author: WARD, Judge.

text:
    STATE of Louisiana v. Rickey McKEEL.
    No. KA-0547.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 13, 1983.
    Writ Granted Feb. 10, 1984.

      Dwight Doskey, New Orleans, for defendant-appellant, Rickey McKeel.
    Harry F. Connick, Dist. Atty., Mary Charlotte McMullan, Asst. Dist. Atty., William R. Campbell, Asst. Dist. Atty., New Orleans, for plaintiff-appellee, State.
    Before WARD, SCHOTT and CIACCIO, JJ.
   WARD, Judge.

In February, 1981, McKeel pleaded guilty to a charge of arson arising from a fire at The Frame Shop, located at 1014 Bourbon Street in New Orleans. He was placed on probation for this offense. Subsequently, the owner of The Frame Shop reported to the police that someone was making threats of arson to one of the carpenters working on the reconstruction of The Frame Shop. When shown a photographic line-up, the carpenter, Robert Jackson, identified McKeel as the one who had made the threats. McKeel was then arrested and charged with two violations of La.R.S. 14:54.1 by a Bill of Information which alleged that McKeel “eommuni-cat[ed] a threat of arson on or about February 14, 1981 ... and on March 24, 1981 concerning the structure at 1041 Bourbon St.”

A jury found McKeel guilty as charged, and the Trial Judge sentenced him to the maximum term of twenty years at hard labor on each count and ordered the sentences to run consecutively. On appeal, McKeel argues that the Trial Court erred in refusing to quash the Bill of Information because the allegations against him do not constitute proscribed conduct under La. R.S. 14:54.1. The Trial Judge denied the motion to quash because he interpreted the statute as proscribing the conduct alleged in the Bill of Information. We reverse that ruling for the following reasons.

Louisiana Revised Statute 14:54.1 is entitled “Communicating of False Information of Planned Arson” and provides:

Communicating of false information of arson or attempted arson is the intentional impartation or conveyance, or causing the impartation or conveyance by the use of the mail, telephone, telegraph, word of mouth or other means of communication, of any threat or false information knowing the same to be false, concerning an attempt or alleged attempt being made, or to be made, to commit either aggravated or simple arson.

The Trial Court interpreted the statute to encompass two separate acts: 1) the conveyance of threats concerning arson and 2) the conveyance of false information concerning arson, if the perpetrator knows the information is false. McKeel argues, however, that the two separate acts proscribed by the statute are: 1) the conveyance of threats concerning arson, knowing those threats to be false and 2) the conveyance of false information concerning arson, knowing the information to be false. Thus, the Trial Judge believed the phrase “knowing the same to be false” modifies only “false information”, and McKeel argues that it modifies both “threats” and “false information.” We are unable to find that either interpretation of the statute is clearly incorrect.

Article 1, Sec. 13 of the Louisiana Constitution of 1974 provides that an accused in a criminal prosecution must be informed of the nature and cause of the charge against him. A statute is unconstitutionally vague if men of common intelligence must guess as to its meaning. State v. Prestridge, 399 So.2d 564 (La.1981); State v. Cannon, 383 So.2d 389 (La.1980), cert. den., 454 U.S. 1052, 102 S.Ct. 596, 70 L.Ed.2d 587. Due process requires that the language of a statute have a generally accepted meaning sufficient to give adequate warning of the conduct proscribed and it must provide standards to enable judges and juries to fairly administer the law. State v. Prestridge, supra; Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 72 S.Ct. 329, 96 L.Ed. 367 (1952); State v. Cannon, supra; State v. McCoy, 395 So.2d 319 (La.1980); see also State v. Dousay, 378 So.2d 414 (La.1979).

The language of R.S. 14:54.1 does not appear to have a generally understood meaning sufficient to give adequate warning of the proscribed conduct and men of common intelligence must guess as to its meaning. Because the statute is subject to at least two reasonable but conflicting interpretations, we conclude that it is unconstitutionally vague. See State v. Prestridge, supra.

Even if we were able to ascertain a correct interpretation of R.S. 14:54.1, we would hold that the sentencing provision of the statute is unconstitutional. The maximum penalty for a violation of R.S. 14:54.1 is twenty years. The Eighth Amendment to the United States Constitution prohibits “cruel” or “unusual” punishment. Our own state constitution prohibits not only “cruel” and “unusual” punishment, but it also explicitly prohibits “excessive” punishment, whether imposed by legislature or judge. Article 1, Sec. 20, Louisiana Constitution of 1974; State v. Mallery, 364 So.2d 1283, 1289 (La.1978) (Tate, J., dissenting), cert. den., 442 U.S. 940, 99 S.Ct. 2881, 61 L.Ed.2d 310; State v. Goode, 380 So.2d 1361 (La.1980). A sentence that is grossly out of proportion with the severity of a crime violates both the Federal and Louisiana Constitutions. Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977); State v. Goode, supra. A comparison of punishments in the same jurisdiction for other offenses is helpful in determining whether a particular sentence is so disproportionate as to constitute “cruel” or “unusual” punishment under the Eighth Amendment to the United States Constitution, or “excessive” punishment under Article I, Sec. 20 of the Louisiana Constitution of 1974. State v. Mallery, supra.

A comparison of the penalties provided for other crimes in Louisiana shows that the twenty year maximum penalty of R.S. 14:54.1 is grossly disproportionate. The maximum sentence for aggravated arson is twenty years at hard labor and a fine of twenty-five thousand dollars. La.R.S. 14:51. The maximum penalty for simple arson where the damage is more than five hundred dollars is fifteen years at hard labor and a fine of fifteen thousand dollars. Where the damage is less than five hundred dollars, the maximum penalty for simple arson is five years and a fine of twenty-five hundred dollars. La.R.S. 14:52. The maximum penalty for arson with intent to defraud is five years at hard labor and a fine of ten thousand dollars. La.R.S. 14:53. The maximum sentence for attempted aggravated arson, simple arson, or arson with intent to defraud is half of the largest fine or half of the longest term of imprisonment prescribed for the offense attempted. R.S. 14:27. Thus, the maximum term of imprisonment for “Communicating False Information of Planned Arson” is the same as the maximum term of imprisonment for actually committing aggravated arson, and it exceeds the maximum sentence for commission of simple arson or arson with intent to defraud. It also exceeds the maximum sentence for an attempt of aggravated arson, simple arson, or arson with intent to defraud. Clearly, the actual commission of arson is more culpable and damaging to society than a threat of arson.

Moreover, R.S. 14:54.1 seems to proscribe conduct that is also proscribed by R.S. 14:40.1 which provides:

Terrorizing is the intentional communication of information, known by the offender to be false, that the commission of a crime of violence is imminent or in progress or that a circumstance dangerous to human life exists or is about to exist; and thereby causing any person to be in sustained fear for his or another person’s safety; causing evacuation of a building, a public structure, or a facility of transportation; or causing other serious disruption to the public.

Comparing the two statutes which prohibit the same act, the maximum penalty for a violation of R.S. 14:40.1 is a five hundred dollar fine or six months imprisonment, while the maximum penalty for a violation of R.S. 14:54.1 is twenty years at hard labor. This disparity “is by no means insignificant.” Work of the Louisiana Legislature for the 1978 Regular Session, 39 La.L.R. 172, 230 (1978). It reinforces our belief that the penalty clause of R.S. 14:54.1 is unconstitutionally excessive.

The excessiveness of the penalty for “Communicating False Information of Planned Arson” is also graphically illustrated by the facts of the instant case. When McKeel pleaded guilty to simple arson of the Frame Shop, he was placed on probation, although he could have been sentenced to the maximum penalty of fifteen years at hard labor and fined fifteen thousand dollars. When he was later found guilty of threatening to burn the Frame Shop again, he faced and, in fact, received the maximum penalty of twenty years at hard labor.

In order to be constitutional, the maximum penalties must be proportionate to the degree of culpability and damage to society. See Coker v. Georgia, supra, and State v. Goode, supra. The penalty provision of R.S. 14:54.1, however, is not based on a rational gradation of culpability; the maximum sentence is disproportionate to the severity of the crime. Therefore, we hold that the sentencing provision of La. R.S. 14:54.1 is in violation of the Eighth Amendment to the United States Constitution and Art. 1, Sec. 20 of the Louisiana Constitution of 1974.

Because we hold that R.S. 14:54.1 and its sentencing provisions are unconstitutional, the judgment of the Trial Court denying the motion to quash is reversed, and the prosecution under R.S. 14:54.1 is dismissed.

Reversed.

      .The State sought to show that McKeel had made two threats of arson in violation of R.S. 14:54.1. The first threat allegedly occurred when McKeel walked into the Frame Shop and said to the carpenter, "You’re doing a nice job, but I am going to burn it again.” Whether this statement had to be false to constitute a violation of R.S. 14:54.1 depends on how one interprets the statute. The second statement alleged as a violation occurred a few weeks after the first threat when McKeel'drove by the Frame Shop and shouted, "I thought I burned [it] down for good” or "I should have burned [it] down a long time ago.” Because this statement was not a threat or conveyance of information of a planned arson, but referred instead to an arson that had previously occurred, it does not constitute proscribed conduct under any interpretation of the statute. See State v. Giovanni, 375 So.2d 1360 (La.1979).

      . McKeel has not challenged the constitutionality of R.S. 14:54.1 in his assignments of error, however, the unconstitutionality of a statute on which a conviction is based is an error discoverable by inspection of the pleadings and proceedings and without inspection of the evidence. Therefore, this Court may consider the constitutionality of R.S. 14:54.1 ex proprio motu. State v. Wrestle, Inc., 360 So.2d 831 (La.1978); State v. Stewart, 325 So.2d 828 (La.1976).

