author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Andrew G. TAYLOR.
    No. 83-KK-0751.
    Supreme Court of Louisiana.
    Oct. 17, 1983.

      David Price, Baton Rouge, for relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Kay Kirkpatrick, Samera Abide, Asst. Dist. Attys., for respondent.
   CALOGERO, Justice.

In 1978 defendant was charged by bill of information with driving while intoxicated second offense, a violation of La.R.S. 14:98(C), a misdemeanor. In 1982, after the trial court denied his motion to quash on grounds that the prosecution was not timely, he was found guilty as charged. The trial court sentenced him on March 1, 1983, to a six month prison term and a fine of $400.00 plus court costs. Because appeal was not available (La. Const, art. V, § 8), Taylor applied for supervisory writs and the Court of Appeal denied. This Court granted the defendant’s application for supervisory writs to review the rulings below relative to the timeliness of the prosecution.

More than one year elapsed between the time prosecution for this misdemeanor was instituted and the defendant was brought to trial. La.C.Cr.P. art. 578. Because there was no legal excuse for the delay in trial under La.C.Cr.P. art. 579, the motion to quash should have been granted. La.C. Cr.P. art. 578 therefore bars this untimely prosecution. Accordingly, the defendant’s conviction and sentence are reversed and the defendant is ordered discharged.

The facts are as follows:

On February 26, 1978, defendant Andrew G. Taylor was arrested and charged with driving while intoxicated. R.S. 14:98. That same day he posted bond, listing his address at “837 N. 6th [Street] Apt 6 B(aton) R(ouge), La.” A bill of information charging defendant with second offense DWI, a misdemeanor, was filed on October 18, 1978. In the ordinary course of events, the state would have had until October 18, 1979, to bring the matter to trial. La.C. Cr.P. arts. 382, 578 and 934(7). Defendant’s trial did not commence, however, until August 11, 1982.

What occurred in the interim was the following. After the bill of information had been filed, arraignment was fixed for November 22, 1978, pursuant to which the East Baton Rouge Sheriff’s Department attempted to serve notice of the proceeding on Taylor. Service was first made, however, at “1837 North 6th Apt. 6,” the address appearing on the traffic citation issued by the state trooper on February 26, 1978. The subpoena was returned to the court with the notations “unable to locate,” and “no such number.” The court corrected the address, reset arraignment for December 18,1978, and ordered a subpoena served at “8 37 North 6th Apt. 6.” This service was also unsuccessful; the return, dated November 28, was marked “unable to locate,” and “moved to... ” When Taylor failed to appear for arraignment on December 18,1978, a bench warrant for his arrest was issued.

According to the minutes, defendant next appeared in court on July 7, 1981, some thirty-one months after the filing of the bill of information. On that date, July 7, 1981, he was arraigned and entered a plea of not guilty. Several weeks later, but before trial, counsel filed a motion to quash alleging that the prosecution was untimely. C.Cr.P. art. 578.

On August 11, 1982, the district court heard testimony and denied the motion to quash. Trial immediately followed. Taylor was convicted. For the following reasons, we find the lower courts erred. Defendant’s motion to quash should have been granted.

The time limitation for bringing a misdemeanor case to trial is one year from the institution of prosecution. La.C.C. art. 578 reads in pertinent part: “Except as otherwise provided in this Chapter, no trial shall be commenced: ... (3) In misdemeanor cases after one year from the date of institution of the prosecution.” '

In this case, the prosecution of Andrew Taylor for his driving while intoxicated second offense was instituted when on October 18, 1978, a bill of information was filed by the East Baton Rouge district attorney’s office. For all intents and purposes, then, the defendant’s trial should have been begun on or before October 18, 1979.

A motion to quash is the proper procedural vehicle for challenging an untimely commencement of trial. La.C.Cr.P. arts. 581 and 532(7); State v. Walgamotte, 415 So.2d 205 (La.1982). Once a motion to quash has been filed for untimely prosecution the state is under a heavy burden to show a legal cause for the delay. State v. Nations, 420 So.2d 967 (La.1982); Walgamotte, supra; State v. Guidry, 395 So.2d 764 (La.1981); State v. DeVito, 391 So.2d 813 (La.1980) (On Rehearing); State v. Driever, 347 So.2d 1132 (La.1977). In this case, the defendant argues with merit that there is no basis under La.C.Cr.P. art. 579 for the state to claim an interruption in the period of limitation.

La.C.Cr.P. art. 579 provides the statutory bases for relieving the state, under certain circumstances, of the necessity of bringing a defendant to trial within the time limitations expressed in La.C.Cr.P. art. 578. La. C.Cr.P. art. 579 provides:

The period of limitation established by Article 578 shall be interrupted if:
(1) The defendant at any time, with the purpose to avoid detection, apprehension, or prosecution, flees from the state, is outside the state, or is absent from his usual place of abode within the state; or
(2) The defendant cannot be tried because of insanity or because his presence for trial cannot be obtained by legal process, or for any other cause beyond the control of the state.
The periods of limitation established by Article 578 shall' commence to run anew from the date the cause of interruption no longer exists.

When reviewing a case where trial has been initiated beyond the statutory delays, we have held the state to a heavy burden of showing just and legal cause for the interruption in a defendant’s prosecution.

In Nations, the defendant was arrested and charged with a misdemeanor. He posted bond and listed his current address as well as his employer’s address on the bond. When service was attempted, defendant had moved and could not be served at his residence. Even though the defendant changed apartments twice, he notified his bonding company of each change of address, filed a change of address form with the Post Office, and maintained a correct listing with the telephone company. The court held that the state had failed to establish that the defendant absented himself from his usual place of abode within the state with the purpose of avoiding prosecution.

In Guidry, a misdemeanor case involving a driving while intoxicated charge, the defendant had moved by the time service was attempted. Another service attempt was made at the correct address, but was unsuccessful. A bench warrant was issued and notice ordered served on the surety. Because the state failed to follow up on that notice for almost two years, and because the defendant testified he was available for service through his surety, the court ruled the state failed to meet its heavy burden of showing legal cause sufficient to interrupt the time for commencement of trial.

In this case, the evidence at the hearing on the motion to quash established that Taylor lived at 837 North 6th Apt. 6 in Baton Rouge from December, 1977 until April, 1979. He was therefore amenable to service in November, 1978, and for at least five months thereafter. Despite the state’s contention that all due, diligent efforts were made to subpoena this defendant for trial, the evidence of an unsuccessful attempt at service in November of 1978 is insufficient to meet the State’s heavy burden in establishing that the defendant was absent from his usual place of abode with the intention to avoid prosecution or that the state was unable by legal process to obtain the defendant’s presence for trial.

At the hearing on the motion to quash, State Trooper Dawson testified that he had issued several citations to Taylor on February 26, 1978, whereupon Taylor had given his address as “1837 North 6th Apt. 6.” It was that address which the officer placed on the citations.

Major Brown of the Baton Rouge Sheriff’s Office testified that as a corporal he had attempted to serve a subpoena on Taylor first on October 20,1978, at “1837 North 6th Apt. 6,” but without success, because he could find no such number. A return bearing Brown’s signature shows service attempted at 1837 North 6th St., Apt. 6, Baton Rouge, La. on “10/20” “Unable to locate; No such number.” After the address was corrected by the court to “837 North 6th Apt. 6,” the address appearing on Taylor’s bond, Brown again attempted service. During this attempt, he said that he met an unidentified man in the apartment house parking lot who told Brown that he did not know Taylor and did not think that Taylor lived in apartment No. 6. Brown then endorsed the return “11/28” “Unable to locate,” and “Moved to... ” As was customary when unable to serve an individual, Brown testified, he left a Sheriff’s Office card with office and home phone numbers thereon. Brown also testified that a “third” attempt was made to serve Taylor. He could not, however, furnish the date. Nor does the record contain a return on this attempt. On this third visit, Brown testified that he found no one home and left a sheriff’s card marked in red, “Final notice.” Brown could not be sure whether the apartment was occupied or vacant, because the “curtains were pulled and . . . you couldn’t see through it.”

Taylor testified that it was his understanding that he would be notified by mail about his court appearance on the DWI charge, and that he received no such notice. According to Taylor, he was living at 837 North 6th Apt. 6 in Baton Rouge from approximately December 1977 to April of 1979, and was working as a bricklayer 12 to 13 hours a day, including Saturdays. His roommate, one Rosemary Turner, was employed at a hospital pharmacy for 10 hours a day and would go to her mother’s until Taylor got off work because she did not like to stay in the apartment alone. Taylor stated that the lease was in Ms. Turner’s name although he had never seen it. The two of them shared the rent, but he was not on a first-name basis with anyone in the apartment complex. He further testified that the bonding company had his correct address and that when he moved in April, 1979, to Banks Street he notified his probation officer (for an unrelated matter in city-court).

The state suggests that Taylor’s activities after April, 1979, made his presence for trial unobtainable by legal process, and that the defendant’s failure to notify the court in which the DWI charge was pending of his new address evidences an intent to avoid prosecution. Accordingly, the state contends that the limitation for trial commencement was interrupted under La.C. Cr.P. art. 579. That conclusion is not supported by the evidence in this record.

All the state can muster to try to prove an alleged intent to avoid prosecution is the following. After his move to Banks Street some five months after the last effort of the state to locate him, Taylor left Louisiana on vacation with his parents; he returned to Louisiana for three or four months, and then moved to Cincinnati where he remained for two years. There was no testimony concerning whether Taylor notified his probation officer of his move to Cincinnati. During the two years he resided in Cincinnati, he made no inquiries about the pending DWI nor did he notify the court of his new address, although he admitted that it violated the terms of his bond not to do so. Although the record is not clear, it appears that defendant eventually returned to Louisiana and was arrested on the open warrant after the police stopped him for an unrelated matter.

In State v. Campbell, 404 So.2d 956 at 959 (La.1981), this Court stated that the

burden of proving that the defendant’s purpose in remaining outside the state was to avoid detection, apprehension, or prosecution . .. rests, of course, on the state.
[T]he record must ‘clearly’ establish that the purpose of the defendant’s absence was to avoid detection, apprehension or prosecution. State v. Driever, 347 So.2d 1132 (La.1977); State v. Guidry, 395 So.2d 764 (La.1981);, State v. Wicker, 391 So.2d 845 (La.1980).

