text:
    STATE of Louisiana, ex rel. Alvin B. LEWIS v. Ross MAGGIO, Jr., Warden, et al., Louisiana State Penitentiary.
    No. 84-KH-0285.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re Alvin B. Lewis, applying for supervisory and remedial writs, Orleans Parish Criminal District Court, No. 270-218.

Denied.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana ex rel. Leland PATTERSON v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 84-KH-0426.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re Leland Patterson, applying for remedial writs to the Criminal District Court, Parish of Orleans, No. 82-5576.

Denied.


text:
    STATE of Louisiana ex rel. Douglas KNIGHTEN v. Ross MAGGIO, Jr., Warden.
    No. 84-KH-0485.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re Douglas Knighten, applying for writ of certiorari to the Nineteenth Judicial District Court, No. 3-79-334, Parish of East Baton Rouge.

Denied.


text:
    Milton E. QUATTLEBAUM v. HY-REACH EQUIPMENT, INC., et al.
    No. 84-C-1149.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re Milton E. Quattlebaum, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, No. 83-CA-0713; 19th Judicial District Court, Parish of E. Baton Rouge, No. 235633.

Prior report: 453 So.2d 578.

Denied.

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


text:
    S. Mark LOVELL and Quinn-L Corporation v. HALLELUJAH, INC., et al.
    No. 84-C-1152.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re Hallelujah, Inc., Thomas R. Elkins, Leonard H. Bossier, L.H. Bossier, Inc., Alexandria Construction Co., Fither, Inc., City Partners of 1974 and Quinn-L Corporation-1974, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, No. 83-659; Ninth Judicial District Court, Parish of Rapides, No. 125355.

Prior report: 451 So.2d 116.

Denied.

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


text:
    STATE of Louisiana v. Darlene LOFTIN and Jessie F. Roy.
    No. 84-KK-1484.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re Loftin, Darlene et al., Roy, Jessie F., applying for writ of certiorari, stay, prohibition and mandamus, Parish of Vermilion, 15th Judicial District Court, Div. “K”, Nos. 23155, 23157; to the Court of Appeal, Third Circuit, Nos. K-84-443, K-84-444.

Denied.


text:
    Merlin DARBY, Individually and as Natural Tutrix of His Minor Daughter, Denise Darby and Denise Darby v. Connie RICHARD, Southern Farm Bureau Casualty Insurance Company, Russell Robin, Individually and d/b/a, Russell’s Food Center, Mike and Billie Latolais Individually and as Natural Tutrix of Their Minor Daughter, Tina Latolais, and Tina Latolais.
    No. 84-CC-1488.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re Robin, Russell Individ, d/b/a, Russell’s Food Center, applying for writ of certiorari, writ of review to the Court of Appeal, Third Circuit, No. 84-340; Parish of St. Landry, 27th Judicial District Court, Div. “D”, No. 88223-D.

Denied.


text:
    Floria Sercarz KAPLAN v. Jack Harold KAPLAN.
    No. 84-C-1495.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re Kaplan, Jack Harold, applying for writ of certiorari, writ of review to the Court of Appeal, Second Circuit, No. 16267-CA; Parish of Caddo, 1st Judicial District Court, Div. “J”, No. 289788.

Prior report: 453 So.2d 1218.

Denied.


text:
    ACTION TOWING AND RENTAL and Martial H. Voitier II, d/b/a Tulane Avenue Gulf v. U-HAUL INTERNATIONAL, Amerco, U-Haul Co. of Southern Louisiana, Inc., U-Haul Co. and L.S. Shoen.
    No. 84-C-1511.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re Action Towing & Rental et al., Voitier, Martial H. II, d/b/a, Tulane Avenue Gulf, applying for writ of certiorari, writ of review to the Court of Appeal, Fourth Circuit, No. CA-2039; Parish of Orleans, Civil District Court, Div. “K”, No. 77-6515.

Prior report: 452 So.2d 183.

Denied.

DENNIS, J., would grant the writ.


text:
    Mr. and Mrs. Philip BODOIN v. ALLSTATE INSURANCE COMPANY, et al.
    No. 84-C-1518.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re Bodoin, Philip Mr. and Mrs., applying for writ of review to the Court of Appeal, Third Circuit, No. 83-733; Parish of Lafayette, 15th Judicial District Court, Div. “E”, No. 813001.

Prior report: 452 So.2d 828.

Denied.


text:
    Linda Ann Fulton ANZALONE v. Sylves J. FORD, Jr., et al.
    No. 84-C-1519.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re Ford, Sylves J. Jr. et al., Ely, Nel-mar Linus, applying for writ of certiorari, writ of review to the Court of Appeal, Fourth Circuit, No. CA-1627; Parish of St. Bernard, 34th Judicial District Court, Div. “C”, No. 45091.

Prior report: 452 So.2d 337.

Denied.

CALOGERO, J., would grant the writ.


text:
    HERLITZ CONSTRUCTION COMPANY, INC. v. Gregory P. MATHERNE, AIA Architect, Inc. Gregory P. Matherne, INA Underwriters Insurance Company.
    No. 84-CC-1526.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re Matherne, Gregory P., AIA Architect Inc., INA Underwriters Ins. Co., apply-mg for writ of certiorari, writ of review, mandamus, Parish of East Baton Rouge, 19th Judicial District Court, Div. “I”, No. 274,301; to the Court of Appeal, First Circuit, No. CW-84-0934.

Denied.


text:
    Patricia Whitty Johnson, Wife of Richard JOHNSON v. Richard JOHNSON.
    No. 84-C-1531.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re Johnson, Patricia Whitty, applying for writ of review to the Court of Appeal, Fourth Circuit, No. CA-1641; Parish of Orleans, Civil District Court, Div. “F”, No. 80-13136.

Prior report: 452 So.2d 322.

Denied.


text:
    J.K. DARNALL v. J.K. DARNALL, INC. and John Levy.
    No. 84-CC-1534.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re Darnall, J.K. Inc. et al., Levy, John, applying for writ of review, Parish of Iberia, 16th Judicial District Court, Div. “B”, No. 51022; to the Court of Appeal, Third Circuit, No. 83-1064.

Denied.


text:
    Robert G. NIDA v. STATE FARM FIRE & CASUALTY COMPANY.
    No. 84-C-1538.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re -Nida, Robert G., applying for writ of certiorari to the Court of Appeal, Third Circuit, No. 83-765; Parish of Rapides, 9th Judicial District Court, Div. “D”, No. 126013.

Prior report: 454 So.2d 328.

Denied.


text:
    STATE of Louisiana v. Nathaniel SMITH.
    No. 84-KK-1539.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re Smith, Nathaniel, applying for writ of review, Parish of Caddo, 1st Judicial District Court, Div. “E”, No. 120126; to the Court of Appeal, Second Circuit, No. 16682-KW.

Denied.


text:
    The SAVINGS BANK OF BALTIMORE v. VENTURE ’73, a Louisiana Partnership In Commendam and Quinn-L Corporation-1974, a Louisiana Partnership In Commendam.
    No. 84-C-1591.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re Venture ’73 et al., Quinn-L Corporation-1974, applying for writ of certiorari to the Court of Appeal, Third Circuit, No. 83-742; Parish of Rapides, 9th Judicial District Court, Div. “F”, No. 125433.

Prior report: 452 So.2d 395.

Denied.

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


text:
    STATE of Louisiana v. Calvin DUNN.
    No. 84-K-1700.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re Dunn, Calvin, applying for writ of certiorari, writ of review to the Court of Appeal, Third Circuit, No. 83-CR-1165; Parish of LaSalle, 28th Judicial District Court, Div. “ ”, No. 29100.

Prior report: 454 So.2d 1301.

Denied.


text:
    STATE of Louisiana v. Donald Ray ROBERTSON.
    No. 84-K-1714.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re Robertson, Donald Ray, applying for supervisory writ to the Court of Appeal, First Circuit, No. 83-KA-1439; Parish of East Baton Rouge, 19th Judicial District Court, Div. “I”, No. 3-83-871.

Prior report: 454 So.2d 205.

Denied.


text:
    STATE of Louisiana v. David Earl WILSON.
    No. 84-KH-1732.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re Wilson, David Earl, applying for remedial writs and writ of mandamus, Parish of St. Tammany, 22nd Judicial District Court, Div. “C”, No. 114926.

Denied. Defense counsel will afford defendant an opportunity to review the record.


text:
    Donald E. LEWIS and Capital City Press v. Petr L. SPURNEY, Lee Randall and Louisiana World Exposition, Inc.
    No. 84-C-1745.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re Lewis, Donald E. et al., Capital City Press, applying for writ of certiorari to the Court of Appeal, Fourth Circuit, No. CA-2650; Parish of Orleans, Civil District Court, Div. “E”, No. 84-10794.

Prior report: 456 So.2d 206.

Denied.

DIXON, C.J., and DENNIS, J., would grant the writ.


text:
    STATE of Louisiana v. Thomas E. RICHARD.
    No. 84-KH-1861.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re Richard, Thomas E., applying for remedial writ, Parish of Sabine, 11th Judicial District Court, Div. “B”.

Granted. Treating relator’s application as one to mandamus the district court in Sabine Parish to act on his complaint that he has been held for over 72 hours without being brought before a judge (La.C.Cr.P. art. 230.1) the application is granted. The district court is ordered to act immediately. This application is herewith transferred to the district court.

