author: WATSON, Justice. DIXON, C.J., CALOGERO, Justice, WATSON, Justice,

text:
    STATE of Louisiana v. Willie FOLEY.
    No. 83-KA-2306.
    Supreme Court of Louisiana.
    May 14, 1984.
    Rehearing Denied Oct. 25, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William R. Campbell, Jr., Mary Charlotte McMullan, Jack Peebles, Charles P. Ciaccio, Asst. Dist. Attys., for plaintiff-appellee.
    Elizabeth Cole, Roland Belsome, New Orleans, Tulane Law School Clinic, for defendant-appellant.
   WATSON, Justice.

Willie Foley was indicted by the grand jury for aggravated rape in violation of LSA-R.S. 14:42. A unanimous jury found defendant guilty as charged and he was sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. On appeal, defendant urges two assignments of error for the reversal of his conviction and sentence.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant contends that the trial court erred in denying his motion to quash, arguing that he was entitled to a hearing before being tried as an adult rather than a juvenile.

Foley, 15½ years old at the time of the crime, asserts that he was first indicted on September 25, 1979, but the charge was nolle prosequied on July 2, 1980. In the interim, review of the trial court’s refusal to quash the indictment and transfer Foley to juvenile court for a status hearing was denied.

Foley was re-indicted for aggravated rape on November 12, 1980. Although defendant did not reurge the right to a transfer hearing, he argues in brief that failure to hold such a hearing deprived him of due process. Defendant maintains that he was overcharged to vest jurisdiction in the district court, and should have been charged, at most, with forcible rape, a crime within juvenile court jurisdiction. The argument ignores evidence that defendant abducted and raped his victim at knifepoint and threatened to kill her if she resisted.

LSA-R.S. 13:1570(A)(5), effective September 12, 1980, expressly provides that juvenile court jurisdiction does not extend to a juvenile “who, after having become fifteen years of age or older is charged with having committed ... aggravated rape.” The juvenile court was statutorily divested of jurisdiction when Foley was first indicted for aggravated rape.

LSA-R.S. 13:1570(A)(5) is a valid exercise of state police power. Classifications by age and seriousness of the offense are not arbitrary or capricious; they bear a rational relationship to the state’s legitimate interest in giving the public enhanced protection from more violent felons. State v. Leach, 425 So.2d 1232 (La.1983); State v. Perique, 439 So.2d 1060 (La.1983).

The legislature has decided that fifteen year olds charged with aggravated rape should be treated as adults. Within this statutory framework, the district attorney controls criminal prosecutions by determining whom, when, and how he will prosecute. LSA-C.Cr.P. art. 61; State v. Perique, supra.

This assignment is without merit.

ASSIGNMENT OF ERROR NUMBER FOUR

Defendant contends that the life sentence mandated by LSA-R.S. 14:42 is unconstitutionally cruel, unusual and excessive under the Eighth Amendment to the United States Constitution, and Article I, § 20 of the Louisiana Constitution under the circumstances of his case.

The mandatory life sentence for aggravated rape is a valid exercise of the state legislature’s prerogative to determine the length of sentence for crimes classified as felonies. State v. Prestridge, 399 So.2d 564 (La.1981); State v. Farria, 412 So.2d 577 (La.1982); and State v. Talbert, 416 So.2d 97 (La.1982).

Relying on Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), defendant argues that mandatory sentences are subject to judicial scrutiny for exces-siveness and his sentence is disproportionate because of: (1) his age at the time of the offense, and (2) the fact that the victim suffered no lasting psychological damage.

Solem v. Helm, supra, held that a life sentence without benefit of parole imposed on a defendant who had six prior felony convictions was unconstitutionally excessive. Helm wrote a check on a bank at which he had no account. Had he been a first offender, his maximum sentence would have been five years imprisonment and a $5,000 fine. The life sentence was imposed by operation of the South Dakota recidivist statute which specifically excluded the possibility of parole.

Helm held that “a criminal sentence must be proportionate to the crime for which the defendant has been convicted. Reviewing courts, of course, should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes.... But no penalty is per se constitutional.” 103 S.Ct. at 3009-3010. The Helm court set forth the following objective factors to guide reviewing courts: (1) the gravity of the offense and the harshness of the penalty; (2) the sentences imposed on other criminals in the same jurisdiction; and (3) the sentence imposed for commission of the same crime in other jurisdictions. While requiring proportionality analysis, even in noncapital cases, Helm did point out that, “[ojutside the context of capital punishment, success ful challenges to the proportionality of particular sentences [will be] exceedingly rare.” 103 S.Ct. at 3009.

Applying these factors to this crime and sentence, defendant’s life sentence is not excessive. As to the gravity of the offense, the legal definition of aggravated rape in LSA-R.S. 14:42(2) is virtually identical to that of forcible rape. Distinctions are drawn based on the degree of force and the resistance of the victim. The jury determines the permissible punishment by a verdict which fits the crime by assessing the degree of force employed. State v. Willie, 422 So.2d 1128 (La.1982).

Defendant does not expressly contend that there is insufficient evidence to convict him of aggravated rape but cites numerous forcible rape cases, and argues that their facts are no more egregious than those here. However, the evidence adduced at this trial justifies the jury’s verdict.

Early in the morning on August 27,1979, the sixteen year old victim and her thirteen year old companion went, on bicycles to purchase donuts. They were followed by two black males in a gray TransAm. When the car pulled alongside the victim, its driver, the defendant, repeatedly asked her name. The car turned off just before the bicyclists reached the donut shop.

As the two children returned home, the gray TransAm resumed following them, defendant now occupying the passenger seat. Although the bicyclists attempted to elude their pursuers by turning down a side street, the driver cut off the victim’s escape. Her bicycle fell into a drain and she could not run because her sock got caught in its chain. Foley jumped from the car, grabbed the victim’s hand and put his knife in her face. He told her that if she did not get into the car, he would hurt her.

The victim attempted to fight off her attacker but was forced into the car. Once inside the car, Foley told the victim to undress. Otherwise, he threatened that “I’m going to jugg you with this knife”. (Tr. 125) Foley raped the victim while Robinson drove to a nearby apartment complex parking lot. Throughout the rape, Foley held his knife to the victim’s throat. At one point the victim spotted a garbage truck and screamed for help, but she could not be heard over the volume of the car radio. When she screamed, Foley pulled her arm around her back and again said that he would kill her if she did not remain quiet. The victim testified that Foley raped her three times while Robinson raped her once or twice.

After the victim was kidnapped, her companion contacted the police, who were at the crime scene when the abductors returned with the victim. Spotting the police, the rapists pushed the victim from the car and sped away. The police picked up the victim who was “crying very hysterical” and apprehended Foley and Robinson several blocks away.

Using the Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) standard of appellate review and viewing the evidence in the light most favorable to the prosecution, we conclude that the jury could easily have found beyond a reasonable doubt that defendant was guilty of aggravated rather than forcible rape.

Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977), held that a death sentence for rape is excessive punishment under the Eighth Amendment, but did not discount the seriousness of the crime. “It is highly reprehensible both in a moral sense and in its almost total contempt ... of the female victim and for the latter’s privilege of choosing those with whom intimate relationships are to be established. Short of homicide, it is the ultimate violation of self.” 433 U.S. at 597, 97 S.Ct. at 2869, 53 L.Ed.2d at 992, 993. Aggravated rape inflicts mental and psychological damage to its victim and undermines the community sense of security. Defendant’s argument that his victim has suffered no lasting psychological damage is unsubstantiated. Aggravated rape deserves a harsh penalty; it is one of the most violent felonies a person can commit.

. Defendant’s argument that his age requires a lesser sentence is without merit. Despite his lack of an adult criminal record, Willie Foley is no stranger to the justice system. At the time of the offense, he had just escaped from Rivarde Juvenile Home where he had been detained on charges of simple burglary, resisting arrest and simple battery. Foley was the principal aggressor in this crime. He initially accosted the victim, kidnapped her, raped her first and then repeatedly raped her. The circumstances here do not militate against the legislature’s determination that fifteen year old aggravated rapists are to be treated as adults, without varying the punishment according to the age of the accused.

Helm requires that the sentence be compared with that which could be imposed on other criminals in this state. Louisiana statutes mandate life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence for the commission of the following crimes:

(1) LSA-R.S. 14:30, First Degree Murder, where the jury does not unanimously recommend the death penalty;

(2) LSA-R.S. 30.1, Second Degree Murder;

(3) LSA-R.S. 14:42, Aggravated Rape;

(4) LSA-R.S. 14:44, Aggravated Kidnapping; and

(5) Certain offenses under the habitual offender law.

Except for criminal conduct subject to sentencing under the habitual offender statute, mandatory life sentences are imposed only for violent crimes against the person. Louisiana’s statutory, scheme recognizes five grades of culpability for illegal sexual conduct ranging from aggravated rape to sexual battery. This scheme is complimented by the responsive verdict system. Louisiana does not single out aggravated rape for disproportionate punishment.

Compared with the sentencing statutes of other states for the same crime, Louisiana’s statute is not facially excessive. Many jurisdictions (not Louisiana) have adopted, with modifications, the Model Penal Code classifications. Under this Code, rape under these circumstances would be classified as a first degree felony. The ordinary term for such a felony is imprisonment to a minimum term of not less than one year nor more than ten years and a maximum term of life. In Alabama, for example, rape in the first degree is a Class A felony punishable either by life imprisonment or a term of ten to ninety-nine years. If a deadly weapon is used in the commission of the crime, punishment can not be less than twenty years imprisonment. Ala. Code tit. 13A, §§ 13A-6-61, 13A-5-6. In Missouri and Michigan, a life sentence is possible but not mandatory. Mo.Rev.Stat. §§ 566.030, 558.011 and MSA § 28.788(2) [M.C.L.A. § 750.520]. Maryland requires that a person convicted of first degree rape be subject to imprisonment for no more than the period of his natural life. Md. Crim.Law Code Ann. § 462. In Delaware, rape is a Class A felony, carrying a punishment of life imprisonment which cannot be reduced or suspended by the court. Del. Code tit. 11, §§ 764, 4204, 4205.

Thus, while not all jurisdictions surveyed mandate life imprisonment, all view aggravated rape as a serious crime meriting substantial punishment. Unlike the defendant in Helm who could have received his life sentence in only one other state, Foley’s sentence could have been meted out in other jurisdictions.

Willie Foley’s life sentence is not disproportionate to his crime and not prohibited as excessive by either the United States or Louisiana Constitutions.

For the foregoing reasons, the conviction and sentence of defendant, Willie Foley, are affirmed.

AFFIRMED.

DENNIS and LEMMON, JJ„ concur.

DIXON, C.J.,

concurs.

LSA-R.S. 13:1570 is a valid criminal procedural statute, but it is not an “exercise of state police powers.”

CALOGERO, J., concurs in part, dissents in part, and assigns reasons.

CALOGERO, Justice,

concurring in part and dissenting in part.

I concur in the majority opinion insofar as it affirms defendant’s conviction, particularly in holding that defendant was not entitled to a transfer hearing in juvenile court. But I dissent from the determination that the sentence imposed on this retarded fifteen year old, imprisonment without parole eligibility for the remainder of his natural life, under the facts and circumstances of this case, is not excessive.

