text:
    STATE of Louisiana v. Paulfry R. ANTOINE.
    No. 83 KA 0817.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.

      Ossie Brown, Dist. Atty., Baton Rouge by. Ralph Roy, Asst. Dist. Atty., for plaintiff-appellee.
    Johnny Wellons, Baton Rouge, for defendant-appellant.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COVINGTON, Judge.

Defendant, Paulfry R. Antoine, was charged by bill of information with armed robbery of Lesley E. Moore in violation of LSA-R.S. 14:64. Upon trial by jury, he was found guilty as charged. Defendant’s motion for post-verdict judgment of acquittal was denied. Thereafter, the trial court sentenced Antoine to be confined in the custody of the Secretary of the Department of Corrections, State of Louisiana, for a period of seven years at hard labor without benefit of probation, parole or suspension of sentence. The court gave the defendant credit for time served and recommended that Antoine serve his time at DeQuincy. From his conviction and sentence, the defendant has appealed.

The basic thrust of Antoine’s appeal is that there was insufficient evidence to prove the essential elements of the crime of armed robbery. He also raises the issue of the introduction of his taped inculpatory statement.

FACTS

On September 8, 1982, the defendant and two companions, Calvin Varise and Felton Stewart, were arrested and booked with armed robbery of a Stop-N-Go Store located in East Baton Rouge Parish. The crime took place at about 3:20 a.m. in the morning of that date. Antoine and Varise took Antoine’s mother’s car, without permission, to pick up Stewart at about 2:00 a.m. Before picking up Stewart, they stopped to buy gasoline for the car. After picking up Stewart, they drove around for about 45 minutes. They were in the Glen Oaks area of Baton Rouge when they decided to commit a robbery. Varise got a handgun that he had placed under the front seat of the car. Shortly thereafter, Varise and Stewart got out of the car near the Stop-N-po Store. Stewart was the first to go into the convenience store. He purchased some miscellaneous items. As he left the store, Varise came in with his gun drawn and told the clerk, Lesley E. Moore, to open the cash register and move away. Stewart was then standing outside the door. Varise took three five-dollar bills and six one-dollar bills from the register. Varise and Stewart left the store and were picked up by Antoine who had waited in the car for them.

After the robbery, Antoine was given the stolen money. The defendant then drove to an apartment complex across from another Stop-N-Go Store where police officers observed them, and eventually apprehended them, at which time the stolen money was found in the pocket of Antoine.

The suspects were given their Miranda rights, and taken back to the store where the crime was committed. When the suspects were shown to the victim, he made positive identifications of Varise and Stewart. He could not identify Antoine, who had not entered the store. The accuseds were taken to the Sheriffs Office, and booked with armed robbery. At 5:00 a.m. on September 8, 1982, Antoine, after being read his Miranda rights again, made an oral statement that he had participated in the armed robbery. Then, the defendant, at 10:00 p.m. on September 8, 1982, after being again read his Miranda rights and signing a consent form, gave a detailed taped statement to the detectives, which showed his participation in the crime.

Sufficiency of Evidence of Criminal Intent

On review of the sufficiency of the evidence to support a criminal conviction, it must be determined whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the defendant committed 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. Bland, 419 So.2d 1227 (La.1982).

On this question defense counsel argues that the evidence fails to prove the essential element of specific intent.

Criminal intent is defined in LSA-R.S. 14:10 as follows:

Criminal intent may be specific or general:
(1) Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender, actively desired that prescribed criminal consequences to follow his act or failure to act.
(2) General criminal intent is present whenever there is specific intent, and also when the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act.

It is true that a specific criminal intent is an essential element of the crime of armed robbery. However, intent is a state of mind which need not be proven as a fact, but may be inferred from the facts and circumstances of the transaction and the actions of the defendant. See LSA-R.S. 15:445; State v. Boyer, 406 So.2d 143 (La.1981); State v. Owens, 301 So.2d 591 (La.1974).

Specific intent is an ultimate legal conclusion to be resolved by the trier of fact. State v. Graham, 420 So.2d 1126 (La.1982). The defendant was tried by a jury of his peers. The jury returned a verdict of guilty as charged. The jury, being the ultimate trier of fact, has necessarily reached the conclusion that specific intent was present, along with all of the other elements, for armed robbery.

We find that this conclusion is within the jury’s discretion. The jury’s discretion should be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. Jackson v. Virginia, supra; State v. McKeever, 407 So.2d 662 (La. 1981).

We hold that the verdict of guilty of armed robbery is clearly supported by the evidence in this case.

Admissibility of Taped Statement

Defendant further argues that the trial court erred in failing to suppress the taped statement by Paulfry Antoine. It is defendant’s contention that the state failed to show that the statement was freely and voluntarily given.

The determining factor as to the admissibility of the taped statement is whether it was freely and voluntarily given and not the result of threats, coercion or promises. The voluntary nature of the statement must be proved beyond a reasonable doubt. It is also necessary that the state establish that the defendant who makes an inculpatory statement during custodial interrogation has been informed of his “Miranda rights.” State v. Taylor, 422 So.2d 109 (La.1982).

The record shows that Antoine was fully advised of his rights and that he understood them. There is no evidence of coercion or inducement. Sergeant Murphy testified that Antoine was advised of his Miranda rights before the interrogations. The police officer also testified that no threats or promises were made to the defendant. The consent form executed by Antoine prior to the statement was introduced in evidence.

There is no merit to defendant’s contention that the taped statement was erroneously admitted in evidence.

Proof of Defendant's Participation in the Crime

Defendant argues that the state failed to prove beyond a reasonable doubt that he participated in the crime of armed robbery. Specifically, he objects to being tried as a principal defendant.

Admittedly, defendant did not hold the gun or personally empty the cash register; however, he aided and abetted his co-defendants in the commission of the crime. He drove them to and from the convenience store, and watched them go into the store. More important, he knew in advance of their plans, took part in the discussion of the proposed robbery, knew Varise had the gun, received the stolen money, and drove the vehicle which enabled them to flee the scene of the crime.

There can be no doubt that the defendant participated in this armed robbery as a principal as defined by LSA-R.S. 14:24.

All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.

The circumstances of this case and the actions of Antoine clearly prove specific intent. Testimony given by Varise shows that Antoine drove him and Stewart to the Stop-N-Go Store where the armed robbery occurred. Further testimony was given that while driving to the convenience store, there was talk of committing an armed robbery with a gun that was in the car.

Here, the evidence proves beyond a reasonable doubt the necessary element of an intent to commit a theft or felony. One can only reasonably believe that Antoine and his two companions went to the convenience store with specific criminal intent to steal money through the use of a handgun to force the store’s clerk to give them what money there was in the cash register. See LSA-R.S. 14:64, 67.

A careful reading of the entire record convinces us that there was sufficient evidence upon which the jury could base its findings that the defendant was guilty of armed robbery beyond a reasonable doubt. We are further convinced that it has been affirmatively shown beyond a reasonable doubt that the defendant’s statement was free and voluntary, and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises, and was thus properly admissible in evidence.

For the foregoing reasons, the conviction of the defendant is affirmed.

AFFIRMED.

      . LSA-R.S. 14:64 provides in part:
      Armed robbery is the theft of anything of value from the person of another or which is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.
      LSA-R.S. 14:67 provides in part:

        Theft is the misappropriation or taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations. An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential.


source: Caselaw Access Project

author: SAVOIE, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Willie COLEMAN.
    No. 83 KA 0821.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.
    Ossie Brown, Dist. Atty., Baton Rouge, by Michael R. Erwin, Asst. Dist. Atty., for plaintiff-appellee.
    Michele Fournet, Appellate Counsel, Asst. Public Defender, Baton Rouge, for defendant-appellant.

      Before COVINGTON, COLE and SA-VOIE, JJ.
   SAVOIE, Judge.

Willie Coleman, defendant, pled guilty to receiving stolen goods and was sentenced to 14 months at hard labor. He appeals this sentence as excessive.

On October 12, 1981, the victim of a burglary saw the defendant pawning some jewelry taken earlier that day during the burglary. Based upon the victim’s statements and information supplied by the proprietor of the pawn shop, the defendant was arrested. When arrested, he was in possession of additional jewelry taken in the burglary.

Defendant was charged by a bill of information with receiving stolen things in violation of La.R.S. 14:69. After pleading guilty, the defendant was sentenced to 14 months at hard labor. On appeal, he contends his sentence is excessive in that the trial court failed to properly consider the non-violent nature of the crime as a mitigating factor when imposing the sentence.

La.C.Cr.P. art. 894.1 sets forth sentencing guidelines for the trial court. It provides three general conditions under which the court should impose a prison sentence. Another eleven factors are listed as consideration in determining a suspension of the sentence or probation. Finally, the statute requires the trial court to state for the record the considerations and factual basis for imposing the given sentence. However, the trial court need not articulate every aggravating and mitigating circumstance. The record must reflect only that he adequately contemplated the guidelines given in the article. State v. Parish, 429 So.2d 442 (La.1983).