Further, treating relator’s application as one for habeas corpus, directed to the district court for Beaureguard Parish, and complaining that he is being held without criminal charges, the writ is granted and the district court for Beauregard Parish is ordered to conduct an immediate evidentia-ry hearing. The application is herewith transferred to Beauregard Parish District Court.


text:
    STATE of Louisiana v. Harvey ANGEL.
    No. 84-KH-1873.
    Supreme Court of Louisiana.
    Oct. 29, 1984.
   In re Angel, Harvey, applying for writ of habeas corpus to the Court of Appeal, First Circuit, No. KW 84-1057; Parish of Terre-bonne, 32nd Judicial District Court, Div. “E”, Nos. 145829, 76754.

Application transferred to the Court of Appeal for its consideration and action.


author: WATKINS, Judge.

text:
    DEPARTMENT OF HEALTH AND HUMAN RESOURCES, CHARITY HOSPITAL OF LOUISIANA v. Wilbert WASHINGTON.
    No. 83 CA 1263.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 4, 1984.
    Jane C. Scheuermann, Staff Atty., Dept, of Health and Human Resources, New Orleans, for appellant.
    Mary E. Howell, Howell & Bayer, New Orleans, for appellee.
    Robert R. Boland, Jr., Civil Service Legal Counsel, Dept, of State Civil Service, Baton Rouge, for Herbert L. Sumrall.
    Before PONDER, WATKINS and CARTER, JJ.
   WATKINS, Judge.

This Court issued a show cause order after appellee filed a motion to dismiss the appeal of the Department of Health and Human Resources (DHHR) to the Civil Service Commission on the ground that it was untimely under La. Const, of 1974, Art. X, § 12.

The opinion of the Commission was rendered on August 12, 1983. The application for appeal was filed with the Commission on Monday, September 12, 1983, the thirty-first calendar day after the opinion became final.

Appellee argues the appeal was not timely filed under the previous jurisprudence of this court, which held the appeal must be filed within thirty calendar days even if the thirtieth day fell on a Sunday.

In Guillory v. Department of Transportation and Development, 450 So.2d 1305 (La.1984), rehearing denied June 14, 1984, the Louisiana Supreme Court reversed the decision of this court and held that the provisions of LSA-C.C.P. 5059 are applicable to appeals to the Commission. Therefore, if the final date for filing an application for appeal falls on a legal holiday, the appellant has until the end of the next business day to file his application. The application herein was timely filed.

The motion to dismiss is denied.

DENIED.


author: CARTER, Judge:

text:
    Carey WILLIAMS v. REED & SIMS, INC.
    No. 84 CA 0487.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 4, 1984.

      Charles B.W. Palmer, Amite, for plaintiff-appellee.
    Jesse P. Lagarde, Amite, for defendant-appellant Reed & Sims.
    James Brady, Alexandria, for Hermitage Health & Life Ins. Co. and Gulf States Underwriters of La.
    Before PONDER, WATKINS and CARTER, JJ.
   CARTER, Judge:

The motion to dismiss the answer to the appeal in this worker’s compensation case arose from the following circumstances.

Plaintiff claimed he was injured while employed as a statutory employee of Reed & Sims, Inc. At the time of his injury, Hermitage Health & Life Insurance Company insured Reed & Sims, Inc. On August 24, 1983, upon finding that Hermitage was not the worker’s compensation insurer of Reed & Sims, Inc., judgment was signed casting Reed & Sims, Inc. for total and permanent disability and dismissing the claim against Hermitage Health & Life Insurance Company. Notices of judgment were sent on August 29, 1983. By motion filed on September 7, 1983, Reed & Sims, Inc. asked for a new trial. This motion was denied on November 23, 1983. Notice of the denial was mailed on November 23, 1983. Reed & Sims, Inc. filed a petition for suspensive appeal on December 19, 1983. The order was signed on December 16, 1983, and the appeal bond was filed on December 20, 1983. Plaintiff filed an answer to the appeal on January 17, 1984, asking for relief from the portion of the judgment dismissing Hermitage Health & Life Insurance Company and assessing attorney’s fees at only $2,000.00. Hermitage filed a motion to dismiss the answer to the appeal filed by plaintiff insofar as it relates to Hermitage Health & Life Insurance Company.

The motion to dismiss the answer to the appeal insofar as it attempts to secure relief against Hermitage Health & Life Insurance Company is granted. An answer to an appeal is effective only as to an appellant. Wheat v. Ford, Bacon and Davis Const. Corp., 414 So.2d 823 (La.App. 1st Cir.1982); American Ins. Co. v. Holland, 401 So.2d 421 (La.App. 1st Cir.1981); Ogaard v. Wiley, 325 So.2d 642 (La.App. 3rd Cir.1975); Smith v. Girley, 242 So.2d 32 (La.App. 1st Cir.1970).

Motion to dismiss answer to appeal is granted only insofar as it seeks relief as to Hermitage Health & Life Insurance Company.

MOTION TO DISMISS GRANTED.

      . Plaintiff, however, did not file an appeal requesting a review of Hermitage’s dismissal. In fact, on June 7, 1984, Williams filed a motion to voluntarily dismiss Hermitage.


author: CRAIN, Judge.

text:
    Earl NETTER v. DEPARTMENT OF CORRECTIONS, L.T.I., NEW ORLEANS.
    No. 84 CM 0085.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 4, 1984.
    Joel P. Loeffelholz, Jacobs & Loeffelholz, New Orleans, for appellant.
    Annette R. Seng, Asst. Atty. Gen., Dept, of Justice, Baton Rouge, for appellee.
    Robert R. Boland, Jr., Civil Service Legal Counsel, Dept, of State Civil Service, Baton Rouge, for Herbert L. Sumrall.
    Before SHORTESS, LANIER and CRAIN, JJ.
   CRAIN, Judge.

This matter is before the court on a motion of the Director of the Department of the State Civil Service to dismiss Earl Netter’s unlodged civil service appeal. The Director alleges the appeal was not timely perfected.

According to the provision of Art. X, Section 12 of the Louisiana Constitution of 1974, a decision of the Commission shall be subject to review on any question of law or fact upon appeal to the Court of Appeal, upon application filed with the Commission “within” thirty calendar days after its decision becomes final. A decision becomes final if an application for review is not made within 15 calendar days after a decision by the referee is rendered. If timely application is not made, the referee's decision becomes the final decision as of the date it was rendered.

On December 9, 1983, the civil service referee rendered a decision denying Earl Netter’s appeal to the Commission. No application for review was filed, therefore this decision became final on December 9, 1983, the date it was rendered. The thirtieth day after the decision became final was January 8, 1984 — a Sunday and legal holiday.

On January 6, 1984, Earl Netter mailed his notice of appeal to the State Civil Service Commission. This notice of appeal was received on January 9, 1984, thirty-one days after the decision became final.

Under Guillory v. Department of Transportation and Development, 450 So.2d 1305 (La. 1984), the appeal was timely perfected. Guillory held that the 30 calendar day appeal delay provided by La. Const. Art. X, Sec. 12, is subject to the provisions of La.C.C.P. art. 5059. That article provides that, if the last day of the delay is a legal holiday, the delay runs until the next day which is not a legal holiday. Hence, Earl Netter timely perfected his appeal on January 9, 1984.

For the foregoing reasons, the motion to dismiss Earl Netter’s unlodged devolutive appeal is denied. All costs are to be paid by appellee.

MOTION DENIED.

      . The Director of the Department of the State Civil Service was recognized by this court as an indispensable party by order dated January 20, 1984.

      . Rehearing denied June 14, 1984.


author: ARMSTRONG, Judge.

text:
    WINDJAMMER, INC. v. Paul HARDY and Darrell Williamson.
    No. CA-1761.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 7, 1984.
    Writ Denied Nov. 16, 1984.
    Middleberg & Riddle, Earl N. Vaughan, Metairie, for plaintiff-appellant.
    Norman L. Sisson, Marshall W. Wroten, Robert J. Jones, Doran & Kivett, William J. Doran, Jr., Dept, of Transp. and Development, Baton Rouge, for defendants-appel-lees.

      Before GULOTTA, LOBRANO and ARMSTRONG, JJ.
   ARMSTRONG, Judge.

By this action for mandamus, the plaintiff, Windjammer, Inc., seeks an order that would compel the Louisiana Department of Transportation and Development, through its officers Paul Hardy and Darrell Williamson, to revoke certain leases of immovable property granted by the Department to the Cudels Corporation. Alternatively, plaintiff seeks an order that would compel the Department to prohibit its lessee, Cu-dels, from excavating the leased premises. The trial court dismissed the case for failure to state a cause of action. Windjammer now brings this appeal.

With respect to the first-asserted ground for mandamus, the plaintiff alleges that as of the filing of suit on December 2, 1982, the Department had leased to the Cudels Corporation three separate tracts of land forming part of the New Basin Canal Property. The first lease was contracted on December 14, 1977, the second on June 1, 1978, and the third on August 1, 1978. The plaintiff further alleges that the Cudels Corporation subsequently transferred its leases to its president and sole shareholder, Russel L. Cuoco.

Windjammer contends that the latter two leases are in violation of state law, and must, for that reason, be cancelled by the Department. The specific provision relied upon by the plaintiff is contained in La.R.S. 41:1216, which provides, in pertinent part:

“In order to allow the individual lessee to lease lands from the state in preference to syndicated landholders or corporations, no lease shall cover a larger area than six hundred forty acres of public land, which area must be contiguous. No lessee may own more than one such lease at one time.” (Emphasis added).

Windjammer alleges that, as the operator of a restaurant located adjacent to the leased premises, it has a protectable interest in the Department’s adherence to the above-stated law.

The defendants contend that they cannot be the subject of the mandamus because Cuoco’s leases do not violate the above statute. The defendants argue that by virtue of Act 733 of 1979 (now La.R.S. 41:131), the leases became exempt from R.S. 41:1216’s prohibition against owning more than one lease of state land.