There has been no such clear showing that the defendant moved to Banks Street in Baton Rouge and then to Cincinnati, for the purpose of avoiding detection, apprehension, or prosecution on the DWI matter. All that was shown was that the defendant did not notify the court of his move to Banks Street, nor of his move thereafter to Cincinnati. That negative fact is not, alone, sufficient proof of an intent to elude authorities on charges arising from his February, 1978, traffic citations, especially when he testified that he thought the state would probably be the initiator in any subsequent court action arising from the incident.

More significantly, the state offered insufficient evidence to prove that Taylor was not amenable to service at 837 North 6th Apt. 6 for the period between November 28, 1978, and April 1979.

Discounting as irrelevant the first unsuccessful attempt to serve the defendant at the erroneous address “1837 North 6th,” the record contains evidence of one return being filed by a member of the Sheriff’s Office. That return, partially dated “11/28” and endorsed “unable to locate” and “moved to... ” even coupled with the alleged subsequent attempt by Brown, not supported by a return in the record, does not constitute a due and diligent effort to subpoena the defendant.

The state failed to carry its heavy burden to show an interruption of the time limitations in accordance with La.C.Cr.P. art. 579. Hence, the one year limitation found in La.C.Cr.P. art. 578 controls, and Taylor’s prosecution for the February 28, 1978, offense is barred.

Decree

Because defendant’s motion to quash is meritorious and should have been granted by the district court, his conviction and sentence are reversed and defendant is ordered discharged.

REVERSED.

LEMMON, J., dissents.

       Julian Bailes, Associate Justice ad hoc, sitting for Associate Justice Walter F. Marcus, Jr.

      . Compare, City of Baton Rouge v. Wheat, 377 So.2d 1234 (La. 1979) where the defendant refused to accept the traffic citation bearing a court date. She received no other notice within a year after prosecution was begun. This Court reversed a lower court’s finding that her initial refusal to accept the traffic citation interrupted the running of the time limitation.


source: Caselaw Access Project

author: DENNIS, Justice.

license: Public Domain

text:
    LOUISIANA STATE BAR ASSOCIATION v. Jerome T. POWELL.
    No. 82-B-2939.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
    Thomas 0. Collins, Jr., Richard A. Deas, Wood Brown, III, New Orleans, Robert J. Boudreau, Lake Charles, Sam J. D’Amico, Baton Rouge, Carrick R. Inabnett, Monroe, Harold J. Lamy, New Orleans, Alfred S. Landry, New Iberia, Philippi P. St. Peé, Metairie, Roland J. Achee, Shreveport, Gerard F. Thomas, Jr., Natchitoches, for applicant.
    Jerome T. Powell, in pro. per.
   DISCIPLINARY PROCEEDING

DENNIS, Justice.

This is an attorney disciplinary proceeding. See La. Const. Art. V, § 5(B); Rules of the Supreme Court of Louisiana, Rule 19 (1973). The proceeding arises out of the attorney’s handling of two different matters.

The Bates Succession

In 1977 respondent attorney, Jerome T. Powell, was retained by the heirs of Liner Bates to handle Bates’ succession. Representing that it was necessary to mortgage some of the succession property to pay succession debts, Powell obtained the heirs’ signatures on a promissory note secured by a mortgage on the Bates family home. Powell pledged the note to a mortgage company to secure a loan by it to himself in the amount of $8321.00. Subsequently, the mortgage company foreclosed on the property and demanded rent from the Bates heirs.

The Bates heirs testified that they did not receive any of the loan proceeds, that although their signatures were on the note, they did not remember having signed it. In his defense, Powell testified that the heirs knowingly signed the instruments to enable him to pay the succession debts and that all of the loan proceeds were used for this purpose, for advances to the Bates heirs, or for the payment of expenses for them. Powell produced an itemized statement which purported to describe his expenditures of the loan proceeds. This statement was compiled by Powell in response to a discovery motion filed by an attorney for the Bates heirs in a civil suit and was not a contemporaneous record of the expenditures. The Bates heirs acknowledged that some of the items were valid but specifically denied having received direct or indirect benefit of many of the payments on Powell’s list. Powell had never tendered a statement of account to the Bates heirs showing his fees or expenses in connection with the succession.

The Commissioner found clear and convincing evidence that Powell had violated Disciplinary Rule 9-102, “Preserving Identity of Funds and Property of a Client,” by his failure to preserve the identity of the funds owed his clients and owed him by his clients, and/or to be disbursed by him on behalf of his clients. The Commissioner’s findings are correct because Powell did not keep his clients’ funds in a separate bank account, notify his clients of the receipt of their funds, securities or other properties, maintain complete records of client funds coming into his possession, render appropriate accounts to his clients regarding them, or promptly pay or deliver to the clients as requested the funds or property in the lawyer’s possession which they were entitled to receive. Id.

Although the Commissioner found some evidence that Powell had defrauded his clients by obtaining their signatures by misrepresentation, D.R. 1-102, and had neglected a legal matter entrusted to him, D.R. 6-101(A)(3), he apparently felt that the burden of proof had not been sustained as to these alleged violations and did not recommend any sanction in this regard. For the commingling breach, however, the Commissioner recommended a six month suspension of membership in the bar.

In its brief in this court the Committee on Professional Responsibility contends that Powell obtained the heirs’ consent to the mortgage of their home through fraud and subterfuge and converted all of the funds to his own use. The Committee points out that many of the payments listed on Powell’s itemized statement do not relate to succession debts which the loan was designed to retire but to purported personal expenses of the heirs incurred later during Powell’s unnecessary and unwarranted retention of the proceeds. Nevertheless, we agree with the Commissioner that the Committee failed to prove a case of fraud in this instance by clear and convincing evidence as required by our jurisprudence. LSBA v. Levy, 292 So.2d 492 (La.1974); LSBA v. Brown, 291 So.2d 385 (La.1974); LSBA v. Mitchell, 375 So.2d 1350 (La.1979). It is undisputed that the Bates’ heirs received benefit of a substantial part of the loan proceeds, that they actually signed the note in question, and that they were aware Powell intended to mortgage succession property. While there is abundant evidence of undisciplined commingling of funds, the Committee has not sustained its burden of proof as to actual fraud.

The Brown E. Moore Note

In 1979, Respondent attorney Powell presented to the Pioneer Bank & Trust Company a promissory note signed by his client Brown E. Moore, payable to the order of the bank in the amount of $2000. Powell endorsed the note himself to renew a loan which, according to Mr. Powell, Brown E. Moore had made for Powell’s benefit. At the time of this transaction Brown E. Moore was suffering from his last illness and was incapable of having signed the note. A handwriting expert employed by the Committee compared the signature on the note with other specimens of Brown E. Moore’s handwriting and testified that the note signature had been forged. In his defense, Powell testified that on an occasion prior to Moore’s illness, when Moore was leaving for an extended trip to California, that Moore had given Powell the signed note to use in obtaining funds in case Powell was unable to make timely payments on his bank note. However, Powell did not contest the fact that the note was a forgery. He testified that he received the signed note in an envelope from Moore, and he presented no expert handwriting testimony of his own.

The Commissioner and the Committee concur in finding that the respondent breached D.R. Rule 1-102 by engaging in conduct involving dishonesty, fraud, deceit or misrepresentation and D.R. 9-102 by commingling of his client’s funds with his own. We agree with the finding of dishonesty and fraud, but the evidence does not support a finding of commingling since Powell obtained credit and not funds by his deceit. The respondent’s explanation is weak and unlikely in view of the damning evidence against him.

As a sanction, the Commissioner recommends a three year suspension and the Committee recommends disbarment.

Conclusion

The purpose of lawyer disciplinary proceedings is not so much to punish the attorney as it is to maintain appropriate standards of professional conduct in order to protect the public and the administration of justice. LSBA v. Bubert, 421 So.2d 831 (La.1982); LSBA v. Ronald Causey, 393 So.2d 88 (La.1980); LSBA v. Quaid, 368 So.2d 1043 (La.1979); LSBA v. Bensabat, 378 So.2d 380 (La.1979); ABA Joint Committee on Professional Discipline, Standards for Lawyer Disciplinary and Disability Proceedings, Section 1.1, (tentative draft June, 1978). The discipline to be imposed in a particular case, of course, will depend upon the seriousness and circumstances of the offense, fashioned in light of the purpose of lawyer discipline, taking into account aggravating and mitigating circumstances. LSBA v. Causey, supra.

In view of these precepts and our finding that respondent has violated disciplinary rules 1-102 and 9-102, we adopt the Committee on Professional Responsibility’s recommendation that respondent be disbarred. The misuse of a client’s funds by an attorney represents the gravest form of professional misconduct. It strikes at the heart of public confidence in the legal profession. LSBA v. Selenberg, 270 So.2d 848 (La.1972), cert. den. 414 U.S. 1021, 94 S.Ct. 443, 38 L.Ed.2d 312; LSBA v. Armagnac, 424 So.2d 996 (La.1982); LSBA v. Daye, 427 So.2d 840 (La.1983). Obtaining credit by fraud at a client’s expense is equally grave and reprehensible. Additionally, this is the second time defendant has been found guilty of a serious disciplinary rule violation. See LSBA v. Powell, 248 La. 237, 178 So.2d 235 (1965). Under these circumstances, and in the absence of any significant mitigating factors, we conclude that the maintenance of appropriate professional standards, the protection of the public and the administration of justice require that the respondent be removed from the practice of law.

Accordingly, for the reasons assigned, it is ordered, adjudged and decreed that the name of Jerome T. Powell, respondent, be stricken from the roll of attorneys and his license to practice law in the State of Louisiana be revoked.

DISBARMENT ORDERED.

