as a certified copy; a xerox copy of what seems to be defendant’s statement is in the record attached to the state’s answer to defendant's motion for a bill of particulars. Although defendant’s written statement was more detailed, his testimony at trial substantially conveyed the essence of his defense.

      . Act 587 of 1984 provides:
      To amend and reenact Code of Criminal Procedure Art. 882; to provide that courts of appeal may correct illegal sentences; and to provide for related matters.
      Be it enacted by the Legislature of Louisiana:
      Section 1. Code of Criminal Procedure Art. 882 is hereby amended and reenacted to read as follows:
      Art. 882. Correction of illegal sentence; review of illegal sentence.
      An illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review.
      A sentence may be reviewed as to its legality on the application of the defendant or of the state:
      (1) In an appealable case by appeal; or
      (2) In an unappealable case by writs of certiorari and prohibition.
      Nothing in this Article shall be construed to deprive any defendant of his right, in a proper case, to the writ of habeas corpus.


author: JOHN S. COVINGTON, Judge Pro Tem.:

text:
    STATE of Louisiana v. Jerry CARLTON.
    No. 84 KA 0449.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1984.
    William J. Burris, Asst. Dist. Atty., Franklinton, for State.
    Herbert Alexander, Bogalusa, for defendant.

      Before GROVER L. COVINGTON, C.J., and LOTTINGER and JOHN S. COVING-TON , JJ.

       Judge John S. Covington of the 19th Judicial District Court has been duly elected to this court; that term begins on January 1, 1985. In the interim, the Supreme Court has appointed him to this court pro tempore.

   JOHN S. COVINGTON, Judge Pro Tem.:

Defendant Jerry Carlton was charged by bill of information number 38,39.? with production of marijuana, a violation of LSA-R.S. 40:966(A). He was also separately charged, by bill of information number 38,-392, with possession of marijuana, first offense, a violation of LSA-R.S. 40:966(C). Both charges arose out of a search and seizure conducted by Washington Parish Sheriffs deputies on June 20, 1983.

Defendant initially entered a plea of not guilty as to both bills and filed a motion to suppress in number 38,393 (Production). No motion to suppress was filed in number 38,392 (Possession). The record discloses that all physical evidence sought to be suppressed was seized by deputies at the time of movants arrest. After a hearing, defendant’s motion was denied. Defendant then withdrew his plea of not guilty to possession of marijuana and pled guilty under bill of information number 38,39,2. In pleading, defendant expressly reserved his right to appeal or to apply for supervisory writs from the denial of his motion to suppress. State v. Crosby, 338 So.2d 584 (La.1976).

Defendant brought this appeal under bill # 38,39?, assigning as error the trial court’s denial of his motion to suppress. The record presents nothing for review, as defendant has not been convicted of a charge under bill # 38,39? and defendant’s conviction under bill #38,392 is not presented for our consideration on the record as lodged.

We note that possession of marijuana, first offense, is a misdemeanor punishable by no more than six months imprisonment; accordingly, it is not an appealable offense. See, La. Const. (1974) art. 1, § 17; art. 5, § 8; La.C.Cr.P. art. 912.1. Defendant’s proper remedy for appellate review of that conviction is by application for a writ of review. La.C.Cr.P. art. 912.1; Rule 4, Uniform Rules-Courts of Appeal.

For the foregoing reasons, defendant’s appeal of bill #38,393 is dismissed. We reserve to defendant his right to apply for a writ of review of his conviction for possession of marijuana, first offense, under bill # 38,392, in accordance with La.C.Cr.P. art. 912.1(C) and Rule 4, Uniform Rules-Courts of Appeal.

APPEAL DISMISSED.


author: COLE, Judge.

text:
    STATE of Louisiana v. Melvin STERLING.
    No. KA 84 0651.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1984.
    Writ Denied April 1, 1985.

      Ossie Brown, Dist. Atty., by Jeff Holl-ingsworth, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Paula Cobb, Baton Rouge, for defendant-appellant.
    Before COLE, CARTER and LANIER, JJ.
   COLE, Judge.

The primary issues raised in this appeal are whether probable cause existed for defendant’s arrest, whether the evidence presented was sufficient to prove defendant possessed specific intent to commit armed robbery and whether the sentence imposed upon defendant was excessive.