Act 733 provides, in part, that:

“The sale, lease, or other disposition by the Department of Transportation and Development, or any of its offices, of lands acquired by the Department of Transportation and Development, or any of its offices, under the provisions of R.S. 36:856, and the sale and lease of land or any improvements, or both, thereon heretofore made by the Department of Transportation and Development, or any of its offices, are expressly exempted from the provisions of (R.S. 41:1216) in such prior transactions by the Department of Transportation and Development, or any of its offices, in the sale, lease, or other disposition of such lands. All such sales, leases, or other dispositions made by the Department of Transportation and Development, or any of its offices, prior to January 1, 1978, are hereby ratified, validated, and confirmed, and shall be deemed to bind the Department of Transportation and Development, or any of its offices, and the other parties hereto according to the respective terms and conditions of the sales, leases, or other dispositions, except where those transactions were brought about by fraud or involved fraudulent practices.” (Emphasis added).

Plaintiff interprets the above provision to mean that only the first of Cuoco’s three leases has been ratified — that lease having been contracted prior to January 1, 1978— and therefore, the later leases are not within the Act’s exemption from R.S. 41:1216.

We disagree. The plaintiff’s argument fails to recognize that Act 733 creates two classes of leases. The first class (which includes the second as a subset) consists of all leases contracted by the Department prior to the effective date of the Act (July 20, 1979). These leases are expressly exempted from the provisions of R.S. 41:216 and other enumerated statutes. The second class of leases — those contracted prior to January 1, 1978 — are not merely exempt from specific kinds of attack (such as those arising under R.S. 41:1216); they are accorded blanket ratification, and are thereby rendered absolutely impervious to attack on any ground whatsoever, “except where those transactions were brought about by fraud or involved fraudulent practices”.

Thus, Act 733 requires us to hold that as of the effective date of legislation (July 20, 1979), the Cudels Corporation leases of June 1, 1978 and August 1, 1978 — being “such prior transactions” ... “heretofore made by the Department of Transportation and Development” — became “expressly exempted from the provisions of ... (R.S. 41:1216).” Therefore, at the time Windjammer filed this suit for mandamus (December 2, 1982), there existed no cause of action to invalidate the leases under that statute.

Windjammer alternatively alleges, “upon information and belief”, that lessee Cuoco intends to build a two-story restaurant on the leased premises, the construction of which “will require excavations, piling and other disturbances of the earth”, and that the site of the proposed restaurant is the burial ground of some 5,000 to 20,000 Irish workers who died between 1830 and 1838.

Windjammer contends that the disturbance of those graves will violate La.R.S. 8:654, which provides:

“Whoever mutilates any human remains without authority of law shall be punished by imprisonment for not more than three years or by a fine of not more than one thousand dollars, or both.”

The plaintiff contends that because of the impending violation of the above statute by lessee Cuoco, there arises a clear ministerial duty on the part of the defendant public officers to “prohibit” such excavations and disturbances of the land.

Assuming the truth of the plaintiffs factual allegations, we nevertheless hold that the trial court did not err in dismissing Windjammer’s alternative plea for mandamus.

Mandamus is an extraordinary remedy and will never issue except when there is a clear and specific right to be enforced or when there is a purely ministerial duty to be performed. Smith v. Dunn, 263 La. 599, 268 So.2d 670 (1972); Gulf Federal Savings and Loan Assoc. v. Sehrt, 233 So.2d 268 (La.App. 1st Cir.1970); West Carroll National Bank v. West Carroll Parish School Board, 136 So.2d 699 (La. App.2d Cir.1961).

A ministerial duty is one that the law so clearly imposes as to admit no exercise of judgment or discretion; it is specific and unequivocal. R & R Contracting & Development Co., Inc. v. City of Baton Rouge, 413 So.2d 596 (La.App. 1st Cir. 1982); Mares v. Glasgow, 219 So.2d 19 (La.App. 4th Cir.1969); State v. Jeansonne, 144 So.2d 159 (La.App. 1st Cir.1962).

“The proper function of a writ of mandamus is to compel the doing of a specific thing ... It contemplates the necessity of indicating the precise thing to be done, and so it is generally held that it is not an appropriate remedy for the enforcement of duties generally, or to control and regulate a general course of official conduct for a long series of continuous acts to be performed under varying conditions”. See, Mandamus, 52 Am.Jur.2d § 85; see also, Jumonville v. Hebert, 170 So. 497 (La.App. 1st Cir.1936).

The order that Windjammer seeks would compel the defendants to “prohibit” excavation. Assuming that by “prohibit”, plaintiff means “prevent”, it is clear that the means by which the lessee might be prevented from excavating are many, and that choosing among those preventive means will require an exercise of judgment or discretion.

Thus, there is no specific preventive act which we could compel, for none is required by law; nor could we order the defendants generally to prevent excavation unless we were to assume supervision over a series of acts and choices that are within the defendants’ discretion.

Accordingly, we hold that Windjammer’s petition fails to establish a purely ministerial duty on the part of the defendants.

We hold, in addition, that Windjammer’s petition fails to establish a right of action. Mandamus will not issue to compel performance of a duty which a public officer owes to the public at large unless the individual who brings the action clearly establishes a special and peculiar interest in the performance of that duty, apart from the interest which he has as a member of the general public. League of Women Voters v. City of New Orleans, 381 So.2d 441 (La.1980); State ex rel. Schoeffner v. Dowling, 158 La. 706, 104 So. 624 (1925); Jumonville v. Hebert, 170 So. 497 (La.App. 1st Cir.1936).

The plaintiff does not specify the manner in which it will be damaged, nor does Windjammer name any specific rights or interests to be vindicated. In the absence of such allegations, it cannot be said that Windjammer’s operation of a business upon property adjacent to the leased premises establishes, of itself, any special or peculiar interest in the defendants' performance of a public duty, separate and distinct from the interest of the public at large.

CONCLUSION

For the reasons assigned, the trial court’s dismissal of the plaintiff’s suit for mandamus is affirmed.

AFFIRMED.


author: L. JULIAN SAMUEL, Judge Pro Tem.

text:
    STATE of Louisiana v. Michael JOSEPH.
    No. K-2752.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 7, 1984.
    Harry F. Connick, Dist. Atty., William Marshall, Asst. Dist. Atty., New Orleans, for relator.
    M. Craig Colwart, Frank Larre, Orleans Indigent Defender Program, New Orleans, for respondent.

      Before GARRISON and WARD, JJ., and L. JULIAN SAMUEL, J. pro tem.
   L. JULIAN SAMUEL, Judge Pro Tem.

This is a state application to review the trial court’s denial of a state motion to correct an alleged illegal sentence. The defendant has responded.

On March 27, 1984, following the defendant’s conviction of armed robbery (R.S. 14:64), he was sentenced to serve twelve (12) years in the custody of the Louisiana Department of Corrections, with credit for time served, without benefit of parole, probation or suspension of sentence for the first five (5) years.

The state contends the sentence is illegal because it violates the sentencing portion of the statute, R.S. 14:64 B, which reads:

“B. Whoever commits the crime of armed robbery shall be imprisoned at hard labor for not less than five years and for not more than ninety-nine years, without benefit of parole, probation or suspension of sentence.”

We agree with the state. In our view, the above quoted phrase “without benefit of parole, probation or suspension of sentence” applies to the sentence in its entirety and not to a part of the sentence. If the contrary was true, the legislature would have worded the statute differently.

We note that we are not in conflict with the Supreme Court’s decisions in State v. Napoli, 437 So.2d 868 (La.1983), and State v. Jackson, 452 So.2d 682 (La.1984). Those cases hold only that, because of its “chilling effect” on the exercise of the right to appeal, on an appeal by the defendant the appellate court may not take notice of the illegality of a sentence as an error patent on the face of the record when the resulting judgment will be less favorable to the appellant than the judgment from which the appeal was taken. Here we do not consider illegality of the sentence on a defendant appeal; we consider that issue on a state application to review the trial court’s refusal to correct the illegal sentence.

We also note that Act 587 of 1984, which amends C.Cr.P. art. 882 in an apparent attempt to legislatively overrule Jackson and Napoli, did not become effective until September 3, 1984.

For the reasons assigned, the writs applied for are made peremptory, the sentence is vacated, and the matter is remanded to the trial court for resentencing in accordance with law and with the views expressed in this opinion.

SENTENCE VACATED: REMANDED FOR RESENTENCING.

      . For example, see R.S. 14:42 and 14:42.1, 14:50.1, 14:51, and 14:62.2.


author: SAVOIE, Judge.

text:
    Nugier THERIOT v. Larry Dewayne WILLIS, et al.
    No. 84 CA 0865.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 11, 1984.

      A.S. Easterly, III, Denham Springs, and Tom F. Phillips, John M. Parker, Baton Rouge, for plaintiff-appellee Nugier Theri-ot.
    James A. McPherson, New Orleans, for defendant-appellant Pipeline Construction Workers Local 692.
    Risley C. Triche, Napoleonville, for defendant-appellant Larry Dewayne Willis, Jimmy Odom, Gene Ashworth and Rayburn Doyle.
    Louis M. Kiefer, Jr., New Orleans, for , intervenor-appellee Employers Mut. Liability Ins. Co. of Wisconsin.
    Before SAVOIE, LANIER and CRAIN, JJ.
   SAVOIE, Judge.

Plaintiff-Movant, Nugier Theriot, seeks to have the suspensive appeal of defendants dismissed because of their failure to furnish a security appeal bond. Movant contends that a certificate of deposit filed by defendant does not meet the requirements of a bond as set forth under La.C. C.P. art. 2124. Defendants argue that the trial court should be the proper forum to address the issue.