Defendant argued, in assignment of error number one, that the trial court erred in denying his motion to quash, because he was entitled to a transfer hearing in juvenile court before the state proceeded against him as an adult in district court. The majority finds no merit in that contention relying on La.R.S. 13:1570(A)(5), “effective September 12, 1980.” While I concur in the majority’s determination that the defendant was not entitled to a transfer hearing in juvenile court, and thus the motion to quash was properly denied, I take issue with the majority’s reasons.

The majority relies on a statute which it notes to be “effective September 12, 1980.” The crime with which defendant is charged was committed prior to that date on August 27, 1979. Thus, the statute relied on by the majority is not applicable to the instant offense at all.

However, I concur because the result is the same when the issue is considered under the applicable law in effect at the time the offense was committed.

Article V, § 19 of the 1974 Louisiana ■Constitution, in effect on August 27, 1979, the date of the instant offense, provided in part:

Section 19. Except for a person fifteen years of age or older who is alleged to have committed a capital offense or attempted aggravated rape, the determination of guilt or innocence, the detention, and the custody of a person who is alleged to have committed a crime prior to his seventeenth birthday shall be exclusively pursuant to special juvenile procedures which shall be provided by law.

The implementing legislation, La.R.S. 13:1570, in effect on the date the instant offense was committed (as opposed to as amended in 1980) provided in pertinent part:

Except as otherwise provided herein, the court shall have exclusive original jurisdiction in proceedings:
(A) Concerning any child whose domicile is within the parish or who is found within the parish:
(5) Who violates any law or ordinance, except a child who, after having become fifteen years of age, is charged with having committed a capital crime, or a crime defined by any law defining attempted aggravated rape ....

The crime of aggravated rape, with which this defendant was charged, was not a capital crime at the time of the commission of this offense. A literal interpretation of the constitutional and statutory provisions would allow the initiation of prosecution in the district court only when juveniles of the minimum age were accused of committing a capital crime or the crime of attempted aggravated rape. However, this Court concluded in State ex rel. Coco, 363 So.2d 207 (La.1978) that such an interpretation would create an incongruous situation wherein the more serious offense of aggravated rape would be relegated to the jurisdiction of the juvenile court while the lesser included offense of attempted aggravated rape would fall to the district court wherein adult procedures would apply. This Court concluded in Coco, supra, that the intent of the drafters of the constitutional provision was to include aggravated rape within the jurisdiction of the district court. It was further held that jurisdiction vested in the district court upon indictment. Thus, a juvenile, falling in this time period and under these provisions, is not entitled to a transfer hearing in juvenile court. For these reasons, I concur as relates to this aspect of the case.

In assignment of error number four, the defendant argued that the imposition of a life sentence without parole eligibility, as against him, was constitutionally excessive. The majority concludes that the sentence was not excessive. However, considering this defendant, the circumstances of this offense, the sentences of other similarly situated offenders, and similar sentences for other offenses, I disagree with the majority in this case.

Before I address what was discussed in the majority opinion in this regard, I feel constrained to point out what was not discussed. For it is in part through consideration of what was omitted from the opinion that one can better understand and consider defendant’s argument on this issue.

Defendant Willie Foley was fifteen years old at the time this offense was committed, August 27, 1979. He lived at home, throughout his childhood, with his mother. He has never known his father. As provided in a psychiatric evaluation of Foley, he “has a very limited intelligence.” His I.Q. range is 62 to 79. Foley has no history of alcohol or drug abuse. A pre-sentence investigation was not conducted. Thus it cannot be stated with certainty what his prior juvenile record might have indicated, except that he apparently did have a record.

Foley’s main problem, insofar as his ultimate re-prosecution is concerned (after the district attorney had earlier entered a nolle prosequi on the same charge) may well have been his choice of companions on the night of this offense. On the night in question, Foley was riding around with a companion by the name of Eduardo Robinson. It was approximately 3:00 a.m. when Foley and Robinson saw the victim, a sixteen year old female, and her twelve year old male companion, riding their bicycles down Carrollton Avenue. Eventually, after harassing the two for a while, Foley threatened the female with a letter opener (not a knife, as the majority suggests) and forced her into the car. Robinson drove the car a few blocks away and allegedly Foley raped the victim three times, and Robinson raped her twice. Thereafter, the victim put her clothes back on. However demeaning, traumatic and offensive the experience for this victim, it appears at least that she did not remain in fear of her life:

Q. After all of that, you put your clothes back on?
A. Yeah because I was ready to go and they wasn’t going to do me nothing.

After the victim dressed, Robinson started to drive her back to where she left her bicycle. When they approached that location they saw a police car and turned. They left the victim at a nearby Winn-Dix-ie, then tried to escape. The officers picked up the girl and followed the Robinson vehicle until it crashed. Robinson got out of the vehicle and tried to escape on foot. The defendant remained seated in the passenger side of the vehicle. Both defendant and Robinson were apprehended and arrested.

On September 25, 1979, both Foley and Robinson were indicted by the grand jury, thus given adult treatment as permitted by law. They remained in custody for some nine months until, on July 2, 1980, the Orleans Parish District Attorney’s Office entered a nolle prosequi of the charge. Both were released. On October 23, 1980, in an unrelated matter, a Ms. Cynthia Schwartz was murdered in uptown New Orleans. Because of the horror it evoked, as Ms. Schwartz was simply outside in her garden when brutually murdered, the murder was highly publicized. Eduardo Robinson (Foley’s co-perpetrator in the instant offense) became a suspect in the Schwartz murder and was eventually arrested for, and charged with, that murder. Thereafter, on November 11, 1980, Robinson and defendant Willie Foley were reindicted for the aggravated rape of the victim in this case.

In brief, in assignment of error number two, Foley contends that the trial court erred in denying his motion to quash based on untimeliness and prosecutorial vindictiveness. His complaint is that he suffered a denial of due process when, because of Robinson’s later notoriety, he, Foley, was re-charged after earlier indictment, nine months of pre-trial incarceration, dismissal of the charge and release from jail. Foley also argues here that the prosecutor overcharged him with aggravated rape when the circumstances of the crime indicate, at most, forcible rape, simply because of a desire to charge Robinson (and therefore Foley as well) in the district court rather than juvenile court.

The majority has chosen not to discuss or consider this assignment of error. (See footnote three in the majority opinion.) The assignment is argued in brief. No pleading or record in this Court indicates that it was abandoned, although as noted at footnote three to this dissent, defendant deleted reference in all of his pleadings to the words “prosecutorial vindictiveness,” while continuing to complain of the denial of the motion to quash based on “untimeliness.” It deserves discussion and merits resolution by this Court. For my part, the assignment of error does not warrant reversing defendant’s conviction or sentence. The substance of the complaint, however, does have some bearing on defendant’s assignment of error number four, wherein he argues that the life sentence without parole eligibility, imposed in this case, is excessive.

Relative to his assignment of error number four, defendant is not arguing that the penalty provision for aggravated rape, La. R.S. 14:42, is per se unconstitutionally excessive. Nor do I believe it to be so. Defendant is arguing, and in my view with some merit, that considering the peculiar circumstances of this case, including his personal characteristics and the facts of the offense, when compared with similar cases, the life sentence without parole eligibility is excessive.

The majority properly relies on the recent United States Supreme Court case, Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983) in considering defendant’s arguments under the Eighth Amendment of the United States Constitution. Therein, as noted by the majority, the Court held:

[A] criminal sentence must be proportionate to the crime for which the defendant has been convicted. Reviewing courts, of course, should grant substantial deference to the broad' authority' that legislatures necessarily possess in determining the types and limits of punishments for crimes, as well as to the discretion that trial courts possess in sentencing convicted criminals. But no penalty is per se constitutional. As the Court noted in Robinson v. California, 370 U.S., [660] at 667, [82 S.Ct. 1417, 8 L.Ed.2d 758 (1962) ] a single day in prison may be unconstitutional in some circumstances. (emphasis provided) Id. at 3009.

As also noted by the majority, the Court in Helm set forth objective factors to guide reviewing courts. The Court stated:

In sum, a court’s proportionality analysis under the Eighth Amendment should be guided by objective criteria, including (i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions. Id. at 3010-11.

We likewise have our own well settled principles of appellate review of sentences under our state constitution. Article I, § 20 of the 1974 Louisiana Constitution prohibits the imposition by law of excessive punishment. In accordance therewith, in State v. Sepulvado, 367 So.2d 762 (La.1979), we held that “the imposition of a sentence, although within the statutory limit, may violate a defendant’s constitutional right against excessive punishment that is enforceable by this court on appellate review of his conviction.” This Court has also recognized that a punishment is unconstitutionally excessive if it (1) makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime. State v. Lathers, 444 So.2d 96 (La.1983); State v. Telsee, 425 So.2d 1251 (La.1983); State v. Sims, 410 So.2d 1082; (La.1982); State v. Johnson, 406 So.2d 569 (La.1981); State v. Kersey, 406 So.2d 555 (La.1981); State v. Snider, 406 So.2d 209 (La.1981); State v. Russell, 397 So.2d 1319 (La.1981); State v. Williams, 397 So.2d 1287 (La.1981); State v. Beavers, 382 So.2d 943 (La.1980); State v. Goode, 380 So.2d 1361 (La.1980).

The majority misconstrues defendant’s reliance on numerous forcible rape cases as an argument that he was not properly convicted of aggravated rape. Under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the majority concludes that “the jury could easily have found beyond a reasonable doubt that defendant was guilty of aggravated rather than forcible rape.”

Actually defendant’s argument is not that the evidence adduced fails to support a conviction for aggravated rape but rather that because of the similarity of the definitions of aggravated rape and forcible rape the evidence could have just as well supported a conviction of forcible rape. The existence of these very similar criminal statutes, defining aggravated rape and forcible rape, with significantly different penalties (life without benefit for aggravated rape; and forty years, at least two without benefit, for forcible rape) contributes to widely varying punishments for similar conduct (and oftentimes a lesser punishment for more egregious conduct).

State v. Rash, 444 So.2d 1204 (La.1984) brings defendant’s argument into focus most vividly. In that case Rash was convicted of aggravated rape (and thus given a life sentence without parole eligibility) while his co-perpetrator in a separate trial was found guilty of forcible rape (and sentenced to thirty-five years, two without benefit of parole), despite the fact that it was the co-perpetrator who actually raped the victim. In comparing defendant’s case to other cases we find the following. In State v. Dawson, 392 So.2d 445 (La.1981), the defendant therein was charged with aggravated rape, but was convicted of forcible rape and sentenced to twenty years imprisonment at hard labor, two without benefit of parole, probation or suspension of sentence. Dawson kidnapped a thirteen year old child by holding a knife to her throat, took her to a secluded place in his truck and raped her. Dawson had a previous record of sex crimes. In State v. Lewis, 412 So.2d 1353 (La.1982) defendant was convicted of forcible rape and sentenced to twenty-four years at hard labor, eight to be served without benefit of parole, probation or suspension of sentence. Lewis made an unauthorized entry into the victim’s house, hit her over the head, ripped off her clothes, beat her with the butt of a rifle, and raped her. The head wounds required stitches. The victim was also made to march around the house naked at gunpoint, tied up and raped.