       Bailes, J. sitting for Justice Marcus.


text:
    STATE of Louisiana v. Ronald ALLEMAN.
    No. 82-KA-2971.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., William C. Credo, III, Abbott J. Reeves, Kerry Hogan, Asst. Dist. Attys., for plaintiff-appellee.
    Ronald P. Herman, Metairie, for defendant-appellant.
   DENNIS, Justice.

Defendant, Ronald Alleman, pleaded guilty to making three obscene phone calls. La.R.S. 14:285. Because of a plea bargain the state dismissed two additional charges of this offense against the defendant. The district court imposed three concurrent sentences of two years imprisonment, suspended their execution, and placed defendant on probation for two years subject to special conditions. Defendant appeals contending that the probation conditions constitute excessive punishment and a denial of due process of law. We conclude that two of the probation conditions must be set aside because they are not authorized upon the facts of this case. Otherwise, the sentences and the probation conditions are affirmed.

In particular, the defendant attacks the two probation conditions which require him to attend a substance abuse clinic and to make restitution to victims of offenses of which he was accused but not convicted. The defendant’s complaints are valid. When a court suspends the imposition or execution of sentence and places a defendant on probation, it may impose any specific condition reasonably related to his rehabilitation. La.C.Cr.P. art. 895. There is no evidence in the record or facts in the judge’s statement of considerations or statement of the factual basis for sentencing that indicates substance abuse was related to defendant’s crimes or that such treatment is reasonably related to his rehabilitation. The sentencing judge is expressly authorized to require the condition of “restitution to the aggrieved party for damage or loss caused by his offense,” La.C. Cr.P. art. 895(A)(7) (Emphasis added). Consequently, this court has held that restitution to the victim of a crime of which the defendant was not convicted or did not plead guilty may not be imposed. State v. Labure, 427 So.2d 855 (La.1983). Accordingly, these probation conditions are invalid and will be deleted.

We do not find any merit in the defendant’s other attacks upon the sentence and probation conditions. Defendant contends that weekend confinement and a fine of $3000 are excessive and will not promote his rehabilitation. However, the trial judge’s sentencing choice of a substantial fine and limited confinement instead of lengthy imprisonment was reasonable and not an abuse of his discretion. Deterrence and rehabilitation of an obscene phone caller are not likely without some stern measures supported by counseling. This appears to be the design of the sentence and we cannot say that it is unreasonable. Moreover, the court may modify, change or discharge the conditions of probation during the period, or even terminate the misdemeanor sentence, if it becomes apparent to the judge that a probation condition or probation itself is no longer necessary or desirable. La.C.Cr.P. arts. 896, 897.

Next, defendant argues that a sentencing judge may not impose the condition of restitution except for a tangible or physical loss, as opposed to the mental anguish, apprehension, and annoyance suffered by defendant’s victims. But the sentencing judge is authorized unqualifiedly by statute to require “reparation or restitution to the aggrieved party for damage or loss caused by his offense,” and this is an explicit component of his general authority to impose any specific condition reasonably related to defendant’s rehabilitation. La.C.Cr.P. art. 895(A)(7). There is nothing in this language or in our law which would indicate a legislative intent to limit reparation or restitution to bodily injury or property damage. In the case of torts, for example, the jurisprudence has no difficulty in awarding a pecuniary indemnification for mental suffering, when it appears to be real and serious. Meador v. Toyota of Jefferson Inc., 332 So.2d 433 (La.1976); Comment; Damages Ex Contracta, 48 Tul.L.Rev. 1160,1170 (1974); 2 M. Planiol, Traite Elementaire de Droit Civil, no. 252 at 152 (llth ed. 1959). Moreover, there is no reason to believe that restitution for such harms is any less reasonably related to rehabilitation than reparation for bodily injury or damage to property.

Finally, defendant argues that the totality of the fine and special conditions imposed constitutes excessive punishment. Considering the sentence and conditions, after deletion of the conditions requiring substance abuse treatment and restitution for unrelated crimes, we conclude that they are not excessive or unwarranted. The sentence and probation conditions seem reasonably designed to achieve the goals of punishment, correction and rehabilitation.

DECREE

The probation conditions are deleted which require substance abuse treatment and compensation of victims of other offenses for losses not caused by crimes to which defendant pleaded guilty. Otherwise the sentence and the probation conditions are affirmed.

AMENDED AND AFFIRMED.

DIXON, C.J., concurs.

WATSON, J., concurs except that he dissents from the concept of awarding civil damages in a criminal proceeding.

LEMMON, J., dissents in part and will assign reasons.

BAILES, J., ad hoc, concurs in part, however, I dissent for the same reasons as Justice WATSON, J., to award of damages.

       Bailes, J. ad hoc, sitting for Justice Marcus.

      . (1) That he spend each weekend confined in the Jefferson Parish Correctional Center, from 7:00 a.m. Saturday to 6:00 p.m. Sunday; (2) That he pay a fine of $1,000 on each count, a total of $3,000; (3) That he attend the St. Bernard Substance Abuse Clinic in the St. Bernard Mental Health Center; (4) That he perform 150 hours of community service work over a 15 month period; (5) That he make restitution to each of the individuals named in the original bill of information in the amount of $500 each, for a total of $2,500, to be paid over a 22 month period; (6) That he undergo psychiatric treatment under the supervision of the Probation Department a minimum of 18 months, in addition to continuing treatment with Dr. John P. Galloway, a psychologist and psychoterapist, then treating the accused; (7) That he maintain full time employment.


author: BLANCHE, Justice.

text:
    STATE of Louisiana v. Dennis NALL.
    No. 82-KA-1777.
    Supreme Court of Louisiana.
    Oct. 17, 1983.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Edwin 0. Ware, Dist. Atty., R. Greg Fowler, Asst. Dist. Atty., for plaintiff-appellee.
    James Gravel, Gravel & Van Dyke, Alexandria, for defendant-appellant.
   BLANCHE, Justice.

The defendant in this case, Dennis Nall, was arrested and tried for first degree murder in Rapides Parish. At the first trial, the jury was unable to reach a verdict, and the court declared a mistrial. Defendant successfully moved for a change of venue, and a second trial was held in Caldwell Parish. At the latter trial, defendant was found guilty of first degree murder and sentenced to life imprisonment, without benefit of probation, parole or suspension of sentence. We now consider defendant’s appeal from that judgment.

On March 3, 1979, Guy Kimball, an offshore worker, was returning to his home in Pineville, Louisiana at the conclusion of a seven-day workshift. After entering the house, Kimball was shot by an unknown assailant three times in the face and head with a revolver fired at close range. At the time of the shooting, Kimball’s wife, Bobbie Kimball, and their children were away from the house, spending the night with Bobbie Kimball’s mother. The next morning, Kim-ball’s body was discovered by Mrs. Kimball and her oldest daughter, Sandra. Police investigation revealed that the house had been ransacked, giving the appearance that the murder was related to an attempted burglary of the residence. This explanation was rejected, however, as the sordid details of Guy Kimball’s domestic life emerged. The investigation revealed that Kimball had purportedly engaged in numerous depraved sexual activities, forcing his wife and — on at least one occasion — his minor daughter to participate. Kimball had apparently also beaten his family, and instilled in them a belief that he was capable of killing them. In response to her condition, Bobbie Kimball had on several occasions publicly suggested to different individuals that they kill her husband. Police became suspicious of defendant when it became evident that he was romantically involved with Mrs. Kimball. In 1979, defendant was arrested, along with one James Burdgess and Bobbie Kimball and charged with first degree murder in violation of R.S. 14:30. Bobbie Kimball ultimately pled guilty to conspiracy to commit murder; Burdgess was tried separately and convicted of first degree murder. State v. Burdgess, 82-KA-1476 (June 27, 1983).

At defendant’s first trial, the State’s case included the testimony of Bobbie Kimball regarding her knowledge of the conspiracy and that of her own involvement. Mrs. Kimball testified that she and defendant had been lovers and that she knew of the plan to kill her husband on March 3, 1979. She further testified that she had been instructed by defendant to wipe the fingerprints off the door facings and light fixtures of the Kimball home; and that after the crime had been committed, defendant had telephoned her at her mother’s home to inform her that she and her children were “now safe” and that “things weren’t very pretty” at her home. (Tr. pp. 102 and 103.) Despite the damaging testimony, the jury was unable to reach a verdict, and the court ordered a mistrial under Code of Criminal Procedure Article 775.

After defendant’s second trial began the State once more called Bobbie Kimball to testify, expecting her to testify as she had in the former trial. However, to the surprise of the state, Mrs. Kimball’s response to the questioning of the prosecutor was that she was unable to recall what had transpired at the time of the murder. Specifically, she could not remember the conversations with defendant about which she had testified at the former trial. When questioned concerning why she did not recall the former testimony, Mrs. Kimball stated that her former testimony had been based on a statement made to police while she was under the influence of tranquilizers and for that reason she could not remember what she had said at the first trial. At this point, the State attempted to read aloud her testimony from the first trial, asking her each time whether she recalled making the particular statement. Defense counsel objected on the basis that impeachment was not proper where the State’s witness had not made an inconsistent statement at trial, but simply testified to a lack of memory. The State argued that the introduction of prior testimony was admissible to impeach the witness or alternatively to show her past recorded recollections. The trial court, after argument outside the presence of the jury, admitted the former testimony.

In addition to Bobbie Kimball, the State called Sandra Kimball, the daughter. She testified to hearing conversations between defendant and her mother concerning the murder of her father, and corroborated her mother’s prior testimony that the defendant’s fingerprints were cleaned from the door facings. At the conclusion of the trial, the jury found defendant guilty of first degree murder.

Defendant’s appeal consists of four assignments of error.

Assignment of Error 1

Defendant first assigns as error the introduction into evidence of Bobbie Kimball’s testimony from the former trial, on the ground that the State improperly attempted to impeach its own witness. However, the state on appeal now asserts that it did not use her prior recorded testimony to impeach but used it to show past recollections recorded as the witness did not recall at the second trial anything which she had testified to previously. Accordingly, we need not address the question of whether the state could introduce Mrs. Kimball’s testimony at the first trial under the theory of impeachment.