In support of the Motion to Dismiss, movant relies on the case of Guilliot v. City of Kenner, 326 So.2d 359 (La.1976). In that case, the Supreme Court stated:

“While the appellate court does not have jurisdiction to consider the form, substance and sufficiency of an appeal bond, it does have the authority to determine whether what purports to be a bond is in fact a bond, and whether it was timely filed, for only then does its jurisdiction attach.
Whether the Court of Appeal in the instant case properly the appellate court properly dismissed the appeal, therefore, depends upon whether the bond relied upon by the plaintiff is such that it is subject to objections as to form, substance or sufficiency; or whether the defects of the alleged bond are so glaring and so numerous that it forms no bond at all. If no bond at all was furnished the appellate court properly dismissed the appeal.
If what purports to be a bond complies substantially with the requirements of the law, objections as to its form, substance or sufficiency are properly resolved by the trial court, which retains jurisdiction for that purpose as of the date of its filing or subsequently. La. Code of Civ.P. art. 2088. The trial court is authorized to cure these objections. La.Code of Civ.P. arts. 5123, 5124, 5125.
On the other hand, if what purports to be a bond is nothing but blank unsigned paper it cannot be cured and it does not meet the requirements, of a bond. The filing of such a document is not a ‘timely filing’ of security which gives jurisdiction to an appellate court.”
Citations omitted. Guilliot, 326 So.2d at 362-363.

This is not an instance where there was a total failure to file an appeal bond as in Guilliot, where the purported bond was a blank, unsigned piece of paper. The certificate of deposit in this case was timely filed. The issue in this case does not deal with the failure to file a bond. Rather, the argument of the movant goes to the validity and sufficiency of the appeal bond.

La.C.C.P. art. 2088 provides, in part: The jurisdiction of the trial court over all matters in the case reviewable under the appeal is divested, and that of the appellate court attaches, on the granting of the order of appeal and the timely filing of the appeal bond, in the case of a suspensive appeal or on the granting of the order of appeal, in the case of a devolutive appeal. Thereafter, the trial court has jurisdiction in the case only over those matters not reviewable under the appeal, including the right to:
(5) Test the solvency of the surety on the appeal bond as of the date of its filing or subsequently, consider objections to the form, substance, and sufficiency of the appeal bond, and permit the curing thereof, as provided in Articles 5123, 5124, and 5126; (Emphasis added).

It is well established that an appeal will not be dismissed because the appeal bond is invalid or insufficient unless the validity or sufficiency of the appeal bond has been first contested in the trial court, and the appellant has been afforded an opportunity to cure the defect or supply the insufficiency. Dolhonde v. Dolhonde, 345 So.2d 596 (La.App. 1st Cir.1977).

Since in the present case there has not been a rule brought pursuant to La.C. C.P. art. 2088(5) to consider objections to the form, substance, and sufficiency of the appeal, there is no action of the trial court in this respect for us to review.

Following the standard as set forth in Dolhonde, we are without jurisdiction in this instance to test initially the validity or sufficiency of the appeal bond. Therefore, the Motion to Dismiss is denied; costs to be assessed against Movant.

MOTION TO DISMISS DENIED.

      . Art. 2124 provides, in part:
      A suspensive appeal bond shall provide, in substance, that it is furnished as security that the appellant will prosecute his appeal, that any judgment against him will be paid or satisfied from the proceeds of the sale of his property, or that otherwise the surety is liable for the amount of the judgment.”


text:
    Timothy OVERMIER, et al. v. Navarre Scott TRAYLOR, Sr., et al.
    No. 84 CA 0902.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 18, 1984.

      Rodney C. Cashe, Hammond, for plaintiff-appellee.
    Ron S. Macaluso, Hammond, for defendant-appellant.
    Before SAVOIE, WATKINS and CRAIN, JJ.
   SAVOIE, Judge.

This court issued a Show Cause Order, ex proprio motu, ordering the parties hereto to show cause why this appeal should not be dismissed for the reason that the appeal was not timely filed and/or the record does not contain a judgment.

Plaintiffs, on December 28, 1983, filed a “Petition for Preliminary Injunction.” The petition sought a preliminary injunction to restrain the defendants from the continued maintenance of the barbwire fence upon defendants’ lot or lots in River Ridge Subdivision, and further, to restrain defendants from storing, servicing or operating heavy machinery or equipment upon said lot, including but not limited to, dozers, heavy commercial trucks and trailers and other large commercial equipment. The petition also sought an eventual permanent injunction. The basis for this injunction was that the defendants were in violation of certain Building and Residential Restrictions of River Ridge Subdivision.

Defendants filed a Request for Written Notice of Assignment and Written Notice of Any Order or Judgments on January 19, 1984. On that same day, defendants filed a Motion for Extension of Time to File Pleadings. The trial court granted defendants an additional thirty (30) days, or until February 18, 1984, to file responsive pleadings. The record contains no such pleadings.

On March 2, 1984, a hearing was held on the rule for a preliminary injunction. The trial court took the matter under advisement and allowed timé for counsel to file memoranda. On May 14, 1984, the trial court issued an “Opinion,” which is attached hereto as Appendix “A”.

On June 1, 1984, the trial court signed a Motion and Order of Appeal, submitted by defendants, which granted a suspensive appeal. The order does not specify the judgment appealed. Rather, the motion requested an appeal from “the judgment of the court rendered in the preliminary injunction hearing and/or, if now appropriate, the judgment reversed in this case in the merits, i.e., the permanent injunction.” A Notice of Appeal was issued on June 5, 1984, which did not specify what judgment was appealed.

The trial court signed a judgment on July 17, 1984, granting the preliminary injunction as requested by plaintiff’s petition. The appeal bond was filed on June 20,1984. The record was lodged with this court on July 19, 1984, under docket No. 84 CA 0902. On July 23, 1984, this court issued the present Show Cause Order, which was made returnable for August 7, 1984.

The “Opinion” rendered by the trial court was obviously intended to be a written articulation of the trial court’s reasons for judgment. This is so because while the “Opinion” does contain one decretal sentence, stating the plaintiff is entitled to the requested injunction, its overall import clearly reflects that it is not a final judgment. The “Opinion” actually concludes with the sentence: “The Court will sign a judgment consistent with this opinion when presented by the parties, said judgment to be signed by all counsel, approving same as to form and content.”

Reasons for judgment cannot serve as a final judgment from which an appeal can be taken. La.C.C.P. art. 1918; Schiro v. Viola, 398 So.2d 1294 (La.App. 1st Cir. 1981); Pearce v. Johnson, 250 So.2d 567 (La.App. 3d Cir.1971). When this appeal was taken, the record did not contain any document which would fit the form required by La.C.C.P. art. 1918 for a final judgment. This court has strictly construed La.C.C.P. art. 1911 and has dismissed appeals perfected prior to the signing of a judgment. See Poinsette v. Lieux, 442 So.2d 748 (La.App. 1st Cir.1983); Williams v. Williams, 434 So.2d 596 (La.App. 1st Cir.1983); Painter v. Continental Union Assurance Co., 407 So.2d 500 (La.App. 1st Cir.1981).

Therefore, this appeal was prematurely taken by appellants and must be dismissed, at their costs.

APPEAL DISMISSED.

APPENDIX A

TIMOTHY OVERMIER VS. NAVARRE TRAYLOR

NO. 70,532

21ST JUDICIAL DISTRICT COURT PARISH OF TANGIPAHOA . STATE OF LOUISIANA

May 14, 1984

OPINION

In the opinion of this Court, the property purchased by defendant was included in the restrictions and that his use of the said property is a clear violation of said restrictions. Any representations which may have been made to the defendant by any party would have no bearing on the recorded restrictions.

The Court is of the further opinion that plaintiffs have established that continued use by defendant of his property for commercial purposes would be injurious to the property of plaintiff.

The Court feels that, for the reasons stated above, plaintiff is entitled to the requested injunction.

The Court will sign a judgment consistent with this opinion when presented by the parties, said judgment to be signed by all counsel, approving same as to form and content.

Amite, Louisiana, this 14th day of May, 1984.

7s/ Edward B. Dufreche EDWARD B. DUFRECHE DISTRICT JUDGE DIVISION “E”

      . This judgment was not sent to this court until after the Show Cause Order was issued.

      . La.C.C.P. art. 1918:
      A final judgment shall be identified as such by appropriate language. When written reasons for the judgment are assigned, they shall be set out in an opinion separate from the judgment.

      . La.C.C.P. art. 1911:
      Except as otherwise provided by law, every final judgment shall be signed by the judge. For the purpose of an appeal as provided by Article 2083, no appeal may be taken from a final judgment until the requirement of this article has been fulfilled.


author: REDMANN, Chief Judge.

text:
    STATE of Louisiana v. Kenneth JAMES.
    No. K 2149.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 19, 1984.

      Harry F. Connick, Dist. Atty., Nancy Sharpe, Asst. Dist. Atty., New Orleans, for the State.
    Jeffrey Smith, New Orleans, for defendant.
    Before REDMANN, C.J., WILLIAMS, J., and L. JULIAN SAMUEL, J. pro tern.
   REDMANN, Chief Judge.

We granted certiorari to review a ruling holding defendant not punishable as a second offender because the record of his earlier guilty plea lacked a sufficient showing that he was advised of his constitutional rights as required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed. 274 (1969), and State v. Bolton, 379 So.2d 722, 723 (La.1979). We now reverse.

Having noted his view that the colloquy between the first judge and defendant at the time of the earlier plea was not by itself sufficient, the trial judge expressed his “own personal feeling that the plea form ... sets forth all of the requirements of Boykinization .... It is my personal feeling that this form ... is sufficient for a Boykinization, but the Louisiana Supreme Court has ruled that unless the Judge personally in a colloquy between the Court and the defendant sets forth those certain rights, that the Boykin is not proper. I respectfully disagree with the Supreme Court, but I am mandated to follow the Supreme Court.”