In contrast the facts attending the charged offense in this case were significantly less egregious and yet defendant’s penalty is the absolute maximum, short of execution.

As already stated, defendant threatened the victim with a letter opener. The victim was allegedly raped three times by the defendant and twice by the defendant’s companion, over a period of about thirty minutes. She was then allowed to dress and she was being returned to where she had been picked up when the police intervened. Defendant was fifteen years old, while the victim was sixteen. In an examination of the victim conducted immediately after the incident, the coroner found no signs of trauma and no bruises in the area surrounding the vagina and the rectum. The victim was described by the coroner as an alert active party in no apparent distress, without signs of trauma, bruises, abrasions or lacerations. Foley was fifteen years old at the time of the offense and has an I.Q. range of 62 to 79. No PSI was conducted and we have no record evidence of a juvenile record, although there are indications that he has one. Considering the facts of the crime and the characteristics of the defendant, in comparison with other similar cases, this case is simply not among the more serious rapes which have been committed, nor is this defendant among the worst offenders encountered. Yet, short of the death penalty, he has received the most severe sentence possible in this state, or in any other state, life imprisonment without the benefit of parole, probation or suspension of sentence.

As can be seen, we are too often left, in rape cases, with the anomalous result that the penalty imposed on some individuals (albeit legislatively mandated) is grossly disproportionate to their criminal conduct. I am of course mindful of the reprehensible nature of the crime of rape, whether aggravated or forcible, or for that matter, even simple rape. And there is no doubt that generally, a life sentence is the appropriate sentence to be imposed on one convicted of aggravated rape. However, it is constitutionally mandated that “a criminal sentence must be proportionate to the crime ....” Solem v. Helm, 108 S.Ct. 3009. And it is the lack of proportionality between the sentence imposed and the criminal conduct exhibited in this case that taints this sentence with unconstitutionality.

The excessiveness of the sentence imposed in this case is made even more clear when it is compared with those imposed for the same crime in other jurisdictions. The sentence imposed here stands alone as the most severe. The majority cites no other state which imposes a minimum sentence of life imprisonment for the same offense, much less a life sentence without parole eligibility. Granted there are some states which allow the imposition of a life sentence, but even that is far less severe than mandating such a sentence in all cases, as is the situation here in Louisiana.

The majority conclusion that “Foley’s sentence could have been meted out in other jurisdictions,” is not supported by the authorities cited. In fact, in footnote 10 the majority admits that the without benefit feature of our statute is unique.

The Court in Solem v. Helm, noted the significant difference between a sentence simply to life imprisonment and a sentence to life imprisonment without the possibility of parole:

Helm’s present sentence is life imprisonment without possibility of parole. Barring executive clemency, Helm will spend the rest of his life in the state penitentiary. This sentence is far more severe than the life sentence we considered in Rummel v. Estelle [445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382], Rummel was likely to have been eligible for parole within 12 years of his initial confinement, a fact on which the Court relied heavily. Helm’s sentence is the most severe punishment that the State could have imposed on any criminal for any crime, (emphasis provided) Id. at 3013.

As the Court made clear, the distinction between a sentence with parole eligibility and one without is a very significant one. Contrary to what the majority opinion asserts, the sentence imposed on Foley is not one which is imposed in other jurisdictions (assuming the authorities cited in the majority opinion are complete).

Thus, after considering all these factors, the nature of the offense, the nature of the offender, the sentences imposed on other criminals in this jurisdiction, and the sentences imposed in other jurisdictions for the commission of the same crime, it is my view that the life sentence without parole eligibility imposed on this 15 year old mentally retarded youth for the particular rape he committed is constitutionally excessive under our own constitution and the United States Constitution. See Solem v. Helm. Accordingly, I dissent from the part of the majority opinion which held otherwise.

ON APPLICATION FOR REHEARING

WATSON, Justice,

concurring in denial of rehearing.

The concurrence/dissent notes correctly that the weapon wielded by defendant was actually a letter opener. The record is somewhat confusing on this point. The victim repeatedly referred to being threatened with a knife and identified the sharp object, a letter opener, as “the knife he [Foley] had”. (Tr. 129) The other rapist was armed with a steak knife. The victim regarded Foley’s weapon as a knife and testified that Foley referred to it as “this knife”. (Tr. 125) With this clarification, I respectfully concur in the denial of rehearing.

      . The grand jury also indicted Eduardo Robinson for this crime but defendant’s motion to sever was granted and separate trials were held. Robinson’s aggravated rape conviction and life sentence were affirmed by this court. State v. Robinson, 437 So.2d 872 (La.1983).

      . At the time of the crime, LSA-R.S. 14:42 provided:
      “Aggravated rape is a rape committed where the anal or vaginal sexual intercourse is deemed to be without the lawful consent of the victim because it is committed under any one or more of the following circumstances:
      “(1) Where the victim resists the act to the utmost, but whose resistance is overcome by force; or
      “(2) Where the victim is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution; or
      "(3) Where the victim is under the age of twelve years. Lack of knowledge of the victim’s age shall not be a defense.
      "Whoever commits the crime of aggravated rape shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.

      . Assignment of Error Number Two was specifically abandoned on appeal. Assignment of Error Number Three, being neither argued nor briefed, is considered abandoned. State v. Campuzano, 404 So.2d 1217 (La.1981); State v. Parish, 405 So.2d 1080 (La.1981). There are no errors patent on the face of the record, therefore, Assignment of Error Number Five is without merit.

      . The record of the early stages in this case, although made "part of this record" are not in the record as lodged in this court.

      . State v. Foley,¡ 383 So.2d 28 (La. 1980).

      . Defendant was named Helm, and the case is referred to here by his name rather than by that of Solem, the warden.

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

      . In State v. Ross, 343 So.2d 722 (La.1977) a sixteen year old defendant was sentenced to death following his aggravated rape conviction. His conviction was upheld but his case remanded for resentencing because of the unconstitutionality of the death penalty. See also State v. Hills, 354 So.2d 186 (La.1978), after remand 377 So.2d 1218 (La.1979) which upheld a life sentence for a sixteen year old aggravated rapist and State v. Rogers, 275 N.C. 411, 168 S.E.2d 345 (N.C.1969) which upheld a life sentence of a defendant who was fourteen years, eleven months at the time the rape was committed.

      . LSA-R.S. 15:529.1 provides in pertinent part: "A. Any person who, after having been convicted within this state of a felony, or who, after having been convicted under th<j laws of any other state or of the United States, or any foreign government or country of a crime which, if committed in this state would be a felony, thereafter commits any subsequent felony within this state, upon conviction of said felony, shall be punished as follows:
      * * * * * *
      "(2) If the third felony is such that upon a first conviction, the offender would be punishable by imprisonment for any term less than his natural life then,
      * it A * * *
      "(b) If the third felony and each of the two prior felonies involved a violation of R.S. 14:34, R.S. 14:62.1, R.S. 14:65, R.S. 14:110(B), or of any crime punishable by imprisonment for more than twelve years, the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence.
      "(3) If the fourth or subsequent felony is such that, upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life then,

      "(b) The fourth or subsequent felony and two of the prior felonies involved a violation of R.S. 14:34, R.S. 14:62.1, R.S. 14:65, R.S. 14:110(B), or of any crime punishable by imprisonment for more than twelve years, the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence."

      . LSA-C.Cr.P. art. 814 provides in pertinent part:
      "A. The only responsive verdict which may be rendered when the indictment charges the following offenses are:

      “8. Aggravated Rape: Guilty.
      Guilty of attempted aggravated rape.
      Guilty, of forcible rape.
      Guilty of attempted forcible rape.
      Guilty of sexual battery.
      Not guilty."

      . Apparently, the without benefit feature is almost unique to Louisiana.

      . La. Const, art. V § 19 was amended in 1979, but that amendment was not effective until November 30, 1979, three months after the instant offense was committed.

      . Foley was not involved in the Schwartz murder.

      . In an "amended supplemental brief” defendant deletes all reference to the words "prosecu-torial vindictiveness.”

      . In 1979, as pertains to the facts of this case, aggravated rape, as defined in La.R.S., 14:42 provided:
      Aggravated rape is a rape committed where the anal or vaginal sexual intercourse is deemed to be without the lawful consent of the victim because it is committed under any one or more of the following circumstances:
      (2) Where the victim is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution:
      La.R.S. 14:42.1, defining forcible rape, provided:
      Forcible rape is a rape committed where the anal or vaginal sexual intercourse is deemed to be without the lawful consent of the victim because the victim is prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believes that such resistance would not prevent the rape.

      . For a description of other forcible rape cases in which the perpetrators were sentenced to varying prison terms significantly less than the maximum for forcible rape (forty years), see State v. Lathers, 444 So.2d 96 (La.1983).

      . I am not unmindful of the fact that the statutory penalty for aggravated rape is mandatory, and the trial judge, by statute, is afforded no discretion in sentencing the defendant. However, that does not absolve this Court (or any appellate court) of its duty to enforce an individual's constitutional right against excessive punishment on appellate review of his sentence. As noted in Helm, "[w]e raise no question as to the general validity of sentences without possibility of parole. The only issue before us is whether, in the circumstances of this case and in light of the constitutional principle of proportionality, the sentence imposed on this petitioner violates the Eighth Amendment.” (emphasis provided)


source: Caselaw Access Project

author: DIXON, Chief Justice.

license: Public Domain

text:
    LOUISIANA STATE BAR ASSOCIATION v. Louis C. PAIGE.
    No. 82-B-1700.
    Supreme Court of Louisiana.
    June 25, 1984.
    Rehearing Denied Oct. 25, 1984.

    Thomas 0. Collins, Jr., Richard A. Deas, Wood Brown, III, New Orleans, Robert J. Boudreau, Lake Charles, Sam J. D’Amico, Baton Rouge, Carrick R. Inabnett, Monroe, Harold J. Lamy, New Orleans, Alfred S. Landry, New Iberia, Philippi P. St. Peé, Metairie, Roland J. Achee, Shreveport, Gerard F. Thomas, Natchitoches, Counsel for applicant.
    Louis C. Paige, in Pro. Per.

       Calogero, J., would grant a rehearing.

   DISCIPLINARY PROCEEDING

DIXON, Chief Justice.

On February 9, 1981 respondent Louis Charles Paige entered a plea of nolo con-tendere to the charge that he “willfully and knowingly embezzle[d] and misapplied] the sum of $7,000” in violation of 18 U.S.C. §§ 2, 657. Pursuant to Art. XV, § 8 of the Articles of Incorporation of the Louisiana State Bar Association, the Committee on Professional Responsibility determined that this crime was a “serious crime” which reflected on Paige’s moral fitness to practice law. This court concurred, and Paige was suspended from the practice of law on September 23, 1982. 419 So.2d 1246.

Once the conviction was final, the committee filed a petition for disciplinary action pursuant to Art. XV, § 8, para. 7. •Paige failed to respond. On August 2, 1983 a commissioner was appointed. After the hearing the commissioner filed a report in which he recommended disbarment. The committee concurred in the report. Paige has filed no exceptions to this report and did not appear before this court at oral argument. Having examined the record and the commissioner’s report, we conclude that Paige should be disbarred, effective September 23, 1982.