      . It may also be argued that the statute is over-broad insofar as it appears to prohibit a person, A, from informing another, B, that C has threatened arson of B’s house. The statute does not appear to require any criminal intent on A’s part, although, generally, intent is regarded as an indispensable element of a criminal offense. State v. Brown, 389 So.2d 48 (La.1980).


source: Caselaw Access Project

author: LABORDE, Judge.

license: Public Domain

text:
    Robert L. DURR, et ux., Plaintiff-Appellee, v. Gary N. BEARD, et ux., Defendant-Appellant.
    No. 83-283.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 1983.
    Bethard & Davis, James G. Bethard, Coushatta, for defendant-appellant.
    Watson, Murchison, Crews, Arthur & Corkern, R. Raymond Arthur, Natchitoch-es, for plaintiff-appellee.
    Before CUTRER, DOUCET and LA-BORDE, JJ.
   LABORDE, Judge.

Mr. and Mrs. Robert L. Durr, plaintiffs, instituted this suit against Mr. and Mrs. Gary N. Beard, defendants, to establish a common boundary separating their respective contiguous tracts of land. Defendants reconvened by asserting possession of a disputed portion of land lying between the purported boundary and a meandering fence on plaintiffs’ property. The trial court held that defendants were not in possession and fixed the boundary in conformity with a field book “sketch” provided by plaintiffs’ surveyor. Defendants appeal the trial court decision. We conclude that the proper procedure would have been for the court to appoint a surveyor to establish the boundary. Hence, we affirm in part, vacate in part and remand for further proceedings.

PACTS

This suit resulted after the parties failed to complete an extrajudicial boundary agreement. The purported boundary runs in an east-west direction. There is a power line right-of-way immediately north of, and parallel to the boundary line. This right-of-way was generally and historically recognized by the parties as the boundary separating them. However, the exact location of the boundary has never been ascertained. An old meandering fence line located south of the right-of-way and on plaintiffs’ property was the only line of demarcation in the general area. The defendants are owners of the northern tract and claim that they have been in possession of the southern most part of their property extending across the right-of-way and down to the meandering fence line on plaintiffs’ land.

In an effort to resolve the dispute, each party had the boundary independently surveyed. Both surveyors commenced their survey from the same geographical point (iron rod) of beginning. It was established at trial that this iron rod was an unestablished point within the section being surveyed. This iron rod was represented by plaintiffs, to the surveyors, to be the center post of the section. There was no evidence presented at trial to corroborate this representation made by plaintiffs.

After each survey was completed, defendants’ survey line ended approximately ten feet south of plaintiffs’ survey, at the extreme west end of the line. Because of this inconsistency neither party was willing to accept the surveyed results of the other. The issues on appeal are as follows:

1) Whether defendants were in possession of the disputed area extending from their southern boundary down to the meandering fence line on plaintiffs’ property, and;
2) Whether the trial judge abused his discretion by relying on the field book “sketch” of plaintiffs’ surveyor to fix the boundary rather than ordering a court appointed surveyor to establish the same.

ISSUE # 1

Defendants assert that they were in possession of the disputed boundary area situated between their southern boundary and the old meandering fence line on plaintiffs’ land. This area extends from defendants’ southern boundary, across the right-of-way, onto plaintiffs’ property and up to the meandering fence line. Defendants claim that they are in possession by having cut firewood in the area, planted trees, and having erected a one-strand fence along the meandering line.

Based on the evidence, the trial court held that defendants were not in possession of the area. Testimony of the defendant, Mr. Beard, was rejected by the court as being unreliable. Further, defendants’ erection of a one-strand wire along the old fence line was found to be no more than a very weak and desparate bad faith attempt to establish a last minute claim of possession to the property in question.

It is settled law, that in the absence of an abuse of discretion or manifest error, the conclusions reached by the trier of fact shall be accorded great weight by the appellate courts on review, and shall not be disturbed on appeal in the absence of clear error. Canter v. Koehring Co., 283 So.2d 716 (La.1973); Bren Lynn Corporation v. Valliere, 434 So.2d 600 (La.App. 3rd Cir.1983). We conclude that the record amply justifies the trial court’s finding that defendants were not in possession of the disputed area. Accordingly, we agree with this portion of the trial court’s judgment.

ISSUE # 2

After hearing testimony of each survey- or and several other witnesses, the trial judge exercised his discretion pursuant to LSA-C.C.P. art. 3692 and fixed the boundary in conformity with the field book “sketch” provided by plaintiffs’ surveyor, Billy Crow. (See Appendix “A”). Mr. Crow testified that he did not pursue any measures to locate an established starting point in the course of his survey, but merely began at an iron rod which was pointed out to him by plaintiff, Mr. Durr. Crow was unable to produce a survey plat at trial and stated that he would have to make further measurements and do more field work before preparing a plat. Defendants’ surveyor was of the same opinion. However, Mr. Crow did produce a field book “sketch” of the boundary, which the trial court accepted as an accurate reflection of the boundary. Review of the record reveals that neither of the surveyors commenced their survey from an established point. Nor would they state under oath, that it was their opinion that the iron post from which they commenced their respective surveys was an established point. Both surveyors expressed doubt as to the accurateness of the iron post. Nevertheless, the trial court relied exclusively on the Crow “sketch” to fix the boundary.

Plaintiffs contend that the necessity of a court appointed surveyor in a boundary action has been abrogated by newly enacted LSA-C.C.P. art. 3692, which provides:

“The court may appoint a surveyor to inspect the lands and to make plans in accordance with the prevailing standards and practices of his profession indicating the respective contentions of the parties.” (Emphasis Added)

We realize that the article vests the trial court with much discretion. There may be exceptional cases where sufficient evidence is presented at trial, where the court is relieved of the necessity to appoint a surveyor to resolve the matter. However, such a case is not before us in this instance. The only evidence offered to the trial judge in this boundary action was a field book “sketch”, which is disputed by defendants. The defendants presented an independent and separate surveyed account opposing the plaintiffs’ sketch. We hold that neither survey is entitled to any legal significance, since neither was commenced from a proven or established government point of beginning. Perkins v. Mullins, 367 So.2d 131 (La.App. 2nd Cir.1979).

We therefore hold that the trial judge abused his discretion by making this boundary determination in the absence of sufficient evidence. Beene v. Pardue, 79 So.2d 356 (La.App. 2nd Cir.1955). Our holding as to this portion of the judgment is consistent with the required standards related to boundary surveys as set forth in McMichael v. Williams, 111 So.2d 542 (La.App. 1st Cir.1959) where the court stated:

“However, any line established by survey must be verified and its location substantiated by credible corroborative evidence upon which the courts can act with reasonable assurance of doing substantial justice as between the adverse litigants.
* ⅜: * * ⅜ *
The procedure adopted by Webb (the surveyor) impresses us as being unsound, arbitrary and not in keeping with the highest standard of the profession. His method of establishing the line does not meet the requirements of quality on which this court feels it could conscientiously adjudicate the differences between the parties now before us.” (Parenthetical Added)

Reviewing courts will defer to a trial judge’s reasonable decision on a matter properly within his discretion. However, in this instance the trial court’s reasons for judgment indicate that the court’s decision was based on principles far removed from the standards set forth in Perkins, supra, and McMichael, supra. Such deviations from the established law, as well as the court’s erroneous interpretation of LSA-C. C.P. art. 3692, is not entitled to deference on review by us. The broad discretionary power embodied in LSA-C.C.P. art. 3692 and granted to the trial court is qualified by reasonableness and equity. Prior to the amendment of the article, it was the duty of the court to appoint the surveyor. Although this duty is now discretionary in a case such as this, where the court is presented with two conflicting surveys, neither of which were properly made, we find that the proper exercise of discretion would have been to appoint a surveyor. We hold that the trial judge abused his discretion by failing to appoint a surveyor in this instance.

Accordingly, a surveyor should be appointed by the trial court to properly survey the land in question and prepare an appropriate plat consistent with the standards of the profession.

DECREE

For the reasons stated above, the judgment of the trial court is affirmed insofar as it holds that defendants are not in possession of the disputed portions of land. The remainder of the judgment is vacated and set aside and the case is hereby remanded for further proceedings in conformity with the views herein. All costs are to be divided equally between the parties. '

AFFIRMED IN PART; VACATED IN PART AND REMANDED.

APPENDIX “A”


author: STOKER, Judge.

text:
    OUACHITA EQUIPMENT RENTAL CO., INC., Plaintiff-Appellee, v. Michael SIMONS, et al., Defendants-Appellants.
    No. 83-313.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 1983.
    Simmons & Derr, Jacque D. Derr, Winn-field, for defendants-appellants.
    Pipes & Pipes, William P. Pipes, Jr:, Monroe, for plaintiff-appellee.
    Peters, Hennigan & Walters, J. Reed Walters, Jena, for defendant-appellee.
    Before DOMENGEAUX, STOKER and YELYERTON, JJ.
   STOKER, Judge.

The issue before us in this appeal concerns the reasonableness of an award of liquidated damages to the lessor of movable equipment based on the lessor’s rights to damages under the lease contract. Because we find the damages awarded by the trial court to be unreasonable, we amend and recast the judgment.

On February 22, 1979, the plaintiff, Oua-chita Equipment Rental Co., Inc. (OER), leased a log trailer to Donald W. Shaw for a term of forty-two months at a monthly rental rate of $242.75. Shaw’s obligation was guaranteed by Lloyd Hanson. On August 22, 1980, OER gave Shaw notice of termination of the lease due to delinquencies in the monthly payments and demanded that the trailer be surrendered. Even though Shaw ultimately surrendered the trailer at the end of October, 1980, criminal charges had been filed against him for violation of LSA-R.S. 14:220, refusing to return leased motor vehicles. Appellants make extensive reference to these criminal proceedings in their brief filed with this court. However, these criminal proceedings have no bearing on the issues in this case and will not be discussed.