Apparently the trial judge referred to State v. Bolton, 379 So.2d 722 (La.1979), which at 723 declared that, as to pleas at the date of ours, the state must “affirmatively show through (only) a contemporaneously recorded transcript that the plea was voluntary and made with an awareness of its consequences.” (Parenthetical “only” in original.) The trial judge apparently reads that language to require a Boykiniz-ing judge’s own words during the colloquy to be letter-perfect, without any reference to the plea form. We do not, so long as the affirmative showing required by Bolton is present. We conclude it is present in the colloquy, here partially reproduced with added emphasis:

Q. Do you swear that you have been advised of your Constitutional rights, that you have a right to trial by jury and if convicted, a right to appeal? A. Yes. Q. And that by pleading guilty to simple robbery you are waiving your right to trial by jury and appeal, and this is what you wish to do? A. Yes. Q. You are stating, under oath, that you are pleading guilty in this case because you are guilty of this crime, is that correct? A. Yes. Q. I have a plea of guilty form and waiver of constitutional rights and ask you, under oath, whether [defense counsel] Mr. McCurdy has explained this form to you, what this form is, has he explained it to you? A. Yes. Q. Are there any questions about it? A. No. Q. Has anybody forced you, or threatened you in any way to get you to sign this form or plead guilty in this case? A. No. BY THE COURT: The court orders the plea of guilty form into the record bearing the signature of the defendant, Mr. McCur-dy, the attorney of record, my signature and today’s date_ Q. Do you understand that by entering a plea of guilty you are waiving your right to trial, remain silent, testify in your behalf, call witnesses on your behalf and cross examine them against you? A. Yes. Q. Furthermore, the crime you are pleading guilty to is a felony and should you ever be guilty of a felony again this could be used to charge you as a multiple offender. Do you understand that? A. Yes.”

The form to which the judge referred, signed by defendant, his attorney and the judge, is titled "WAIVER OF CONSTITUTIONAL RIGHTS” and “PLEA OF GUILTY.” It is initialed by defendant at the end of each sentence, and includes:

“I understand that I have a right to trial and if convicted a right to appeal and by entering a plea of guilty in this case I am waiving my rights to trial and appeal.... I understand that by pleading guilty I am waiving my rights to confront and cross-examine the witnesses who accuse me of the crime charged, to compulsory process of the court to require witnesses to appear and testify for me, the privilege against self-incrimination or having to take the stand myself and testify .... I further understand that I am waiving my privilege against self incrimination and by pleading guilty I am in fact incriminating myself. I understand that if I elected to have a trial I have a right to have competent counsel to represent me at trial, and if I were unable to pay for counsel the Court would appoint competent counsel to represent me, but by entering the plea of guilty I am waiving these rights.”

It may be too technical a reading of the first judge’s colloquy to deem it inadequate to inform the defendant of the three rights specified by Boykin. Moreover, his oral recital of the rights, if arguably deficient, is strengthened by his discussion with defendant of the waiver form, his seeking assurance that defendant’s counsel had explained the form. And the form itself, then signed by defendant and his counsel and the judge, is not suggested to be deficient in its wording (although the form, if relied on without some colloquy, would apparently not satisfy Bolton.)

We hold that the quoted colloquy satisfies the requirements of Boykin and Bolton in establishing that defendant’s earlier plea of guilty was an informed and voluntary one, made with an awareness of its consequences.

The ruling of the trial court is reversed and the matter is remanded for further proceedings not inconsistent with this opinion.


text:
    LOUISIANA STATE LICENSING BOARD FOR CONTRACTORS v. Chris CEDOTAL and Glen Paul Cedotal.
    No. 84 CA 0859.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 21, 1984.

      Ferdinand J. Kleppner, Metairie, for plaintiff-appellant Louisiana State Licensing Bd. for Contractors.
    Donald F. Harang, Jr., Larose, for defendant-appellee Chris Cedotal and Glen Paul Cedotal.
    Before SAVOIE, LANIER and CRAIN, JJ.
   CRAIN, Judge.

Glen Paul Cedotal and Chris Cedotal (ap-pellees) filed a motion to dismiss this appeal from the denial of a preliminary injunction on the ground that the matter is moot.

The Louisiana State Licensing Board for Contractors (appellant) applied for an injunction to halt construction of a building on the basis that the builders-defendants were not licensed contractors. The suit requested no other relief.

The trial court initially issued a temporary restraining order but then denied a preliminary injunction. A devolutive appeal was taken from the denial of the preliminary injunction.

It is uncontested that the building has been completed. Appellees now seek to have the appeal dismissed as moot. Appellant objects, mainly on the basis that dismissal of the appeal would hinder its ability to enforce the regulations relative to unlicensed contractors.

When an appeal is taken from an order denying injunctive relief and the act sought to be enjoined is accomplished pending appeal, the appeal will be dismissed as moot. Sobolewski v. Brown, 405 So.2d 1254 (La. App. 4th Cir.1981). In such a case, the appeal court cannot issue a meaningful de-cisión. Advisory opinions will not be rendered. Cox v. Watts, 329 So.2d 917 (La. App. 1st Cir.1976).

For the foregoing reasons, the motion to dismiss the appeal is granted. All costs of this appeal are assessed to appellant.


author: LANIER, Judge.

text:
    Merlin BRISSET v. DEPARTMENT OF HEALTH AND HUMAN RESOURCES, OFFICE OF CHARITY HOSPITAL OF LOUISIANA AT NEW ORLEANS.
    No. CA 84 0236.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 25, 1984.

      L. Kevin Coleman, New Orleans, for appellant.
    Philip H. Kennedy, Staff Atty., Dept, of Health & Human Resources, New Orleans, for appellee.
    Robert R. Boland, Jr., Civil Service Legal Counsel, Dept, of State Civil Service, Baton Rouge, for Herbert L. Sumrall.
    Before SHORTESS, LANIER and CRAIN, JJ.
   LANIER, Judge.

Charity Hospital of Louisiana at New Orleans (CHNO) has moved to dismiss this appeal on the ground that the action has been abated by the death of appellant, Merlin Brisset.

FACTS

Merlin Brisset was employed by the Department of Health and Human Resources at CHNO as a hospital executive housekeeper. By memorandum dated March 22, 1983, Brisset was notified by his supervisor that because of his sick leave record from March 1982 through February 1983, he would be required to present a doctor’s certificate for all future instances of sick leave. This directive was made pursuant to CHNO’s leave policy. Brisset filed a pro se appeal from this action claiming the following:

(1) It is discriminatory in that other department heads are not required to produce a doctor’s certification when using sick leave.
(2) It is arbitrary and capricious in that CHNO leave Policy IV F requires that my supervisor notify me in writing that he has determined that I am abusing sick leave. I have never received such notice and affirmatively allege that no such was given.
(3) CHNO leave Policy IV F is contrary to the rules and regulations of the Civil Service Commission and viola-tive thereof as applied to me.
(4) It is a continuation of the actions of my immediate supervisors of the long-running conflict motivated by nonmerit factors as specifically found to be contrary to law by the Civil Service Commission in its decision No. 2064, Appeal of Merlin Brisset.

As relief, Brisset prayed that the memorandum be expunged from his personnel folder and destroyed; the appointing authority be enjoined from committing any further discriminatory acts; reasonable attorney fees be awarded for prosecution of the appeal; and he be awarded all general and equitable relief. CHNO filed a motion for summary disposition of Brisset’s appeal.

The Civil Service Commission referee ruled as a matter of law that Brisset had no right to appeal under Civil Service Rules 13.10(j) and (k) since Brisset was “not appealing an unsatisfactory service rating nor has he been subjected to any adverse action based solely on the grounds assigned for an unsatisfactory service rating.” The referee further found no disciplinary action had been taken against Bris-set; the appointing authority had not abused its discretion, granted by Civil Service Rule 11.14, by predicating the request for a doctor’s certificate on a pattern of “abusive” leave usage; and Brisset failed to allege specific facts in support of his claim of discrimination, as required by Civil Service Rule 13.11(d).

Based on these findings, the referee granted appellee’s motion for summary disposition. The referee also ordered that the memorandum be removed from Brisset’s official personnel folder as being inappropriate because no disciplinary action had been taken. However, the referee noted that her opinion did not prevent placing the memorandum in a productivity file maintained by Brisset’s supervisor.

Brisset filed an application for review of the referee’s decision which was denied by the Commission on December 23,1983. On that same day, Brisset filed another request for attorney fees with the Commission which was denied by the Commission as being untimely filed.

From the final decision of the Commission, Brisset took an appeal to this Court in which he raised the following assignments of error:

1. The Civil Service Commission was in error in denying appellants application for review of the decision of the referee.
2. The referee was in error in granting appellee’s request for summary disposition based on a finding that appellant applicant had no right to an appeal.
3. The referee was in error in holding that appellant had not been subjected to any adverse action.
4. The referee was in error in holding that the placement of the complained of memorandum in appellant’s official personnel records was merely ‘inappropriate,’ but nevertheless could be placed in a ‘productivity file maintained by appellant’s supervisor.’
5. The referee was in error in holding that appellant failed to allege specific facts in support of a conclusion of discrimination.
6. The Commission erred in finding applicant’s request for attorney’s fees untimely.

Brisset died on February 18, 1984, while the appeal was still pending before this Court. Pursuant to La.C.C.P. art. 801 and Rule 2-9, Uniform Rules — Courts of Appeal, Brisset’s heirs moved to substitute themselves as appellants. CHNO filed a motion to dismiss the appeal on the ground that Brisset’s action was strictly personal to him and abated upon his death. In opposition to the motion to dismiss, appellants argue that Brisset’s action is heritable because they have an interest m insuring that Brisset’s name remains untarnished and in the attorney fees requested by Brisset for the prosecution of the appeal.