Paige worked his way through college and law school. He was admitted to practice in 1976. In 1978 he took the position of Executive Director of the Public Housing Authority of New Roads to supplement his practice. He remained in this position for some eleven months until an investigation revealed a shortage of $7,000 between the amount received according to the receipt book and the amount deposited in the authority bank account. As a result of this investigation, the United States attorney filed these charges.

At Paige’s re-arraignment the judge conducted a hearing to ascertain the factual basis for the plea. Paige was present with counsel, heard the testimony of the investigator who conducted the audit, and offered no objection or contradictory evidence. The crime charged is a felony. The judge sentenced Paige to the maximum, five years, but then suspended the sentence and placed Paige on probation for five years. The judge further ordered that Paige attend an alcohol abuse program and make restitution.

Paige filed no response to the committee’s petition. He did appear at the commissioner’s hearing and testified on his own behalf. He testified that he experienced alcohol and marital problems at the time, in addition to stress due to the difficulty of making a living as an attorney just out of law school. He nevertheless denied taking any money, blaming instead his secretary. He admitted it was his responsibility to supervise her actions, and he explained that he pleaded nolo contendere because he was in no “shape” to fight it and because he wanted to have the matter behind him. He also testified that he was making regular payments to repay the missing amount and that he owed “four or five thousand.”

According to his probation officer, however, Paige’s payments at the time were “sporadic” and a balance of $6,630 was still due. Paige stated at the hearing that he could make arrangements to pay the remaining balance in ten days; however, there is nothing in the record which indicates that this has been done. In addition, the Pointe Coupee grand jury pretermitted charges against the secretary.

With regard to Paige’s attempt to argue that his secretary was to blame, “the certificate of the conviction of the respondent shall be conclusive evidence of his guilt of the crime for which he has been convicted.” Articles of Incorporation, Art. XV, § 8, para. 7(c). In declining to contest the federal government’s evidence, Paige impliedly admitted his guilt. Such a plea may be used as a “conviction” in disciplinary proceedings. Louisiana State Bar Association v. Edwards, 322 So.2d 123, 127 (La.1975). The sole issue before this court is therefore whether the crime warrants discipline, and the disciplinary procedure is designed to avoid a retrial of the case. Louisiana State Bar Association v. Quaid, 368 So.2d 1043, 1045 (La.1979).

The discipline to be imposed in a given ease depends upon the seriousness of the offense and the facts and circumstances peculiar to the case, examined in light of the purpose of disciplinary proceedings and taking into account both aggravating and mitigating circumstances. Louisiana State Bar Association v. Schoemann, 444 So.2d 608, 610 (La.1984).

The crime in this case is a serious one. Paige’s actions constituted a violation of the Code of Professional Responsibility. Disciplinary Rule 1-102(A)(3) states that a lawyer shall not “[ejngage in illegal conduct involving moral turpitude.” DR 1-102(A)(4) provides further that a lawyer shall not “[e]ngage in conduct involving dishonesty, fraud, deceit, or misrepresentation.” In addition, the particular crime involved here adversely reflects on Paige’s ability to handle funds entrusted to him. See DR 9-102. This was not an isolated offense, but a course of conduct which lasted several months. Commission of such a felony by an attorney tends to lessen public confidence in the legal profession and to encourage disrespect for the law. Louisiana State Bar Association v. Schoemann, supra.

In mitigation, Paige’s alcohol problems are adequately established in the record. Following his sentencing, he spent a month in an alcohol abuse program, and his progress is being monitored by his probation officer. At his sentencing, his attorney, one of his former law professors, spoke of Paige’s struggle to become a lawyer and his good marks despite working as the night manager for a 7-11. Paige has indicated his willingness to make restitution.

However, his actions have not been consistent with a genuine willingness to make restitution. His payments, ordered by the terms of his sentence, have been sporadic and a large balance remains unpaid. At his only appearance at any stage of these proceedings, he testified under oath that the balance due was less than it actually was and that he could make full restitution in ten days. He failed to do so. He never filed any responsive pleadings, nor did he appear before this court at oral argument.

The primary purpose of disciplinary proceedings is not to punish the attorney, but rather to maintain appropriate standards of professional conduct in order to safeguard the public, to preserve the integrity of the legal profession, and to deter other attorneys from engaging in violations of the Code of Professional Responsibility. Louisiana State Bar Association v. Schoemann, supra. Considering the facts of this case in light of this purpose and for reasons assigned, it is ordered, adjudged and decreed that the name of Louis Charles Paige be stricken from the roll of attorneys and his license to practice law in the State of Louisiana is revoked, effective September 23, 1982, the date of this court’s order suspending Paige from the practice of law. Paige is to bear all costs of this proceeding.


author: CALOGERO, Justice.

text:
    James C. STEELE, III and Gloria Dyke Steele v. Eloise S. DENNING, et al.
    No. 84-C-0576.
    Supreme Court of Louisiana.
    Sept. 20, 1984.

      Harvey Perry, Monroe, for plaintiffs-applicants.
    Daniel T. Murchison, Raymond Arthur, Watson, Murchison, Crews, Arthur & Cor-kern, Natchitoches, R. Wayne Smith, Ru-sten, for defendants-respondents.
   CALOGERO, Justice.

The legal issue presented for our consideration in this case concerns whether a person who owns an undivided interest in land, without the attendant mineral rights (because the land is subject to a mineral servitude), has a right to petition for the partition by licitation of all of the land and the mineral rights.

The facts involved in this case are not in dispute, and are essentially as follows. Two tracts of land in Lincoln parish are involved. At one time, the two tracts were owned by a single owner, but through inheritance and various transfers, they are now held in indivisión in various percentages by 27 co-owners. Plaintiffs James C. Steele and his wife Gloria Steele obtained their (approximate) Vsth interest in each of the two tracts of land without the attendant mineral rights, those mineral rights having been reserved to the vendor, Sherwood I. Burgdorf, when he sold his undivided Vs interest in the property to the plaintiff Steeles’ ancestors in title in 1978. Thus, plaintiffs own no mineral interests in the property. The property is burdened only by this mineral servitude in favor of Burgdorf. All of the remaining co-owners of the other undivided interests in the property (defendants Denning, et al) own the mineral rights attendant to their respective interests in the land.

The entire property is burdened by a mineral lease in favor of Getty Oil Company, derived from all of the co-owners. The property is under production, with the mineral lessors receiving royalties.

Plaintiffs filed this lawsuit seeking a partition by licitation of the entire two tracts of land and the mineral rights, Named as defendants were Burgdorf (owner of a mineral servitude on plaintiffs’ property interest) and Denning, et al (all the other co-owners of interests in the property).

All defendants filed “Exceptions of No Cause or Right of Action.” They argued that since plaintiffs own no interests in the minerals whatsoever, owning nothing in common with the mineral right owners, they have no right or cause of action to force the sale of the mineral rights by a partition by licitation.

The trial court overruled defendants’ “Exceptions of No Right or Cause of Action.” The case was tried on the merits and there was a judgment ordering a partition by licitation of the land and the mineral rights.

All defendants appealed, contending that the trial court erred in overruling their exceptions of no cause and no right of action, for the reason that the plaintiffs, owning no interest in the minerals, have no right to provoke the partition of the mineral rights.

The Court of Appeal found merit in defendants’ arguments and reversed the trial court judgment insofar as the court ordered partition included sale of the mineral rights to the property. The court reasoned, by analogy to the Civil Code articles on the partitioning of property subject to a usufruct, and the jurisprudence relative thereto, that plaintiffs held nothing in common with Burgdorf, who owned only a mineral servitude, nor any common interest with the other defendants in regard to the minerals. Absent common ownership of the thing (here the mineral rights), plaintiffs had no right to provoke the partition by licitation of the thing (the minerals). Steele v. Denning, 445 So.2d 94 (La.App. 2d Cir.1984).

Plaintiffs applied to this Court for writs, arguing that the Court of Appeal erred by basing its decision on Civil Code articles and related jurisprudence, rather than looking to the Mineral Code. Plaintiffs contend the Mineral Code is clear and favors their position. Their argument persuaded us to grant writs. Steele v. Denning, 448 So.2d 109 (La.1984). However, after considering the briefs, oral arguments, the record and the applicable statutes, we find that the Court of Appeal was correct in its judgment.

As stated above, the only question presented for our consideration is whether a party, owning only an interest in indivi-sión in land, and no interest in the mineral rights thereto, may provoke a partition by licitation of the mineral rights along with the land. Since this question concerns mineral interests, we turn first to the Mineral Code for guidance, as Article 2 of the Mineral Code provides:

The provisions of this Code are supplementary to those of the Louisiana Civil Code and are applicable specifically to the subject matter of mineral law. In the event of conflict between the provisions of this Code and those of the Civil Code or other laws the provisions of this Code shall prevail. If this Code does not expressly or impliedly provide for a particular situation, the Civil Code or other laws are applicable.

The articles applicable to the issue before us are found in Part 3 of the Mineral Code, entitled “Partition of Land and Its Effect on Mineral Rights,” and encompass ten articles, Nos. 178-187. None of those articles, however, address the question of who has the right to initiate a partition action where land is burdened by a mineral right. Rather, the articles of the Mineral Code on partitioning land burdened by a mineral right address only the procedure which is to be followed, “[i]f land burdened by a mineral right ... is judicially partitioned.” La.R.S. 31:178. The Mineral Code makes no reference to when or by whom a judicial partition may be sought. It presupposes the right to partition, as provided in the Civil Code, and only specifies the procedures to be employed in effecting the partition (i.e., “[i]f the owner of a mineral right or interest therein is made a party to an action for partition of the land subject to his right _” La.R.S. 31:180).

The history of these Mineral Code provisions supports this view. As noted by the Comment to Mineral Code Article 179, .. Articles 179-187 are an integrated set of provisions redrafting Article 741 of the Civil Code....” These Mineral Code articles on partitioning land burdened by a mineral right were taken from (and meant to replace) a Civil Code article which comprised only a part of the entire codal scheme on partition. Former Article 741 of the Civil Code dealt with the procedures to be employed in effecting a partition, and did not deal with who had the right to bring the partition action. See 24 Tul.L.Rev. 288. Who may bring an action for partition was governed by other Civil Code provisions, particularly La.C.C. art. 1289. (Quoted infra at page 9.)

In accord with the above view, Mr. John M. McCollam, Assistant Professor of Law at Tulane University, who wrote the “Primer for the Practice of Mineral Law under the New Louisiana Mineral Code,” 50 Tul. L.Rev. 729 (1976), states therein:

The articles of the [Mineral] Code dealing with the partition purport to apply to the right of a co-owner of the fee title to partition the co-owned land. The main emphasis, however, is on the effect of such partitions on existing mineral rights. The basic right to partition is granted by the Civil Code, (emphasis provided)

50 Tul.L.Rev. at 853.

Plaintiffs have cited us to no provision, and indeed there is none in the Mineral Code, which expressly provides that a party who owns only an interest in the land, without the attendant mineral rights, has a right to bring suit for partition by licitation of both the land and the mineral rights. As noted above, Article 2 of the Mineral Code provides that the Mineral Code is supplementary to the Louisiana Civil Code and where the Mineral Code does not provide for a particular situation, “the Civil Code or other laws are applicable.” Since the question presented here, that is, whether a person who owns an undivided interest in land, without the attendant mineral rights, has a right to petition for the partition by licitation of all the land and the mineral rights, is not directly covered by the Mineral Code, we must look to the provisions of the Civil Code and related jurisprudence for the answer.