By act of assignment and assumption of lease dated November 3, 1980, Shaw transferred all his rights and obligations under the lease to Michael Simons. Shaw testified that he does not recall executing the assignment, but he did not deny that his signature was on the document. The validity of the assignment is not at issue on appeal.

In April, 1981, Simons defaulted in payments on the lease and elected to return the trailer to OER, terminating the lease. OER made demand on Shaw and Hanson to pay off the lease since they remained primarily liable, and demanded from Simons liquidated damages in the amount of $2,679.41 for early termination of the lease. No payments were made by Shaw, Hanson, or Simons; OER filed suit naming these three as defendants and claiming that they were liable in solido for $2,679.41 in liquidated damages under the lease. A judgment of default was confirmed against Si-mons and is not before us in this appeal.

After trial on the merits judgment was rendered against Shaw and Hanson for the amount of damages prayed for with legal interest from date of judicial demand and $900.00 attorney’s fees. Shaw and Hanson have appealed.

OER calculated the liquidated damages sued for as follows:

“1. Depreciated Value Calculation:
a. Original Value of Vehicle $6,500.00
b. Less Total Depreciation credit (27 months x 119.05) 3,214,35
c. Depreciated value 3,285.65
2. a. Highest Wholesale Bid (net of
Auctioneer’s charges) 3,000.00
b. Less Accrued and unpaid monthly rentals to date of termination (4 months x 242.75) 971,00
c. Net proceeds 2,029.00
3. Calculation of Amount Due Un-
der Paragraph 11 of Leasing Agreement:
a. Item 1 (c) above 3,285.65
b. Less Item 2 (c) above 2,029,00
c. Balance 1,256.65
d. Add Lost Income (15 months x 123.70) 1,855.50
e. Less Lease Discount 432.74
Balance Due 2,679.41”

These calculations were purportedly made pursuant to terms in the lease agreement providing for liquidated damages in the event of early termination of the lease. These terms provide:

“13. DAMAGES UPON EARLY TERMINATION. Upon the termination of this lease by either party as to any Vehicle prior to the expiration of its lease term, the Lessee shall promptly pay Lessor all damages suffered by the Lessor by reason of such termination (or by reason of any breach of this lease by Lessee). Such damages shall include damages determined as follows:
“a. Purchase or Resale. The Lessee shall promptly purchase and pay for the Vehicle, if Lessor so requests, at its Depreciated Value (i.e., its Original Value as specified in Schedule A, less a sum equal to its Monthly Depreciation specified in Schedule A, multiplied by the number of Monthly Rentals that have been paid). Lessee shall also take over any insurance on the Vehicle paid for by Lessor and pay Lessor for the unearned cost thereof on a daily apportionment

basis. If the Lessor does not request Lessee to purchase the Vehicle or if the Vehicle is not so purchased, Lessor shall sell the Vehicle (or wreckage under paragraph 12d) within 30 days after its surrender or repossession (or such other period as the parties may agree upon). The sale may be public or private and with or without notice to Lessee, shall be at wholesale, and shall be only for cash payable in full upon delivery of the Vehicle and its title papers to the purchaser. If the Net Proceeds of the sale are less than the Depreciated Value of the Vehicle such deficiency shall constitute part of Lessor’s damages; if such Net Proceeds exceed Depreciated Value, the excess shall constitute an offset to Lessor’s other damages.

“(i) ‘Net Proceeds’ shall mean the amount received on the sale, less all direct expenses of Lessor in preparing and holding the Vehicle for sale and selling it and less all sums due Lessor under paragraph 12d if not otherwise paid, and less all debts incurred by Lessee which, if not paid, might constitute a lien on the Vehicle or a liability of Lessor.
“b. Lost Income. Lessee shall pay Lessor as liquidated damages for loss of income a sum equal to the Monthly Rental less the amount of the Monthly Depreciation for each month of the original term of the lease remaining after the termination.
“c. Expenses. Lessee shall reimburse Lessor all costs and expenses (including reasonable attorney’s fees) incurred by Lessor in enforcing Lessor’s rights hereunder.
“d. Remedies Not Exclusive. Repossession and resale of any Vehicle shall not affect Lessor’s rights to recover any damages from Lessee, and Lessor’s rights and remedies in the event of any breach, termination or expiration of this lease with respect to any Vehicle (including damages herein specified) shall not be deemed exclusive but shall be cumulative and in addition to all other rights and remedies in Lessor’s favor existing .by law.”

Although the damages were calculated as if the trailer had been sold at the bid of $3,000, it was in fact not sold, but was re-leased to another party, Kenneth Young, for eighteen months at a monthly rental rate of $205.91.

Shaw and Hanson appeal the damage award on the grounds that (1) future rentals were improperly awarded and (2) the award was unreasonable under LSA-R.S. 9:3267.

EFFECT OF LEASE MOVABLES ACT

The amount of damages to be awarded in a case such as this is governed by the Lease of Movables Act, LSA-R.S. 9:3261-3271. It is OER’s position that this act allows an award of damages including future rentals even though the lessor has taken possession of the leased property. Shaw and Hanson argue that future rentals cannot be awarded after repossession even under the new act. OER contends that the act changed the pre-existing jurisprudence which did not allow recovery of future rentals if the property had been repossessed. We agree with the position taken by OER.

The pertinent provisions of the Lease of Movables Act are as follows:

“Sec. 3266. Ordinary proceedings in addition to summary proceedings
In addition to the summary proceeding provided above, the lessor may enforce judicially, in an ordinary proceeding to cancel the lease, all of the rights under the lease contract to which he is entitled as a result of cancellation. The penden-cy of the summary proceeding permitted above shall not preclude the filing of such ordinary proceeding, nor shall the pendency of an ordinary proceeding pre-elude the filing of the summary proceeding.
“Sec. 3267. Recovery of damages sustained by lessor
In an ordinary proceeding, if the lease contract provides for liquidated damages in event of default, the court shall award such damages only if it finds the amount thereof to be reasonable. If the court finds that the amount of liquidated damages is unreasonable, or if there is no such stipulation, then the court may award damages to the lessor.”

The only case cited by Shaw and Hanson in support of their contention decided after the effective date of the act is Bordelon Leasing, Inc. v. Thibodeaux Air Conditioning Sales, Inc., 386 So.2d 120 (La.App. 3rd Cir.1980). We do not find that case to be controlling in this matter. In Bordelon, this court did not consider an award for liquidated damages as a result of termination of a lease such as we are faced with here. In that case, there was not an effective termination of the lease, and the court found that under the circumstances the lessor was entitled only to rent for the period that the lessee remained in possession prior to sequestration. We find that the parties to a lease may stipulate that future rentals may be included as liquidated damages under the new act for default in carrying out the obligations of the lease, and such damages are subject to review only for reasonableness.

REASONABLENESS OF DAMAGE AWARD

Having determined that future rentals may be awarded as liquidated damages pursuant to the lease agreement, we now review the reasonableness of the award.

As stated before, the damages were computed as if the trailer had been sold, and it appears from the quoted terms of the lease that sale of the trailer was contemplated by the lease contract. However, by keeping the trailer and leasing it again OER did not suffer the full loss of income as anticipated by the terms of the lease. We find that the award of damages in this case, based on the fiction that the trailer had been sold when in fact it was not, was unreasonable under LSA-R.S. 9:3267. An award of damages based on our own calculations should be made. See Ouachita Equipment Rental Company, Inc. v. Baker Brush Company, Inc., 388 So.2d 477 (La.App. 2nd Cir.1980).

In its calculation of lost income, OER subtracted the monthly depreciation of $119.05 from the monthly rental of $242.75 and multiplied the difference by the number of months remaining in the lease. (15 months X $123.70 = $1,855.50) We find that this amount should be reduced or offset by using a like calculation with regard to rental income to be derived from the new lease to Kenneth Young. The new monthly rental rate is $205.91, deducting the new depreciation rate of $119.44 leaves a difference of $86.47. This amount times eighteen, the number of months in the new lease term, equals $1,556.46. Thus, OER has mitigated its damages of lost income in that amount, and the judgment should be reduced accordingly.

We note that the trial court award of $900 in attorney’s fees exceeds the amount prayed for by plaintiff in its petition. The award should not have been more than 25% of the amount due which was the amount prayed for.

Because Simons did not appeal, the default judgment rendered against him is unaffected by our ruling in this appeal.

For the reasons set out above, we amend and recast the judgment as follows:

IT IS ORDERED, ADJUDGED AND DECREED that Ouachita Equipment Rental Co., Inc., plaintiff, have judgment against the defendants, Lloyd Hanson and Donald W. Shaw, in solido, in the full sum of One Thousand One Hundred Twenty-Two and 95/100 Dollars ($1,122.95), with legal interest thereon from judicial demand, until paid, and an additional sum equal to twenty-five per cent (25%) of the principal and interest as attorney’s fees, and all costs.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the liability of Lloyd Hanson and Donald W. Shaw for the amount of the judgment rendered against them herein shall be in solido with the liability of Michael Simons, against whom judgment was rendered herein on September 28, 1982.

Costs of this appeal are assessed one-half to plaintiff-appellee and one-half to defendants-appellants.

AMENDED AND RECAST.

      . For writings in support of this view, see 35 La.L.R. 644-646 (Spring 1975) and 28 La.Bar Journal 123-125 (Dec.1980).


author: CUTRER, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Rickey JOHNSON, Defendant-Appellant.
    No. CR83-358.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 1983.
    Writ Denied Feb. 16, 1984.

      William D. Dyess, Many, for defendant-appellant.
    James L. Davis, Dist. Atty., Many, Abbott Reeves, Asst. Dist. Atty., Gretna, for plaintiff-appellee.
    Before CUTRER, DOUCET and LA-BORDE, JJ.
   CUTRER, Judge.