In the instant case, the trial court articulated a lengthy criminal record, failure to report to the Probation and Parole Office for defendant’s interview, and that the defendant had failed to make any effort at restitution as support of the sentence rendered. It further noted that the crime with which the defendant was charged was of non-violent nature. However, the trial court concluded that such factor did not mitigate the seriousness of the crime. We find the trial court adequately complied with La.C.Cr.P. art. 894.1.

Trial courts have wide discretion in imposing sentences within the statutory limits. Those sentences will not be set aside absent manifest abuse of discretion. State v. Willis, 420 So.2d 962 (La.1982). However, even sentences within statutory limits may be considered excessive. State v. Trahan, 412 So.2d 1294 (La.1982). Sentences grossly out of proportion to the severity of the crime or nothing more than the purposeless and needless imposition of pain and suffering are prohibited by the Louisiana Constitution of 1974, Article I, Section 20. State v. Willis, supra.

Here, the defendant was sentenced to 14 months at hard labor. Under La.R.S. 14:69, the maximum period of imprisonment is two years.

Under the circumstances of this crime, we find the sentence imposed is neither grossly disproportionate nor a needless imposition of pain and suffering. On the contrary, we find the trial court sufficiently articulated the factual basis for the imposition of the particular sentence imposed. State v. Lewis, 434 So.2d 1261 (La. App. 1st Cir.1983).

For the above stated reasons, the sentence is affirmed.

AFFIRMED.


author: COLE, Judge.

text:
    STATE of Louisiana v. David JARREAU.
    No. 83 KA 0822.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.
    Ossie Brown, Dist. Atty., Baton Rouge by Louis Daniel, Robert Hester, Asst. Dist. Attys., for plaintiff-appellee.
    Clarence T. Nalls, Jr., Baton Rouge, for defendant-appellant.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COLE, Judge.

Defendant David Jarreau was charged by bill of information with simple burglary of an inhabited dwelling, a violation of La. R.S. 14:62.2. The alleged crime took place on October 18, 1982, at a residence located on Fairfields Avenue in Baton Rouge. Two Baton Rouge City police officers were notified of a possible burglary taking place at the Fairfields residence. When they arrived they observed two black men inside the house. They called for assistance and Officer Hayes arrived with his trained dog, Max. The officers entered the house through an open window, and the dog indicated someone was in the attic. The officers and the dog entered the attic and found Charles Moore. A second man, defendant David Jarreau, was found in another part of the attic. Jarreau struck both Max and Officer Hayes with a long stick. Both men were arrested.

A trial by jury was held and defendant (who did not testify) was convicted of simple burglary of an inhabited dwelling and sentenced to serve four years at hard labor. He has appealed and assigns two errors.

Appellant’s first assignment of error is that the trial court erred in refusing to allow defense counsel to complete cross-examination of a police officer concerning the photographs the officer had taken at the scene of the crime. On direct examination, Officer James Kurts was asked to identify each photograph as to its contents. On cross examination defense counsel repeatedly asked the officer if anything in the photographs looked “abnormal” or “unusual.” The prosecuting attorney objected to this line of questioning as being beyond the realm of the officer’s knowledge. We agree. The only person qualified to testify as to whether or not anything looked abnormal in the photographs was the owner of the residence. The witness had no knowledge of the condition of the premises prior to the time he took the photographs. Therefore the trial court was correct in refusing to allow this line of questioning. See La.R.S. 15:275 and 15:463.

Appellant’s second assignment of error is that the court erred in allowing the state to introduce into evidence a stick which was allegedly used by defendant to strike Officer Hayes and the police dog. Appellant contends a proper foundation was not laid for the introduction of the stick. We disagree. Officer Hayes testified that after finding Charles Moore, Max indicated there was another person in a different part of the attic. Officer Hayes and Max went through an “attic window” and found the defendant. The defendant struck the dog with a stick and the dog grabbed his leg. Defendant then struck Officer Hayes with the stick. At trial Officer Hayes was shown the stick and identified it as the one with which he and the dog had been struck and the one he had given the evidence team to preserve. We find this to be a sufficient foundation for the introduction of the stick.

Although defendant’s brief is not very explicit, it appears defendant argues also the stick is not relevant to a prosecution for simple burglary of an inhabited dwelling. La.R.S. 15:441 provides: .

“Relevant evidence is that tending to show the commission of the offense and the intent, or tending to negative the commission of the offense and the intent.
“Facts necessary to be known to explain a relevant fact, or which support an inference raised by such fact, are admissible.”

The reaction of the defendant during apprehension is relevant to the issue of intent. Also, it is part of the res gestae. To constitute res gestae, the circumstances must be necessary incidents of the criminal act, or immediate concomitants of it, or form in conjunction with it one continuous transaction. La.R.S. 15:448. If a continuous chain of events is evident under the circumstances, the testimony of the police officer pertaining to what he heard or observed before, during or after the commission of the crime is part of the res gestae. State v. Kimble, 407 So.2d 693 (La.1981). Here, the incident involving the stick occurred immediately after the officer arrived on the scene and while the crime was still in progress. That which forms any part of the res gestae is always admissible in evidence. La.R.S. 15:447.

This assignment is without merit.

For these reasons, the judgment of the trial court is affirmed.

AFFIRMED.

      . Defendant raised two errors in his formal assignment of errors filed with the trial court. However, in his brief he raises two others. La. Code Crim.P. art. 844 states in part, "The party appealing shall designate, in writing, those errors which are to be urged on appeal.” These errors are to be filed with the trial court. La. Code Crim.P. art. 920 states the appellate court shall consider only those errors designated in the assignment of errors and those errors discoverable by a mere inspection of the pleadings and proceedings, without inspection of the evidence. In light of these articles, we decline to consider the other two assignments of error.


author: WATKINS, Judge.

text:
    STATE of Louisiana v. Milton FRANCIS.
    No. 83 KA 0824.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.
    Margaret A. Coon and Peter Garcia, Asst. Dist. Attys., Covington, for appellee.
    S. Austin McElroy, Covington, for appellant.
    Before PONDER, WATKINS and CARTER, JJ.
   WATKINS, Judge.

Defendant, Milton Francis, was convicted of simple burglary of a pharmacy, a violation of LSA-R.S. 14:62.1, and was sentenced to serve seven years at hard labor.

No assignments of error were filed pursuant to Article 844 of the Louisiana Code of Criminal Procedure. Therefore, under Article 920 of the Louisiana Code of Criminal Procedure, we are limited in our review to errors discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence. State v. Gerald, 333 So.2d 645 (La.1976). We have reviewed the record and find no such error.

As we have noted in State v. Griffin, 83 KA 0304, 442 So.2d 698 (La.App. 1st Cir.1983), the Louisiana Supreme Court, in State v. Raymo, 419 So.2d 858 (La.1982), indicated that although the assignments of error do not so dictate, all transcripts of evidence in criminal proceedings must be reviewed on the appellate level to determine whether or not there exists sufficient evidence to support a conviction. We have thoroughly reviewed the transcript of the trial and find that sufficient evidence was introduced at trial to establish all elements of the offense and to justify the return by the jury of a verdict of guilty as charged.

The conviction and sentence are affirmed.

AFFIRMED.


author: PONDER, Judge.

text:
    STATE of Louisiana v. James SINGLETON.
    No. 83 KA 0826.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.
    Bernard E. Boudreaux, Jr., Dist. Atty., Walter J. Senette, Jr., Asst. Dist. Atty., Franklin, for appellee.
    Don J. Hernandez, Franklin, for defendant.
    Before PONDER, WATKINS and CARTER, JJ.
   PONDER, Judge.

Defendant was charged by bills of information with three counts of simple burglary in violation of La.R.S. 14:62. After a jury of six unanimously found him guilty on all three counts, he was sentenced as an habitual offender to serve three concurrent twenty-one year sentences at hard labor.

Defendant argues that 1) there was insufficient circumstantial evidence to have found proof of entry, and 2) the trial judge confused the jury with phrases included in the charge on reasonable doubt.

Defendant borrowed a pickup truck and became stuck in a ditch along a shell road. He walked to a nearby gas station and learned that it would cost him $30.00 to get his truck pulled from the ditch. He told the attendant he had to go home and get some money. He returned about an hour later with $15.00 in quarters and offered to leave his driver's license as a deposit on the balance. The attendant then pulled defendant’s truck from the ditch.

The police received calls early the next morning that National Wheel-O-Vators, Lee’s Ornamental Iron Works and Kent-wood Spring Waters, all located along the shell road, had been burglarized. At National, a metal exterior door and a wooden door leading into an office had been pried open and approximately $11.00 in quarters and the change from the soft drink machine were missing. Although an exterior door at Kentwood was open and appeared to have been jimmied, nothing was missing. Only a magazine was missing from Lee’s where a door had been pried open.

Footprints going toward and coming from National were seen on both sides of the shell road where defendant’s truck had been stuck. Similar footprints were around all three buildings, as were some partial prints around the soft drink machine. Pictures of these taken by an investigator were introduced into evidence.

Defendant first argues that there is no evidence showing that he entered the building, an element required by simple burglary-

When reviewing a conviction based upon circumstantial evidence, it must be determined that, viewing the evidence in the light most favorable to the prosecution, a reasonable trier of fact could have concluded beyond a reasonable doubt that every reasonable hypothesis of innocence has been excluded. La.R.S. 15:438. State v. Oliney, 430 So.2d 1294 (La.App. 1st Cir.1983).