It is well settled that property may be held in indivisión, that is, it may be owned jointly by more than one person, with no single person owning any particular part of the property, rather, each owning an interest in the whole. As early recognized by this Court, co-owners of land “are owners par mi et par tout, of part and of the whole. Neither of two co-owners has the exclusive- right to any determinate part of the common property.” Gulf Refining Co. v. Carroll, 145 La. 299, 82 So. 277 (1919). And, with certain exceptions not pertinent here, each owner has the right to oppose the use of the property by the other. This principle was grounded in the Roman law, as observed by our Court in Gulf Refining Co., supra 82 So. at p. 278:

According to Sabinus one of the co-owners of a thing in common can do nothing {in re) in or concerning the thing {invito altero) against the will of, or in opposition to, the other. Hence, it is manifest that this other has the right to prohibit the doing of anything, for it is certain that the right of that one of the owners who makes opposition is the stronger.

»The Court in Gulf Refining Co., supra, also noted that French law contains the same doctrine. Consequently, when co-owners cannot agree upon the use of their property, partition is the relief provided by the Civil Code. In that regard, La.C.C. art. 1289 provides:

No one can be compelled to hold property with another, unless the contrary has been agreed upon; any one has a right to demand the division of a thing held in common, by the action of partition. (emphasis provided)

However, under the above provision, a demand for partition will be dismissed if the determination is made that the “thing” is not in fact “held in common.” Thus, the narrow question presented for our consideration by the facts of the instant case is whether, in an action to partition mineral rights, plaintiffs, who own an interest in land, without the concomitant right to explore for minerals and reduce them to possession and ownership (because that land is burdened by a mineral servitude in favor of defendant Burgdorf), hold a thing “in common” with defendant Burgdorf, the owner of the mineral servitude, or defendants Denning, et al, the full interest co-owners who own the right to explore for minerals.

As correctly observed by the Court of Appeal, there is no question in our law today but that one who holds an interest in property as a naked owner does not hold a thing in common with one who holds an interest in that property as a usufructuary. And, accordingly, neither has the right to provoke the partition of the other’s rights in the property. La.C.C. art. 543; La.C.C. art. 1289; Smith v. Nelson, 121 La. 170, 46 So. 200 (1908).

Smith v. Nelson, supra, is the leading case on what is meant by “holding in common,” under La.C.C. art. 1289. Although it involved the naked owner/usufructuary situation, the principles announced relative to partition generally are important here. The Court stated:

The law which confers the right to the partition of a “thing held in common” has no application to those who hold, respectively, the fragments of a dismembered title to the same immovable property, for the reason that in such case, the title being dismembered, each part is a distinct thing, held by a different owner, and there is no “thing held in common.”

As pertinent to the issue before us, the inquiry is whether these same principles, concerning what is meant by “holding in common” in terms of a naked ownership interest and a usufructuary interest, apply as between an owner of surface rights in property and the owner of the mineral rights.

Professor Harriet Spiller Daggett, former Professor of Law at Louisiana State University, in her book on Mineral Rights in Louisiana seemed to be of the view that it does, quoting Marcadé approvingly:

... every servitude, is called a jus in re, a right in the thing. “Jus in re ” and “dismemberment of property” are synonymous expressions ....

H. Daggett, Mineral Rights in Louisiana 20 (1949).

And, indeed, in Amerada Petroleum Corporation v. Reese, 195 La. 359, 196 So. 558 (1940) this Court quoted the above passage from Smith v. Nelson, applying those principles to a situation involving mineral rights. Therein the Court found neither a right in the mineral lessee to institute a partition proceeding against the lessor, nor a right in the lessor to institute a partition proceeding against the mineral lessee.

An owner of a mineral servitude is an owner of an incorporeal immovable (La.R.S. 31:18), a real right. La.R.S. 31:16. “A mineral servitude is the right of enjoyment of land belonging to another for the purpose of exploring for and producing minerals and reducing them to possession and ownership.” La.R.S. 31:21. And it is a dismemberment of the title insofar as it creates a secondary right in the property separate from the principal right of ownership of the land.

Plaintiffs are quick to point out that we do not recognize (as does the common law) a separate estate in minerals. And they are certainly correct on this point. In fact, this Court so ruled for the first time in 1913, in the unreported case Wadkins v. Atlanta & Shreveport Oil & Gas Co., No. 19315, and more notably in Frost-Johnson Lumber Co. v. Salling’s Heirs, 150 La. 756, 91 So. 207 (1922). This is also the adopted position of the Mineral Code. La. R.S. 31:6.

That does not, however, change the fact that the creation of a mineral servitude effectively fragments the title such that different elements of ownership are held by different owners (i.e., between the landowner and the mineral servitude owner), and there is not any “thing held in common” between them. Defendant Burg-dorf, a mineral servitude owner, and all of the other defendants herein, own the right to explore for minerals and reduce them to possession and ownership. La.R.S. 31:21. Plaintiffs own only an interest in the land, specifically without the right (in common with defendants) to explore for minerals and reduce them to possession and ownership.

Moreover, this conclusion has been adopted in the Mineral Code, as Mineral Code article 169 most pointedly provides:

Co-ownership does not exist between the owner of a mineral right and the owner of the land subject to the right or between the owners of separate mineral rights.

In summary, the right to partition, established by La.C.C. art. 1289, is limited to those who hold a thing in common. In the situation presented here, between plaintiffs, the owners of the land subject to a mineral servitude, and defendant Burgdorf, a mineral servitude owner, plaintiffs hold nothing in common with Burgdorf. Similarly, plaintiffs hold nothing in common with defendants Denning, et al, as concerns their interests in the mineral rights to the property. Consequently, plaintiffs have no right to a judgment, in these proceedings, ordering the partition of the mineral rights to the property in question.

Plaintiffs’ principle argument is that the Mineral Code makes provision for the partition by licitation of the minerals where there is a partition by licitation of the land, provided only that the mineral right owner be made a party to the partition proceedings. They rely on Mineral Code Articles 178-187 in support of this argument. That argument, however, is not persuasive, for the Mineral Code does not create the right to institute a partition action. Rather, it is the Civil Code which creates the right. The Mineral Code merely deals with the procedure for partitioning mineral rights where the right to do so is otherwise provided for. Where there is such a right, plaintiffs are correct that the Mineral Code provides that the mineral rights may be partitioned with the land if the mineral right owner is made a party to the action.

Plaintiffs, in this case, whose entire undivided interest in 2 tracts of land is burdened by a mineral servitude, do not hold in common, with either defendant Burgdorf or defendants Denning, et al, any mineral interests. Thus, they have no right to provoke the partition of the mineral rights along with the land.

Decree

Accordingly, the Judgment of the Court of Appeal is affirmed.

AFFIRMED.

DIXON, C.J., concurs.

      . Essentially, there is no dispute as to whether plaintiffs are entitled to a partition by licitation or simply a partition in kind. If plaintiffs are entitled to a partition at all in this case, the parties concede, it is by licitation. See La.R.S. 31:178 and La.C.C.P. art. 4621.

      . Getty was later added as a defendant. Getty answered, seeking recognition, and maintenance in force, of its mineral lease. The trial court ruled, favorably to Getty, that the property would be partitioned subject to the mineral lease. That portion of the trial court judgment was not appealed and is not before us now.

      . Of course, in compliance with the Mineral Code, the trial court also ordered the appropriate appraisals, separately, of the land and the minerals. La.R.S. 31:180-183. We are not concerned with this aspect of the judgment. The question before us is simply whether a partition of the minerals can be ordered at all, on the petition of these plaintiffs.

      .The question of whether plaintiffs had the right to provoke the partition by licitation of the land was not raised by any of the parties in this case. Thus, neither the Court of Appeal opinion or any discussions by this Court relate to that aspect of the case. However, it might be noted by analogy to La.C.C. art. 543 that there may be some question as to whether these plaintiffs had such a right, since all the other co-owners also owned the respective mineral rights to their interests in the property.

      . Article 178 of the Mineral Code:
      If land burdened by a mineral right or rights created by fewer than all of the co-owners of the land is judicially partitioned, a partition in kind may not be ordered unless it can be accomplished in such fashion that the allocation of tracts to the co-owners assures that both surface and mineral values of each tract are in the same proportion to the total value of the surface and the mineral rights respectively as each co-owner’s interest bears to the whole of the surface and the mineral rights respectively and that partition in kind will not significantly impair the ability of any owner subject to the partition to develop the minerals on his own tract.
      Article 179 of the Mineral Code:
      The owner of a mineral right or interest therein is a necessary party to an action for partition of the land subject to his right. If the owner of a mineral right or interest therein is not made a party to such an action, the partition is not invalid, but the right or interest therein is not extinguished or otherwise affected.
      Article 180 of the Mineral Code:
      If the owner of a mineral right or interest therein is made a party to an action for partition of the land subject to his right and it is determined that the partition is to be by licitation, the court shall appoint two appraisers who shall separately value the interest in the land or the mineral rights of each party to the action who is or may be entitled to participate in the proceeds of the sale.
      Article 181 of the Mineral Code:
      A copy of the appraisal shall be served upon each party to the action together with a notice that the appraisal may be homologated after the expiration of fifteen days from the date of service.
      Article 182 of the Mineral Code:
      An opposition to the appraisal may be filed by any party to the action at any time before homologation and shall be tried as a summary proceeding.
      Article 183 of the Mineral Code:
      When the owner of a mineral right or interest therein is entitled to participate in the proceeds of the licitation, the court shall order that the proceeds be distributed in the proportion that the homologated value of the interest of each party who is entitled to participate in the sale bears to the total homologat-ed value of all of the interests of all of the parties.
      Article 184 of the Mineral Code:
      If an appraisal of any mineral right or interest therein is not made as herein required, the partition is not invalid, but the right or any interest therein is not extinguished or otherwise affected.
      Article 185 of the Mineral Code:
      Except as provided in Articles 186 and 187, the owner of a mineral right or an interest therein appraised in accordance whith these articles is entitled to párticipate proportionally in the proceeds of the licitation, and his interest is extinguished by the sale.
      Article 186 of the Mineral Code:
      If the rights of an owner of a mineral right or rights or interest or interests therein derive from all of the co-owners of the land, whether by single or separate acts, his rights are unaffected by the licitation, and he has no interest in the proceeds of the sale.
      Article 187 of the Mineral Code:
      If the whole of the land is adjudicated to the party who created a mineral right or to his successor, the right is not extinguished or otherwise affected and the mineral right owner has no interest in the proceeds of the sale. In such cases, the party to whom the land is adjudicated is entitled to a credit on the total purchase price equal to the proportionate value of the mineral right or interest therein.