The defendant, Rickey Johnson, was indicted and convicted for the aggravated rape of Yvette Perry, in violation of LSA-R.S. 14:42. A motion for a new trial, on the basis of five assignments of error, was heard and denied by the trial judge. The mandatory statutory penalty of life imprisonment at hard labor without benefit of probation, parole or suspension of sentence was subsequently imposed.

The defendant appeals his conviction, raising the same five assignments of error alleged as grounds for a new trial — viz, the trial court erred:

(1) In allowing the prosecutor to refer to other crimes or bad acts of the defendant and also in allowing the prosecutor to introduce certain testimony as to the defendant being on probation at the time of the offense at issue;
(2) In prohibiting the defendant from exercising his constitutional right to confront the prosecuting witness (rape victim) by denying the defendant the right to cross-examine the victim as to her prior sexual conduct or reputation for chastity;
(3) In not allowing the defendant adequate time to present a defense to an alleged “Prieur notice,” which was provided by the State only five (5) days before the trial was to begin;
(4) In permitting the prosecutor to violate the guidelines of State v. Prieur, 277 So.2d 126 (La.1973); and
(5) In failing to properly charge the jury as to the limited purpose of the State’s “other crimes” evidence, which could not form the basis for convicting the defendant of the offense being tried.

FACTS

In the early morning hours of July 12, 1982, Yvette Perry was awakened from her sleep by the presence of an armed intruder, who placed a pistol to her head and ordered her to disrobe. At this time, Ms. Perry (age 22) was living in an apartment in Many, Louisiana, with her three young children. Threatening to blow out the victim’s brains if she didn’t cease her crying, the assailant then raped Ms. Perry. Making no attempt to mask his identity, the rapist stayed in the victim’s apartment for approximately four hours. During his stay and after the initial rape of the victim, the intruder related to Ms. Perry various personal details about himself. Subsequent to this conversation, the victim was once again raped and, thereafter, her assailant departed.

Through a physical description of the rapist and the personal data which he had provided his victim, the defendant was arrested on July 14, 1982. Ms. Perry had identified the defendant from a photographic line-up on July 12th, and at trial she positively identified defendant as being the man who had twice raped her.

ASSIGNMENT OF ERROR NUMBER 1

By this assignment the defendant complains of several instances at trial, wherein he alleges that the State was impermissibly allowed by the trial judge, over defendant’s objection, to refer to other crimes or bad acts by the defendant. A general statement of the reasons for prohibiting “other crimes” evidence is found in State v. Ledet, 345 So.2d 474, 477 (La.1977):

“In order for a person to be found guilty of a crime, the state must prove beyond a reasonable doubt that the accused committed the crime with which he stands charged, not that he may have committed it because he is a bad man who has committed other offenses on other occasions. State v. Frederick, 340 So.2d 1353 (La.1976); State v. Slayton, 338 So.2d 694. (La.1976); State v. Gaines, 340 So.2d 1294 (La.1976). Only under certain limited circumstances may the state introduce evidence ofother criminal acts committed by an accused. See R.S. 15:481, 491, 495.

The first instance complained of was the victim’s testimony that the defendant had told her that he was on probation.

The State, in what it deemed to be an “abundance of caution” notified the defendant, pursuant to State v. Prieur, supra, that it intended to introduce the victim’s testimony regarding the defendant’s statement to her. The State’s notice provided in detail the content of the defendant’s statements, including his reference to “probation or parole.” Opining that it had no duty to provide defendant with this notice as the defendant’s statements were part of the res gestae, the State, nevertheless, did provide the notice and also indicated that it intended to call both the officer to whom the victim had related the information and the probation officer who had aided in establishing the defendant’s identity. The prosecution stated that this testimony would be “used for the sole purpose of proving what the defendant said to the victim from which the defendants [sic] identity was obtained.”

In a hearing outside of the jury’s presence, the trial judge overruled the defendant’s objection to the State’s reference to defendant’s probation, finding that the defendant’s statements fell within the res gestae of the crime and that the State was not attempting to use “a whole series of prior crimes.” We agree.

In the case at bar the armed defendant told the victim of his probation after he had initially raped her but before he raped her the second time. Our Supreme Court has addressed this precise issue in a case involving strikingly similar facts. In State v. Wilson, 363 So.2d 481 (La.1978), the court ruled on the admissibility of that victim’s testimony that her attacker, during the interim of raping her twice, mentioned that he had been to Angola (the State penitentiary).

We find the following language to be both controlling and dispositive to the issue before us:

“Defendant argues that the reference to Angola does not comprise part of the res gestae under LSA-R.S. 15:447 since the reference was to events remote in time and space. However, the defendant’s own statements during the commission of a criminal act are the spontaneous words of a participant and comprise part of the res gestae under LSA-R.S. 15:447. State v. Sepulvado, La., 342 So.2d 630 (1977); State v. Williams, La., 331 So.2d 467 (1976); State v. McKinnon, La., 317 So.2d 184 (1975).
“In the present case, the defendant’s statement that he had been to Angola was made after he entered the victim’s home armed with a dangerous weapon. The victim stated that she submitted to the defendant because she was in fear of her life since the defendant had already stated he had been in Angola. Thus, the defendant’s statements were clearly part of the res gestae since they were made after the defendant entered the house armed with a dangerous weapon and before he raped the victim. Under LSA-R.S. 15:447, the res gestae is always admissible in evidence. State v. Morris, La., 340 So.2d 195 (1976); State v. Curry, La., 325 So.2d 598 (1976; State v. Hatch, La., 305 So.2d 497 (1975).”

The present defendant’s statements were spontaneously made during the commission of at least two criminal acts and were, accordingly, part of the res gestae. The trial judge correctly so ruled and did not err in declaring the victim’s testimony admissible.

The second allegedly impermissible reference to other crimes occurred during the State’s examination of Ken Welsh, defendant’s probation officer at the time of the crime at issue. The dialogue complained of is as follows:

“BY THE DISTRICT ATTORNEY:
“Q. Is he a convicted criminal?
MR. DYESS: Objection, Your Hon- or.
DISTRICT ATTORNEY: What do you mean objection? I have asked a question and he will be able to say yes or no.
THE COURT: Approach the Bench, please. (Both counsel to the bench) The objection is sustained and the State is requested to rephrase its question.
DISTRICT ATTORNEY (Continuing)
“Q. Do you know whether this individual has ever been convicted of any criminal conduct or not?
“A. Yes. He’s on probation.”

The State never sought to elaborate upon the crime for which the defendant had been on probation.

We previously found that the victim’s testimony regarding the defendant’s probation was properly admissible into evidence. Walsh’s testimony merely corroborated that which had already been entered into evidence — i.e., the defendant had been on probation. The evidence was introduced by the State solely to establish how the officers had followed up on the victim’s leads, which ultimately led to the defendant’s arrest. Assuming, arguendo, that Walsh’s testimony was an impermissible reference to another crime by the defendant, it was clearly harmless, as the victim had earlier made the same reference. Harmless error may not form the basis for reversal upon appeal. LSA-C.Cr.P. art. 921.

The final reference to other crimes complained of by the defendant occurred during the State’s cross-examination of the defendant’s mother, set forth as follows:

“Q. Do you know if your son has ever been convicted or anything?
A. No.
MR. DYESS: Objection, Your Hon- or.
DISTRICT ATTORNEY: (Continuing)
Q. Has not?
THE COURT: Sustained.
DISTRICT ATTORNEY: She can testify about convictions, Judge, if she knows.
THE' COURT: That is only admissible for the purpose of impeachment of the witness on the stand. The objection is sustained.
DISTRICT ATTORNEY: That’s all. I don’t have any other questions.
MR. DYESS: That’s all.”

We note, initially, that we fail to see any manner in which the defendant has been prejudiced by the complained of question and answer — especially since the witness (defendant's mother) answered that she did not know that her son had ever been convicted of any crime.

However, even assuming that the defendant was prejudiced, we find that the defendant did not take the proper steps to preserve this issue upon appeal. When an accused timely objects to certain remarks or comments made in the presence of the jury, he has available to him the mandatory mistrial provisions of LSA-C.Cr.P. art. 770 or the discertionary mistrial or admonition provisions in LSA-C.Cr.P. art. 771. In the instant case, the defendant’s objection to the question asked by the prosecutor was sustained by the trial judge; the defendant did not, however, request any relief in the form of a mistrial or an admonishment to the jury. The jurisprudence is clear that the failure to lodge either of these requests in a manner which would timely allow the trial judge to cure the alleged defect precludes the defendant from raising the issue on appeal. State v. Michel, 422 So.2d 1115 (La.1982); State v. Miles, 402 So.2d 644 (La.1981); State v. Baylis, 388 So.2d 713 (La.1980); State v. Nicholas, 359 So.2d 965 (La.1978).

For the aforementioned reasons, this assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER 2

Defendant argues by this assignment that he was denied his constitutional right to confront the witness against him, when the trial judge denied him the right to cross-examine the victim as to her prior sexual conduct or reputation for chastity. An examination of the record indicates that defense counsel, cognizant of the prohibitions in LSA-R.S. 15:498 requested to the trial judge that he be allowed to delve into the evidence concerning the victim’s contraction of venereal disease.

The defendant had had three tests for veneral disease performed at the order of the State, and the trial judge agreed with the defendant that he should be allowed to inquire into the victim’s disease, although he would not be allowed to go into detail regarding the sexual acts themselves. And, at trial, the victim stated under cross-examination that she believed that she could have contracted venereal disease from either the defendant or from another named man, whose surname differed from her own. The victim’s testimony that she had had sexual relations with another man, presumably not her husband, was followed by other questions by the defense regarding the test results performed upon that other man. The victim stated that she had been told that the test results were negative — indicating that her paramour had not contracted venereal disease. No objections to this line of questioning were lodged by the State, and the defendant was, therefore, allowed to question, as he had earlier requested, the victim regarding her contraction of venereal disease — although this clearly encompassed evidence of another sexual act by the victim with someone other than the defendant.