Defendant asserts that the state’s case rests entirely on the circumstance that the shoe print cast and pictures could have matched defendant’s tennis shoe and that such inferences do not exclude every reasonable hypothesis of innocence. However, the State’s evidence showed that the footprints led from the area where the truck was stuck, disappeared over a shell road, but continued toward National. Footprints thought to be made by the same shoe were also found by the other two buildings that had been broken into. An expert who examined the cast print and defendant’s shoe testified that although he could not state that the defendant’s shoe made the print from which the cast was taken, the print was made by a shoe exactly like defendant’s, with the same tread pattern and size. Although the photographs of footprints near the soft drink machine were not clear, the expert thought they were compatible with defendant’s shoe.

The doors of the three buildings had been pried open. Someone made an unauthorized entry; this was evidenced by the disturbed condition of the buildings. The defendant used fifteen dollars in quarters to pay for the tow. The evidence indicated that at least eleven dollars in quarters was stolen from National, in addition to the change in the soft drink machine. Viewed in a light most favorable to the prosecution, the evidence in the record is sufficient for a reasonable trier of fact to conclude beyond a reasonable doubt that every reasonable hypothesis of innocence has been excluded. State v. Oliney, supra.

Defendant next argues that the general charge on reasonable doubt given by the trial judge contained several phrases which misled and confused the jury. However, the alleged irregularity cannot be availed of on appeal because it was not objected to at the time of occurrence, and is not discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence. La.C.Cr.P. art. 920; State v. Thomas, 427 So.2d 428, on rehearing (La.1983). Nevertheless, we have examined the charge and conclude that a reasonable person of ordinary intelligence would have no difficulty in understanding the definition. We find no constitutional violations. See State v. McDaniel, 410 So.2d 754 (La.1982).

In our review for patent error, we find that the trial judge has imposed an illegal sentence since the defendant was treated as an habitual offender on each of the three counts of simple burglary. Convictions on more than one count entered on the same date should be treated as one conviction for applying the habitual offender statute. State v. Sherer, 411 So.2d 1050 (La.1982). Therefore, only one of the three counts of defendant’s conviction could be used in the sentencing as an habitual offender and the habitual offender bill on the other counts should have been rejected.

For these reasons, we affirm the conviction and set aside the sentence on all three counts. The matter is remanded to the trial court for further proceedings in accordance with the above views.

AFFIRMED IN PART; SET ASIDE AND REMANDED IN PART.

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

      . La.C.Cr.P. art. 920:
      The following matters and no others shall be considered on appeal:
      (1) An error designated in the assignment of errors; and
      (2) An error that is discoverable by a mere inspection of the proceedings and without inspection of the evidence.

      . We note that this decision has been criticized in a concurring opinion by Justice Lemmon in State v. Lennon, 427 So.2d 860 (La.1983).


author: COVINGTON, Judge.

text:
    STATE of Louisiana v. Kelvin CHRISENTARY and Walter Turner.
    No. 83 KA 0827.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.
    Writ Denied March 9, 1984.

      Ossie Brown, Dist. Atty., by Michael Erwin, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Michele Fournet, Appellate Counsel, Asst. Public Defender, Baton Rouge, for defendants-appellants.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COVINGTON, Judge.

Defendants, Kelvin Chrisentary and Walter Turner, were charged by Bill of Information, on two counts: count 1, they committed theft of merchandise of a value of more than $100.00, but less than $500.00; and, count 2, they received stolen things: merchandise of a value of more than $100.00, but less than $500.00. After trial by jury, both defendants were found “not guilty” on count 1, and “guilty” on count 2. Each defendant was sentenced to two years hard labor. Chrisentary’s sentence is to run consecutively with any other sentence he may now be serving and he was given credit for time served as a result of his arrest and custody on this charge; Turner was given credit for time served as a result of his arrest on this charge to imposition of sentence. Both defendants have appealed the convictions and sentences, alleging two assignments of error. First, the trial court erred when it denied defendants’ motion for a new trial and for post-verdict judgment of acquittal. Second, the trial court erred when it imposed excessive sentences.

FACTS

On August 18, 1980, a clerk of Woman’s World clothing store in Cortana Mall noticed two men putting merchandise into a shopping bag. A quick check revealed that many blouses were missing from racks at the front of the store, so the Cortana Mall security officers were called. Subsequently, the security officers staked out a vehicle in which the stolen merchandise had been observed in the back seat. Shortly thereafter, defendant Chrisentary entered the vehicle. Before Chrisentary could start the car, the security officers approached him. As he was being questioned, defendant Turner arrived.on the scene. They were apprehended and returned to the store where they were detained for the city police.

ASSIGNMENT OF ERROR # 1

Defendants contend that the trial court erred when it denied defense motions for post-verdict judgment of acquittal, based on insufficient evidence in the record to support the convictions. This assignment of error is based on an argument under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), that there is insufficient evidence for a rational trier of fact to have found the defendants guilty beyond a reasonable doubt. In evaluating the evidence, Jackson v. Virginia requires that the evidence be considered in the light most favorable to the prosecution. In this case, after reviewing the transcript of testimony taken at trial, we find that the record contains sufficient evidence to hold that the elements of the offense were clearly established by the prosecution and a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Moore, 432 So.2d 209 (La.1983). The stolen merchandise from Woman’s World store was located in a shopping bag in the back seat of Chrisentary’s car within the control and possession of the defendants.

There is no merit to this assignment.

ASSIGNMENT OF ERROR # 2

In this assignment of error defendants alleged that the trial court imposed excessive sentences by pronouncing the maximum sentence on each defendant. Defendants argue that the trial court failed to consider any mitigating circumstances.

On review of the record, we find the court minutes reflect that the trial judge had the prior records of both defendants, in addition to each defendant’s work record and used this information to fix the sentence received by each defendant. We find that the judge adequately considered the circumstances of each defendant and individualized each sentence. The judge need not enumerate each factor considered under the requirements of LSA-C.Cr.P. 894.1; State v. Lewis, 434 So.2d 1261 (La.App. 1st Cir.1983).

There is no merit to this assignment.

For the reasons assigned, the defendants’ convictions and sentences are affirmed.

AFFIRMED.


text:
    STATE of Louisiana v. Donald Lee CAGE.
    No. 83 KA 0828.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.
    Ossie Brown, Dist. Atty. by Leila Withers, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.

      Michele Fournet, Appellate Counsel, Asst. Public Defender, Baton Rouge, for defendant-appellant.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   SAVOIE, Judge.

Donald Lee Cage, defendant, was found guilty of manslaughter and sentenced to two years unsupervised probation. Under the enhancement provisions of L.S.A.-R.S. 14:95.2 , the trial court further sentenced the defendant to two years at hard labor without benefit of parole, probation or suspension. Defendant appeals both his conviction and sentence.

On March 21, 1981, defendant encountered his former paramour, Sharon Denise Rogers, and her friend, Collese Samuel, at a local lounge. Ms. Samuel stated that she and Ms. Rogers, the victim, had gone out for an evening’s fun. While seated at a table, the defendant approached the women and while Ms. Samuel danced, a discussion between Ms. Rogers and the defendant ensued. At “closing time”, the parties exited the lounge. Ms. Rogers and Ms. Samuel departed in Ms. Samuel’s vehicle while the defendant departed in his. Enroute home, the defendant pulled alongside the driver’s side of the Samuel vehicle at a stop light. Both Ms. Rogers, who was driving, and Ms. Samuel ducked down after seeing some movement by the defendant’s arm toward them. When Ms. Rogers thought the light had changed to green, the women “popped up” and sped off. Upon arriving at Ms. Rogers’ apartment, she and Ms. Samuel entered. Before Ms. Samuel could shut the apartment's door, the defendant appeared and entered the apartment. Both the defendant and Ms. Samuel, the only living eye-witnesses to this incident, testified that the defendant entered the apartment with a weapon. A discussion ensued between Ms. Rogers and the defendant in various locations of the apartment. While in the kitchen, “playing” with the gun, it discharged with the bullet striking the victim in the face. Ms. Samuel was not an eye-witness to the actual shooting. Immediately after the shooting, Ms. Samuel entered the kitchen and saw the defendant standing over Ms. Rogers. She then ran out of the apartment to Ms. Rogers’ sister’s apartment next door. When they returned, the defendant had already picked up Ms. Rogers and was transporting her to his vehicle. He thereafter took her to Earl K. Long Hospital and remained with her until her death.

Defendant was charged by indictment with manslaughter in violation of L.S.A.R.S. 14:31. In particular, the state relied upon Subsection (2)(a) of the statute. It asserted that the defendant’s intentional misdemeanor directly affecting Ms. Rogers (i.e., an aggravated assault) led concomitantly to her death. After a jury trial, the defendant was found guilty of manslaughter and sentenced to two years unsupervised probation. Additionally, the trial court, being bound by L.S.A.-R.S. 14:95.2, sentenced the defendant to two years at hard labor without benefit of probation, parole or suspension of sentence. On appeal, defendant assigned seven errors by the trial court. However, these assignments fall basically into three categories. First, defendant contends the trial court erred when it did not exclude evidence of other crimes and impose the proper sanctions (Assignments of Error Nos. 1-4). Secondly, he contends the trial court erred when it accepted a verdict based upon insufficient evidence (Assignments of Error Nos. 5-6). Finally, the defendant contends the trial court erred when it imposed an excessive sentence (Assignment of Error No. 7).