Defendant, Melvin Sterling, was indicted by the East Baton Rouge Parish grand jury for armed robbery in violation of La.R.S. 14:64. After entering a plea of not guilty, he filed a motion to suppress an inculpato-ry statement given by him. The trial court denied this motion. After trial by jury, defendant was found guilty as charged and sentenced to 25 years at hard labor, without benefit of parole, probation or suspension of sentence. Defendant appealed his conviction, relying upon four assignments of error.

One of defendant’s assignments of error was the trial court’s refusal to allow the introduction at the suppression hearing of the taped statement given to police by defendant’s cousin, Deborah Sterling. In State v. Sterling, 444 So.2d 273 (La.App. 1st Cir.1983), we concluded this assignment of error (Number 4) had merit. Thus, we remanded this matter to the trial court with instructions to allow its introduction at a reopened hearing on defendant’s motion to suppress. An additional reason for this remand was the ambivalent nature of the state’s evidence on the issue of probable cause. Accordingly, the trial court was also instructed to allow the introduction of certain evidence on this issue. We retained jurisdiction over this appeal in the event of an adverse ruling on defendant’s motion in order to complete our review of the other substantive issues raised by him, which have not previously been considered. Following a second hearing on March 20, 1984, the trial court again denied defendant’s motion to suppress. This matter was subsequently transmitted to this court in accordance with our instructions.

In his first assignment of error defendant argues the trial court erred in denying his motion to suppress an inculpatory statement given by him following his arrest.

The facts leading up to defendant’s arrest and subsequent confession are as follows. On February 16, 1982, two young women were robbed and murdered at the Supermat Washateria in Baton Rouge, Louisiana. Both victims were shot to death. Patrick Doughty, a detective with the Baton Rouge City Police, and Eddie Stewart, an investigator for the district attorney’s office, participated in the investigation of these crimes from its inception.

On August 16, 1982, Stewart received a telephone' call from a confidential informant who stated there were three participants involved in the washateria robbery and murders. At that time he gave Stewart the name of one participant and the nicknames of the other two. The informant later called Stewart back and named Melvin Sterling, Darren Kent and Keith Paul Whittaker as "the three participants. The informant also indicated defendant’s cousin and grandfather were aware of his involvement in these crimes. Stewart conveyed this information to Doughty and Frank Paxio, another detective with the Baton Rouge City police, who then attempted to find addresses on the named parties. They determined defendant was living at his grandfather’s house.

Upon arriving at the grandfather’s house between 3:00 and 4:00 P.M. on August 17, 1982, Doughty and Stewart encountered defendant’s cousin, Deborah Sterling. Ms. Sterling refused a request to talk about the case downtown, but agreed to talk in their police car. The officers explained the meaning and consequences of being an accessory to Ms. Sterling. She was also informed of her rights and signed an advice of rights form. Thereafter, she was informed of the specific matter under investigation and asked what she knew about it. The substance of Ms. Sterling’s statement was that she personally overheard defendant tell a third person he was present with two accomplices when the crimes in question were committed. According to Ms. Sterling, defendant stated he had not done the shooting. Ms. Sterling also indicated Whittaker and Kent were the two accomplices referred to by defendant.

At approximately 5:45 P.M. on August 17,1982, Paxio and an investigator with the district attorney’s office encountered defendant at his grandfather’s house. They advised him of his Miranda rights and asked if he would go downtown with them. Upon agreeing to do so, defendant was taken to Doughty’s office. Doughty advised defendant he was not under arrest, but the officers would like to talk to him about the robbery and murders if he was willing. After being informed of his rights at approximately 6:07 P.M., defendant gave an exculpatory statement. The officers discontinued the interrogation at this point and advised defendant not to leave the detective room until their return. Defendant remained in this office until after he had given a second statement, which was inculpatory in nature, at approximately 1:50 A.M. on August 18, 1982. It is this statement which defendant seeks to suppress.

During the intervening time between defendant’s two statements, the officers apparently were attempting to locate Whit-taker and Kent, both of whom were arrested that night pursuant to warrants. No warrant was ever obtained for defendant’s arrest. Apparently, he was formally arrested and booked following his second statement.