No request was made by the defendant to be allowed to inquire into further sexual activity by the victim, and no objection as to the line of questioning allowed by the trial judge was made by the defendant. The requested cross-examination of the victim was allowed by the trial judge, and the victim may not now complain that an unob-jected to error occurred.

At the hearing on his motion for a new trial, the defendant requested the trial judge to declare R.S. 15:498 unconstitutional, as having infringed upon his right to confront the witnesses against him. The trial judge ruled that no basis for declaring an unconstitutional infringement had been shown, and he denied the motion on that ground.

Our Supreme Court has noted that R.S. 15:498 might unconstitutionally restrict the accused’s confrontation right, when the evidence of the victim’s sexual conduct is genuinely relevant to the issue of guilt or innocence. State v. Dawson, 392 So.2d 445 (La.1980); State v. Decuir, 364 So.2d 946, 948 (La.1978) (concurring opinion). However, when the victim’s prior sexual activity with someone other than the accused has no relevance to the issue of her consent involving a subsequent act of rape, no allegation of unconstitutional impingement may be maintained. State v. Dawson, supra. Such is true in the instant case. No showing of any possible relevance regarding the victim’s prior sexual history has been made by the defendant.

The trial judge correctly upheld the constitutionality of R.S. 15:498, and he even allowed the defendant, at his request, a latitude of inquiry into the victim’s past sexual acts, regarding her contraction of venereal disease. We can find no error under these facts. Accordingly, this assignment has no merit.

ASSIGNMENTS OF ERROR NUMBERS 3, 4 and 5

By these assignments the defendant alleges that the State failed to comply with several of the guidelines set forth in State v. Prieur, 277 So.2d 126 (La.1973). The judicial guidelines of Prieur are requirements the State must meet before it can enter into evidence other crimes of the defendant under the exceptions delineated in LSA-R.S. 15:445 and 15:446.

The requirements imposed by Prieur are set forth as follows:

“(1) The State shall within a reasonable time before trial furnish in writing to the defendant a statement of the acts or offenses it intends to offer, describing same with the general particularity required of an indictment or information. No such notice is required as to evidence of offenses which are a part of the res gestae, or convictions used to impeach defendant’s testimony.
(2) In the written statement the State shall specify the exception to the general exclusionary rule upon which it relies for the admissibility of the evidence of other acts or offenses.
(3) Prerequisite to the admissibility of the evidence is a showing by the State that the evidence of other crimes is not merely repetitive and cumulative, is not a subterfuge for depicting the defendant’s bad character or his propensity for bad behavior, and that it serves the actual purpose for which it is offered.
(k) When the evidence is admitted before the jury, the court, if requested by defense counsel, shall charge the jury as to the limited purpose for which the evidence is received and is to be considered.
(5) Moreover, the final charge to the jury shall contain a charge of the limited purpose for which the evidence was received, and the court shall at this time advise the jury that the defendant cannot be convicted for any charge other than the one named in the indictment or one responsive thereto. ”

Defendant complains that violations of 1, 3, 4 and 5 occurred.

In overruling the defendant’s objections (both at trial and at the motion for a new trial) on the basis of Prieur, the trial judge found that the other crimes evidence was admissible under the res gestae exception and, therefore, required no compliance with Prieur. We previously agreed with the trial judge’s ruling as to the applicability of the res gestae exception for other crimes evidence, and we are likewise in accord with his ruling that the State was not, because of the doctrine of res gestae, required to comply with Prieur’s guidelines.

Our Supreme Court, in State v. Goza, 408 So.2d 1349, 1351 (La.1982), stated the following:

“Evidence of offenses which are part of the res gestae, or convictions used to impeach defendant’s testimony, are the only exceptions to the Prieur rules requiring the prosecution to give reasonable, particularized notice to the accused of any other crimes evidence it intends to offer. ”

This is a restatement of the principle that Prieur notice is not necessary when evidence of the other crimes is part of the res gestae. State v. Williams, 375 So.2d 364 (La.1979).

As the other crimes evidence was part of the res gestae in the instant case, we find that the trial judge properly rejected the defendant’s claims that the State was required and failed to comply with the Pri-eur guidelines. This assignment is, therefore, without merit.

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

AFFIRMED.

      . The initial intrusion was at approximately 2:00 A.M., and the attacker left at 6:00 A.M.

        . Revelations made by the intruder are as follow:
      (1) He had gone to prison for murder and, because he was on probation, his use of a weapon could result in his return to prison;
      (2) His family was in Natchitoches, and he was from Leesville;
      (3) He was the father of a child, and the mother’s name was Tiny; and
      (4) His name was Marcus Johnson.

      . A hearing on this issue was held outside of the jury's presence, and the trial judge ruled that the testimony was admissible. The defendant timely objected to this ruling.

      . At trial the State called only one probation and parole officer — Ken Welsh.

      . The defense attempted, through the use of alibis by the defendant’s mother and brother, to establish that the defendant was not in the victim’s apartment at the time of the rape. However, the State appears to have successfully rebutted these attempted alibis.

      . Although the objection was primarily couched in terms of noncompliance with State v. Prieur, defense counsel timely objected (LSA-C.Cr.P. art. 841) to the other crimes evidence.

      . LSA-R.S. 15:447 defines res gestae as:
      "Res gestae are events speaking for themselves under the immediate pressure of the occurrence, through the instructive, impulsive and spontaneous words and acts of the participants, and not the words of the participants when narrating the events. What forms any part of the res gestae is always admissible in evidence.”

      . In fact, it was defense counsel who subsequently attempted to delve into the crimes — two (2) according to him — when the trial judge cautioned him that such a line of questioning could open the whole area of the defendant’s prior acts. Counsel heeded the caution by discontinuing his line of questioning regarding the defendant’s probationary crimes.

      . Although it is arguable that the defendant failed to preserve this issue on appeal by not objecting contemporaneously a second time to Welsh’s testimony and by failing to request a mistrial under LSA-C.Cr.P. arts. 770 or 771, we have considered the issue, because the defendant had initially objected to any reference by the State of defendant’s prior acts. The objection was overruled by the trial judge, and the defendant timely objected to this ruling.

      . The trial judge, subsequent to defense counsel’s question to Welsh regarding defendant’s past crimes, sua sponte admonished the jury that the defendant was only on trial for the charge of aggravated rape.

      . The confrontation right is provided in the Sixth Amendment to the United States Constitution and by Article I, § 16 of the Louisiana Constitution.

      . "Evidence or prior sexual conduct and reputation for chastity of a victim of rape or carnal knowledge shall not be admissible except for incidents arising out of the victim’s relationship with the accused."

      . The defendant apparently felt that he should be allowed to draw the jury’s attention to the fact that Ms. Perry has two illegitimate children. He claimed that Ms. Perry did not know the identity of those children’s fathers. However, Ms. Perry, at the preliminary examination hearing, said that she did know the identity of the fathers. We find none of this to be relevant to the case at bar.

      . LSA-R.S. 15:445 states:
      "In order to show intent, evidence is admissible of similar acts, independent of the act charged as a crime in the indictment, for though intent is a question of fact, it need not be proven as a fact, it may be inferred from the circumstances of the transaction.”

      .LSA-R.S. 15:446 provides:
      “When knowledge or intent forms an essential part of the inquiry, testimony may be offered of such acts, conduct or declarations of the accused as tend to establish such knowledge or intent and where the offense is one of a system, evidence is admissible to prove the continuity of the offense, and the commission of similar offenses for the purpose of showing guilty knowledge and intent, but not to prove the offense charged.”

      . Notice was given by the State on December 28, 1982, when the trial was set to commence on January 3, 1983. It actually began on January 5, 1983. Defendant contends this was an unreasonably short time.


author: GUIDRY, Judge.

text:
    Anaise M. GUILBEAU, Plaintiff-Appellee, v. Louise Larive ROGER and South Carolina Insurance Company, Defendants-Appellants.
    No. 83-368.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 1983.
    Rehearing Denied Jan. 13, 1984.
    Writ Denied March 16, 1984.
    Yoorhies & Labbe, James P. Lambert, Lafayette, for defendants-appellants.
    Patrick L. Colomb, Lafayette, for defendants-appellees-appellants.
    Gerald J. Block, Lafayette, for plaintiff-appellee.
    Before GUIDRY, FORET and KNOLL, Judges.
   GUIDRY, Judge.

The plaintiff, Anaise M. Guilbeau, brought this personal injury suit to recover damages resulting from an altercation with her neighbor, the defendant, Louise L. Roger. Mrs. Roger filed a third party demand against her homeowner’s insurer, South Carolina Insurance Company, seeking indemnity in the amount of any judgment awarded against her and attorney’s fees from South Carolina on account of the latter’s failure to defend the lawsuit.

The trial court found that Mrs. Roger and South Carolina were liable jointly, severally, and in solido, and rendered judgment in favor of the plaintiff against both in the amount of $2,720.00. The trial court also awarded the defendant, Mrs. Louise L. Roger, a $750.00 attorney’s fee in her third party demand against South Carolina.

Mrs. Roger appeals, asserting that her actions in defending her property were reasonable, and that the trial court erred in rendering judgment against her. South Carolina also appeals, asserting that the trial court erred in finding that the plaintiff’s injuries were covered by Mrs. Roger’s homeowner’s policy, and in awarding Mrs. Roger an attorney’s fee in her third party demand against South Carolina.

We observe at the outset that the trial court erred in rendering judgment in the plaintiff’s favor against South Carolina, since the plaintiff did not name the insurer as a defendant in the principal action. Because of this error and because we ultimately conclude that the plaintiff’s injuries were not covered under Mrs. Roger’s homeowner’s policy, it will be necessary to recast the judgment.