ASSIGNMENTS OF ERROR NOS. 5-6

Defendant first contends that the evidence used to convict him of manslaughter was insufficient. In so asserting, he claims that the state failed to prove the alleged act of aggravated assault and the consequences of such act.

Evidence is sufficient to support a conviction when any rational trier of fact, gleaning the evidence in the light most favorable to the prosecution, could have found beyond a reasonable doubt the essential elements of the crime. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); and State ex rel. Danny H. Graffagnino v. King, 436 So.2d 559 (La.1983).

Here, the only living eye-witnesses to the incident are the defendant and Ms. Samuel. Each gave a conflicting story about that night’s occurrences. Based upon the guilty verdict, we must conclude that the jury found the testimony proved beyond a reasonable doubt, all the essential elements of the crime. Further, while we note that there was conflicting evidence presented by these two witnesses, such conflicting testimony does not constitute insufficient evidence of that crime. L.S. A.-Const. Art. 5, Section 5(C); and State v. Tompkins, 403 So.2d 644 (La.1981). We find the trier of fact’s findings, when viewed in the light most favorable to the prosecution, not to be in error. Accordingly, defendant’s assignments of error are without merit.

ASSIGNMENTS OF ERROR NOS. 1-4

In brief, defendant next contends the trial court erred in not excluding certain evidence of other crimes. He contends that certain actions prior to the shooting are not part of the res gestae and, as such, should have been excluded. As “other crimes,” defendant claims they should have been set forth in response to certain discovery questions. The state contends that such act was part of the res gestae and, as such, not required to be set forth in response to defendant’s discovery questions.

La.R.S. 15:447 and 15:448 provide:

“Res gestae are events speaking for themselves under the immediate pressure of the occurrence, through the instructive, impulsive and spontaneous words and acts of the participants, and not the words of the participants when narrating the events. What forms any part of the res gestae is always admissible in evidence.
“To constitute res gestae the circumstances and declarations must be necessary incidents of the criminal acts, or immediate concomitants of it, or form in conjunction with it one continuous transaction.”

Professor Pugh, in discussing the meaning of res gestae in relation to the admissibility of evidence of extraneous offenses under the Prieur Doctrine (State v. Prieur, 277 So.2d 126 (La.1973)) stated:

The meaning of the term res gestae in this area is unclear. It seems clear, however, that its meaning here is by no means necessarily the same as that in the hearsay area. Therefore, cases holding out-of-court declarations admissible under the so-called res gestae exception to the hearsay rule are not necessarily controlling here. In light of the purposes behind the Prieur guidelines, it is believed that for evidence of other crime to qualify as res gestae under Prieur, the other crime must be so closely connected that the indictment or information as to the instant crime is deemed to carry with it notice as to the other crime as well. Although the court does not talk in terms of this test, it appears to be requiring a very close relationship indeed.” Pugh, Work of Appellate Courts-1972-1973, 24 La.L.Rev. 525-527. (Footnotes omitted).

The courts, following this rationale, have required a very close connexity between the charged offense and the offenses sought to be introduced under the res ges-tae exception. See State v. Schwartz, 354 So.2d 1332 (La.1978) and cases cited therein.

In the instant case, the state introduced evidence that the defendant pointed a holstered weapon at Ms. Rogers and Ms. Samuel when they were stopped at the traffic light. The state contends that this act amounts to an aggravated assault in that the women were placed in reasonable apprehension of receiving a battery. It further contends that there was one continuous transaction commencing at this aggravated assault and ending in Ms. Rogers’ death. As such, the state asserts this aggravated assault is part of the res gestae and defendant need not have been notified prior to trial of its intended use.

We find that the incident at the traffic light was part of the res gestae of the entire incident. Further, assuming, ar-guendo, that the traffic light incident was not an aggravated assault, we find that the victim was placed in reasonable apprehension of receiving a battery just prior to her death. Accordingly, defendant’s assignments are without merit.

ASSIGNMENT OF ERROR NO. 7

Defendant finally contends that the trial court erred in imposing an excessive sentence. He contends that the trial court’s imposition of the enhancement provisions of L.S.A.-R.S. 14:95.2 does not satisfy minimum due process requirements.

This statute does not create a separate crime. Rather, it mandates that an additional penalty be imposed when a person commits certain crimes while using a firearm or explosive device. It is based upon the proof of those facts during the trial. There is no substance to defendant’s contention that one must be separately charged under such statute. Adequate notice and opportunity to defend against such enhancement statute was afforded to the accused. See State v. Roussel, 424 So.2d 226 (La.1982). As such, the defendant’s assignment of error is without merit.

For the above and foregoing reasons, judgment and conviction of the trial court are hereby affirmed.

AFFIRMED.

      . “§ 95.2. Additional penalties for possession of a firearm or explosive device in the commission of certain crimes
      "Notwithstanding any other provisions of law to the contrary, any person who uses a firearm or explosive device at the time he commits or attempts to commit the crime of second degree murder, manslaughter, aggravated battery, simple kidnapping, aggravated escape, aggravated burglary, or aggravated arson or attempted aggravated rape, attempted first degree murder or attempted aggravated kidnapping shall upon conviction serve a term of two years imprisonment for the first conviction and upon conviction for each second and subsequent offense listed in this Section, he shall serve a term of five years imprisonment. The penalty provided herein shall be in addition to any other penalty imposed under the provisions of this Title and such person shall serve the additional term of imprisonment without benefit of parole, probation, suspension of sentence or credit for good time and any adjudication of guilt or imposition of sentence shall not be suspended.
      "The prison terms provided under the provisions of this Section, shall run consecutively to any other penalty imposed upon conviction of any of the crimes listed in this Section."

      . “§ 31. Manslaughter
      “Manslaughter is:
      “(1) A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed; or
      “(2) A homicide committed, without any intent to cause death or great bodily harm.
      “(a) When the offender is engaged in the perpetration or attempted perpetration of any felony not enumerated in Articles 30 or 30.1, or of any intentional misdemeanor directly affecting the person; or
      “(b) When the offender is resisting lawful arrest by means, or in a manner, not inherently dangerous, and the circumstances are such that the killing would not be murder under Articles 30 or 30.1.
      “Whoever commits manslaughter shall be imprisoned at hard labor for not more than twenty-one years.”

      . Ms. Samuel testified that when she and Ms. Rogers arrived at the Rogers apartment, Ms. Rogers ran into her apartment telling Ms. Samuel to close the door behind her. Ms. Samuel further stated that Ms. Rogers told the defendant to leave her alone and to return to his wife. Additionally, while Ms. Rogers and the defendant were standing in the kitchen, Ms. Samuel stated that she heard Ms. Rogers say, “don’t be pointing the gun in my face cause it might go off.”


author: CARTER, J:

text:
    STATE of Louisiana v. Gregory Lynn JACKSON.
    No. 83 KA 0830.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.
    Rehearing Denied Jan. 19, 1984.
    William E. Woodward and William G. Carmichael, Asst. Dist. Attys., Clinton, for plaintiff-appellee.
    Clayton M. Perkins, St. Francisville, for defendant-appellant.
    Before PONDER, WATKINS and CARTER, JJ.
   CARTER, J:

Defendant, Gregory Lynn Jackson, was charged by a grand jury indictment with armed robbery in violation of LSA-R.S. 14:64. Defendant was tried by a twelve-person jury, which unanimously found him guilty as charged. He was sentenced to a prison term of fifteen (Í5) years at hard labor without benefit of probation or parole. The defendant appeals his conviction and sentence specifying one assignment of error, viz., that the evidence introduced at trial did not support the jury’s guilty verdict for the crime of armed robbery.

FACTS

The testimony of the victim and an eye witness to the armed robbery establishes that about 10:00 p.m. on July 10, 1981, an individual with a stocking over his head and armed with a small shiny pistol held up the Clinton Amoco service station and fled with a zippered bank bag containing an undetermined amount of cash.

The statement given by defendant and introduced into evidence corroborates the facts related above. According to defendant’s statement, he, Marvin Robinson, James Phillips, and Wilbert Henderson planned the robbery of the Clinton Amoco service station. They then drove to the service station where Robinson, who had pulled a stocking over his head and had armed himself with a pistol provided by defendant, proceeded to rob the service station. While the robbery was in progress, defendant, Phillips, and Henderson remained in the car which was parked on a side street. Robinson was gone approximately three to four minutes and then returned with a zippered bank bag in his hand. They then drove to defendant’s house where they divided the money. Defendant stated that the next day he burned the bank bag obtained in the robbery.

It is well established that an accused may not be legally convicted on his own uncorroborated confession without proof that a crime has actually been committed. State v. Willie, 410 So.2d 1019 (La.1982), and cases cited therein. In addition, proof that defendant was a person engaged in the unlawful conduct is essential for a conviction. State v. Freetime, 334 So.2d 207 (La.1976).