We do consider whether Mrs. Kimball’s testimony was unavailable because of her loss of memory and that prior recorded testimony was admissible as an exception to the hearsay rule. Louisiana does not have statutory law which governs the admission of this type of hearsay evidence, therefore we resort to an examination of the general principles of evidence law in order to determine whether admission of the witness’ previous testimony is appropriate in this case.

Use of former testimony where a declarant is unavailable to testify has long been recognized as an exception to the general prohibition against hearsay evidence. See 3 Wharton’s Criminal Evidence § 651 (13th Ed.), Rule 804, Federal Rules of Evidence. The basis for such an exception is best stated by Wigmore:

The general principle upon which deposition and former testimony should be resorted to is the simple principle of necessity— i.e., the absence of any other means of utilizing the witness’ knowledge. If his testimony given anew in court cannot be had, it will be lost entirely for the purposes of doing justice if it is not received in the form in which it survives and can be had.
5 Wigmore, Evidence § 1402 (Chadbourn Rev.1974).

Applying this principle of necessity, courts have over the years developed a number of instances where a witness will be considered unavailable: where the witness is dead, State v. Ford, 336 So.2d 817 (La. 1976); where the witness is physically or mentally ill, State v. Egena, 369 So.2d 1295 (La.1979); if the witness is absent and cannot with due diligence be found, State v. Green, 296 So.2d 290 (La.1974), State v. Thomas, 290 So.2d 690 (La.1974); if the witness persistently refuses to testify, State v. Pearson, 336 So.2d 833 (La.1976), State v. Ghoram, 328 So.2d 91 (La.1976); or if the witness refuses to testify on the ground of recognized privilege, State v. Dotch, 298 So.2d 742 (La.1974).

In the latter two cases, a witness may actually be present in the courtroom, and yet be considered unavailable. The critical factor emerging from these cases in making the determination of whether to apply the exception is not the unavailability of the witness himself, but the unavailability of his testimony. McCormick, Evidence (2nd Ed. 1972).

Whether a witness who testifies to a loss of memory should be included within the scope of ‘unavailability’ has been the subject of some disagreement among jurisdictions. The Federal Rules of Evidence specifically provide that “unavailability as a witness” includes those situations in which the declarant testifies to a lack of memory of the subject matter of his statement. Federal Rule of Evidence 804(a). In determining whether a witness’ loss of memory is legitimate, the federal rule vests much discretion in the trial court; only upon a showing of abuse of discretion will a ruling admitting former testimony due to declar-ant’s subsequent loss of memory be disturbed on appeal. U.S. v. Amaya, 533 F.2d 188 (5th Cir.1976). On the other hand, an older line of state cases rejects memory loss as a type of unavailability: reasoning that, if a witness’ former testimony can be used when he is in court, there would be little need for requiring live witnesses rather than depositions. See, Rio Grande S.R. Co. v. Campbell, 55 Colo. 493, 136 P. 68 (1913), Turner v. Missouri-Kansas-Texas Rwy. Co., 346 Mo. 28, 142 S.W.2d 455 (1940), Stein v. Swenson, 46 Minn. 360, 49 N.W. 55 (1891). This view, as evident from the age of the decisions, appears to us to represent a somewhat antiquated view of unavailability, which does not take into account more recent jurisprudence declaring a witness unavailable when he was present but simply refused to testify. See State v. Pearson, supra.

In deciding whether to admit the testimony of Ms. Kimball, this court must therefore determine whether her testimony was unavailable. We conclude that the same factors which counsel admission of former testimony where a witness has testified once but refuses to testify a second time require admission of the testimony in this case.

Mrs. Kimball gave former testimony to establish the defendant’s participation in the killing of her husband and her efforts to cover up her lover’s involvement. Now at this second trial and after her plea of guilty to the conspiracy, she could no longer remember or recall what had happened at the time of the murder. Thus her loss of memory effectively prevented the state from presenting to the jury evidence of the defendant’s statements to her concerning the murder.

Although the trial judge also found the witness to be “hesitant, reluctant and hostile” he undoubtedly found her loss of memory genuine, for he stated that he would instruct the witness to answer to the best of her recollection and that if she stated she could not remember, then her previous testimony would be available to the state as past recollection recorded. We are unable to find an abuse of discretion in this regard and conclude that although the witness was present at court her loss of memory made her in fact “unavailable” and thus her former testimony became admissible.

This assignment of error lacks merit.

Assignment of Error 2

Defendant’s second assignment of error deals with the failure of the trial court to instruct the jury with regard to the limited use of prior inconsistent statements when those statements were first introduced at trial. The instruction which the defendant sought would limit the jurors consideration of prior inconsistent statements only for the purpose of impeaching the credibility of the witness rather than as substantive evidence of the defendant’s guilt. The trial judge refused to give such an instruction on the ground that the evidence was not being used to impeach. Later during the trial, he unaccountably gave the instruction despite his having permitted the testimony due to the witness’ loss of memory. Defendant complains that the instruction came so late so as to be totally ineffective.

We have agreed that Mrs. Kimball’s loss of memory made her constructively unavailable at trial and that her testimony was properly admitted on that basis. Accordingly, we find no need for the instruction regardless of when it was given.

This assignment lacks merit.

Assignment of Error 3

In this assignment, defendant objects to the trial court’s denial of a motion to quash the indictment on the grounds of double jeopardy. The defendant suggests that evidence in the first trial did not meet the legal sufficiency test of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and that jeopardy therefore attached at the trial’s conclusion.

We find no merit in this contention. The first trial ended when the trial judge declared a mistrial because the jury was unable to reach a verdict. This was a proper ground for a mistrial under Code of Criminal Procedure Article 775, and for that reason jeopardy did not attach. Defendant, however, contends that although he was not convicted in the first trial, the evidence was legally insufficient to have supported a conviction had one been rendered. There is no basis in law for defendant’s contention. Code of Criminal Procedure Article 591 provides that no one may be placed in jeopardy twice:

except, when on his own motion, a new trial has been granted or judgment has been arrested, or where there has been a mistrial legally ordered under the provisions of Article 775 or ordered with the express consent of the defendant.

Thus, regardless of whether the evidence might have proven legally insufficient to support a conviction, the court was entitled to grant a mistrial when the jury could not reach a verdict, and order a new trial, without violating the prohibition against double jeopardy.

This assignment of error lacks merit.

Assignment of Error 4

Lastly, defendant assigns as error the admission of Sandra Kimball’s testimony as to what her mother told her about the killing of her father. At trial, defendant objected to the prosecution questioning Ms. Kimball as to her mother’s statements on the ground that it was inadmissible hearsay. The trial court overruled this objection, finding that the statements made by Bobbie Kimball were statements made by a coconspirator and thus admissible under La. R.S. 15:455. Defendant argues that 15:455 is inapplicable, since no conspiracy between Bobbie Kimball and defendant was proven.

R.S. 15:455 provides that, in order for hearsay statements of a co-conspirator to be introduced into evidence a prima facie case of conspiracy must have been established. State v. Albert, 381 So.2d 424 (La.1980); State v. Sheppard, 350 So.2d 615 (La.1977). A prima facie case is presented when the State introduces evidence which, if unrebutted, would be sufficient to establish the facts of the conspiracy, State v. Gutter, 393 So.2d 700 (La.1981). In this case, Sandra Kimball had testified that she had overheard conversations between her mother and defendant concerning the killing of her father; that defendant had told her to wipe the fingerprints of defendant and co-defendant Burdgess; that her mother had taken her and her siblings to her grandparent’s house the night before the murder; and that her mother and defendant were in fact lovers. Taken as a whole, this testimony, unrebutted, clearly demonstrates complicity between Bobbie Kimball and defendant.

This assignment of error is without merit.

DECREE

For the reasons assigned, the conviction and sentence of defendant, Dennis Nall are affirmed.

AFFIRMED.

       Bailes, J. sitting for Justice Marcus.


author:
WATSON, Justice.
     DENNIS, Justice,

text:
    STATE of Louisiana v. Sandra CELESTINE.
    No. 82-KA-1779.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Bernard E. Bou-dreaux, Jr., Dist. Atty., J. Phil Haney, Asst. Dist. Atty., for plaintiff-appellee.
    Paul J. DeMahy, St. Martinville, for defendant-appellant.
   WATSON, Justice.

Defendant, Sandra Celestine, was convicted by a jury of two counts of forgery in violation of LSA-R.S. 14:72 and sentenced to one year at hard labor on each count. The concurrent sentences were suspended with three conditions: supervised probation for eighteen months; restitution during the eighteen months; court costs and twenty days in the parish jail. Defendant has appealed her convictions and sentences.

FACTS

In February of 1981, Lawrence Reed, Jr., and Sandra Celestine were living together. Reed had been laid off from his job and was receiving unemployment checks of one hundred and sixty-four dollars a week. Since Reed is illiterate, he customarily endorsed these checks by making his mark. Sandra Celestine would then cash the checks. According to Reed, they had followed this procedure for a “long time”. (Tr. 16)

Two checks were cashed at Hebert’s Supermarket in Breaux Bridge, Louisiana, where Sandra endorsed the checks as Sandra Reed. She was known to the store manager, George Hebert, III, who believed her to be married. Reed himself had never been seen in the store. Mr. Hebert subsequently had his mother endorse one of the checks as a second witness to the mark.

Approximately six months after the two checks were negotiated, Reed told Hebert that two unemployment checks had been stolen from his mail box and cashed by Hebert. At trial, Reed testified that the marks on these checks were not his and that he and Celestine were no longer living together.

ISSUE

The question is whether the state’s circumstantial evidence excluded every reasonable hypothesis of innocence and, alternatively, whether a rational trier of fact could have found proof of guilt beyond a reasonable doubt.

CONCLUSION

The bill of information charged “false making” of payee Reed’s signature, a violation of paragraph one of R.S. 14:72, not issuing or transferring a forged instrument under paragraph two. (Tr. 1) The state was required to prove that Sandra Celestine falsely affixed Reed’s mark to the checks with the intent to defraud. There was no direct evidence that she made Reed’s mark on the two checks. See State v. Perkins, 384 So.2d 782 (La., 1980).