      . The reference to La.C.C. art. 741 here, is to that article prior to its amendment in 1977 by Act No. 514.

      . For example, this rule does not apply where one co-owner is using the property to prevent waste or destruction. See La.R.S. 31:176.

      . Plaintiffs' argument would be correct, for example, in this case, if a full owner of an undivided interest in the property, like Denning, had brought the partition action. Denning, being a full owner of the land (with the attendant mineral rights), holds elements of ownership in both the land and the mineral rights, and thus, owns "a thing held in common” with all of the other co-owners. As such, unlike plaintiffs here, she has the right to petition for partition by licitation of both the land and the mineral rights. Patrick v. Johnstone, 361 So.2d 894 (La.App. 2d Cir.1978). And then, "if ... the land is judicially partitioned” (La.R.S. 31:178), with the mineral right owner being made a party to the partition action (La.R.S. 31:179 & 180), and the appropriate appraisals are made in accordance with law (La.R.S. 31:180-184), the mineral right owner will share in the proceeds in proportion to the value of his interest (La.R.S. 31:183) and his mineral rights would be extinguished by the sale of the property resulting from the partition action. La.R.S. 31:185.


author: LEMMON, J.,

text:
    STATE of Louisiana v. Freddie E. HIGHTOWER, Jr.
    No. 84-KK-1207.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In Re: Freddie E. Hightower, Jr;, applying for Supervisory Writs, to the Court of Appeal, Fourth Circuit, No. K-2041; Criminal District Court, Parish of Orleans, No. 298-256.

Writ granted. The judgment of the trial judge was correct and is reinstated.

LEMMON, J.,

concurs.

La.R.S. 14:106 A(l) does not contemplate punishment for a person’s exposing his genitals with the intent of arousing his own sexual desire.


author: CALOGERO, J.,

text:
    Sylvia R. COOKS v. John Rixie MOUTON, Sr., Chief Judge, In His Capacity as Chief Judge of the Honorable Judges of the Fifteenth Judicial District Court.
    No. 84-CD-1737.
    Supreme Court of Louisiana.
    Sept. 28, 1984.
   In Re: Sylvia R. Cooks, applying for Supervisory Writs and Stay Order, 15th Judicial District Court, Parishes of Lafayette, Vermilion, and Acadia, No. 84-5401.

Denied.

CALOGERO, J.,

concurs in the denial for the reasons that this injunction proceeding became moot before this Court was able to act on the application.


author: DENNIS, J.,

text:
    Kevin B. WARD v. BERWICK INDUSTRIES, INC., Davis Oil Company, Halliburton Company, Power Rig Rental Tool, Inc., and Homco International, Inc. Jody BOUDREAUX v. BERWICK INDUSTRIES, INC., Davis Oil Company, Halliburton Company, Power Rig Rental Tool, Inc., Homco International, Inc., Otis Engineering Corporation, McCullough Wireline Service, Inc., and XYZ Insurance Company. Mary Sybil SIMS, Wayne Wayne Sims, Jr., and Donna Sims v. BERWICK INDUSTRIES, INC., Wild Well Control, Inc., Davis Oil Co., Halliburton Co., Power Rig Rental Tool, Inc., McCullough Wireline Services, Inc., Homco International, Inc., and XYZ Insurance Corp.
    No. 84-CC-1352.
    Supreme Court of Louisiana.
    Oct. 5, 1984.
   In Re: Kevin B. Ward, applying for Writ of Certiorari and Review to the Court of Appeal, Third Circuit, No. 84-235, from the Fourteenth Judicial District Court, Parish of Calcasieu, No. 83-2540.

Denied.

CALOGERO and LEMMON, JJ., would grant the writ.

DENNIS, J.,

would grant, reverse and reinstate the order of the trial court. There has been no showing of an abuse of discretion by the trial judge. See L.C.C.P. Art. 1561.


author: WATSON, J.,

text:
    John C. TORREGANO v. UNITED STATES FIDELITY & GUARANTY COMPANIES, et al.
    No. 84-C-1289.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re John C. Torregano, applying for writ of certiorari or writ of review, to the Court of Appeal, First Circuit, Number 83-CA-0778; Parish of St. Tammany, 22nd Judicial District Court, Number 61,886, Division A.

Prior report: 450 So.2d 1049 (La.App. 1984).

Denied.

WATSON, J.,

concurs, but notes the impropriety of a rule that medical testimony can only be presented by deposition.

LEMMON, J., would grant the writ.


author: DIXON, C.J., CALOGERO, J.,

text:
    STATE of Louisiana v. Frank DAVIS.
    No. 84-KK-1315.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re Frank Davis, applying for supervisory and remedial writ, to the 5th Judicial District Court, Parish of Richland, Number 39,829-A; Second Circuit Court of Appeal, Number 16,590-KW.

Denied.

DIXON, C.J.,

would grant on the issue of ineffective counsel; it appears that 3 critical witnesses were not called by defense lawyer.

CALOGERO, J.,

would grant the writ and take the matter up now, but notes that the record having been made up, it is also appropriate for the Court of Appeal to entertain relator’s complaints on appeal.


author: DIXON, C.J.,

text:
    Jessica L. HUTCHINSON et al. v. GENERAL MOTORS et al.
    No. 84-CC-1414.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re Cutler Metal Products Co., applying for supervisory writ to the 32nd Judicial District Court, Parish of Terrebonne, Number 68543; First Circuit Court of Appeal, Number CW-84-0890.

Denied..

DIXON, C.J.,

would grant and overrule the “Cenac v. Cenac” rule which disallows partial appeals. This “partial appeal” should be treated as a motion for partial summary judgment.

BLANCHE, J., would grant the writ.


text:
    Murphy LEMALLE v. WINN DIXIE LOUISIANA, INC.
    No. 84-C-1418.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re Winn Dixie Louisiana Inc., applying for writ of certiorari, writ of review to the Court of Appeal, Third Circuit, Number 83-775; Parish of Evangeline, 13th Judicial District Court, Div. “A”, Number 38796-A.

Prior report: 452 So.2d 414.

Denied.

WATSON, J.,

concurs, but suggests the proper order would be for additur or in the alternative a new trial.

LEMMON, J., would grant the writ.


text:
    STATE of Louisiana v. William G. THOMPSON.
    No. 84-KK-1664.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re William G. Thompson, applying for writ of certiorari, mandamus and prohibition, to the 14th Judicial District Court, Parish of Calcasieu, No. 2593-83, Division A; Third Circuit Court of Appeal, No. K84-759.

Granted. It is ordered that the trial court permit relator to assist in his defense within reasonable limits to be imposed by the trial court.


text:
    STATE ex rel. Douglas JOHNSON v. Ross MAGGIO.
    No. 84-KH-1683.
    Supreme Court of Louisiana.
    Sept. 19, 1984.
   In re Johnson, Douglas, applying for remedial writ, Parish of East Baton Rouge, 19th Judicial District Court, Div. “J”, No. 4-82393.

Granted and transferred to court of appeal, 1st Circuit for consideration.


text:
    PETITIONER v. The HONORABLE JUDGES OF the FIFTEENTH JUDICIAL DISTRICT.
    No. 84-0-1677.
    Supreme Court of Louisiana.
    Sept. 19, 1984.
   In re Petitioner, applying for stay order and supervisory writs, Fifteenth Judicial District Court, Parishes of Lafayette, Vermilion and Acadia.

Denied.


text:
    Luis ORTIZ & Alma Ortiz v. Raoul GALAN, Clerk of Court and Ex-Officio Recorder of Mortgages and Registrar of Conveyances for the Parish of Jefferson, State of Louisiana and Eugene Barriffe, Jr. and Errol Ware.
    No. 84-CC-1607.
    Supreme Court of Louisiana.
    Sept. 19, 1984.
   In re Bariffe, Eugene, Ware, Errol, applying for supervisory writ and remedial writ to the Court of Appeal, Fifth Circuit, No. 84-C-445; Parish of Jefferson, 24th Judicial District Court, Div. “L”, No. 296-796.

Denied.

DIXON, C.J., and WATSON and LEM-MON, JJ., would grant the writ.


text:
    STATE ex rel. Frederick KIRKPATRICK v. Ross MAGGIO, Warden, L.S.P.
    No. 84-KD-1171.
    Supreme Court of Louisiana.
    Sept. 19, 1984.
   In re Frederick Kirkpatrick, applying for remedial writ and stay order, to the 22nd Judicial District Court, Parish of St. Tammany, No. 96957, Division E.

Denied.

Reconsideration Denied, 457 So.2d 1184.


text:
    STATE ex rel. Willie JONES v. Ross MAGGIO, Jr., Warden, L.S.P.
    No. 84-KH-1118.
    Supreme Court of Louisiana.
    Sept. 20, 1984.
   In re Willie Jones, applying for writs of certiorari, mandamus, prohibition, and/or habeas corpus to the Third Circuit Court of Appeal, No. CA83-629, from the Seventh Judicial District Court, Parish of Concordia, No. 80-001.

Denied. Relator must first seek relief in the district court.


text:
    STATE of Louisiana v. Carl FLORANT.
    No. 84-KK-1185.
    Supreme Court of Louisiana.
    Sept. 20, 1984.
   In re A. Bruce Netterville, applying for writ of certiorari, prohibition and mandamus, to the 24th Judicial District Court, Parish of Jefferson, No. 81-1274; Fifth Circuit Court of Appeal, No. 84-K-280.

Granted. Relator’s conviction and sentence for contempt are set aside and the case is remanded for a hearing on a rule to show cause for constructive contempt in accordance with La. Code Crim.P. art. 24. The hearing is to be held before a judge other than the one whose ruling we here reverse. In re Merritt, 391 So.2d 440 (La.1980); Kidd v. Caldwell, 371 So.2d 247 (La.1979).


text:
    STATE of Louisiana v. Cheryl BERIDON.
    No. 84-K-0851.
    Supreme Court of Louisiana.
    Sept. 20, 1984.
   In re Cheryl Beridon, applying for reconsideration of writ denial of June 15, 1984, 452 So.2d 178; First Circuit Court of Appeal, No. 83-KA-0209; 32nd Judicial District Court, Parish of Terrebonne, No. 78042.

Not considered. See Rule IX Sec. 6, La.Supreme Court Rules.


text:
    STATE of Louisiana ex rel. Arthur L. CULBERTSON v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 83-KH-1710.
    Supreme Court of Louisiana.
    Sept. 20, 1984.
   In re Arthur L. Culbertson, applying for writ of certiorari to the Criminal District Court, Parish of Orleans, No. 277-030, Section “F”.

Granted. Relator violated LSA-R.S. 14:95.1 prior to its amendment by Act 279 of 1980 and may not be sentenced without benefit. Relator’s sentence is amended to delete that portion which provides that it is without benefit of probation, parole, or suspension of sentence.


text:
    STATE of Louisiana v. Jay OCKMAN and Renette T. Ockman.
    No. 84-KK-1173.
    Supreme Court of Louisiana.
    Sept. 20, 1984.
   In re Jay Ockman and Renette T. Ock-man, applying for writ of certiorari and mandamus to the 29th Judicial District Court, Nos. 5683, and 5684, Parish of St. John the Baptist; Court of Appeal, Fifth Circuit, No. 84-K-252.