The state presented uncontroverted evidence that a crime had been committed. Defendant’s statement connected him with the robbery by its detailed and accurate account of the offense. The state’s witnesses identified defendant’s pistol as the weapon used in the robbery. In addition, both defendant and a state’s witness identified Marvin Robinson as the person who held up the service station. Accordingly, we find that the state presented sufficient evidence to support the conviction under the standard by which we are bound as enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). A rational trier of fact, accepting facts more favorable to the State, could have found defendant guilty beyond a reasonable doubt.

Defendant’s sole assignment of error has no merit. The conviction and sentence are affirmed.

AFFIRMED.


author: ALFORD, Judge.

text:
    STATE of Louisiana v. Alvin HUTCHINSON.
    No. 83 KA 0839.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.
    Ossie Brown, Dist. Atty. by Luke Lav-ergne, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Michele Fournet, Appellate Counsel, Asst. Public Defender, Baton Rouge, for defendant-appellant.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   ALFORD, Judge.

Defendant, Alvin Hutchinson, was charged by bill of information with simple burglary in violation of LSA R.S. 14:62, and subsequently plead guilty to the charge. After a pre-sentence investigation, the trial judge sentenced defendant to be incarcerated in the East Baton Rouge Parish Jail for a period of three years. In his sole assignment of error, defendant alleges that the sentence he received is excessive.

The imposition of a sentence may violate a defendant’s constitutional right against excessive punishment, regardless of the fact that it is within statutorily defined limits, and is subject to review on appeal. State v. Willis, 420 So.2d 962 (La. 1982); State v. Sepulvado, 367 So.2d 762 (La.1979). Article 894.1 of the Louisiana Code of Criminal Procedure establishes the statutory guidelines to be followed by judges in imposing sentences on those convicted of crimes. This article not only gives the mitigating factors to be taken into account by the trial judge, but also mandates that the judge state the considerations and factual basis for imposing the sentence.

Defendant maintains that the fact that he is gainfully employed with a family to support is a mitigating factor which makes his sentence excessive. It is apparent from the sentencing transcript that the trial judge followed the requirements of article 894.1. Defendant’s employment, family situation and educational background are specifically referred to. Additionally, the trial judge went on to note that defendant’s prior criminal record and past unsuccessful probation periods made it likely that he would commit other crimes unless he was incarcerated. A review of the sentencing transcript leads this court to the opinion that the trial court committed no manifest error in light of its wide discretion in such matters. State v. Willis, supra.

Therefore, for the foregoing reasons, defendant’s conviction and sentence are affirmed.

AFFIRMED.


author: PER CURIAM.

text:
    STATE of Louisiana v. Brian LEMBCKE.
    No. 83 KW 1120.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.
    Office of District Attorney, Kay Kirkpatrick, Asst. Dist. Atty., for plaintiff-appel-lee.
    Floyd J. Falcon, Jr., Baton Rouge, for defendant-appellant.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   PER CURIAM.

Defendant-relator, Brian Lembcke, was convicted of a first offense D.W.I., La.R.S. 14:98, and sentenced to pay a fine of $125.00 plus costs or in default thereof, to be confined to the East Baton Rouge Parish Jail for 30 days. Additionally, the court sentenced the defendant to be confined to the Parish Jail for a period of 10 days with credit for time already spent in jail as a result of this offense.

In applying for writs, relator argues that the trial judge did not comply with La.Code Crim.P. art. 894.1 and imposed a 10 day sentence without considering individual circumstances or the possibility of a suspended sentence, which denies relator his equal protection rights. We issued a writ of certiorari for the purpose of reviewing the record.

When asked the question by defense counsel if it was true that the trial judge had previously stated.in open court that the court was going to order a 10 day minimum sentence to everybody who came through the “swinging doors,” the trial judge answered, “that’s absolutely correct.”

If a court previously decides that all first offense D.W.I. offenders will receive a 10 day sentence without consideration of individual circumstances, then the court has failed to individualize the sentence as required by La.Code Crim.P. art. 894.1. Thus a vacation of the sentence and remand for resentencing is mandated.

In an apparent defense of his actions, the trial judge stated that he did not have the staff to supervise any alternative to a jail sentence. Any shortcomings in the staffing of a court to the extent that a court is not staffed at a reasonably necessary level to perform its constitutional duty can be cured by the court. See McCain v. Grant Parish Police Jury, 440 So.2d 1369 (La.App. 3rd Cir.1983).

Therefore, the conviction is affirmed, but the sentence is reversed and this matter remanded for resentencing.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.


text:
    STATE of Louisiana v. George R. SPENCER.
    No. 83 KA 0847.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.

      Johnny McGary, Asst. Dist. Atty., Amite, for plaintiff-appellee.
    Richard A. Schwartz, Asst. Public Defender, Amite, for defendant-appellant.
    Before PONDER, WATKINS and CARTER, JJ.
   WATKINS, Judge.

Defendant, George R. Spencer, was charged by bill of information with three counts of negligent homicide, violations of LSA-R.S. 14:32. The charges arise out of an automobile accident wherein three persons who were passengers in a vehicle struck by defendant died as a result of injuries sustained in the collision. A jury convicted defendant as charged, and he was subsequently sentenced to serve three years on each count, the sentences to be served consecutively. He has appealed, alleging two assignments of error.

ASSIGNMENT OF ERROR NUMBER ONE:

The basis for this assignment of error is the denial of an oral request for continuance by defense counsel in order to permit Richard Schwartz, defendant’s trial counsel, to conduct the voir dire examination, since Mr. Schwartz was going to represent the defendant at trial. Defendant was represented by the office of the public defender for the Twenty-First Judicial District throughout these proceedings. Mr. Schwartz had been subpoenaed to appear out of town on the morning of the trial, although he expected to return prior to trial. The voir dire examination was conducted by Richard Macaluso, another attorney for the office of the public defender, who had represented defendant at the preliminary hearing.

Defendant filed a motion to quash the bill of information which was heard and denied on the morning that the trial was scheduled. Mr. Macaluso represented defendant at the hearing and, at the close of the hearing, orally requested a continuance until the afternoon so that Mr. Schwartz could conduct the voir dire examination. The court refused to grant the continuance and proceeded with the selection of the jury. After the jury was chosen, court was recessed until the following morning, at which time the trial began with Mr. Schwartz representing the defendant.

A motion for a continuance must be in writing and allege specifically the grounds upon which it is based. State v. Buckenburger, 428 So.2d 966 (La.App. 1st Cir.1983); LSA-C.Cr.P. art. 707. An oral motion presents nothing for the court to review. State v. Buckenburger, supra. Where the occurrences that allegedly make the continuance necessary arose unexpectedly, and defense had no opportunity to prepare a written motion, the court may review the denial. See, State v. Washington, 407 So.2d 1138 (La. 1981). The granting or denial of a motion for continuance rests within the sound discretion of the trial court, and its ruling will not be disturbed absent a showing of clear abuse of discretion. State v. Norman, 432 So.2d 332 (La.App. 1st Cir.1983).

We find no abuse of discretion in the denial of the motion for continuance, although the particular attorney of the public defender’s office who had been assigned to try this case had been subpoenaed to appear out of town. Presumably, once subpoenaed, counsel would have had sufficient opportunity to prepare a written motion; moreover, substitute counsel from the same office should have been able to review defendant’s file in time to be sufficiently apprised of the facts of the case to adequately prepare for jury selection, particularly since the attorney who was present at voir dire had represented the defendant at the preliminary hearing. We find no prejudice to the defendant and no error in the court’s ruling.

ASSIGNMENT OF ERROR NUMBER TWO:

In this assignment of error, defendant contends that the trial court erred in failing to grant a mistrial when the state attempted to impeach defendant’s credibility by questioning him about his prior criminal record. Defense counsel contends that he was denied discovery of defendant’s prior criminal record, although discovery was properly sought. Specifically, the state cross-examined defendant with regard to a conviction for the forgery of a check in Arkansas, although the defense contends the prosecution failed to furnish such information to defense counsel upon the defense’s seeking such information on discovery. When the state alluded to the pri- or conviction in the process of cross-examining defendant, defense counsel immediately objected and requested a mistrial on the grounds that such information was not furnished on discovery. The state contended that the information had been provided to the office of the public defender, although the assistant district attorney could not specify which attorney in the office had actually received the notification.

The court denied the motion for the mistrial.

Unquestionably, the state is entitled to attempt to impeach the credibility of defendant by evidence of prior convictions once he has testified. LSA-R.S. 15:495; State v. Connor, 403 So.2d 678 (La.1981). The sole issue, then, is whether the State complied with the discovery procedures by producing evidence of other crimes of which defendant was convicted.

Upon motion of a defendant, the court shall order the district attorney or the appropriate law enforcement agency to furnish to defendant a copy of any record of his criminal arrests and convictions that is in their possession or custody. LSA-C. Cr.P. art. 717. The Code of Criminal Procedure, in article 729.5, provides sanctions for the failure to comply with the statutory procedures as follows (in pertinent part):

“A. If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this Chapter or with an order issued pursuant to this Chapter, the court may order such party to permit the discovery or inspection, grant a continuance, order a mistrial on motion of the defendant, prohibit the party from introducing into evidence the subject matter not disclosed, or enter such other order, other than dismissal, as may be appropriate.”