Although Sandra Celestine endorsed the check as Sandra Reed, she apparently held herself out in the community as Reed’s wife. Use of an alias does not constitute forgery, unless one claims to be “another person”. State v. Melson, 161 La. 423, 108 So. 794 at 795 (1926). See People v. Kollmann, 342 N.E.2d 240, 33 Ill.App.3d 629 (1975). By signing the name she was accustomed to using in the presence of Hebert, Sandra Celestine did not commit forgery. See State v. Lebo, 166 La. 784, 117 So. 829 (1928).

The only evidence that Sandra Celestine altered the checks by adding Reed’s mark is his statement that the mark was not his. This testimony is suspect. Reed was not examined about the basis of his identification. How could he distinguish his mark? Being illiterate, it is doubtful that Reed could identify these checks as differing from other identical checks.

The parties’ customary course of conduct weighs strongly against the state’s case. For a long time, Reed had been making his mark and giving the checks to Sandra to sign and negotiate. The time element also casts doubt on the state’s case. It was not until six months after the checks were negotiated that Reed reported to Hebert that they were missing.

While it is certainly possible that Sandra Celestine appropriated the proceeds of these two checks, the proof falls short of that required for a forgery. It is also possible that Sandra Celestine used the funds for the parties’ living expenses and it was only after their separation that Reed complained. This reasonable hypothesis of innocence was not excluded. It is also possible that Sandra Celestine cashed the checks in her customary fashion and decided afterward to keep the money. Appropriating the money after negotiation of the checks would not constitute forgery, absent proof that she forged the marks.

No rational trier of fact could have concluded beyond a reasonable doubt that Sandra Celestine forged Reed’s mark on these two checks.

Since the state failed to exclude every reasonable hypothesis of innocence, and any rational trier of fact should have had a reasonable doubt about defendant’s guilt, the sentence and conviction must be reversed.

For the foregoing reasons, it is ordered that the conviction of defendant, Sandra Celestine, be reversed, the sentence vacated, and the defendant discharged.

REVERSED; DEFENDANT DISCHARGED.

LEMMON, J., concurs, believing that the evidence did not establish beyond a reasonable doubt defendant’s specific intent to defraud.

DENNIS, J., dissents with reasons.

DENNIS, Justice,

dissenting.

I respectfully dissent.

Viewing the evidence presented against Sandra Celestine in the light most favorable to the prosecution a rational trier of fact could have found that the State proved the essential elements of forgery beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

The gist of circumstantial evidence, and the key to it, is the inference, or process of reasoning by which the conclusion is reached. State v. Chism, 436 So.2d 464 (La.1983). The inference of guilt arising from the circumstantial evidence on which Celestine was convicted was irrestible and overwhelming and when it is considered along with the direct evidence that defendant endorsed stolen checks and presented them for payment, every reasonable hypothesis of innocence is excluded.

The majority strains to conjure up hypotheses of innocence in this case, but the weight of direct and circumstantial proof offered by the State militates against such speculation. The jury’s verdict was warranted under the due process standard of Jackson, supra.

       Bailes, J., sitting for Justice Marcus.

      . LSA-R.S. 14:72 provides:
      “Forgery is the false making or altering, with intent to defraud, of any signature to, or any part of, any writing purporting to have legal efficacy.
      “Issuing or transferring, with intent to defraud, a forged writing, known by the offender to be a forged writing, shall also constitute forgery.
      “Whoever commits the crime of forgery shall be fined not more than five thousand dollars, or imprisoned, with or without hard labor, for not more than ten years, or both.”

      . Celestine was tried for forgery of two checks but, according to the bill of information, there was a third check. Restitution of the total amount of the three checks was ordered.

      . Hebert testified that he eventually paid the checks “twice” (Tr. 25), apparently meaning that he cashed the checks for defendant and later paid the same amounts to Reed.

      . A third check had been cashed without Celes-tine’s endorsement (Tr. 24). She was charged but not prosecuted in connection with this check.

      . LSA-R.S. 15:438 which reads:
      “The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.”

      .“[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307 at 319, 99 S.Ct. 2781 at 2789, 61 L.Ed.2d 560 at 573 (1979).


author: LEMMON, Justice. CALOGERO, Justice,

text:
    E.R. ROSHTO v. Gary J. HEBERT and Joyce S. Hebert d/b/a The Iberville South. Alfred ROSHTO v. Gary J. HEBERT and Joyce S. Hebert d/b/a The Iberville South. Carlysle ROSHTO v. Gary J. HEBERT and Joyce S. Hebert d/b/a The Iberville South.
    No. 82-C-1597.
    Supreme Court of Louisiana.
    Oct. 17, 1983.

      William C. Kaufman, III, Seale, Smith & Phelps, Baton Rouge, Houston C. Gascon, II, Plaquemine, for applicant.
    Robert L. Kleinpeter, Kleinpeter, Klein-peter & Kleinpeter, for respondent.
   LEMMON, Justice.

This is an action to recover damages for invasion of privacy arising out of defendants’ publication in The Iberville South, a local weekly newspaper, of an article which allegedly concerned plaintiffs’ private lives. The issue is whether a newspaper’s verbatim reproduction, as part of a regular feature, of the original front page of a randomly selected 25-year old edition, constitutes invasion of a person’s right to privacy, when the reproduced article accurately describes the details of a local criminal conviction for which the person was subsequently pardoned.

The Iberville South for many years had reproduced the front page of randomly selected prior editions in a regular feature called “Page from Our Past.” In 1973, the South reproduced the front page of the April 4, 1952 edition, which contained an article about the cattle theft trial of Carlysle, Alfred and E.R. Roshto, three brothers who are the plaintiffs in the instant litigation. Four years later, in 1977, the South reproduced the front page of the November 14, 1952 edition, which contained another article about the Roshto brothers, this time concerning the fact that they had been sentenced to prison after their convictions had been affirmed on appeal. Plaintiffs’ names were not blocked out in either reproduction.

Plaintiffs then filed the present action, which asserted that the 1977 publication invaded their privacy, since the 25-year old matter was no longer of public concern. They further contended that they had served their term of imprisonment, had been law-abiding and hard working citizens of the community, and had ultimately received full pardons. Because each plaintiff admitted the truth of the articles at the trial on the merits, the trial judge rendered judgment for defendants on the basis that truth was an absolute defense. The court of appeal set aside that judgment, holding that truth is not a defense to an action for invasion of privacy. The court further held that defendants’ action constituted an invasion of privacy for which each plaintiff was entitled to $35,000 in damages. 413 So.2d 927. We granted certiorari. 420 So.2d 439.

The right of privacy involves the basic right of a person to be let alone in his private affairs. S. Warren and L. Brandeis, The Right to Privacy, 4 Harv.L.Rev. 193 (1890). Unwarranted invasion of a person’s right of privacy may give rise to liability for the resulting harm. Jaubert v. Crowley Post-Signal, Inc., 375 So.2d 1386 (La.1979); W. Prosser, Law of Torts § 117 (4th ed. 1971); 3 Restatement of Torts 2d § 652 A (1977). One of the ways in which a person may subject himself to liability for damages for invasion of privacy is by giving publicity to a matter concerning the private life of another, when the publicized matter would be highly offensive to a reasonable person and is not of legitimate concern to the public. 3 Restatement of Torts 2d § 652 D (1977). The determination of whether a person’s conduct constitutes the tort of invasion of privacy depends on the facts and circumstances of each case.

The particular form of invasion of privacy in this case is complicated by the implication of federal constitutional guarantees under the First Amendment of freedom of speech and of the press. In Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975), the Court addressed the constitutional guarantee in the context of publication of true statements of fact concerning a person’s private life.

The Cox Broadcasting decision involved the television report of the name of a rape victim, despite a Georgia statute making it unlawful to publish a rape victim’s name. The father of the victim who had been killed in the course of the crime sued the television station for damages, claiming that his right of privacy had been invaded by the broadcast. The Court held that a state may not impose sanctions on the accurate publication of a rape victim’s name obtained from records of a public criminal proceeding in which the official court documents were open for public inspection. The Court expressly declined to address the question of whether truthful publications may ever be constitutionally subjected to civil or criminal liability; instead, the Court focused on the “narrower interface between press and privacy that this case presents, namely, whether the State may impose sanctions on the accurate publication of the name of a rape victim obtained from public records — more specifically, from judicial records which are maintained in connection with a public prosecution and which themselves are open to public inspection.”

To the extent that the Cox Broadcasting opinion dealt with a current prosecution, that decision is not controlling in the present case. On the other hand, the passage of a considerable length of time after the pertinent event does not of itself convert a public matter into a private one. Lapse of time is merely one of the factors to be considered in determining liability for damages for invasion of privacy by publication of an offensive but truthful matter which was once one of public concern and is still of public record. The circumstances surrounding the publication may also give rise to important factors to be considered.

For example, when a person convicted of a crime has served his sentence, changed his name, moved to a faraway city, concealed his identity, and led an obscure, respectable and useful life for 20 years, a newspaper reporter who institutes an investigation of the little-known citizen’s past history and reveals the conviction in a newspaper published in the citizen’s new community (far from the site of the crime), the reporter possibly may be liable for damages for invasion of privacy, even though the information is true and is contained in the public records. The intentional nature of the disclosure (which likely involves an element of malice), the lack of the legitimate public interest in an ancient crime committed in a faraway town, and the disclosure of the private facts regarding the criminal’s new name and address (after his concerted efforts to conceal his identity and maintain obscurity) are all pertinent factors in determining whether liability should be imposed for damages under the circumstances.

The court of appeal relied on Briscoe v. Reader’s Digest Ass’n, 4 Cal.3d 529, 93 Cal.Rptr. 866, 483 P.2d 34 (1971), in which the defendant published an article on hijacking and deliberately included plaintiff’s name as a convicted hijacker, although plaintiff had since reformed and taken a place in respectable society. In the present case, however, the fact of defendants’ convictions was publicized inadvertently as part of the publication of a randomly selected front page, which contained a number of articles. No one deliberately pointed the finger of blame at plaintiffs. There was no attempt to highlight the matter or to relate plaintiffs’ past history to their present life and place of residence. There was also no suggestion of intentional behavior or malice on the part of the editor, who testified that he did not even know the Roshto brothers. Moreover, the convictions had occurred in the community in which the newspaper was published, and the information was a matter of public record there. Finally, the community information contained on randomly selected front pages of former editions of a newspaper, when viewed collectively, is certainly a matter of legitimate public interest, in the absence of extenuating circumstances regarding the publication.