ABATEMENT OF APPEAL

La.C.C.P. art. 428 provides for the abatement of an action upon death as follows:

An action does not abate on the death of a party. The only exception to this rule is an action to enforce a right or obligation which is strictly personal. (Emphasis added).

A strictly personal obligation is defined in La.C.C. art. 1997, in pertinent part, as follows:

An obligation is strictly personal, when none but the obligee can enforce the performance, or when it can be enforced only against the obligor.

Thus, the appeal should be dismissed only if the relief sought by Brisset was strictly personal to him.

The CHNO action about which Brisset complained was a memorandum requiring" him to justify all future instances of sick leave with a doctor’s certificate. The requirements of the memorandum affected only Brisset personally and abated with his death. Since the questioned memorandum only affected Brisset personally, the relief sought was strictly personal to Brisset and also abated on his death.

DECREE

For the foregoing reasons, the appeal herein abated with the death of the appellant and is dismissed at appellants’ costs.

APPEAL DISMISSED.

      . Paragraph IV(F) of CHNO’s leave policy provides as follows:
      Supervisors will review sick leavfc records of employees at least once each quarter to determine whether there is a pattern indicating excessive use of sick leave. Records of employees using sick leave immediately before or after weekends, holidays, or days off will be carefully examined. When the Department Head determines that any employee is abusing sick leave, he will notify the employee in writing of this determination and of the fact that further abuse may be cause for disciplinary action, denial of merit increases, or assignment of an unsatisfactory service rating. In addition, employees who have been determined to have abused sick leave may be required to submit a physician’s statement to support any future occasion of illness, regardless of length.

      . Civil Service Rules 13.10Q) and (k) provide for an appeal to the Commission by:
      (j) Any person seeking a review of a decision made by an appointing authority under the provisions of Rule 10.4.
      (k) Any person in the Classified Service who alleges that he has been demoted, dismissed, discriminated against, or subjected to any disciplinary action based solely on the grounds assigned for an unsatisfactory service rating.

      . Civil Service Rule 11.14 provides as follows:
      An employee who has taken sick leave shall file with his appointing authority a certificate stating the cause of his absence and the amount of time taken. The appointing authority may require a statement from a registered physician or some other acceptable proof that the employee was ill and unable to report to work.

      '. Civil Service Rule 13.35(c) provides:
      (c) No request for attorney’s fees will be considered after a final decision concerning the appeal or the disciplinary action that is the subject ¿hereof is rendered by the Commission or after a referee’s decision becomes the final decision of the Commission.

      (Emphasis added).
      The referee’s decision becomes the final decision of the Commission as of the date that the application for review is denied. La. Const, of 1974, art. X, § 12(A).


text:
    STATE of Louisiana v. William CHEVALIER.
    No. KA-1741.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 26, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Joanne C. Marier, Asst. Dist. Atty., New Orleans, for plaintiff-ap-pellee.
    Noland & Boasso, Gary W. Bizal, William Noland, New Orleans, for defendant-appellant.
    Before GULOTTA, LOBRANO and ARMSTRONG, JJ.
   ARMSTRONG, Judge.

On February 22,1983, defendant William Chevalier was indicted for first degree murder in connection with the stabbing death of Elmore Caliste. The defendant pleaded not guilty and not guilty by reason of insanity. Following trial by a jury of twelve, Chevalier was convicted of second degree murder. Accordingly, he was sentenced to serve a term of life imprisonment in the custody of the Louisiana Department of Corrections without probation, parole, or suspension of sentence.

The defendant now brings this appeal, seeking reversal of his conviction on ten assignments of error. We affirm.

For convenience of discussion, we shall immediately treat the last assignment.

ASSIGNMENT OF ERROR NO. 13

By this assignment, appellant contends that the prosecution failed to present sufficient evidence to support a conviction for second degree murder.

In reviewing the sufficiency of evidence to support a conviction, the appellate court must determine whether, viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Fuller, 414 So.2d 306 (La. 1982).

Viewing the evidence in a light most favorable to the prosecution, these are the salient facts:

It is not disputed that William Chevalier killed Elmore Caliste by stabbing him repeatedly on the morning of January 10, 1983.

At one time, Chevalier and Caliste had been good friends. They first became acquainted at Lafayette General Hospital in the mid-1970s. Caliste was recovering from an amputation of his left leg, and Chevalier was employed as an orderly. Sometime after discharge from the hospital, Caliste moved to New Orleans, and later, so did Chevalier. Their friendship continued, and in fact, they saw each other on a regular basis.

In April 1982, Caliste attended a small gathering at Chevalier’s house, accompanied by a young friend named Leward Marshall. Chevalier was introduced to Marshall and immediately “felt a very strong attraction” to him. Apparently the attraction was mutual because when Marshall returned to the house the next day, he asked Chevalier if he could live with him.

It is not clear from the record whether Marshall actually did move in with Chevalier; it suffices to say that despite the difference in their ages — Marshall was fourteen; Chevalier was thirty-seven — they soon developed an extraordinarily close friendship. Chevalier professed a great interest in Marshall’s education, and when the boy blamed his perpetual truancy on the lack of clothes to wear to school, Chevalier either bought the clothes or supplied the money for them.

In late December 1982, Chevalier broke the relationship and moved to Houston. His motive, so he explained at trial, was to spare Marshall the emotional hardship of being labelled a homosexual, a hardship which Chevalier himself knew well, having been in and out of psychiatric institutions since the early 1960s because of (as he put it) inability to deal with his sexual orientation. Chevalier was aware that the boy’s schoolmates had already tagged him as a “sissy”, and he thought the continuation of his relationship with Marshall would only further that perception among the boy’s peers.

Before leaving for Houston on December 19, 1982, Chevalier extracted Marshall’s promise to attend school regularly and to avoid Caliste, whom the defendant believed to be homosexual.

Late in the evening on January 9, 1982, Chevalier telephoned the home of a friend in New Orleans, expecting to find Marshall there. Upon being told that Marshall had been seen riding around town with Caliste, Chevalier went into a rage. In his words, “it was just like somebody struck me with a knife or a gun or something. It looked like my whole life drained out of me.” Tr. 172.

Shortly afterward, Chevalier penned this suicide note:

“Dear Momme:
Please find it in your heart to understand why I did this. I just couldn’t go on living and being hurt anymore. Right now while writing this letter I feel like my whole world is ended. I tried hard to be happy and still I couldn’t find it. All my life it’s been one hurt after another. I just can’t take it anymore. I know I hurt all of you by doing this but it was my only way out. I just couldn’t take it anymore. Maybe you can understand.
Why I had to do that lil boy the way I did, well, I just couldn’t let him get away with all the changes he put me through after all what I did for him and he let a stupid silly Bitch like Caliste tell him what to do. Well, if he lives through this He’ll always remember not to hurt anyone again. He will also never be able to have sex again. I’ll make sure of that.
Please bury me with my wig on. Pray for me for maybe I’m going to a better place.
Your mixed up son, Lee
I love you Millie and all my brothers and sisters.”

Chevalier boarded a late-night bus from Houston and arrived in New Orleans around 11:00 a.m. He went immediately to a dime store on Canal Street and bought a long kitchen knife, then travelled by public service bus to New Orleans East, where Caliste lived and where he hoped Marshall would be. Chevalier got off the bus at a transfer point and went into a Time-Saver, where he bought a half pint of vodka. At the next transfer point, he bought another.

The door to Caliste’s residence was open when Chevalier arrived. He entered and drew the knife. Seizing Marshall by the arm, the defendant put the knife to the boy’s neck and cut him. When Marshall struggled to get away, the defendant pushed him onto a pool table, stabbed him, then threw him across the sofa and stabbed him again. In all, Marshall was stabbed five times before he managed to escape from the house.

Marshall ran into the street, bleeding from the face and several other parts of his body. Briefly, he turned back toward the house. The defendant, however, was in the doorway yelling that he was going to kill Caliste, and in the next moments, Marshall heard the victim’s screams for help.

Marshall ran toward a neighbor and told her to call the police. Within a short time, Officer Roy D’Arcangelo arrived in a New Orleans Police squad car. He spoke to Marshall briefly, then approached the door of Caliste’s residence and knocked. After a minute or so, Chevalier appeared at the door and said, “Please come in, I just stabbed him.” Chevalier was immediately ordered out of the house and arrested; he was then advised of his rights and placed in the back of the squad car.

When the New Orleans Police homicide team arrived, they found Caliste’s body just inside the door. Signs of a struggle were everywhere: there were large amounts of blood throughout the living room; a broken knife blade lay across the room from the body, its matching knife handle near the body itself; a meat cleaver was on the floor several feet from the decedent, and another meat cleaver and a butcher knife were on the kitchen table; several cooking utensils and other knives lay scattered about the blood-smeared kitchen floor.

Caliste had received sixteen knife wounds, among them, a stab wound which fractured the cheek bone just below the eye. He also suffered several stab wounds of the chest and upper abdomen, the most severe of which had entered the lower portion of the left lung and cut a multiple small artery. This, the fatal stab, had caused an accumulation of approximately a quart of blood in the victim’s chest. Three wounds to the liver showed penetration to a depth of about one inch. On the palm of Caliste’s left hand and on his forearm were cuts which the coroner described as “defense-type” wounds, the kind that are usually inflicted when a person attempts to defend himself from a knife attack.

At 3:57 p.m., police transported Chevalier from the homicide scene to Charity Hospital. The defendant passed out in the accident room while awaiting treatment for slash wounds to his wrists. Apparently the vodka had taken its effect — hospital records indicate that Chevalier was intoxicated.