In our earlier consideration of this matter, we determined the detainment of defendant following his first statement constituted an arrest. State v. Sterling, supra. Defendant contends this arrest was illegal because there was no probable cause to support it. He further argues his exculpatory statement was a product of this illegal arrest and thus must be suppressed.

A confession which is obtained as a direct result of an illegal arrest should be suppressed. State v. Burton, 416 So.2d 73 (La.1982). In order to be lawful, an arrest must be based upon probable cause to believe the person arrested has committed or is committing an offense. State v. Jackson, 424 So.2d 997 (La.1982). The state bears the burden of proving the police had probable cause to arrest or, if none existed, to show the causal connection between the arrest and subsequent confession was so attenuated the confession could not be properly considered a fruit of the illegal arrest. Id. Probable cause to arrest exists when the facts and circumstances within the arresting officer’s knowledge and of which he has reasonably trustworthy information are sufficient to justify a man of ordinary caution in the belief the person to be arrested has committed a crime. State v. Jackson, 450 So.2d 621 (La.1984). Probable cause must be judged by the probabilities and practical considerations of everyday life on which average men, and especially average policemen, can be expected to act. Id. Although mere suspicion will not support an arrest, it is not necessary for the arresting officer to have sufficient proof to convict the accused. State v. Jackson, 424 So.2d 997 (La.1982).

In the present case, police received a tip from a confidential informant that defendant, together with Whittaker and Kent, were involved in the washateria robbery and murders. The informant also indicated defendant’s grandfather and cousin were aware of his involvement. The United States Supreme Court has recently adopted a “totality of the circumstances” approach for evaluating information provided by a confidential informant to determine if probable cause exists. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), rehearing denied, — U.S. -, 104 S.Ct. 33, 77 L.Ed.2d 1453 (1983). This approach requires a balanced assessment of the various indicia of reliability and unreliability attendant to the informant’s tip. Id. The informant’s veracity and basis of knowledge are important factors to be considered in this analysis.

Eddie Stewart, the recipient of the informant’s tip, testified he had previously obtained a lot of information from this particular informant and it had never been incorrect in the past. Although he could not recall the number of convictions which had resulted from this information, he stated he had put this informant’s information to the test at least ten times and it had always checked out. Stewart’s testimony did not establish the informant’s basis of knowledge. However, this deficiency alone is not depositive of the issue of probable cause. Gates, 103 S.Ct. at 2329. It is merely one of the factors to be considered under the totality of the circumstances analysis, albeit an important one.

Subsequent to receiving the tip and prior to defendant’s arrest, the police obtained information which corroborated the tip in all important respects. On August 17, 1982, defendant’s grandfather admitted he had heard from Deborah Sterling of defendant’s involvement in a robbery or something of that nature. As indicated by the informant, Ms. Sterling was also aware of defendant’s involvement in the crimes under investigation. Even more importantly, she confirmed the three names given by the informant, including defendant’s, as being the perpetrators of the washateria robbery and murders. It is significant that the source of Ms. Sterling’s knowledge was defendant himself.

One of the most important factors in determining probable cause is satisfied when the police know a crime has been committed. State v. Webb, 432 So.2d 362 (La.App. 1st Cir.1983). The arresting officers were well aware in the present case of the occurrence of an armed robbery and double murder. Considering this fact with all other relevant circumstances, including the informant’s veracity as established by his previously reliable information, Ms. Sterling’s corroboration of the names of the perpetrators (including defendant) and particularly Ms. Sterling’s basis of knowledge, we find probable cause existed to support defendant’s arrest.

This assignment of error is without merit.

In his second assignment of error, defendant contends the State failed to prove an essential element of armed robbery, i.e., specific intent to commit that crime.

The proper standard for reviewing sufficiency of the evidence, regardless of the procedural vehicle by which it is raised, is provided by La.Code Crim.P. art. 821. See State v. Korman, 439 So.2d 1099 (La.App. 1st Cir.1983). This standard is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. La.Code Crim.P. art. 821; State v. Walker, 447 So.2d 54 (La.App. 1st Cir.1984).