The issues presented by this appeal are: (1) the correctness of the trial court’s finding of liability on the part of Mrs. Roger; (2) whether the injuries suffered by the plaintiff are covered by the policy of homeowner’s insurance issued by South Carolina to Mrs. Roger; and, (3) whether South Carolina had a duty to provide a defense to Mrs. Roger in this suit.

FACTS

The plaintiff and the defendant, 64 and 67 years of age, respectively, are longtime neighbors whose properties adjoin in the town of Carenero, Louisiana. On August 19, 1981, while the plaintiff was raking leaves in her yard, a dispute arose between the two women over the presence of leaves in the plaintiff’s yard. The plaintiff accused the defendant of raking the leaves onto her property. From that point, the testimony of the two women presents two very different versions of the incident. The plaintiff, Mrs. Guilbeau, testified that after a period of “fussing”, Mrs. Roger went to her garage and returned armed with her own rake, although by this time the plaintiff had dropped her rake to the ground. Mrs. Roger then came toward the plaintiff, stating that she was “coming to get” her. She then struck the plaintiff with the rake, and a period of struggling and hair pulling ensued. Mrs. Guilbeau stated that the fight began on her property, but when both parties got up off the ground following the struggle, they were on the Roger property.

Mrs. Roger testified that Mrs. Guilbeau accused her of raking the leaves onto her property and threatened to use her rake to put the leaves back on the Roger property. Mrs. Roger stated that she went to get her own rake, and she gave the following account of what followed:

“Q. Okay, and according to you, at the time that you went to get the rake, she was in your yard?
A. Oh, yes, she was coming on me.
Q. So when you got to her, all you did was push her?
A. Well, you know, she tried to— She saw I had a rake; she tried to get my rake. So she dropped hers and she catch me in the hair. When I saw she had caught me in my hair, I dropped mine and I caught her. So I swing her head by my pole and then she gived in. When she give in, I say well, I won’t be able to handle her. I give her a push; she fell on her seat and with her two hands like this. Then I told her, I said get up. So she gets up. So when she get up, I didn’t give her time because we was fighting. So I push her a little further. Then I give her a push all my mighty; I almost pass through her. So she fell on her back this way with her legs this way too. So if she break her arm, it’s her own, you know.”

Mrs. Roger further stated that the fight occurred in her yard. As a result of the fight, Mrs. Guilbeau suffered a broken wrist and a minor cut to her head.

LIABILITY OF DEFENDANT

The trial judge heard two conflicting versions of how the fight occurred. In his oral reasons for ruling, he stated that the defendant provoked the incident by attempting to shove the plaintiff off her property. Based on this conclusion, he found Mrs. Roger liable for the resultant injuries suffered by the plaintiff.

The trial judge is in the best position to make credibility determinations. Reasonable evaluations of credibility and reasonable findings of fact will not be disturbed by an appellate court unless they are clearly wrong. Canter v. Koehring Company, 283 So.2d 716 (La.1973); Bertrand v. Aetna Casualty & Surety Company, 306 So.2d 343 (La.App. 3rd Cir.1975). We have carefully examined the record, and we find no clear error in the factual determinations of the trial court.

INSURANCE COVERAGE

The policy of homeowner’s insurance issued by South Carolina to Mrs. Roger excludes coverage for “bodily injury or property damage which is either expected or intended from the standpoint of the insured.” The trial court found that Mrs. Roger did not intend to inflict the wrist injury suffered by Mrs. Guilbeau, and thus concluded that the policy covered the plaintiff’s injuries. For the reasons which follow, we find his determination in this regard to be clearly erroneous.

Under either version of the facts, it appears to us that Mrs. Roger intended to injure the plaintiff. The plaintiff testified that Mrs. Roger approached her with a rake, threatening to “get her”, and then started the actual fight by striking her with the rake as the plaintiff raised her hands to ward off the blow.

Even the defendant’s own testimony can leave no doubt that the defendant intended to injure the plaintiff. Mrs. Roger testified that after an initial hair grabbing incident, Mrs. Guilbeau “gave in.” Despite the surrender, Mrs. Roger pushed the 64 year old plaintiff with both hands, causing her to fall backwards, landing on her posterior and her hands. Mrs. Roger then told Mrs. Guilbeau to get up off the ground. When she did, Mrs. Roger pushed her again with all her strength, knocking her on her back once again.

In support of its conclusion that the defendant did not intend to injure the plaintiff, the trial court cited the case of Kling v. Collins, 407 So.2d 478 (La.App. 1st Cir. 1981). In Kling, the defendant, Mr. Collins, became involved in an argument in his home with the plaintiff, Mrs. Kling. When Mrs. Kling refused to leave, Mr. Collins shoved her in an effort to make her leave his house. The plaintiff fell and suffered a wrist injury. Mr. Collins stated, and the trial court found, that he did not intend to injure the defendant, but only intended to force her to leave. Our brethren of the First Circuit affirmed, holding that the exclusionary clause should apply only when the act is of such a nature that injury must necessarily be expected.

The distinction between an intentional act and intentional injury has also been made by this court. In Rambin v. Wood, 355 So.2d 561 (La.App. 3rd Cir.1978), the plaintiff was riding a small tractor when he was struck or pushed by the defendant, causing the plaintiff to fall off the tractor, sustaining injuries. We found that while the act of the defendant was intentional, the injuries suffered by the plaintiff were neither expected or intended by the defendant. See also, Sherwood v. Sepulvado, 362 So.2d 1161 (La.App. 2d Cir.1978).

The instant case is readily distinguishable from the cases cited above. In each of the above cases, the act of the defendant, while intentional, was not so aggressive that an intent to injure could be inferred. In the instant case, we are not concerned with an isolated push or shove, but rather a full blown fight. By Mrs. Roger’s own admission, she pushed the plaintiff to the ground after the plaintiff had surrendered, then ordered her to get up only to knock her down again. Injury to the elderly plaintiff, whether to her wrist or some other part of her body, was clearly intended and should certainly have been reasonably expected. We conclude that the trial judge erred in finding otherwise. We hold that the plaintiff's injuries were not covered by the insurance policy.

SOUTH CAROLINA’S DUTY TO DEPEND

The trial court found that South Carolina Insurance Company breached its duty to defend Mrs. Roger in the lawsuit, awarding the defendant an attorney’s fee of $750.00.

An insurer’s obligation to defend suits against its insured is broader than its liability for damage claims. The insurer’s obligation to defend suits against the insured is determined by the allegations of the plaintiff’s petition, with the insurer being obligated to provide a defense unless the petition unambiguously excludes coverage. Ada Resources, Inc. v. Don Chamblin & Associates, 361 So.2d 1339 (La.App. 3rd Cir.1978); Lees v. Smith, 363 So.2d 974 (La.App. 3rd Cir.1978).

Counsel for South Carolina contends that the plaintiff’s petition excludes coverage because it alleges an intentional battery not covered by the policy, and that consequently there was no duty on the part of the insurer to defend Mrs. Roger in the la\ysuit. We do not agree.

The plaintiff’s petition does allege an intentional act. However, as we have more fully discussed above, an intentional act alone is not sufficient to trigger the operation of the policy exclusion in question. There must also exist the intent to inflict injury. In light of the line of jurisprudence which makes a distinction between intentional acts and intentional injury, we are of the opinion that the plaintiff’s petition in this case fails to unambiguously exclude coverage. We find no error in the trial court’s award of attorney’s fees to the third party plaintiff.

Third party plaintiff, Mrs. Roger, also seeks an increase in the amount of attorney’s fee to cover the cost of this appeal. The basis for awarding additional attorney’s fees is that the litigant successful at the trial level must incur additional expense, which would not otherwise have been incurred, in order to protect his rights on appeal.

Mrs. Roger appealed the decision of the trial court inasmuch as it awarded damages against her, and was unsuccessful. In addition, she was unsuccessful in defending against South Carolina’s appeal on the issue of insurance coverage. Under these circumstances, she is not entitled to an increase in attorney’s fees. Gagnard v. Travelers Insurance Company, 380 So.2d 191 (La.App. 3rd Cir.1980).

For the foregoing reasons, the judgment of the trial court is reversed insofar as it renders judgment in favor of plaintiff against South Carolina Insurance Company and Louise L. Roger in solido and said judgment is now recast to read as follows:

“IT IS ORDERED, ADJUDGED AND DECREED that there be judgment in favor of plaintiff, Anaise M. Guilbeau, and against Louise Larive Roger in the sum of $2,720.00, with legal interest from date of judicial demand until paid. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment in favor of Louise Larive Roger, third party plaintiff, and against South Carolina Insurance Company, third party defendant, for attorney’s fees in the sum of $750.00, together with legal interest from date of judicial demand until paid. In all other respects, the demand of third party plaintiff, Louise L. Roger, against South Carolina Insurance Company is dismissed with prejudice. IT IS FINALLY ORDERED, ADJUDGED AND DECREED that all costs of the trial court be assessed one-half (½) to Louise L. Roger and one-half (½) to South Carolina Insurance Company.”

Louise L. Roger is cast for all costs of this appeal.

REVERSED IN PART, AFFIRMED IN PART AND RENDERED.


author: DOMENGEAUX, Judge.

text:
    STATE of Louisiana v. Mark A. DOUCET.
    No. CR83-380.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 1983.

      David R. Lestage, Hall, Lestage & Lan-dreneau, DeRidder, for defendant-appellant.
    W.C. Pegues, III, Dist. Atty., and David W. Burton, Asst. Dist. Atty., DeRidder, for plaintiff-appellee.
    Before DOMENGEAUX, STOKER and YELVERTON, JJ.
   DOMENGEAUX, Judge.