Mistrial is a drastic remedy and should be declared only when unnecessary prejudice results to the accused. The determination of whether prejudice has resulted lies within the sound discretion of the judge. State v. Brown, 434 So.2d 1166 (La.App. 1st Cir.1983).

The trial court herein, presumably familiar with the operation of the exchange of information between the office of the public defender and the state, determined that the information Sought had been provided to someone in the office of the public defender and, therefore, no cause existed for the imposition of sanctions. The assistant district attorney insisted categorically that the information concerning prior criminal record had been provided. Because several different attorneys from the office of the public defender had represented defendant during these proceedings, we cannot find error in the determination by the court that the information had been presented to someone on the staff of that agency.

Moreover, we note that, even if the state had not complied with the discovery procedures, that fact alone will not warrant an automatic reversal. Instead, the court must examine the circumstances to determine whether or not defendant was actually prejudiced by the nondisclosure, and whether or not the ruling of the trial judge was correct. State v. Hooks, 421 So.2d 880 (La.1982). The evidence offered herein was not offered to show defendant was of poor character, but to impeach his credibility. In light of the overwhelming evidence of defendant’s guilt, we find the jury’s verdict would not have been altered even if the State had not alluded to defendant’s prior conviction.

The conviction and sentence are affirmed.

CONVICTION AND SENTENCE AFFIRMED.


text:
    Ed PARRISH (Edison E. Parrish, Jr.) v. STATE of Mississippi.
    No. 54492.
    Supreme Court of Mississippi.
    Nov. 2, 1983.
    Rehearing Denied Feb. 8, 1984.
    John Cotter, Ronnie D. Cumbest, Pascagoula, for appellant.
    Bill Allain, Atty. Gen. by Bill Patterson, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before WALKER, P.J., and ROY NOBLE LEE and HAWKINS, JJ.
   Appeal from Circuit Court, Jackson County; Robert T. Mills, Judge.

AFFIRMED.

PATTERSON, C.J., BROOM, P.J., and BOWLING, DAN M. LEE, PRATHER and ROBERTSON, JJ., concur.-


author: ROBERTSON, Justice,

text:
    Carolyn L. BROWN, Appellant, v. CREDIT CENTER, INC., Appellee.
    No. 54573.
    Supreme Court of Mississippi.
    Dec. 14, 1983.
    Rehearing Denied Feb. 8, 1984.

      Christopher A. Tabb, Brandon, for appellant.
    Christy D. Jones, Beth L. Orlansky, Butler, Snow, O’Mara, Stevens & Cannada, Jackson, for appellee.
    Before PATTERSON, C.J., and HAWKINS and ROBERTSON, JJ.
   ROBERTSON, Justice,

for the Court:

I.

This case began as a simple action to collect a $268.60 debt. As it has reached this Court, the case presents us with our first opportunity to consider the office of the motion for summary judgment under Rule 56 of the Mississippi Rules of Civil Procedure. Also involved is a narrow question under the Federal Truth In Lending Act.

We hold that the Circuit Judge correctly entered summary judgment in favor of the creditor on the claim on the underlying debt. The Circuit Judge erred, however, in granting summary judgment on the debt- or’s set-off raised under the Truth In Lending Act. We remand for trial on that issue.

II.

A.

On February 22,1978, Carolyn L. Brown, Defendant below and Appellant here, obtained from Credit Center, Inc., Plaintiff below and Appellee here, a consumer loan in the principal amount of $595.50. The loan together with finance charges was to be repaid in 18 monthly installments of $46.00 each. Incident to the closing of this consumer credit transaction, Credit Center delivered to Brown a Disclosure Statement in accordance with the Truth In Lending Act.

In connection with the loan, Brown elected to purchase credit life and disability insurance through Credit Center. The purpose of this insurance, of course, was to provide a means of paying the indebtedness in the event of Brown’s death or disability during the term of the loan. The premiums are set out in the Disclosure Statement. That statement explains that Brown’s credit insurance coverage lasts “for the term of the credit”.

At the same time, Brown signed a separate document which was a credit insurance policy application form. The application reflects that it is in connection with an 18 payment loan. It indicates a termination date for the insurance coverage as “4-5-79”, five months before the last payment on the loan was due. Brown’s final loan payment was due on September 5, 1979.

By the time September 5, 1979, arrived, Brown’s payments were substantially in arrears. As of December 1, 1979, $268.60 was still outstanding. That amount has not been paid [until this date].

B.

On December 11, 1979, Credit Center commenced an action in the Justice Court of District 5, Rankin County, Mississippi. Carolyn L. Brown was named as Defendant. Credit Center demanded judgment in the amount of $268.60 plus costs. On December 18, 1979, the Justice Court entered the demanded judgment.

Brown appealed to the Circuit Court of Rankin County, Mississippi, claiming her right to trial de novo. Credit Center filed a declaration reasserting its claim on the underlying debt. In due course Brown filed an answer admitting the loan but denying that she owed anything to Credit Center. Brown asserted a series of affirmative matters, the essence of which was that Credit Center had committed various Truth In Lending disclosure violations, as a result of which she was entitled to recover twice the finance charge ($203.43 X 2 = $406.86) as a set-off.

On June 30, 1982, Credit Center filed its motion for summary judgment, still claiming only that the underlying debt of $268.60 ought be paid. Various documents and affidavits were attached to the motion in accordance with Rule 56, Miss.R.Civ.P.

On July 30, 1982, Brown filed a cross motion for summary judgment. She again denied the claim for the unpaid balance of the loan and reasserted that Credit Center had violated the Truth In Lending Act by failure to make accurate disclosure of the cost of the credit insurance. She claimed her set-off and urged that it be granted summarily in accordance with Rule 56.

After consideration of the motions, briefs and affidavits furnished by the parties, the Circuit Court granted Credit Center’s motion for summary judgment and dismissed Brown’s cross motion. Final judgment was entered for Credit Center against Brown on September 13, 1982, in the amount of $268.60, plus attorney’s fees in the amount of $53.72, for a total amount of $332.32, plus costs and interest from date of the judgment.

From this judgment, Brown prosecutes this appeal.

III.

A.

We are called upon for the first time to construe our summary judgment procedure provided in Rule 56 of the Mississippi Rules of Civil Procedure. Rule 56 is enforceable in this action by virtue of the consent of the parties.

The Mississippi Rules of Civil Procedure govern all civil actions commenced after January 1, 1982. This action originated when Credit Center filed in Justice Court on December 11, 1979. Credit Center filed its declaration in the Circuit Court on February 12, 1980. For reasons neither clear nor important, the case was still on the docket when 1982 arrived. On June 30, 1982, Credit Center filed its motion for summary judgment. Brown in no way objected that, because the case pre-dated January 1, 1982, Rule 56 did not apply. Instead Brown herself invoked Rule 56 by filing her cross-motion for summary judgment on July 30, 1982.

At no point in the proceedings in the Circuit Court did either party urge that the summary judgment procedure was unavailable because this action was commenced prior to the effective date of the Mississippi Rules of Civil Procedure. Neither party has assigned the point as error on this appeal. Each party has effectively waived any objection it may have had to the Circuit Court's utilization of Rule 56 in the determination of this action.

B.

The heart of our summary judgment procedure is found in Rule 56(c), Miss.R.Civ.P., which provides as follows:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

We need keep clearly in mind what is intended by this rule. The Advisory Committee which assisted in the drafting of our civil rules offers in its Comment several helpful views:

The motion for a summary judgment challenges the very existence of legal sufficiency of the claim or defense to which it is addressed; in effect, the moving party takes the position that he is entitled to prevail as a matter of law because his opponent has no valid claim for relief or defense to the action, as the case may be.
Rule 56 provides the means by which a party may pierce the allegations in the pleadings and obtain relief by introducing outside evidence showing that there are no fact issues that need to be tried. The rule should operate to prevent the system of extremely simple pleadings from shielding claimants without real claims or defendants without real defenses _
A motion for summary judgment lies only where there is no genuine issue of materia] fact; summary judgment is not a substitute for the trial of disputed fact issues. Accordingly, the court cannot try issues of fact on a Rule 56 motion; it may only determine whether there are issues to be tried. [Emphasis added]

The argument that there exists no genuine triable issue of material fact is the functional equivalent of a request for a peremptory instruction. It merely occurs at an earlier stage in the life of a civil action. The trial court must review carefully all of the evidentiary matters before it — admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. The evidence must be viewed in the light most favorable to the party against whom the motion has been made. If in this view the moving party is entitled to judgment as a matter of law, summary judgment should forthwith be entered in his favor. Otherwise the motion should be denied. Compare generally, Paymaster Oil Mill Co. v. Mitchell, 319 So.2d 652, 657 (Miss.1975); City of Jackson v. Locklar, 431 So.2d 475, 478-479 (Miss.1983).

Trial judges must be sensitive to the notion that summary judgment may never be granted in derogation of a party’s constitutional right to trial by jury. Miss. Const, art. 3, § 31 (1890). On the other hand, there is no violation of the right of trial by jury when judgment is entered summarily in cases where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. There is no right of trial by jury in such cases.