Granted. The case is remanded to the Court of Appeal for briefing and opinion, with or without argument.


text:
    STATE of Louisiana, ex rel. Wilfred D. SMITH v. CRIMINAL DISTRICT COURT.
    No. 84-KH-1338.
    Supreme Court of Louisiana.
    Sept. 20, 1984.
   In re Wilfred D. Smith, applying for remedial writs, Criminal District Court, Parish of Orleans, No. 269-397.

Granted. Trial judge ordered to furnish relator’s counsel with a complete copy of the evidentiary hearing transcript within 14 days.


text:
    STATE of Louisiana ex rel. Gregory JENNINGS v. Ross MAGGIO, Warden.
    No. 84-KH-0785.
    Supreme Court of Louisiana.
    Sept. 20, 1984.
   In re Gregory Jennings, applying for supervisory writs to the Twenty-First Judicial District Court, No. 43260, Parish of Tangi-pahoa.

Motion to dismiss granted without prejudice.


text:
    STATE of Louisiana ex rel. Willie JENKINS, Jr. v. N. Burl CAIN, Warden.
    No. 83-KH-1774.
    Supreme Court of Louisiana.
    Sept. 20, 1984.
   In re Willie Jenkins, Jr., applying for remedial writ, to the Criminal District Court, Parish of Orleans, No. 263-763.

Denied. Relator must attack his 1974 guilty plea conviction in Section C of Criminal District Court.


text:
    STATE of Louisiana, ex rel. George REED v. J.D. MIDDLEBROOKS, Warden, Louisiana Correctional and Industrial School, DeQuincy, Louisiana.
    No. 83-KH-1955.
    Supreme Court of Louisiana.
    Sept. 20, 1984.
   In re George Reed, applying for writ of certiorari, 19th Judicial District Court, No. 8-80-78, Parish of East Baton Rouge.

Denied.


text:
    STATE of Louisiana ex rel. Robert J. ISADORE v. Warden Larry W. JEANE, Camp Beauregard WTF-N.
    No. 83-KH-2085.
    Supreme Court of Louisiana.
    Sept. 20, 1984.
   In re Robert Isadore, applying for writs of certiorari, prohibition, mandamus, and habeas corpus, Parish of Acadia, Nos. 35527 and 35657.

Denied.


text:
    STATE ex rel. James W. SIMMONS v. Charles F. FOTI, Sheriff, Orleans Parish Prison.
    No. 83-KH-2554.
    Supreme Court of Louisiana.
    Sept. 20, 1984.
   In re James W. Simmons, applying for writ of habeas corpus to the Criminal District Court, Parish of Orleans, No. 267-071.

Denied. Relator must first present his application to the district court.


text:
    STATE of Louisiana ex rel., Florence Yvonne McDONALD v. Johnnie JONES, Warden, Louisiana Correctional Institute For Women.
    No. 83-KH-2579.
    Supreme Court of Louisiana.
    Sept. 20, 1984.
   In re Florence Yvonne McDonald, applying for writ of certiorari, prohibition, mandamus, or habeas corpus, from the First Judicial District Court, Parish of Caddo, No. 109636.

Writ denied.


text:
    William Edward DUPLAISIR, Sr. v. UNION NATIONAL LIFE INSURANCE COMPANY.
    No. 84-CC-1054.
    Supreme Court of Louisiana.
    Sept. 20, 1984.
   In re Union National Life Insurance Company, applying for writ of review and mandamus to the Twenty-Fourth Judicial District Court, Parish of Jefferson, No. 281-832, from the Fifth Circuit Court of Appeal, No. 84-C-242.

Denied.


text:
    STATE of Louisiana, ex rel. George ELLIOTT v. CRIMINAL DISTRICT COURT, PARISH OF ORLEANS, State of Louisiana.
    No. 84-KH-1157.
    Supreme Court of Louisiana.
    Sept. 20, 1984.
   In re George Elliott, applying for writ of mandamus, Criminal District Court, Parish of Orleans.

Denied. No record of filing in trial court.


text:
    STATE of Louisiana v. Michel THIBAULT.
    No. 84-KK-1163.
    Supreme Court of Louisiana.
    Sept. 20, 1984.
   In re Michel Thibault, applying for supervisory writs to the Nineteenth Judicial Court, Parish of East Baton Rouge, No. 5-88-750, from the First Circuit Court of Appeal, No. KW-0603.

Denied.


text:
    STATE of Louisiana in the Interest of Chazz HATFIELD.
    No. 84-CK-1167.
    Supreme Court of Louisiana.
    Sept. 20, 1984.
   In re Kevin Hatfield and Shelly Hatfield, applying for writ of review, certiorari, prohibition and mandamus, to the Juvenile Court, Twenty-Fourth Judicial District Court, Parish of Jefferson, No. 84-C-0041, to the Fifth Circuit Court of Appeal, No. 84-C-310.

Denied.

LEMMON, J., would grant the writ.


text:
    STATE ex rel. Sylvester REED v. Elmer LITCHFIELD.
    No. 84-KK-1235.
    Supreme Court of Louisiana.
    Sept. 20, 1984.
   In re Sylvester Reed, applying for supervisory writ to the 19th Judicial District Court, Parish of East Baton Rouge, No. 8-82-605, Div. V; First Circuit Court of Appeal, No. KW-84-0772.

Denied.

CALOGERO and DENNIS, JJ., would grant an evidentiary hearing.


text:
    STATE of Louisiana v. Willie Ray HOLMES.
    No. 84-K-1276.
    Supreme Court of Louisiana.
    Sept. 20, 1984.
   In re Willie Ray Holmes, applying for writ of certiorari and review to the First Circuit Court of Appeal, No. KA-83-1269, from the Nineteenth Judicial District Court, Parish of East Baton Rouge, No. 6-81-702.

Writ denied.


text:
    STATE of Louisiana v. Lennie Michael CAMPBELL.
    No. 84-K-1311.
    Supreme Court of Louisiana.
    Sept. 20, 1984.
   In re Lennie Michael Campbell, applying for writs of certiorari, from the Second Circuit Court of Appeal, No. 16188-KA, to the Eleventh Judicial District Court, Parish of DeSoto, No. 49600.

Denied.


text:
    Carnies Nell McMURRY v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 84-KH-1364.
    Supreme Court of Louisiana.
    Sept. 20, 1984.
   In re Carnies Nell McMurry, applying for writ of mandamus, to the 3rd Judicial District Court, Parish of Union, No. 23-667, Division B.

Denied. Moot.


text:
    STATE ex rel. Don C. ANDERSON v. CRIMINAL DISTRICT COURT.
    No. 84-KH-1370.
    Supreme Court of Louisiana.
    Sept. 20, 1984.
   In re Don C. Anderson, applying for writ of mandamus, to the Criminal District Court, Parish of Orleans, No. 277-296.

Denied. Moot.


text:
    STATE ex rel. John DiGIROLAMO v. Lucy Reid RAUSCH, Clerk of Court, 22nd Judicial District Court.
    No. 84-KH-1427.
    Supreme Court of Louisiana.
    Sept. 20, 1984.
   In re DiGirolamo, John, applying for writ of mandamus or supervisory writ of habeas corpus, Parish of St. Tammany, 22nd Judicial District Court, Div. “D”, No. 66370.

Denied. Transcript is not available.


text:
    STATE ex rel. Sherman GRIFFIN v. Hon. Samuel T. ROWE, Judge, Division “C”, Clerk of Court, Parish of Tangipahoa.
    No. 84-KH-1471.
    Supreme Court of Louisiana.
    Sept. 20, 1984.
   In re Griffin, Sherman, applying for mandamus, Parish of Tangipahoa, 21st Judicial District Court, Div. “C”, No. 43759.

Denied. Moot. The trial court has ordered that relator be furnished with a copy of his guilty plea transcript.


text:
    STATE ex rel. Clifford KEYS v. Edward J. LOPEZ, et al.
    No. 84-KH-1513.
    Supreme Court of Louisiana.
    Sept. 20, 1984.
   In re Keys, Clifford, applying for mandamus, Parish of St. Landry, 27th Judicial District Court, Div. “B”, No. 29666.

Writ denied.


text:
    STATE ex rel. Otis J. HOLMES v. STATE of Louisiana, CRIMINAL DISTRICT COURT, SECTION “E”.
    No. 84-KH-1536.
    Supreme Court of Louisiana.
    Sept. 20, 1984.
   In re Holmes, Otis J., applying for remedial writs, Parish of Orleans, Criminal District Court, Div. “E”, No. 295740.

Writ denied.


text:
    STATE ex rel. Clifford KEYS v. COURT REPORTER, ST. LANDRY COURTHOUSE.
    No. 84-KH-1588.
    Supreme Court of Louisiana.
    Sept. 20, 1984.
   In re Keys, Clifford, applying for writ of mandamus, Parish of St. Landry, 27th Judicial District Court, Div. “C”, No. 29995.

Denied.


text:
    STATE of Louisiana v. James Alton STOKES.
    No. 84-KH-0956.
    Supreme Court of Louisiana.
    Sept. 20, 1984.
   In re James Alton Stokes, applying for writ of mandamus, to the 32th Judicial District Court, Parish of Lafourche, No. 79857.

Granted. The district court is ordered to act on relator’s writ application on or before October 3, 1984.


text:
    STATE of Louisiana v. Samuel STEWART.
    No. 84-K-1295.
    Supreme Court of Louisiana.
    Sept. 20, 1984.
   In re Samuel Stewart, applying for writs of certiorari and review, prohibition and mandamus to the Third Circuit Court of Appeal, No. CR-83-650; 7th Judicial District Court, Parish of Catahoula, No. 82-1220.

Prior report: 453 So.2d 1251.

Granted. Case remanded to the Court of Appeal to require defense counsel to file assignments of error in the district court and for consideration by the Court of Appeal.


text:
    STATE of Louisiana v. Troy MILLER.
    No. 84-KK-1645.
    Supreme Court of Louisiana.
    Sept. 20, 1984.
   In re Miller, Troy, applying for writ of certiorari to the Court of Appeal, Fourth Circuit, No. K-2733; Parish of Orleans Criminal District Court, Div. “B”, No. 298017.

Granted in part. Trial judge is ordered to conduct an in camera inspection of police radio broadcasts to determine whether or not they are exculpatory and consequently thereafter available to defendant for his use at the hearing. The writ is otherwise denied.


text:
    STATE of Louisiana v. Gerald R. BORNING.
    No. 84-KO-1550.
    Supreme Court of Louisiana.
    Sept. 20, 1984.
   In re Borning, Gerald R., applying for writ of certiorari to the Court of Appeal, First Circuit, No. KA-83-1334; Parish of East Baton Rouge, 19th Judicial District Court, Div. “J”, No. 12-82-241.

Not considered. Not timely filed.


text:
    STATE of Louisiana v. James Sanford SNIDER.
    No. 84-KK-1020.
    Supreme Court of Louisiana.
    Sept. 20, 1984.
   In re James Sanford Snider, applying for reconsideration of writ granted with order, on June 25, 1984, 452 So.2d 681; Third Circuit Court of Appeal, No. K83-937, Parish of Calcasieu, 14th Judicial District Court, No. 9543-83.