Where possession or use of a dangerous weapon is essential to the commission of an offense, a person may be a principal to the offense even though he did not personally have possession of the weapon used in committing the offense. State v. Holmes, 451 So.2d 1175 (La.App. 1st Cir.1984) writ denied, 456 So.2d 1008 (La.1984). The State may prove a defendant’s guilt as a principal by showing he aided, abetted, counseled or procured another to commit the crime. R.S. 14:24. All principals are not automatically guilty of the same grade of offense. State v. Holmes, 388 So.2d 722 (La.1980). Depending upon the mental element proven at trial, a principal may be convicted of a higher or lower degree of the crime. Id.

Due to the difficulty of presenting direct evidence as to a defendant’s state of mind, the trier of fact may infer intent from the facts and circumstances of a transaction and the defendant’s actions. R.S. 15:445. To possess specific intent an offender must actively desire the proscribed criminal consequences to follow his act or failure to act. R.S. 14:10(1). The existence of specific intent is an ultimate legal conclusion to be resolved by the trier of fact. State v. Sterling, 453 So.2d 625 (La.App. 1st Cir.1984).

Although a defendant can not be convicted on his own uncorroborated confession alone, once the occurrence of a crime is independently established, a defendant’s confession alone may be used to identify him as a perpetrator of the crime. State v. Celestine, 452 So.2d 676 (La.1984). Since the corpus delicti of armed robbery was established by independent evidence in the present case, defendant’s confession may be considered with all other evidence in reviewing the sufficiency of the evidence to prove specific intent.

In his confession defendant gave the following account of the robbery. He admitted entering the washateria with Whittaker and Kent for the purpose of obtaining money from the victims. Once inside Kent pulled a gun on the two women present. Defendant then went behind the counter with Kent and maintained a lookout as Kent removed money from a small box. Whittaker took the car keys of one of the victims and went outside and started her car. Defendant then went outside and waited in the car for Kent and Whittaker. After the robbery, he spent the night at Whittaker’s apartment and left the next morning with approximately $100.00 of the stolen money. Defendant denied hearing any gunshots. His trial testimony differed slightly from his confession in that he admitted at trial having heard two gunshots while waiting in the car.

Defendant admitted no one forced him to enter the washateria. However, he claims he believed money would be taken from the victims by scaring them without resorting to the use of guns. He maintains he changed his mind about the robbery once he saw Kent’s gun.

We find there was sufficient evidence from which the jury could have concluded otherwise. Defendant willingly entered the washateria for the purpose of committing robbery. When Kent pulled a gun and threatened the victims, defendant made no attempt to dissuade him. Rather, he proceeded behind the counter with Kent and maintained a lookout as the money was being taken. A gun was being held on the two victims throughout this time. Following the robbery, defendant kept approximately $100 of the stolen money for himself. When viewed in the light most favorable to the prosecution, we find there was sufficient evidence from which the jury could reasonably have concluded defendant possessed specific intent to commit armed robbery.

This assignment of error is without merit.

In his third assignment of error, defendant contends the sentence imposed was excessive and the trial court failed to comply with the sentencing guidelines of La.Code Crim.P. art. 894.1. A trial judge has wide discretion in imposing a sentence within statutory limits. State v. Lanclos, 419 So.2d 475 (La.1982). A sentence will not be set aside as excessive in the absence of a manifest abuse of discretion. Id.

A sentence is considered excessive if it is grossly disproportionate to the severity of the crime or is nothing more than the needless imposition of pain and suffering. State v. Thomas, 432 So.2d 325 (La.App. 1st Cir.1983).

Defendant was exposed to a maximum potential sentence under La.R.S. 14:64 of ninety-nine years at hard labor. He was actually sentenced to twenty-five years at hard labor.

The record reflects the trial court ordered a presentence report and contemplated each of the guidelines of La.Code Crim.P. art. 894.1 before imposing sentence. Although defendant is young and this conviction was his first as an adult, he has an extensive juvenile record. In fact, the instant-offense was committed within several months of his last release from LTI. In addition, the trial court felt a lesser sentence would deprecate the seriousness of the robbery in which defendant was involved, which resulted in the brutal murder of two young women.

We do not find the sentence imposed excessive under these circumstances. Additionally, we find the trial court fully considered the range of sentencing alternatives and individualized the sentence imposed to defendant for the crime involved.

This assignment of error is without merit.

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

AFFIRMED.

      . We are now concerned only with assignments of error numbers 1-3. Assignment of error number 4 was disposed of in our earlier consideration of this matter.