Federal cases suggest that the burden is on the moving party to establish that there is no genuine issue of fact, although this burden is one of persuasion, not of proof. When doubt exists whether there is a fact issue, the non-moving party gets its benefit. Indeed, the party against whom the summary judgment has been sought should be given the benefit of every reasonable doubt. Liberty Leasing Co. v. Hillsum Sales Corporation, 380 F.2d 1013, 1015 (5th Cir.1967); Heyward v. Public Housing Administration, 238 F.2d 689, 696 (5th Cir.1956).

We recognize that reasonable minds may often differ on the question of whether there is a genuine issue of material fact. In this context we find appropriate the admonition in a leading commentary on Federal Rule 56:

If there is to be error at the trial level it should be in denying summary judgment and in favor of a full live trial. And the problem of overcrowded calendars is not to be solved by summary disposition of issues of fact fairly presented in an action. 6 Moore’s Federal Practice § 56.-15[l.-2] p. 56-435 (1982).

Because of the disposition we make of this case, we note that partial summary judgments are available under our procedure. Rule 56(d), Miss.R.Civ.P., provides:

(d) Case Not Fully Adjudicated on Motion. If on motion under this rule judgment is not rendered on the whole case or for all the relief asked and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly.

The various parameters of this aspect of our summary judgment procedure have been fleshed out in discussions of the comparable federal procedure. 10A Wright & Miller, Federal Practice and Procedure §§ 2736-2737 (1983); Moore’s Federal Practice §§ 56.20 et seq. (1982). Partial summary judgments when granted have the effect of removing from trial issues that ought not be there. The courts and the litigants are thus freed to concentrate on the real to the exclusion of the pretended.

Summary judgments, in whole or in part, should be granted with great caution. Notwithstanding, as every lawyer knows, there are many cases reaching the dockets of our courts where there are no genuine fact issues. Rule 56 provides a viable and just vehicle for the adjudication of such cases.

Another word of caution. We have held that each party by filing a motion for summary judgment has consented to the enforceability of Rule 56 in this case. The fact that cross-motions for summary judgment have been filed, however, does not without more empower the court to dispense with trial and enter judgment summarily. Construing comparable Federal Rule 56, the United States Court of Appeals for the Third Circuit in Rains v. Cascade Industries, Inc., 402 F.2d 241 (3d Cir.1968), explained:

Cross-motions are no more than a claim by each side that it alone is entitled to summary judgment, and the making of such inherently contradictory claims does not constitute an agreement that if one is rejected the other is necessarily justified or that the losing party waives judicial consideration and determination whether genuine issues of material fact exist. If any such issue exists it must be disposed of by a plenary trial and not on summary judgment. 402 F.2d at 245.

See also, 10A Wright & Miller, Federal Practice and Procedure § 2720 (1983). The -same may be said of our summary judgment procedure.

IV.

A.

In this case the merits of Credit Center’s claim on its underlying debt as well as Brown’s Truth In Lending defense were both adjudged via summary judgment. We will consider first the claim on the debt.

On this appeal, Brown urges that summary judgment was improper for two reasons. First, Brown argues that there were indeed genuine issues of material fact with respect to the underlying debt. Second, Brown urges that the affidavits filed by Credit Center fail to comply with the procedural requisites of Rule 56(e).

1.

Brown insists that, with respect to Credit Center’s claim on the February 22, 1978, note for the outstanding balance of $268.60, there are genuine issues of material fact. What those issues are, however, we know not. Those issues have certainly not been disclosed by Brown. In pleadings she has admitted signing the note. At no point has she intimated payment in full.

Our search of the record reflects only a denial by Brown that the debt is due. She has effectively stonewalled for over four years, during which time she has offered no affidavit or other evidentiary material explaining why the debt is not owing. Except for her Truth In Lending argument, she offers no reason in law why the debt is not due and why judgment ought not be entered against her thereon. She is merely putting off the evil day of payment as long as possible.

Rule 56(e) provides that:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

Brown’s response to Credit Center’s motion is woefully inadequate. It amounts to a simple denial. The unmistakable language of the rule provides that mere denial is insufficient to create an issue of fact. See Union Planters National Leasing, Inc. v. Woods, 687 F.2d 117, 119 (5th Cir.1982); Ferguson v. National Broadcasting Co., Inc., 584 F.2d 111, 114 (5th Cir.1978); Liberty Leasing Co. v. Hillsum Sales Corp., 380 F.2d 1013 (5th Cir.1967). This is true whether the denial be in pleadings, briefs or arguments. Only sworn denials providing a credible basis therefor in evidentiary fact will suffice.

Our Rule 56 mandates that the party opposing the motion be diligent. “Mere general allegations which do not reveal detailed and precise facts will not prevent the award of summary judgment.” Liberty Leasing Co. v. Hillsum Sales Corporation, 380 F.2d 1013, Í015 (5th Cir. 1967). The party opposing the motion is required to bring forward significant probative evidence demonstrating the existence of the triable issue of fact. Union Planters National Leasing, Inc. v. Woods, 687 F.2d 117, 119 (5th Cir.1982). This Carolyn L. Brown has wholly failed to do.

2.

Credit Center is not permitted to rest exclusively on the weakness of Brown’s response. To be sure, Brown has failed to create a genuine issue of material fact. Before we can affirm the summary judgment, however, we must ascertain that the strength of Credit Center’s showing is such that it is entitled to judgment as a matter of law.

In support of its motion, Credit Center filed the affidavit of William Edward Scott, Manager of Credit Center in Pearl, Mississippi. This affidavit traced the history of the Brown loan and then stated in pertinent part:

Two hundred sixty-eight and sixty one hundredths dollars ($268.60) of Brown’s loan is still outstanding. A true and correct copy of Brown’s ledger sheet is attached hereto as Exhibit “3”.

The attached ledger sheet then reflects Brown’s payment record. It reflects that Brown fell repeatedly in arrears, so that the installment payment due March 5,1979, was not in fact paid until August 24, 1979, at which time there was an outstanding balance of $268.60.

We hold that in an open account or collection suit where the creditor has filed a motion for summary judgment, an undisputed affidavit from the creditor’s manager that the account is due and is unpaid where accompanied by the account or ledger sheet which is obviously a business record, entitles the creditor to summary judgment.

The affidavit of William Edward Scott establishes the amount of the debt, that it is unpaid, and that it is now due and payable — in fact, payment is well overdue. The attached account ledger adds great credibility to Credit Center’s claim. In view of Brown’s feeble denials, we hold the Scott affidavit and attached ledger adequate to undergird a valid summary judgment.

B.

Its contents aside, Brown charges that there are fatal formal deficiencies in the Scott affidavit. She seems to be fussing about the fact that Scott has no personal knowledge of the inception of the disputed loan. True, the loan was made on February 22, 1978. Scott became Credit Center’s Pearl Manager some nine months later in November of 1978 and has served there continuously since that time. We have no doubt of Scott’s power, sufficient unto this day, to make an affidavit describing the account and attaching his company’s ledger sheet, surely a business record.

We regard it as important that this issue was not tendered to the Circuit Court. Where the party against whom a motion for summary judgment is made wishes to attack one or more of the affidavits upon which the motion is based, he must file in the trial court a motion to strike the affidavit. This point is made clear by Wright and Miller in their discussion of identical Federal Rule 56(e):

A party must move to strike an affidavit that violates Rule 56(e); if he fails to do so, he will waive his objection and, in the absence of “a gross miscarriage of justice,” the court may consider the defective affidavit. 10 Wright & Miller, Federal Practice and Procedure § 2738 pp. 507-509 (1973).

We in no way suggest that the Scott affidavit was deficient. Even if it was, Brown filed no motion to strike in the Circuit Court. Before the Circuit Court Brown in no way suggested any unhappiness with the form of the Scott affidavit.

The point is made in Auto Drive-Away Company of Hialeah, Inc. v. Interstate Commerce Commission, 360 F.2d 446 (5th Cir.1966). There the Court of Appeals held that an objection to the use of an affidavit and exhibits thereto could not be raised for the first time on appeal. The court held:

An affidavit that does not measure up to the standards of Rule 56(e) is subject to a timely motion or other objection, formal defects in the affidavit ordinarily are waived. 360 F.2d at 448-449.

Under the circumstances, we hold that Scott’s affidavit was sufficient to under-gird Credit Center’s motion for summary judgment and to establish that, on the underlying claim of debt, Credit Center is entitled to judgment as a matter of law.

V.

A.

We turn now to Brown’s affirmative defense in the nature of a set-off. Brown claims that Credit Center failed to disclose the cost and term of credit and disability insurance as required by the Truth In Lending Act, 15 U.S.C. § 1605(c) and by Federal Reserve Regulation Z, 12 C.F.R. §§ 226.4(b)(7), 226.4(c)(8), and 226.18(n). If she can establish this proposition on the merits, Brown is entitled to recover from Credit Center an amount equal to at least twice the finance charge. 15 U.S.C. § 1640(a)(2)(A)(i).