Motion denied.


text:
    STATE of Louisiana v. Earl E. CLARK, Jr. & Bret K. Verrett.
    No. 84-KK-1313.
    Supreme Court of Louisiana.
    Sept. 20, 1984.
   In re Earl E. Clark, Jr. & Bret K. Ver-rett, applying for writ of review to the Third Circuit Court of Appeal, No. K83-1147. Parish of Rapides, Ninth Judicial District Court, Nos. 207-809; 207-810; 207-811; 207-812; 207-813.

Prior report: 454 So.2d 232.

Denied. Stay order recalled.


text:
    STATE of Louisiana ex rel., Michael THERIOT v. STATE of Louisiana.
    No. 83-KH-1940.
    Supreme Court of Louisiana.
    Sept. 20, 1984.
   In re Michael Theriot, applying for writ of habeas corpus, Criminal District Court, Parish of Orleans, No. 268-982, Sect. C.

Denied.


text:
    STATE of Louisiana v. Lucille ALLEN.
    No. 83-KH-2079.
    Supreme Court of Louisiana.
    Sept. 20, 1984.
   In re Lucille Allen, applying for writs of habeas corpus and review from the Criminal District Court, No. 264-590, Section-“F”, Parish of Orleans.

Denied on showing made.


text:
    STATE of Louisiana v. Stephen KENDALL.
    No. 83-KH-2490.
    Supreme Court of Louisiana.
    Sept. 20, 1984.
   In re Stephen Kendall, applying for writs of certiorari, review and habeas corpus, to the Criminal District Court for the Parish of Orleans, No. 252-098.

Denied.


text:
    STATE of Louisiana v. Carl WILLIAMS.
    No. 83-KP-2608.
    Supreme Court of Louisiana.
    Sept. 20, 1984.
   In re Carl Williams, applying for writs of certiorari, prohibition, and mandamus, from the Criminal District Court, Parish of Orleans, No. 217-060; Fourth Circuit Court of Appeal, No. K-1696.

Denied.


text:
    STATE of Louisiana ex rel. Bobby R. O’DELL, v. Donald R. GUILLORY, Warden, Wade Correctional Center, Haynesville, La.
    No. 84-KH-0014.
    Supreme Court of Louisiana.
    Sept. 20, 1984.
   In re Bobby R. O’Dell, applying for writs of certiorari, mandamus, supervisory and remedial to the Second Judicial District, Parish of Claiborne, Nos. 12646 and 12647.

Denied.


text:
    STATE of Louisiana ex rel. Rudolph WILSON, Sr., v. STATE of Louisiana.
    No. 84-KH-0319.
    Supreme Court of Louisiana.
    Sept. 20, 1984.
   In re Rudolph Wilson, Sr., applying for remedial writ to the Criminal District Court, Parish of Orleans, No. 296-406.

Denied. Moot.


text:
    STATE of Louisiana v. Sabrina PARKS.
    No. 84-KP-1053.
    Supreme Court of Louisiana.
    Sept. 20, 1984.
   In re Sabrina Parks, applying for writs of certiorari, prohibition and mandamus, to the 24th Judicial District Court, Parish of Jefferson, No. 80-3493.

Denied.


text:
    STATE ex rel. Charles L. STEWART, v. M.S. BRANIFF, Judge, Section “B”, Criminal District Court, Parish of Orleans, State of Louisiana.
    No. 84-KH-1080.
    Supreme Court of Louisiana.
    Sept. 20, 1984.
   In re. Charles L. Stewart, applying for writ of mandamus to the Criminal District Court, Parish of Orleans.

Denied. No record of filing in trial court.


text:
    STATE of Louisiana v. Danny W. STEWART.
    No. 84-K-1106.
    Supreme Court of Louisiana.
    Sept. 20, 1984.
   In re Danny Stewart, applying for writ of certiorari to the Fourth Circuit Court of Appeal, No. KA-0960, Parish of Orleans, Criminal District Court, No. 294-381.

Prior report: 452 So.2d 186.

Denied.


text:
    Claude A. FONSECA v. MARLIN MARINE CORPORATION, T. Baker Smith & Sons, Inc., Alfred Cenac, Jr., William Clifford Smith, Fireman’s Fund Insurance of Newark, New Jersey, Home Indemnity Company and Travelers Insurance Company.
    No. 84-C-1128.
    Supreme Court of Louisiana.
    Sept. 20, 1984.
   In re Claude A. Fonseca, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, No. 83-CA-0485; 32nd Judicial District Court, Parish of Ter-rebonne, No. 37988.

Denied.

DENNIS and LEMMON, JJ., would grant the writ.


text:
    STATE of Louisiana v. Jesse REDD.
    No. 84-KO-1169.
    Supreme Court of Louisiana.
    Sept. 20, 1984.
   In re Jesse Redd, applying for remedial writs to the Second Circuit Court of Appeal, No. 16268-KA, from the Sixth Judicial District Court, Parish of East Carroll, No. 27643, Division “B”.

Prior report: 453 So.2d 336.

Denied.


text:
    Gordon H. MAGINNIS v. John H. MAGINNIS, Individually and as Executor and Co-Trustee U/W of Ruth H. Maginnis.
    No. 84-C-1170.
    Supreme Court of Louisiana.
    Sept. 20, 1984.
   In re Gordon H. Maginnis, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, No. 83-CA-0527; 22nd Judicial District Court, Parish of St. Tammany, No. 66705.

Prior report: 449 So.2d 573.

Denied.


text:
    STATE FARM GENERAL INSURANCE COMPANY v. KENTWOOD SPRING WATER, INC.
    No. 84-C-1172.
    Supreme Court of Louisiana.
    Sept. 20, 1984.
   In re Kentwood Spring Water, Inc., applying for writ of certiorari, to the First Circuit Court of Appeal, No. 83-CA-0508, from the Thirty-Second Judicial District Court, Parish of Terrebonne, No. 66235.

Prior report: 449 So.2d 558.

Denied.


text:
    Wilton COMARDELLE v. JEANDRON CHEVROLET, INC., et al.
    No. 84-C-1177.
    Supreme Court of Louisiana.
    Sept. 20, 1984.
   In re Wilton Comardelle, applying for writ of review to the First Circuit Court of Appeal, No. 83-CA-0593; 17th Judicial District Court, Parish of Lafourche, No. 38688.

Prior report: 449 So.2d 601.

Denied.


text:
    Herbert G. MEARS v. MIDCO LOUISIANA COMPANY. MIDCO LOUISIANA COMPANY v. Herbert G. MEARS, d/b/a Mears Sand & Gravel.
    No. 84-C-1178.
    Supreme Court of Louisiana.
    Sept. 20, 1984.
   In re Herbert G. Mears, applying for writs of certiorari and review to the First Circuit Court of Appeal, Nos. 83-CA-0560, and 83-CA-0561, from the Nineteenth Judicial District Court, Parish of East Baton Rouge, Nos. 251057, Division “L”, and 235358, Division “F”.

Prior report: 449 So.2d 592.

Denied.


text:
    Herbert G. MEARS v. MIDCO EQUIPMENT COMPANY. MIDCO LOUISIANA COMPANY v. Herbert G. MEARS d/b/a Mears Sand & Gravel.
    No. 84-C-1196.
    Supreme Court of Louisiana.
    Sept. 20, 1984.
   In re Midco Louisiana Company, applying for writs of certiorari and review to the First Circuit Court of Appeal, Nos. 83-CA-0560 and 83-CA-0561, from the Nineteenth Judicial District Court, Parish of East Baton Rouge, Nos. 251057, Division “L” and 235358, Division “F”.

Prior report: 449 So.2d 592.

Denied.


text:
    Cassandra DOBARD v. SKATE COUNTRY, INC. and Empire Fire & Marine Insurance Company.
    No. 84-C-1237.
    Supreme Court of Louisiana.
    Sept. 20, 1984.
   In re Skate Country, Inc. and Empire Fire and Marine Insurance Company, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, No. CA-1658; Civil District Court, Parish of Orleans, No. 82-1078.

Denied.


text:
    STATE of Louisiana v. Hampton GALLOW.
    No. 84-K-1270.
    Supreme Court of Louisiana.
    Sept. 20, 1984.
   In re Hampton Gallow, applying for writ of certiorari, or review, to the First Circuit Court of Appeal, No. 83-KA-1264; Parish of East Baton Rouge, 19th Judicial District Court, No. 10-82-166, Section I.

Prior report: 452 So.2d 227.

Denied.


text:
    STATE of Louisiana v. Bradford M. WALKER.
    No. 84-K-1306.
    Supreme Court of Louisiana.
    Sept. 20, 1984.
   In re Bradford M. Walker, applying for writ of review and supervisory writ to the Second Circuit Court of Appeal, Nos. 16202-KA; 16203-KA, Parish of Ouachita, Fourth Judicial District Court, Nos. M:51610 and T:23369.

Prior report: 451 So.2d 679.

Denied.


text:
    STATE of Louisiana v. George ALEXANDER.
    No. 84-K-1310.
    Supreme Court of Louisiana.
    Sept. 20, 1984.
   In re George Alexander, applying for writ of certiorari, to the Second Circuit Court of Appeal, No. 16187-KA; Parish of Dé Soto, 11th Judicial District Court, No. 48625, Division B.

Prior report: 453 So.2d 336.

Denied.


text:
    STATE of Louisiana v. Charles ROBINSON.
    No. 84-K-1312.
    Supreme Court of Louisiana.
    Sept. 20, 1984.
   In re Charles Robinson, applying for cer-tiorari, or writ of review, to the Court of Appeal, Second Circuit, No. 16186-KA; 11th Judicial District Court, Parish of De-Soto, No. 50095.

Prior report: 453 So.2d 336.

Denied.


text:
    STATE of Louisiana ex rel. Romalice C. McGHEE, Sr. v. Charles C. FOTI, Jr., Sheriff, Parish of Orleans.
    No. 84-KH-1319.
    Supreme Court of Louisiana.
    Sept. 20, 1984.
   In re Romalice C. McGhee, Sr., applying for writ of certiorari, from the Criminal District Court, No. 273-377, Parish of Orleans.

Denied on all claims except ineffective assistance, which relator must file first in district courl


text:
    STATE of Louisiana v. Philip FURINO.
    No. 84-K-1355.
    Supreme Court of Louisiana.
    Sept. 20, 1984.
   In re Philip Furino, applying for writ of certiorari or review to the Third Circuit Court of Appeal, No. CR-83-752, Parish of Lafayette, Fifteenth Judicial District Court, No. 47899.

Prior report: 451 So.2d 1139.

Denied.


text:
    STATE of Louisiana v. Leroy WILLIAMS.
    No. 84-K-1361.
    Supreme Court of Louisiana.
    Sept. 20, 1984.
   In re Leroy Williams, applying for writs of certiorari, mandamus and prohibition to the Fourth Circuit Court of Appeal, No. KA-1334, Parish of Orleans, Criminal District Court, No. 293-607.

Prior report: 453 So.2d 276.

Denied.