The intermediate court was apparently concerned that newspapers are possibly being accorded a tremendous amount of freedom without being required to exercise a corresponding degree of responsibility, and arguably a balancing of rights and responsibilities should be required. When the published information is accurate and true and a matter of public record,' this fact weighs heavily in such a balancing process, but a newspaper cannot be allowed unrestricted freedom to publish any true statement of public record, regardless of the purpose or manner of publication or of the temporal and proximal relationship of the published fact to the present situation. This case, however, does not reveal any abuse in the purpose or manner of publication.

Defendants were arguably insensitive or careless in reproducing a former front page for publication without cheeking for information that might be currently offensive to some members of the community. However, more than insensitivity or simple carelessness is required for the imposition of liability for damages when the publication is truthful, accurate and non-malicious. Plaintiffs in the present case simply did not establish additional factors and circumstances to warrant the imposition of damages.

Accordingly, the judgment of the court of appeal is reversed, and the judgment of the district court is reinstated.

DIXON, C.J., concurs.

CALOGERO, J., concurs and assigns reasons.

WATSON, J., concurs in the result.

CALOGERO, Justice,

concurring.

I respectfully concur, agreeing that the plaintiffs have not proven an actionable invasion of privacy. While the defendant’s conduct need not be malicious, it must at least be injurious and highly offensive to the reasonable man, reckless in its disregard for its offensiveness, and without any independent justification for revealing the plaintiffs’ identity. In this case, the plaintiffs have simply failed to show it.

      . La. Const. Art. I, § 7 (1974) provides a similar guarantee. However, La. Const. Art. I, § 5 (1974) also guarantees every person security against unreasonable invasions of privacy.

      . The Georgia statute only provided a criminal sanction. However, civil liability is often determined by analogy to criminal statutes, when the court sets the standard of care and imposes the duty of maintaining that standard. See Pierre v. Allstate Ins. Co., 257 La. 471, 242 So.2d 821 (1970).

      . Justice Powell concurred, stating his view that truth is a complete defense in those invasion of privacy actions in which the interests sought to be protected are similar to those interests protected in defamation actions based on falsehoods injurious to a private individual.

      . The court of appeal believed Cox inapposite, largely because it dealt with the publication of information of a current nature, whereas the information about the Roshto brothers was 25 years old. The court stated the Roshto story “had absolutely no value as a newsworthy item”. 413 So.2d at 933.

      . See Illustration 26 in Chapter 28A of Restatement, above.

      . Indeed, under the postulated circumstances, the reporter may be liable for damages for intentional infliction of mental anguish.

      . Plaintiffs claim, however, that E.R. Roshto, after the publication of the first article, went to the newspaper’s office and requested that no more articles concerning their conviction for cattle theft be published. Mr. Roshto testified that he was assured by a man who identified himself as the editor that the Roshto name would be blocked out if any more such articles were published.
      The trial judge, by finding there was neither actual or implied malice, apparently concluded that defendant editor did not receive a complaint about the first publication.

      . Even if the Cox Broadcasting decision stands for the proposition that a newspaper has the right to publish true facts obtained from court records which are open for public inspection, there can be an abuse of that right.


author: PER CURIAM .

text:
    STATE of Louisiana v. Steven HUNTSBERRY.
    No. 82-KA-1722.
    Supreme Court of Louisiana.
    Oct. 17, 1983.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Nathan Stansbury, Dist. Atty., Louis G. Garrott, Asst. Dist. Atty., for plaintiff-appellee.
    David Clarke, Lafayette, for defendant-appellant.
   PER CURIAM .

Defendant Steven Huntsberry was charged by bill of information with the crime of armed robbery, in violation of La. R.S. 14:64. On November 19, 1980, he was tried by a twelve person jury and found guilty as charged. He was thereafter sentenced to fifty years at hard labor without benefit of parole, probation or suspension of sentence.

On appeal originally, this Court affirmed his conviction, but upon finding that the trial judge failed to comply with the sentencing guidelines of La.C.Cr.P. art. 894.1, vacated the sentence and remanded the case to the district court for resentencing in accordance with law. State v. Huntsberry, 409 So.2d 555 (La.1982).

On May 17, 1982, the trial judge again imposed a sentence of fifty years’ imprisonment at hard labor without benefit of parole, probation or suspension of sentence. Defendant again appeals, arguing that the sentence is still inadequately reasoned under La.C.Cr.P. art. 894.1 and that it is excessive. We find no merit in either of these arguments.

Decree

Accordingly, we affirm defendant’s sentence.

SENTENCE AFFIRMED.

       Julian Bailes, Justice ad hoc sitting for Associate Justice Walter F. Marcus, Jr.


author: BAILES, Justice Pro Tem.

text:
    STATE of Louisiana v. Russell FOY, Sr.
    No. 82-KA-1850.
    Supreme Court of Louisiana.
    Oct. 17, 1983.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul J. Car-mouch, Dist. Atty., Terry Lindsey, Asst. Dist. Atty., for plaintiff-appellee.
    Frank E. Brown, Jr., Piper & Brown, Inc., Shreveport, for defendant-appellant.
   BAILES, Justice Pro Tem.

Russell Foy was indicted by the grand jury on two counts for the first degree murders of Carr Corbin and Betty Williams on June 7, 1980, in violation of La.R.S. 14:30. After trial by jury, defendant was found guilty as charged. A sentencing hearing was conducted before the same jury that determined the issue of guilt, and the jury unanimously recommended on each count that defendant be sentenced to life imprisonment without benefit of probation, parole or suspension of sentence. The trial judge sentenced defendant in accordance with the recommendation of the jury. On appeal, defendant relies on six assignments of error for reversal of his conviction and sentence.

ASSIGNMENTS OF ERROR NOS. 2 AND 4

Defendant contends the trial judge erred in ruling that Karemka Williams, then age 8, was competent to testify as to the events which occurred when she was 6, and in limiting defendant’s cross-examination of Karemka as to her competency. Defendant argues the Child lacked sufficient understanding to be a witness, particularly concerning the sincerity of an oath and possible punishment for lying.

La.R.S. 15:469 provides:

Understanding, and not age, must determine whether any person tendered as a witness shall be sworn; but no child less than twelve years of age shall, over the objection either of the district attorney or of the defendant, be sworn as a witness, until the court is satisfied, after examination, that such child has sufficient understanding to be a witness.

The trial judge examined the child in full compliance with the statutory requirement. The judge and counsel questioned her about school, church and the difference between telling the truth and telling stories. Defendant’s challenge centers on the child’s equivocal answers on what happens if she tells a lie, her inability to remember all the descriptive details of apparel, personal features, and actions from the crime scene twenty-two months earlier, and her consistent hesitancy on certain matters. However, a child’s sometimes hesitant or unresponsive answers do not necessarily indicate incompetency. State v. Humphrey, 412 So.2d 507 (La.1982). Instead, they may be part of an overall demeanor in the unfamiliar courtroom experience which favorably reflects testimony only as to what is clear to the child, even though the witness did answer she does not know what would happen to her if she lied. State v. Sharp, 338 So.2d 654 (La.1976).

Understanding, not age, is the test of competency for any witness. A trial judge’s judgment on the competency of a child witness is entitled to great weight on appeal because he had the crucial advantage of seeing and hearing the child. State v. Thompson, 364 So.2d 908 (La.1978); State v. Francis, 337 So.2d 487 (La.1976). A review of the testimony of this witness does not reveal an abuse of discretion in the trial judge’s ruling that the child possessed sufficient understanding of the trial, the questions, the difference between truth and lies, and her ability to recall the events about which she testified. State v. Skipper, 387 So.2d 592 (La.1980).

Defendant also challenges the trial judge’s restriction on his cross-examination in the jury’s presence to show the child’s testimonial incompetency. However, the trial record reveals ample questioning by the defense on cross and recross examination as to her credibility. The only two instances where the trial judge curtailed the defense counsel’s examination of the witness occurred when counsel attempted to retry before the jury the judge’s determination of competency under La.R.S. 15:469.

Therefore, the trial judge did not err in his rulings on the competence and testimony of the child witness.

Assignments of Error Nos. 2 and 4 are without merit.

ASSIGNMENT OF ERROR NO. 3

Defendant contends there is insufficient evidence of guilt to convince a rational trier of fact beyond a reasonable doubt that defendant was the person who committed the two murders. Defendant argues that without the only evidence that defendant had the gun and did the shooting, which came from the daughter Karemka William’s testimony challenged as improperly admitted in Assignment of Error No. 2, the remaining circumstantial evidence does not exclude every reasonable hypothesis of innocence.

The state presented the testimony of Karemka Williams that the defendant rode in her natural parents’ car to the murder site from a restaurant followed by another man in a brown car, shot her father from behind, exited the car, and returned and shot her mother through the window as she tried to restart the car. The state also presented two adult passers-by who placed the defendant at the crime scene in the few minutes after the first murder and before the second. Scientific evidence provided defendant’s palm print on the driver’s door of the deceased’s car, and ballistics evidence was consistent with Karemka’s version. Defendant testified that he arrived at the scene for a scheduled meeting with the deceased, discovered both dead bodies, and fled in panic. He denied killing anyone.

A defendant has not been afforded due process unless, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the state proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Graham, 422 So.2d 123 (La.1982). Additionally, the statutory rule regarding circumstantial evidence of guilt provides that, assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence. La.R.S. 15:438.