Following treatment at Charity Hospital, the defendant was transported to the New Orleans Police Homicide Bureau where he gave a statement to detectives. Although Chevalier did not confess the killing, he did admit that it was his intention to “make (Marshall) pay for what he did,” not by physically injuring him, but by scaring him with the knife. Chevalier also testified that it had been his intention to commit suicide in front of Marshall, hoping to arouse such guilt in Marshall that he too would kill himself.

La.R.S. 14:30.1 defines second degree murder, in pertinent part, as:

“the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm.”

Appellant contends that his conviction must be reversed under Jackson v. Virginia, supra, because the State failed to prove specific intent and failed to disprove his claim of self-defense.

Appellant argues that the only direct evidence of specific intent was Marshall’s testimony that just before the homicide, the defendant shouted, “I'm going to kill El”. Chevalier contends that since Marshall’s testimony concerning certain other issues was demonstrably false, it follows that his testimony must be disregarded in its entirety. Without Marshall’s testimony, appellant argues, the State’s evidence concerning Chevalier’s specific intent is purely circumstantial, because the only witnesses to the actual killing were the defendant and the victim themselves. (It should be remembered that Marshall had left the scene and did not actually see the killing). This circumstantial evidence, appellant contends, was incapable of disproving Chevalier’s claim that he killed Caliste in self-defense.

Appellant’s arguments are without merit. Jackson v. Virginia, supra, does not afford this court the occasion — much less, the jurisdiction — to question the credibility of witnesses.

Thus, we cannot question the credibility of Marshall’s testimony that the defendant shouted his intention to kill Caliste, and viewing that direct evidence of specific intent in a light most favorable to the prosecution, any rational juror could have found that, beyond a reasonable doubt, the defendant had formed the requisite intent to commit second degree murder.

With respect to the contention that the State failed to disprove the defendant’s claim of self-defense, it suffices to note that under La.R.S. 14:21, “[A] person who is the aggressor or who brings on a difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict.”

Without question, the defendant was the initial aggressor. Thus, even if we were to accept as true the defendant’s account of the events foliowing Marshall’s escape from the residence — that Chevalier simply closed the door and lay across the pool table, and that Caliste then attacked him with a knife — we could not recognize any right of self-defense asserted by the appellant. By his own admission, Chevalier continued to hold the knife even as he lay across the table. The appellant therefore cannot be said to have withdrawn from the conflict “in good faith and in such a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict.” La.R.S. 14:21.

Accordingly, we hold that appellant’s thirteenth assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 1

By this assignment, appellant contends that the trial court erred in not suppressing the inculpatory statement given by him to detectives at the homicide bureau. Chevalier maintains that he was intoxicated and extremely depressed when he gave the statement, and therefore, that the State did not prove his knowing and voluntary waiver of the rights announced in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). In seeking to overturn his conviction on these grounds, defendant relies upon the testimony of a former coworker, who stated that upon admission to the accident room at Charity Hospital, Chevalier appeared to be quite disoriented and that he, in fact, passed out. The hospital record reveals that Chevalier was intoxicated when he was admitted at 3:57 p.m. on the day of the killing.

The State has the burden to prove beyond a reasonable doubt that the defendant's statement was freely and voluntarily given. State v. Benoit, 440 So.2d 129 (La. 1983); State v. Burkhalter, 428 So.2d 449 (La.1983); La.R.S. 15:451. Where the accused is in custody, the prerequisite to the admissibility of a confession or inculpatory statement is the advising of the accused of his constitutional rights and his intelligent waiver of those rights. Miranda v. Arizona, supra.

Diminished mental capacity does not of itself vitiate the ability to knowingly and intelligently waive constitutional rights and to make a free and voluntary confession. The critical inquiry is whether, despite his diminished capacity, the defendant possessed sufficient understanding, such that his waiver of Miranda rights was truly voluntary. State v. Benoit, supra; State v. Lindsey, 404 So.2d 466 (La.1981); State v. Anderson, 379 So.2d 735 (La.1980).

The trial court’s determination that a defendant’s statement was free and voluntary is entitled to considerable deference by the appellate courts, and will not be disturbed on review unless unsupported by the evidence. State v. Harper, 430 So.2d 627 (La.1983); State v. Burkhalter, 428 So.2d 449 (La.1983).

In the present case, there is no serious dispute that the defendant was twice informed of his Miranda rights while in custody at the homicide bureau. The only question is whether Chevalier sufficiently understood his rights so as to permit a voluntary waiver.

At the hearing of the motion to suppress and at trial, both officers who interrogated Chevalier testified that at the time his statement was taken (5:30 p.m.), the defendant did not appear to be under the influence of alcohol. Both officers stated under oath that when the defendant was asked whether he understood his rights, he indicated that he did.

The officers’ testimony is corroborated by a typed transcript and an audio tape which record the interrogation from beginning to end. We note that the text of Chevalier’s statement reveals him to have been lucid and responsive to the officers questions. At no point did the defendant’s former co-worker testify that the defendant was intoxicated, and the hospital record is silent as to the degree of Chevalier’s intoxication. In view of this, and the fact that the interrogation did not begin until 5:30 p.m. (more than an hour and a half after defendant’s admission to Charity Hospital), the trial court’s finding that the defendant possessed sufficient understanding to voluntarily waive his Miranda rights is supported by the record, and thus will not be disturbed.

Defendant also contends that his statement should have been suppressed because at no time during the giving of the statement did the officers advise him that his earlier waiver was not absolute and that he could terminate the questioning at anytime.

Miranda does not require as much. Chevalier was advised of his rights three times prior to questioning—once at the scene and twice at the homicide office. Nothing said or done by the interrogators gave any cause to believe that the rights formerly waived could not be re-asserted.

Appellant’s Assignment No. 1 lacks merit.

ASSIGNMENTS OF ERROR NOS. 2 and 6

By these assignments, appellant challenges the constitutionality of La.C.Cr.P. Art. 905.1 A, which requires that in a capital case, the sentencing hearing shall be conducted before the same jury that determined the issue of guilt.

Appellant also contends that the trial court committed reversible error by excusing “for cause” certain jurors who stated that they could not, under any circumstances, impose the death penalty. Appellant maintains that a “death qualified” jury denies an accused a fair cross-section of the community, and that such juries are necessarily predisposed toward finding the defendant guilty.

Article 798 of the Code of Criminal Procedure provides in part:

It is good cause for challenge on the part of the State, but not on the part of the defendant, that:
(2) The juror tendered in a capital case who has conscientious scruples against the infliction of capital punishment and makes it unmistakably clear (a) that he would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before him, or (b) that his attitude toward the death penalty would prevent him from making an impartial decision as to the defendant’s guilt.

In Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), it was held that there is no constitutional bar to the exclusion of prospective jurors who would automatically vote against imposing capital punishment regardless of the evidence adduced at trial. Witherspoon remains the law of the federal courts, see Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980) and of this State. See State v. Jackson, 450 So.2d 621 (La.1984).

Moreover, the appellant has no ground for complaint because the State used fewer than the twelve peremptory challenges to which it was entitled, La. Code Crim.Pro. Art. 800, and because the defendant by the jury’s verdict was insulated from the death penalty. See State v. Jackson, supra; State v. George, 371 So.2d 762 (La.1979), cert. den., 444 U.S. 953, 100 S.Ct. 430, 62 L.Ed.2d 325 (1979).

This assignment is without merit.

ASSIGNMENT OF ERROR NOS. 3 and 4

By these assignments, appellant contends that the trial court erred in denying defense counsel’s motion for individual voir dire and sequestration of prospective jury members.

Appellant acknowledges that the scope and conduct of voir dire is within the sound discretion of the trial judge and that his rulings in such matters will not be disturbed absent an abuse of that discretion. State v. Kirkpatrick, 443 So.2d 546 (La.1983); State v. Watson, 423 So.2d 1130 (La.1982); State v. Jordan, 420 So.2d 420 (La.1982). Appellant also concedes that although individual voir dire may be permitted by the trial judge, it is the defendant who bears the burden to demonstrate that special circumstances warrant such procedure.

Appellant argues that this ease presented such special circumstances that the trial court’s refusal to order individual voir dire and sequestration constituted an abuse of discretion. The special circumstances alleged are the defendant’s exposure to the death penalty and the unusually sensitive nature of the case itself, which at least implied a homosexual relationship between the thirty-eight year-old defendant and a fourteen-year-old boy.

The jury did not return a verdict of first degree murder in this case. The special circumstances of Chevalier’s exposure to the death penalty were therefore removed as a ground upon which to challenge the trial court’s ruling. State v. Penns, 407 So.2d 678 (La.1981).

Moreover, the facts of this case do not present such “special circumstances” as to provide ground for reversal, and considering that the evidence adduced at trial abundantly proved the elements of first degree murder, it cannot be argued seriously that the jury which found the defendant guilty of a lesser charge was selected by a prejudicial method.

This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 5

By this assignment, appellant contends that the trial court abused its discretion in failing to excuse a juror whom defense counsel had challenged for cause.