Our immediate question, however, concerns the propriety of the Circuit Judge’s dismissal of Brown’s Truth In Lending set-off via summary judgment. For the reasons explained below, we regard this as an issue which, in the context of the record we have before us, ought not to have been decided summarily. In our view there is a genuine issue of material fact whether Credit Center accurately disclosed the cost and term of credit life and disability insurance as required by the Truth In Lending Act and by Regulation Z.

B.

The Truth In Lending Act is an enactment of the Congress of the United States. Pub.L. 96-221, 94 Stat. 170. The courts of this state exercise concurrent jurisdiction with federal courts in the enforcement of federally created rights. In the absence of the federal statute expressly providing for exclusive jurisdiction in the federal courts, e.g., International Association of Bridge, Structural and Ornamental Ironworkers, AFL-CIO, Local Union 710 v. Howard L. Byrd Building Service, Inc., 284 So.2d 301, 303 (Miss.1973), our courts are not free to refuse jurisdiction over claims based on rights created by the Constitution and laws of the United States. Such is the command of the Supremacy Clause of our Federal Constitution. Art. VI, § 2. If the ordinary jurisdiction of a court of this state is adequate to the case, that court must accept jurisdiction and proceed to enforce federally created rights. Lewis v. Delta Loans, Inc., 300 So.2d 142, 144-145 (Miss.1974).

The Truth In Lending Act was first enacted in 1968. It is one of those federal enactments which is subject to the regime of concurrent federal and state jurisdiction. This Court has on several occasions recognized that Truth In Lending claims and defenses are well within the competence of our courts. See, e.g., Lewis v. Delta Loans, Inc., 300 So.2d 142 (Miss.1974); Ray v. Acme Finance Corp., 367 So.2d 186, 188 (Miss.1979).

C.

The Truth In Lending Act allows a creditor to exclude the cost of insurance from the finance charge if the cost of insurance is disclosed. 15 U.S.C. § 1605(c); 12 C.F.R. § 226.18(n). Credit Center apparently so elected in the case at bar. When the term of the insurance coverage is less than the term of the loan, however, in addition to the disclosure of the cost of the insurance, Regulation Z has been interpreted to require disclosure of the term of the insurance. Reneau v. Mossy Motors, 622 F.2d 192, 194-195 (5th Cir.1980); Philbeck v. Timmers Chevrolet, Inc., 499 F.2d 971, 978 (5th Cir.1974).

The uncontroverted facts of this case reflect that incident to her loan Brown elected to purchase through Credit Center credit life and disability insurance. The premiums for Brown’s insurance are listed on the Disclosure Statement presented to her and signed by her. Those premiums, as we understand the matter, were not included in the finance charge. The Disclosure Statement advises her that the insur-anee coverage lasts for the term of the loan.

The problem is that from the record before us, we cannot ascertain with confidence the termination date of the insurance policy. The record before us is inconclusive as to whether the policy of credit life and disability insurance issued by Old Colony Life Insurance Company terminated on April 5, 1978, or September 5, 1978. The best evidence of all — the insurance policy itself — is not before us, nor was it before the Circuit Court. We are therefore unable to look into the horse’s mouth and see exactly how many teeth he has, though surely the horse is available and ought to have been produced for such inspection.

Brown points to the insurance application which was prepared by Credit Center. It reflects an insurance termination date of April 5, 1978. It seems likely that the actual policy contains the same termination date as the application. That possibility has not been excluded by anything Credit Center has filed. If in fact the termination date of the insurance was April 5, 1978, then the term of insurance was less than the loan and it is likely that there has been a violation of the disclosure requirements of the Truth In Lending Act. See Reneau v. Mossy Motors, 622 F.2d 192, 194-195 (5th Cir.1980); Philbeck v. Timmers Chevrolet, Inc., 499 F.2d 971, 978 (5th Cir.1974).

Credit Center supported its motion for summary judgment on this point with an affidavit from John E. Gough, Vice President of Old Colony Life Insurance Company. The Gough affidavit explains that, in Gough’s opinion, the premiums charged as reflected on the company’s records match those that would have been charged if the insurance coverage had been designed to remain effective through the full term of the loan. Gough further offers his conclu-sory opinion that “Brown’s insurance coverage was effective for the full term of her loan, from February 22, 1978, through September 5, 1979”.

Applying the considerations outlined in Section 11(B) above, we cannot say with confidence that there is here no issue requiring trial. We repeat and emphasize that we do not have before us the actual policy. Based upon a careful consideration of the affidavits and documents in evidence before us, we consider it entirely possible that at trial Brown might be able to mar-shall credible evidence that would carry the day before the trier of the fact. Certainly nothing in the record before us excludes that possibility.

There is another reason why summary judgment is peculiarly inappropriate on this issue. All of the proof regarding the term and termination date of the policy is within the exclusive possession and control of Credit Center, Inc. and Old Colony Life Insurance Company. Insofar as we have been advised, no credit insurance policy was ever delivered to Brown. Where this type summary judgment issue is before the court, even greater caution should be exercised, lest a viable issue be precluded from trial. By way of contrast, on the claim of Credit Center on the underlying debt, it is within our common sense that any defense Brown may have would likely be within her own personal knowledge or easily accessible to her. When she has failed to come forth with any credible defense, we do not hesitate to affirm summary judgment. Here, however, Brown’s practical access to information is considerably less.

In the final analysis, we view this issue as we did that regarding the underlying debt. See Section IV(A) above. When Brown points to the policy application, she places before us what is some evidence that the policy termination date was April 5, 1979. That suggests a fact issue. Contrast Section IV(A)(1) above. Even though Brown had tendered nothing intimating a fact issue, we would have to consider the strength of Credit Center’s showing. When we look for such strength, we find weakness. Credit Center has failed to produce the policy. The Gough affidavit is conelusory only on the termination date issue. Beyond that, it is obviously based on information and belief. Contrast Section IV(A)(2) above. The summary judgment on this issue should have been denied.

D.

In reversing the summary judgment granted on the Truth In Lending issue, we need to make clear what we are not holding. First, we are not holding that Credit Center has committed a violation of the Truth In Lending Act. This is an issue for plenary trial in the Circuit Court.

Second, we do not hold that, at trial Credit Center will not be entitled, first, to a directed verdict, or, ultimately, the granting of a peremptory instruction. Credit Center here insists strenuously that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law on the Truth In Lending set-off claim. If at the close of Brown’s evidence, the proof is in that posture, Credit Center has available to it the directed verdict procedure as in other cases. See Rule 50(a), Miss.R.Civ.P.

Finally, we note that Credit Center has asserted an alternative position. Credit Center argues that, even if there has been a technical violation of the disclosure requirements of the Truth In Lending Act, such was a mere typographical error within the bona fide error exception to Truth In Lending liability found in 15 U.S.C. § 1640(c). As indicated, in no way do we pass upon the question of whether there was an error in disclosure in the first place. Accordingly, we leave open for trial whether the disclosure error, if any, falls within the bona fide error exception to liability under the Act.

YI.

In conclusion, on the authority of Rule 56(d), Miss.R.Civ.P., we affirm so much of the summary judgment entered below as adjudges that Carolyn L. Brown is liable to Credit Center, Inc. in the amount of $268.60, plus interest and attorney’s fees. All issues regarding Credit Center’s claim on the underlying debt have now been finally decided and are foreclosed.

We remand for a plenary trial on the Truth In Lending issue tendered by Brown by way of set-off.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED FOR TRIAL.

PATTERSON, C.J., WALKER and BROOM, P.JJ., and ROY NOBLE LEE, BOWLING, HAWKINS, DAN M. LEE and PRATHER, JJ., concur.

      . We observe here in relevant part the wording of our Rule 56 is identical to the wording of Rule 56 of the Federal Rules of Civil Procedure. Accordingly, we regard authoritative constructions of Federal Rule 56 as persuasive of what our construction of our rule ought to be. As the author of this opinion has urged in another rules context
      there is much to be said for uniformity in interpreting the identical language of the federal and Mississippi versions [of Rules of Civil Procedure]. A disparity in interpretation would inevitably lead to forum shopping, which has been a perceived evil for at least half a century. Robertson, Joinder of Claims and Parties — Rule 13, 14, 17 and 18, 53 Miss. L.J. 37, 63 (1982).

      . In Brown’s cross motion for summary judgment, Brown stated, "Defendant (Brown) would show unto the court that there is no genuine issue as to any material fact based upon the affidavits of the Plaintiff [Credit Center] and the Plaintiffs motion for summary judgment...."

      . This is essentially the practice we have followed in Mississippi for years under our open account statute entitling a creditor to judgment where he files an affidavit as to the correctness of an account. Miss.Code § 13-1-141 (Supp. 1982). See also, Olympic Insurance Company v. Harrison, Inc., 418 F.2d 669 (5th Cir.1969).

      . In the construction of a statutory enactment of the Congress of the United States, we give great weight and deference to the interpretations of the United States Court of Appeals for the Fifth Circuit, just as that Court respects our interpretations of enactments of the Legislature of the State of Mississippi. See Jordan v. Watkins, 681 F.2d 1067, 1077-1078 (5th Cir.1982); Bell v. Watkins, 692 F.2d 999, 1010 (5th Cir.1982).