Defendant, Mark A. Doucet, was indicted for the negligent homicide of Priscilla Young, in violation of La.R.S. 14:32. He waived trial by jury. Following a bench trial, defendant was found guilty as charged. He was sentenced on March 2, 1983, to serve a term of two and one-half years of imprisonment at hard labor. Defendant now appeals on the basis of eight assignments of error.

FACTS

At approximately 12:30 A.M. on January 1,1982, a vehicular collision occurred at the intersection of U.S. Highway 171 and Louisiana Highway 26, south of DeRidder, in Beauregard Parish. As a result of this collision, Mrs. Priscilla Young was killed.

At trial it was established that Ronnie Young, and his wife Priscilla, were traveling south on U.S. Highway 171, shortly after midnight on January 1, 1982. Mr. Young was driving at a slow rate of speed due to the heavy fog blanketing the area. It was learned through testimony that the highway curved to the right at the intersection of U.S. Highway 171 and Louisiana Highway 26, and as Mr. Young drove around the curve he saw defendant’s oncoming vehicle passing cars and proceeding to pull onto the left shoulder (Mr. Young’s right). Immediately after defendant pulled onto the left shoulder, he then came back onto the highway into Mr. Young’s lane of travel. Mr. Young pulled his vehicle to the left to avoid the collision, but the right side of defendant’s vehicle struck the right side of the Young vehicle. Mrs. Young was taken to Beauregard Memorial Hospital, in DeRidder, where she was pronounced dead.

The defendant testified that when he approached the line of vehicles, south of the intersection, he passed two vehicles and was attempting to pass two more vehicles when the collision occurred. He also testified that he had seen headlights ahead, crossing into Louisiana Highway 26.

Subsequent to the accident, the defendant was arrested and taken to the DeRid-der City Police Department, where he was given a P.E.I. test by Trooper Spurgeon. The results of the defendant’s P.E.I. test indicated a blood alcohol concentration of 0.087 g.%, a concentration which fell slightly short of the presumptive level of intoxication.

ASSIGNMENTS OF ERROR

The trial court erred:

1. In allowing Louisiana State Troopers Spurgeon and/or Bickham to testify concerning statements made by defendant.

2. In allowing testimony and evidence regarding the photoelectric intoximeter test, including its results.

3. In admitting the testimony of Mrs. Carlene Johnson relating her husband’s statement characterizing defendant’s driving and indicating that a wreck was a likelihood.

4. In allowing David Shannon Elliott to testify regarding the alleged actions, driving and/or speed of defendant several miles from the accident scene.

5. In failing to grant the motion for acquittal since the law and evidence were not sufficient to maintain a verdict of guilty.

6. In rendering its verdict of guilty since the law and evidence were not sufficient to maintain a verdict of guilty.

7. In failing to grant the motion for a new trial since the law and evidence were not sufficient to maintain a verdict of guilty.

8. By imposing a sentence which is excessive and constitutes cruel and unusual punishment.

ASSIGNMENT OF ERROR NO. 1

Defendant contends the trial court erred in allowing Louisiana State Troopers Spurgeon and/or Bickham to testify concerning statements made by defendant. Defendant, on appeal, urges that he was taken into custody by the police officers and was not advised of his constitutional rights and therefore any statement made by him while in custody, without being given his Miranda warnings, renders the statement inadmissible. State v. Petterway, 403 So.2d 1157 (La.1981).

The statements which defendant asserts were inadmissible were given to the investigating officers moments after their arrival on the scene. Defendant was the first person questioned once the injured were taken away. According to the Troopers, defendant stated that he passed a vehicle and then he didn’t know anything else, except that he didn’t see the other vehicle until just before impact.

The State contends that the statements were admissible because defendant was not in custody at the time they were made and consequently the Miranda warnings were not necessary. In State v. White, 399 So.2d 172 (La.1981), the Court stated:

“Miranda warnings are not a prerequisite to admissibility of statements taken by officers during non-custodial, general on-the-scene investigations, conducted to determine the facts and circumstances surrounding a possible crime, absent a showing that the investigation has passed the investigatory stage and had focused on the accused. State v. Weeks, 345 So.2d 26 (La.1977); State v. Brown, 340 So.2d 1306 (La.1976).”

At 174.

In State v. Thompson, 399 So.2d 1161 (La.1981), the Court reviewed the factors to consider in determining whether the detention of defendant was significant enough to warrant a reading of the Miranda warnings. See La. Const. Art. I, § 13. The court stated:

“The determination of whether the detention is significant is to be made objectively from the totality of the circumstances _ Factors relevant to the determination include (1) whether the police officer had reasonable cause under C.Cr.P. 213(3) to arrest the interrogee without a warrant; (2) the focus of the investigation on the interrogee; (3) the intent of the police officer, determined subjectively; and (4) the belief of the interrogee that he was being detained, determined objectively. Whether or not there is a custodial interrogation under federal terminology or a significant detention under Louisiana terminology must be determined on a case-by-case basis. State v. Ned, 326 So.2d 477, 479 (La.1976).” (Emphasis theirs). Thompson, at 1165.

As noted in Thompson, each case must be evaluated objectively to determine whether there was a significant detention. In the instant case, as stated earlier, the officers testified that the defendant was the first witness to be questioned. The only fact known by the officers at this point was that a head-on collision had taken place which caused injuries. Upon the initial contact with defendant, there was no indication that anything of a criminal nature had taken place to justify a finding that probable cause existed to arrest him. Therefore it does not appear that defendant was “significantly detained” at the time he made the statements; consequently, Miranda warnings were not necessary.

Additionally, the State notes, in brief, that even if the statements were inadmissible, the remarks were merely superfluous to a finding that the defendant’s actions represented a gross deviation from the standard of care expected to be maintained by a reasonably careful man under like circumstances. Consequently, there was not any reasonable possibility that the alleged error contributed to the conviction. State v. Gibson, 391 So.2d 421 (La.1980). Even if this Court were to find that the statements were not admissible, the State’s argument appears to be correct that these statements were superfluous and that admitting them into evidence amounts to harmless error. The transcript reflects an abundance of testimony by other witnesses which was sufficient to convict the defendant. Hence, this assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 2

Defendant contends the trial court erred in allowing testimony and evidence regarding the photoelectric intoximeter (P.E.I.) test, including its results. Defendant filed a motion to suppress the results of the P.E.I. test; after a hearing on the motion was heard, the trial judge denied the motion. Defense counsel urges that the troopers did not instruct defendant properly concerning his rights to submit or refuse to take the test. Therefore the motion to suppress should have been granted. Also, defendant urges that the results of the P.E.I. test were not admissible for the reasons given during objections at trial.

At the motion to suppress hearing, the defense introduced a rights form signed by the defendant. During the hearing, defendant admitted he had signed the rights form. The rights form which he signed complies fully with La.R.S. 32:661(C). Defendant testified that he was instructed to take the test and that if he refused he could lose his driver’s license. Defendant further testified that he was read the rights form and that he understood it when he signed it. From the testimony of the defendant alone, it is evident that the police officers fully complied with the requirements of law. See La.R.S. 32:661-669. Consequently, the trial judge correctly denied defendant’s motion to suppress.

As stated earlier, defendant also urges that the P.E.I. test results were not admissible based upon his objections made at trial. Defendant states that the inspecting technician, Mr. George Dunn, and the Supervisor of Maintenance and Custodian of Chemical Testing Records, Mr. Bailey D. Hughes, II, did not appear and testify concerning any spot check procedures conducted on the P.E.I. machine or the ampul lot used in this case. Defendant relies upon State v. Krause, 405 So.2d 832 (La.1981) and State v. Morrison, 392 So.2d 1037 (La.1980), as authority for holding the test results inadmissible because of the failure to have the proper witnesses testify.

At the outset it must be stated that the line of cases which defendant relies upon dealt with the offense of D.W.I., not negligent homicide. The court enunciated the rationale applicable to the statutory presumption of intoxication, citing State v. Goetz, 374 So.2d 1219 (La.1979):

“Because an intoxication test conducted with chemicals of inferior quality could bring to bear a practically conclusive presumption of guilt against an innocent person, it is essential that the officially promulgated methods, procedures and techniques include a thorough analysis of the chemicals by a chemist under laboratory conditions to insure that they are of proper composition, strength and volume at the time a test is conducted ....”
Krause, at 834.

In State v. Green, 418 So.2d 609 (La.1982), the defendant in that case was charged with negligent homicide. The Court, in noting the admissibility of a blood test in connection with the crime charged, stated:

“In order for a chemical analysis of a person’s blood to be considered valid in a criminal action or proceeding arising out of acts alleged to have been committed by him while driving under the influence of alcohol, the analysis must have been performed according to methods approved by the Department of Public Safety. R.S. 32:663 (Supp.1977).” (Emphasis added).
Green, at 612.

Under the strict compliance standard adopted in Krause, supra, and Green, supra, the trial judge was correct in admitting the P.E.I. results in this case. The inspecting technician, George Dunn, filed a certification, dated October 13, 1981, with the Clerk of Court for Beauregard Parish, attesting to the fact that he had examined P.E.I. machine No. 359, and that he had also spot-checked ampul lot No. 81-924 for performance, the same P.E.I. machine and ampul lot utilized for performance of the P.E.I. test in this case. This certificate was introduced into evidence at trial. Also, Mr. Dunn’s certification as a qualified technician, under the rules and regulations of the Department of Public Safety, was filed with the Clerk of Court for Beauregard Parish, and a certified copy of that certification was introduced into evidence. In addition, the manufacturer’s certificate of the ampuls’ standards of quality was introduced into evidence. Finally, Volume 6, No. 11 of The Louisiana Register which was in effect at the time of the accident in the instant case was introduced into evidence by the State. The requirements of Volume 6, No. 11, which were formulated subsequent to the regulations in effect when Krause was decided, were complied with by the State in this case. Therefore this assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 3

Defendant contends the trial court erred in admitting the testimony of Mrs. Carlene Johnson relating her husband’s statement characterizing defendant’s driving and indicating that a wreck was a likelihood. Over objection, the State was allowed to ask Mrs. Carlene Johnson about a statement uttered by her husband as defendant’s vehicle went around them near Pleasant Hill Road on U.S. Highway 171, which is near the accident scene. Mrs. Johnson testified that Mr. Johnson stated: “The car was going to have a wreck, run over somebody driving like that.” The trial judge allowed the testimony in on the basis that it formed part of the res gestae. Defense counsel asserts that the statement was inadmissible hearsay.