Reviewing the evidence in this case, the state is not relying solely on circumstantial evidence to establish the guilt of the defendant. Where there is direct evidence, such as a witness (Karemka) to the crime itself, the trier of fact weighs the credibility of that evidence and the reviewer under Jackson defers to that trier of fact, assuming the proven facts most favorable to the state. State v. Shapiro, 431 So.2d 372, 384 (on rehearing) (La.1983). We find a rational trier of fact could find the essential elements of first degree murder proven beyond a reasonable doubt on both counts by the evidence viewed in the light most favorable to the state.

Assignment of Error No. 3 is without merit.

ASSIGNMENT OF ERROR NO. 1

Defendant contends there are discoverable, patent errors in the proceedings and on the face of the record which warrant reversal without inspection of the record. This assignment was neither briefed nor argued, and we find on review no such error in the indictment, minutes, verdict or sentence. La.Code Crim.P. art. 920.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 6

Defendant contends the trial judge erred in refusing to give the jury a requested special charge concerning misidentification, and in failing to give an amplified charge on reasonable doubt. The requested instruction outlined the factors to be considered in determining whether the in-court identifications of defendant as .the person who committed the crime sufficiently identified the defendant as the perpetrator beyond a reasonable doubt. The criteria set forth were discussed in State v. Frisco, 411 So.2d 37 (La.1982); State v. Stewart, 389 So.2d 1321 (La.1980), dealing with the suppression of lineup identification, and similar criteria were mandated in United States v. Hodges, 515 F.2d 650 (7th Cir.1975).

The trial judge denied the defense request to give the special charges as they were included in the general charge and could be argued orally to the jury. The general charge to the jury included this instruction:

As jurors you alone shall determine the weight and credibility of the evidence. As the sole judges of the credibility of witnesses and of the weight their testimony deserves, you should scrutinize carefully the testimony given and the circumstances under which the witnesses testified. In evaluating the testimony of witnesses, you may consider their ability and opportunity to observe and remember the matter about which they testified, their manner while testifying, any reason they may have for testifying in favor of or against the State or the defendant, and the extent to which the testimony is supported or contradicted by other evidence.

Furthermore, the trial judge instructed the jury that the burden was on the state to prove the defendant’s guilt beyond a reasonable doubt and charged the jury on each element of the crime.

The required statutory charge on reasonable doubt was given by the trial judge. La.Code Crim.P. art. 804. The trial judge is not required to define reasonable doubt or give any other or further charge than that contained in the article. State v. McDaniel, 410 So.2d 754 (La.1982). As to the misidentification charge, identification of the accused as the perpetrator of the offenses was one of the elements of proof required. ■ Additionally, the trial judge properly instructed the jury in the quoted charge above on the weight and credibility of testimony to consider witnesses’ abilities and opportunities to observe and remember. The defendant’s requested special charge was included in the general charge given by the court. La.Code Crim.P. art. 807; State v. Edwards, 419 So.2d 881 (La.1982). Moreover, to have given the requested special charges on the identification issue would have improperly pinpointed this issue out of proportion with others in the case. State v. Stewart, 357 So.2d 1111 (La.1978); State v. Rose, 271 So.2d 863 (La.1973). Defendant’s appeal, as did his trial defense, really attacks only the credibility of the eyewitness child’s testimony as to the sequence of events since the defendant himself admits to being on the murder scene. Hence, we conclude that the trial judge properly refused to give the requested special charges.

Assignment of Error No. 6 is without merit.

DECREE

For the reasons assigned, the conviction and sentence are affirmed.

       Bailes, J. sitting for Justice Marcus.

      . Assignment of Error No. 5 was neither briefed nor argued on appeal; therefore, we consider it abandoned. State v. Carlisle, 315 So.2d 675, 676 (La.1975); State v. Edwards, 261 La. 1014, 261 So.2d 649 (1972).

      . In light of the rejection of Assignment of Error No. 2.


author:
BAILES, Justice Pro Tem.
     BLANCHE, Justice

text:
    Danny Ray GUNTER v. Herbert K. PLAUCHE, M.D., et al.
    No. 83-C-0974.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
    Dissenting Opinion Oct. 19, 1983.

      Robert W. Stratton, Baton Rouge, for applicant.
    Donald T.W. Phelps, Myron A. Walker, Jr., Baton Rouge, for respondents.
   BAILES, Justice Pro Tem.

Plaintiff’s malpractice action was dismissed by the trial court which sustained defendant’s exception of prescription, and the court of appeal affirmed. The issue on appeal is whether the action asserted in plaintiff’s amending petition alleging lack of informed consent “arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading” alleging medical malpractice so as to relate back to the date of filing the original pleading. La.Code Civ.P. art. 1153. We find that it does, and thus reverse.

Plaintiff, Danny Ray Gunter, injured his knee on June 14, 1976, and was referred to Dr. Herbert K. Plauche, who, after a short period of treatment, recommended surgery. The surgery on July 1, 1976 was unsuccessful, and plaintiff underwent corrective surgery by defendant on September 16, 1976, which was also unsuccessful. Suffering continued pain, plaintiff eventually went in July 1977 to another orthopedic surgeon, who performed a third operation on the knee on September 7, 1977.

On August 31, 1978, plaintiff filed this suit against defendant. The “petition for damages for medical malpractice” stated that defendant saw, diagnosed and treated plaintiff on specified dates in 1976 and advised plaintiff that knee surgery was indicated. The petition alleged that the initial treatment and two operations by defendant were negligently performed. On September 4, 1980, plaintiff filed with leave of court a “supplemental and amending petition” alleging the treatment and two operations were performed without properly informing plaintiff as to alternatives and risks.

Defendant was granted a directed verdict at the first jury trial in October 1980, but the court of appeal reversed and remanded. The court held that reasonable jurors might conclude that plaintiff was denied the right to informed consent. A second jury trial in January 1982 resulted in a jury verdict for defendant on the negligent operation claim, but awarded plaintiff $175,000 on the lack of informed consent claim.

During the course of the second trial, defendant filed a peremptory exception of prescription as to the original petition and, in the alternative, as to the amending petition. The trial judge took no action at that time, but after the verdict was rendered the judge refused to sign a judgment and set a hearing on the exception. The trial court then maintained the exception of prescription as to the amending petition, and judgment was signed dismissing the suit on February 24, 1982. The court of appeal affirmed. On plaintiff’s application, we granted certiorari to review the correctness of that judgment.

While the courts below found for defendant on the basis that La.Code Civ.P. art. 1153 does not save the plaintiff’s amending petition from prescription, the defendant continues to maintain as well that plaintiff’s original petition was prescribed. Defendant argues that plaintiff should have been aware of sufficient facts after his second visit with his new physician on August 17, 1977 when surgery was scheduled to make him aware of his claims so as to commence the running of the one-year prescriptive period. If this were so, since the original petition was filed on August 28, 1978, it and hence the amending petition would be subject to the prescription exception.

However, we do not agree that because plaintiff had not recovered full use of his knee after two operations that he was put on inquiry that Dr. Plauche might have negligently performed the operations or inadequately explained the risks. The mere apprehension by plaintiff that something is wrong is not sufficient to start prescription unless plaintiff knew or should have known by exercising reasonable diligence that his problem condition may have been caused by acts of malpractice. Cordova v. Hartford Accident and Indemnity Company, 387 So.2d 574 (La.1980). We are not prepared to charge plaintiff with such knowledge prior to the September 7,1977 operation by the second orthopedic surgeon, Dr. Water-meier, when doubts concerning the previous operations were sufficiently presented to plaintiff. There is no evidentiary basis for this court to find Dr. Plauche informed or advised the plaintiff that inherent in the first or second operation was the risk of operational damage to the tendons and ligaments of his knee. The only evidence as to the risks Dr. Plauche advised the plaintiff about were those attendant to the anesthesia, post-operative infection and post-operative blood clots. It was not until after the third operation, which was performed by Dr. Watermeier, that the plaintiff could have been informed of the causation of his disability, thus commencing the prescriptive period. Unsuccessful surgery is not per se an indication of malpractice. Chaney v. State through Department of Health and Human Resources, 432 So.2d 256 (La.1983); Young v. Clement, 367 So.2d 828 (La.1979). Therefore, we hold that plaintiff’s original malpractice petition was timely filed.

Plaintiff filed his amending petition more than a year after he filed his original malpractice suit on August 31,1978. Thus, it is unnecessary to consider the question of when plaintiff became aware of facts forming the basis of his lack of informed consent claim because he obviously knew he had a malpractice claim by the time he filed his original petition. If plaintiff’s amended petition did not relate back to the original petition, then his cause of action under La. R.S. 40:1299.40 for lack of informed consent had prescribed under La.R.S. 9:5628. Cha ney v. State through Department of Health and Human Resources, 432 So.2d 256 (La. 1983).

Plaintiff contends that his amending petition should be governed by La.Code Civ.P. art. 1153, which provides:

When the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing the original pleading.

The trial judge explained in his reasons for judgment that:

the malpractice suit that was originally filed against Dr. Plauche was an entirely different cause of action from the one under the informed consent; that they were not so interwoven that the filing of suit on one would constitute notice on the other; that they were different fact situations in each one. One had to do with a person either not having medical expertise or not using it in performing a surgery or diagnosis, and the other having to do with failure to adequately inform a person of the consequences of a surgery. I think it’s two different instances altogether and obviously they occurred at different times inasmuch as a medical malpractice occurs at the time of the negligence, whenever it might be, whereas the informed consent occurs at the time of conversation between the parties .... [T]he supplemental or amending petition — whatever name you want to put on it — of September 4, 1980, did not relate back under CCP 1153 to August 31, 1978.

The court of appeal quoted and concurred with this “fact finding,” holding that the defendants were not given fair notice in the original petition of the general fact situation from which the amended claim arose. We disagree.

It is well established that art. 1153 permits amendment despite technical prescriptive bars where the original pleading gives fair notice of the general fact situation out of which the amended claim arises. Baker v. Payne and Keller of Louisiana, Inc., 390 So.2d 1272 (La.1980). “Where there is some factual connexity between the original and amended assertions, together with some identity of interest between the original and the supplemental party, amendment should be allowed.” Baker, 390 So.2d at 1275.

In the instant case, of course, the actors are the same in both petitions. It is true that the original petition alleges surgical malpractice, a violation of the duty regulated by La.R.S. 9:2794, and the amended claim is for a breach of the duty to obtain informed consent to medical treatment, governed by La.R.S. 40:1299.40. See LaCaze v. Collier, 434 So.2d 1039 (La.1983). However, while there are two statutory duties and two causes of action, clearly there is some factual connexity between them. In this case, the consultation and recommendation of surgery occurred only nine days before the first operation. This brief phase of conduct by the defendant was one transaction or occurrence of medical service for purpose of prescription and relation back under art. 1153. See Chaney v. State through Department of Health and Human Resources, supra.

Louisiana’s Code of Civil Procedure abolished the “theory of the case” restriction on pleadings. Cox v. W.M. Heroman and Company, 298 So.2d 848 (La. 1974). Article 1153 requires only that the amending petition’s thrust factually relate to the conduct, transaction or occurrence originally alleged. While the original petition did not mention lack of informed consent, the factual events during June 1976 of the consultations and defendant’s advising plaintiff that surgery was necessary were explicitly set forth. The essence of interruption of prescription by suit is notice. Here, defendant had actual notice that judicial relief was being sought arising from that general factual situation of defendant’s June 1977 conduct, and he thus was put on notice that his evidence concerning it should be collected and preserved. Baker v. Payne and Keller of Louisiana, Inc., supra; A. Tate, Amendment of Pleadings in Louisiana, 43 Tul.L.Rev. 211 (1969). Both causes of action arose out of the conduct, transaction, or occurrence set forth in the original petition. Plaintiff will not be held to a burden of separating out in his initial pleading the defendant’s actions during that month’s medical service merely because two theories of recovery are possible out of that factual setting. The amending petition did not elaborate at all on the factual setting, and no challenge to its sufficiency was made; the factual allegations made originally met the notice requirement to defendant under art. 1153. The transaction or occurrence giving rise to the demand or object of the suit remained unchanged by the amendment, and, even if the state of facts which constitute the defendant’s wrong differ enough so that two causes of action exist, the facts of the transaction which created both duties is similar enough to support a relation back of the amending petition under art. 1153. See Trahan v. Liberty Mutual Insurance Company, 314 So.2d 350 (La.1975); Federal Insurance Company v. Insurance Company of North America, 262 La. 509, 263 So.2d 871 (1972).

We therefore hold that the amending petition arose out of the same medical transaction so as to relate back to the date of filing of the original petition. Further, utilizing the same rationale, the original petition was sufficient to interrupt prescription as to the lack of consent claim which arose out of the exact medical transaction originally “noticed” to defendant in that petition. Langlinais v. Guillotte, 407 So.2d 1215 (La.1982); Giron v. Housing Authority of City of Opelousas, 393 So.2d 1267 (La.1981). The trial court erred in dismissing plaintiff’s suit by sustaining defendant’s exception of prescription.

The jury verdict in favor of plaintiff on the informed consent claim has never been made a judgment of the trial court or reviewed by the court of appeal. A proper disposition of this case, therefore, requires a remand to the district court for further proceedings.

DECREE

For the. reasons assigned, the judgment of the court of appeal affirming the judgment of the trial court sustaining the defendant’s exception of prescription and dismissing plaintiff’s suit is reversed. The case is remanded to the district court for further proceedings consistent with the views expressed herein.

* BLANCHE, J., dissents and assigns reasons.

BLANCHE, Justice

(dissenting).

I respectfully dissent being of the opinion that the trial court and the court of appeal were correct. The principal of relating back comes into effect only when the cause of action asserted in the amending petition “arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.” La.C.C.P. art. 1153. Lack of informed consent to surgery and negligence in the performance of surgery are two entirely different causes of action arising out of two separate events, and the filing of suit on one would not constitute fair notice of the other.

       Bailes, J., sitting for Justice Marcus.

      . Plaintiff also added St. Paul Fire and Marine Insurance Co. as the proper medical malpractice insurer of defendant.

      . 399 So.2d 727 (La.App. 1st Cir.1981).

      . 428 So.2d 1094 (La.App. 1st Cir.1983).

      . 434 So.2d 1099 (La.1983).

      . La.R.S. 9:5628(A), added by La.Acts 1975, No. 808, provides:

        A. No action for damages for injury or death against any physician, chiropractor, dentist, or hospital duly licensed under the laws of this state, whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission or neglect, or within one year from the date of discovery of the alleged act, omission or neglect; provided, however, that even as to claims filed within one year from the date of such discovery, in all events such claims must be filed at the latest within a period of three years from the date of the alleged act, omission or neglect.


text:
    MERRILL LYNCH, PIERCE, FENNER & SMITH, INC. v. Gerald L. RAY. MERRILL LYNCH, PIERCE, FENNER & SMITH, INC. v. James McCURRY. MERRILL LYNCH, PIERCE, FENNER & SMITH, INC. v. Clayton C. GRIGG.
    No. 83-CC-2171.
    Supreme Court of Louisiana.
    Oct. 20, 1983.
    Reconsideration Denied Nov. 11, 1983.
   In Re: Gerald L. Ray, James McCurry, Clayton C. Grigg, applying for Certiorari and Writ of Review and For Stay Order to the Court of Appeal, Second Circuit, Numbers 16,060-CW, 16,061-CW 16,062-CW, from the First Judicial District Court, Numbers 299,838, 299,844, 299,845, Parish of Caddo.

Granted. The judgment of the court of appeal is reversed and vacated. The ruling of the district judge of October 5, 1983, (“dismissing, recalling and vacating the TRO’s”) is reinstated.

BLANCHE, WATSON and LEMMON, JJ., dissent.


author: PONDER, Judge. PER CURIAM. CRAIN, Judge,

text:
    Frank M. EDWARDS, Jr. v. LOUISIANA POWER & LIGHT COMPANY.
    No. 82 CA 0665.
    Court of Appeal of Louisiana, First Circuit.
    May 17, 1983.
    On Rehearing Sept. 16, 1983.
    Jesse P. Lagarde and Frank M. Edwards, Jr., Amite, for plaintiff-appellee.
    Arthur W. Macy, Hammond, and J. Wayne Anderson, New Orleans, for defendant-appellant.

      Before PONDER, SAVOIE and CRAIN, JJ.
   PONDER, Judge.

Defendant appealed the judgment granting plaintiff a preliminary injunction and denying its motion to dissolve a temporary restraining order.

The issues are the propriety of the temporary restraining order and preliminary injunction, damages, attorney’s fees and jurisdiction.

We reverse in part and dismiss in part.

Plaintiff entered into a contract with defendant, Louisiana Power & Light Company, to provide three phase electrical service to plaintiff’s dairy barn, to be paid for in accordance with rate schedules specified therein. The cost of constructing the facilities necessary to provide the three phase service to plaintiff was approximately $21,-000.00. Pursuant to a provision in the rate schedule attached to the contract, plaintiff agreed to pay a facilities charge of $229.56 per month for ten years, in addition to payment for electricity consumed.

Plaintiff filed suit for damages for breach of contract and asked for a temporary restraining order and preliminary injunction to prevent defendant from disconnecting the electricity to the dairy for nonpayment of the facilities charge.

Defendant filed a plea to the jurisdiction and a motion to dissolve the temporary restraining order asking for damages and attorney’s fees for its wrongful issuance. After hearing, the trial court denied the plea and motion and issued a preliminary injunction. Defendant appealed.

We believe the lower court erred in maintaining its jurisdiction.

The Public Service Commission has power and authority over an electric public utility “for the purpose of fixing and regulating the rates charged or to be charged by and service furnished by” the utility. La.R.S. 45:1163.

“The power, authority, and duties of the commission shall affect and include all matters and things connected with, concerning, and growing out of the service to be given or rendered by such public utility ...” La. R.S. 45:1164.

The determination of who shall bear the additional cost of extra facilities is equated with the determination of a rate and is therefore beyond the jurisdiction of the court. Aurora Properties, Inc., et al. v. Louisiana Power and Light Company, 251 La. 880, 207 So.2d 356 (1968).

Essentially, plaintiff is claiming that defendant is charging him in excess of the tariff filed with the Public Service Commission, in that he is not getting the service to be provided him under the rates of that tariff. Defendant asserts that plaintiff is receiving the service but is not paying the rate required by that tariff and is attempting to effect a reformation of the tariff schedule. Certainly, this dispute seems to come under the provisions of La.R.S. 45:1163 and 1164.

The trial court therefore should have maintained the plea to the jurisdiction.

While attorney’s fees may be awarded for the improvident issuance of a preliminary injunction, under the circumstances of this case we elect not to grant them.

For these reasons, the plea of jurisdiction over the dispute as to the furnishing of services and the cost thereof is maintained. The preliminary injunction is ordered dissolved.

All costs are assessed to the appellee.

The suit insofar as it involves the claim for damages is remanded for further action not inconsistent with this opinion.

DISMISSED IN PART AND REMANDED IN PART.

ON REHEARING

PER CURIAM.

We granted a rehearing to consider plaintiff’s assertions that our maintenance of defendant’s plea of jurisdiction and the dissolution of the preliminary injunction were erroneous and contrary to the law. We have considered plaintiff’s contentions but remain convinced that our holding was correct and therefore reinstate our decision.

We emphasize that we maintained the plea of jurisdiction over the dispute as to the furnishing of services and the cost thereof and dismissed only that portion of the suit. The plaintiff’s complaints as to the claims for damages were remanded to the lower court. We do avail ourselves of the opportunity to correct an inadvertent reference to dismissal in part in the body of our opinion. As made clear in our order, we remanded the case for further proceedings.

For these reasons, our decision is reinstated.

CRAIN, J., dissents from refusal to grant rehearing.

CRAIN, Judge,

dissenting from refusal to grant rehearing.

Where the question is the rate to be charged for a particular service, the Public Service Commission has jurisdiction. Where the rate for a particular service is not in dispute, but whether that service is being delivered for the rate fixed and charged, that is a matter for the court. It is my view that the trial court had jurisdiction in this case. Whether the injunction was properly granted is another matter.