In State v. Billiot, 421 So.2d 864 (La.1982), the Louisiana Supreme Court declared:

“The doctrine of res gestae includes not only spontaneous utterances and declarations made before and after commission of the crime, but also testimony of witnesses and police officers pertaining to what they heard or observed before, during or after the commission of the crime if the continuous chain of events is evident under the circumstances. La.R.S. 15:448; State v. Molinario, 383 So.2d 345 (La.1980); State v. Drew, 360 So.2d 500 (La.1978), cert. den., 439 U.S. 1059, 99 S.Ct. 820, 59 L.Ed.2d 25 (1979), and cases cited therein.” (Emphasis added).
At 867.

Mrs. Johnson testified that it was only a matter of minutes before they reached the accident scene and noticed the defendant’s vehicle which had just overtaken them a short distance down the highway. She also indicated that it was only a few seconds after defendant’s vehicle passed them that her husband made the observation. Therefore, in light of Billiot, supra, the trial court was correct in admitting the evidence under the res gestae exception. This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 4

Defendant contends the trial court erred in allowing David Shannon Elliot to testify regarding the alleged actions (driving and/or speed) of defendant several miles from the accident scene. The defense objected to Mr. Elliot’s testimony on the grounds that it was irrelevant and immaterial since it involved alleged actions of the defendant’s vehicle at a time and place remote to the scene of the alleged crime.

Mr. Elliot testified that he had arrived at the intersection of Louisiana Highway 26 and U.S. Highway 171, shortly after the collision. He testified that he observed the two vehicles involved in the accident and that he had seen one of those vehicles “in the range from a minute to three minutes” prior to the accident. He identified the defendant’s vehicle as the one he had seen moments prior to the accident. Pertaining to his observations of defendant’s vehicle as it passed him, Mr. Elliot testified:

“It seemed to me he was traveling pretty fast, because that night we were all going slow because of the fog, and I kept watching him because he kept getting closer and closer, and it looked — I thought he was going to hit me, and I had already braced myself....”

In the case of State v. Sherer, 411 So.2d 1050 (La.1982), the Louisiana Supreme Court was faced with a similar issue. The defendant, in that case, was charged with negligent homicide. The State introduced into evidence the testimony of a witness who had observed the defendant’s vehicle on the highway shortly before the accident. The witness testified that the vehicle sometimes wandered into the left lane and in one instance forced a large truck to pull onto the shoulder of the road. The vehicle was also observed running off the road and hitting a traffic sign. The witness testified that this incident occurred approximately a half of a mile from the area of the accident shortly before the accident happened. The witness further stated that when he arrived at the accident scene, he noticed one of the vehicles involved was the same one he had observed a short time before. The Court stated that the evidence elicited was sufficiently related to the crime charged to allow the judge to permit it into evidence. The Court went on to note that the evidence standing alone was not conclusive, but that there was sufficient probative value to permit the jury to consider it in its determination of the guilt of innocence of the accused. Based upon the reasoning given in Sherer, supra, the trial court was correct in allowing into evidence the testimony of Mr. Elliot. This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 5

Defendant contends the trial court erred in failing to grant the motion for acquittal since the law and evidence were not sufficient to maintain a verdict of guilty. La.C. Cr.P. Art. 778 governs the motion for acquittal. It provides:

“In a trial by the judge alone the court shall enter a judgment of acquittal on one or more of the offenses charged, on its own motion or on that of defendant, after the close of the state’s evidence or of all the evidence, if the evidence is insufficient to sustain a conviction.
If the court denies a defendant’s motion for a judgment of acquittal at the close of the state’s case, the defendant may offer its evidence in defense.”

The denial of a motion for acquittal may be reversed on appeal only if there is no evidence of the crime or an essential element thereof or where the denial is a palpable abuse of discretion. State v. Vaughn, 378 So.2d 905 (La.1979); State v. Hargrave, 411 So.2d 1058 (La.1982).

La.R.S. 14:32 provides in pertinent part:
“Negligent homicide is the killing of a human being by criminal negligence.
The violation of a statute or ordinance shall be considered only as presumptive evidence of such negligence.”
La.R.S. 14:12 provides:
“Criminal negligence exists when, although neither specific nor general criminal intent is present, there is such disregard of the interest of others that the offender’s conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances.”

Viewing the evidence in light of the foregoing principles, the trial court did not abuse its discretion in denying the motion for acquittal. The testimony of the witnesses, presented by the State, established that there was a great deal of fog throughout the area which caused traffic to proceed at a slow rate of speed on the night in question. However, witnesses testified that defendant passed them up at a high rate of speed and attempted to pass three cars while negotiating a curve. Defendant was also in a no passing zone where the accident took place. Further evidence adduced at trial indicates that the defendant had a blood alcohol level of 0.087 g.% when the P.E.I. test was administered, a concentration which is only .013g.% less than the presumptive level of intoxication. This factor may be considered, however, along with other competent evidence in determining whether the defendant was under the influence of alcoholic beverages. La.R.S. 32:662(A)(l)(b). It should be noted however that the State did not contend at trial that the defendant was intoxicated. Intoxication is not an element of the offense of negligent homicide, and is unnecessary to establish the presence of criminal negligence in the instant case. Therefore, we conclude that the State presented sufficient evidence that the defendant had committed negligent homicide to warrant the trial judge’s denial of the motion for acquittal. This assignment of error lacks merit.

ASSIGNMENTS OF ERROR NOS. 6 AND 7

Defendant contends the trial court erred in rendering its verdict of guilty since the law and evidence were not sufficient to maintain a verdict of guilty. Also, defendant urges the trial court erred in failing to grant the motion for a new trial for the same reasons. In State v. Sharp, 414 So.2d 752 (La.1982), the Louisiana Supreme Court stated:

“In order for a conviction to stand, the evidence, when viewed in a light most favorable to the prosecution, must be sufficient to convince a reasonable trier of fact of the guilt of the defendant, beyond a reasonable doubt, of every element of the crime. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Guillot, 389 So.2d 68 (La.1980)”
At 754.

For the reasons set forth in discussing assignment of error No. 5, these assignments of error lack merit. The State presented ample testimony to convince the trial judge beyond a reasonable doubt that the defendant was guilty of negligent homicide.

ASSIGNMENT OF ERROR NO. 8

Defendant contends the trial court erred by imposing a sentence which is excessive and constitutes cruel and unusual punishment.

In State v. Sepulvado, 367 So.2d 762 (La.1979), the Louisiana Supreme Court decided that the imposition of a sentence, even though within the statutory limits, may be unconstitutionally excessive in violation of Article 1, § 20 of the Louisiana Constitution of 1974. A sentence has been determined to be excessive punishment when the penalty is so disproportionate to the crime as to shock the senses of justice or if it is nothing more than the purposeless and needless imposition of pain and suffering. State v. Goodman, 427 So.2d 529 (La.App. 3rd Cir.1983); State v. Reed, 409 So.2d 266 (La.1982). However, due to the trial judge’s unique advantage of viewing subjective factors not available from the appeal record he is given a wide discretion in the imposition of sentences within statutory limits, and a sentence imposed by him should not be set aside as excessive in the absence of manifest abuse of this discretion. Sepulvado, supra; Goodman, supra; State v. Howard, 414 So.2d 1210 (La.1982); State v. Bradley, 414 So.2d 724 (La.1982).

We are unable to find any manifest abuse of discretion in this case. The sentence imposed followed a determination of guilt of a most serious crime which had grievous results. The sentence in the instant case is not grossly out of proportion to the severity of the offense, which involved the taking of a human life. Having found no abuse of discretion we will not disturb this sentence on appeal.

DECREE

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

AFFIRMED.

      . La.R.S. 32:661(C) provides in pertinent part:
      "In addition, the law enforcement officer shall have the person sign a standard form advising such person of his constitutional rights; the law enforcement officers shall have the person sign a separate form advising such person of the consequences of his refusal to submit to a chemical test, provided however that a single combination of the two forms may be used

      . See La. Register, Vol. 4, No. 4, p. 391 (1978) for the regulations relied upon by the Court in Krause.

      . In Sherer, other evidence was presented to bolster the testimony of the witness; the same may be said for the instant case.

      . Although reviewing courts are obligated to follow the Jackson standard as mandated by the Louisiana Supreme Court, the author of this opinion has expressed opposition to this standard because it relegates the reviewing power of the appellate courts to nothing more than “second-guessing” the triers of fact. See State v. Gatson, 434 So.2d 1315 (La.App. 3rd Cir.1983), concurring opinion at 1321.

      . The author of this opinion is compelled to state his position as to appellate review of sentences for excessiveness. Our state constitution does not provide for nor does it mandate judicial review of sentences which fall within the limits set by the respective criminal statutes. See State v. Goodman, 427 So.2d 529 (La.App. 3rd Cir.1983), concurring opinion at 529; State v. Vallare, 430 So.2d 1336 (La.App. 3rd Cir. 1983), concurring opinion at 1339, writ denied (La.1983). See also State v. Shelby, 438 So.2d 1166 (La.App. 3rd Cir.1983).