During voir dire, the court heard the following exchange between defense counsel and prospective juror Talmage Moses:

BY MR. NOLAND:
Do any of you have members of your family who are either in police or law enforcement or security guard service or anything like that?
BY JUROR NO. 251, TALMAGE MOSES:
My daughter is a policewoman.
BY MR. NOLAND:
Where does she work?
BY JUROR NO. 251, TALMAGE MOSES:
In Orleans Parish.
BY MR. NOLAND:
Now—
BY JUROR NO. 251, TALMAGE MOSES:
The Third District.
BY MR. NOLAND:
Now, we are going to have some testimony from both — we call them police officers and civilians in this matter. Is the fact that your daughter is a police officer, would that fact perhaps, be is consciously or subconsciously, sway you in believing the testimony of a police officer, say, when that testimony was in conflict with a civilian? Do you understand what I'm saying? If two people get on the stand, and they tell a different story about the same thing, and one of them is a police officer and one of them is not a police officer, would you automatically tend to believe the police officer in that, in those circumstances?
BY JUROR NO. 251, TALMAGE MOSES:
(Nods affirmatively)
BY MR. NOLAND:
You would? And would that be because of your relationship with your daughter?
BY JUROR NO. 251, TALMAGE MOSES:
No.
BY MR. NOLAND:
Why would you believe the police officer over the civilian?
BY JUROR NO. 251, TALMAGE MOSES:
(Inaudible)
BY THE COURT:
I can't hear you, sir. What is that? BY JUROR NO. 251, TALMAGE MOSES:
He inspected what went on.
BY MR. NOLAND:
Okay. So you would, in fact, take the word of a police officer over a nonpol-ice officer if there was a conflict; is that correct?
BY JUROR NO. 251, TALMAGE MOSES:
(Nods affirmatively)

There was no further questioning of this juror by the defense. When defense counsel moved to excuse the juror for cause, the trial court denied the challenge for failure to establish a sufficient predicate. Defense counsel noted an objection, at which time the court afforded the defense an opportunity to pursue the matter further. Defense counsel rejected that opportunity and excused the juror peremptorily.

Appellant contends that the trial court’s failure to excuse the juror for cause requires reversal of the conviction.

We disagree. The determination of the qualifications of a juror is within the sound discretion of the trial judge. Only when his exercise of discretion is arbitrary and unreasonable, to the prejudicial injury of the defendant in obtaining a fair and impartial trial, will appellate courts be warranted in setting aside a verdict. State v. Johnson, 324 So.2d 349 (La.1975); State v. Johnson, 263 La. 462, 268 So.2d 620 (1972).

It is true, as defendant asserts, that “a juror who will unquestioningly credit the testimony of law enforcement officers over that of defense witnesses is incompetent to serve”. State v. Davenport, 445 So.2d 1190 (La.1984), State v. Nolan, 341 So.2d 885 (La. 1977); State v. Jones, 282 So.2d 422 (La.1973). It is equally true, however, that jurors who initially voice some inclination to give more credence to policemen because they are trained observers are not automatically unqualified to sit as jurors. State v. Baldwin, 388 So.2d 664 (La. 1980).

In the present case, the juror affirmed that he would “automatically tend to believe the police officer” rather than a layman because “he (the police officer) inspected what went on.” But, as Baldwin stated, “[t]his does not imply that he would therefore accept their testimony without question”. Id. at 671.

In numerous other cases, it has been held that an initial showing of a jur- or’s bias toward police testimony does not prove fatal to a juror’s competence, unless it is also shown that such initial bias is irremediable, that is, of such force as to prevent the juror from listening to the evidence and rendering a fair trial. State v. Allen, 380 So.2d 28 (La.1980); State v. Senette, 355 So.2d 923 (La. 1978); State v. Nolan, 341 So.2d 885 (La.1977); State v. Governor, 331 So.2d 443 (La.1976); State v. Johnson, 324 So.2d 349 (La.1975). In the present ease, the second of these elements was not shown, and thus, we cannot say that the trial court abused its discretion in refusing to excuse the juror for cause.

In so holding, we have noted the defendant’s reliance upon State v. Jones, 282 So.2d 422 (La.1973), and have concluded that it is distinguishable from the case at bar. There, through questioning that was far more exhaustive than that in the present case, the defense and prosecution revealed not merely the juror’s initial inclination to favor police testimony, but his firm commitment to unquestioningly accept such testimony over that of a layman. Ultimately, the juror stated, “In any fact I would go along with the policeman’s testimony.” Id. at 431.

In contrast to the thoroughly revealing responses of the prospective juror in Jones, the juror in the present case merely nodded approval to two leading questions propounded by defense counsel. Quite clearly, the trial judge did not believe that those responses showed an irrevocable commitment on the part of the juror to unquestioningly accept police testimony. Defense counsel rejected the trial court’s suggestion to continue interrogation of the juror. We cannot say, on the basis of the record before us, that the trial judge abused his discretion in denying the defendant’s challenge for cause.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 7

By this assignment, appellant contends that the trial court erred in restricting defense counsel’s voir dire of prospective jurors.

Appellant’s assignment arises in this context:

During voir dire, a certain juror stated to the prosecutor that, because of long-held beliefs, she could not vote for the death penalty, regardless of what the evidence might be. The prosecutor then challenged the juror for cause. When defense counsel attempted to rehabilitate, his questions were aimed at eliciting the juror’s understanding of the indictment. The trial court directed defense counsel to go to the heart of the matter — the juror’s ability (or lack of it) to impose the death penalty under legally appropriate circumstances. Defense counsel objected to the court’s limitation of voir dire. The trial judge responded that he was not limiting defense counsel’s voir dire, and, in fact, he exhorted defense counsel to pursue questioning of the juror. Defense counsel declined.

We find in the foregoing facts no reason to hold that the trial court unreasonably limited the scope of voir dire.

This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 9

By this assignment, appellant contends that the trial court erred in admitting into evidence the proces verbal without authentication by the preparer of that document. Chevalier argues that without such authentication, its introduction into evidence constitutes a denial of the Sixth Amendment right to confront witnesses.

In the present case, Dr. Monroe Samuels (Chief Consulting Pathologist of the Orleans Parish Coroner’s Office) performed the autopsy of Elmore Caliste, identified the proces verbal as having been prepared by the Coroner’s Office, reviewed the proc-es verbal, and confirmed its findings with respect to the cause of death.

Dr. Samuels’ identification of the proces verbal as having been prepared by his office was sufficient authentication, and under La.Code Crim.Pro. Art. 105, the coroner’s proces verbal is excepted from the hearsay rule and is admissible in evidence as proof of death and the cause thereof. State v. Kelly, 375 So.2d 1344 (La.1979).

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 12

By this assignment, appellant contends that the trial court erred in refusing a fatigued juror’s request to recess deliberation until the following day.

The trial record contains no verification that a juror requested a recess because of fatigue, nor does the record reveal that the defendant objected to the trial court’s refusal to grant the recess.

In any event, we find no error in the trial judge’s decision to have the jury proceed with deliberation. The minute entries show that the second day of trial began at 9:27 a.m. and that the jury recessed for a lunch break between 1:30 and 2:35 p.m. There followed two other breaks, the first from 4:00 p.m. until 4:25 p.m., and the second, from 6:30 p.m. until 7:15 p.m: The jury retired to deliberate at 9:54 p.m. and returned its verdict at 1:05 a.m.

We find nothing in the facts — even as alleged by the appellant — to warrant the conclusion that the trial judge abused his • discretion in refusing to recess the deliberations. The record reveals that the defendant was accorded a full and fair trial.

This assignment of error lacks merit.

CONCLUSION

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

AFFIRMED.

      . Assignments of error numbers 8, 10, and 11 were not briefed and are therefore deemed abandoned by the appellant. State v. Washington, 430 So.2d 641 (La.1983); State v. Joseph, 425 So.2d 1261 (La.1983).

      . When a Louisiana appellate court reviews a conviction for sufficiency of evidence under Jackson v. Virginia, supra, it conducts a legal inquiry, not a factual one, State v. Moran, 400 So.2d 1359 (La.1981); and since our appellate jurisdiction does not extend to questions of fact, neither does it allow us to weigh the credibility of witnesses. La. Const. Article 5, § 5(C) (1974); State v. Richardson, 425 So.2d 1228 (La.1983).

      . La.R.S. 14:30 provides, in part:
      First degree murder is the killing of a human being:

      (3) when the offender has a specific intent to kill or to inflict great bodily harm upon more than one person.


author: KLEES, Judge.

text:
    STATE of Louisiana v. Donald CRAWFORD.
    No. KA-1882.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 28, 1984.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Joanne C. Marier, Asst. Dist. Atty., New Orleans, for plaintiff-ap-pellee State of La.
    Dennis J. Dannel, New Orleans, for defendant-appellant Donald Crawford.
    Before REDMANN, C.J., and KLEES and WILLIAMS, JJ.
   KLEES, Judge.

On January 25, 1983, appellant Donald Crawford; was charged with possession of pentazocine with intent to distribute in violation of R.S. 40:967.’ He was arraigned on February 3rd and pled not guilty. On June 22nd, a twelve-member jury found him guilty as charged. On July 6, 1983, he was sentenced to serve four years at hard labor without benefit of parole, probation, or suspension of sentence. His Motion for Appeal was filed on that date.

FACTS:

At approximately 8:00 p.m. on the evening of January 12, 1983, Officers Joanos and Fascio of the N.O.P.D. narcotics division set up surveillance in the 6400 block of St. Claude Avenue. They saw the defendant, Donald Crawford, standing on the sidewalk. The officers observed a black and yellow vehicle pull up to Crawford. Crawford spoke briefly to the passenger of the vehicle and then walked about thirty feet to a tree. Crawford bent down to the tree’s base, fumbled with an object at the tree’s base, and then stood up and walked back to the vehicle. After Crawford had reached the vehicle, it drove away from the scene. Approximately ten to fifteen minutes later, the officers observed a man walk up to Crawford and converse briefly with him. Again, the officers saw Crawford walk to the tree, fumble with something at its base, pick up an object, and return to the man. They observed Crawford exchange the object for currency, which he put in his right pocket. The other man walked away from the scene. Approximately ten minutes after this, the officers observed a pick-up truck pull up to Crawford. Crawford spoke briefly with the passenger of the truck and then walked up to the tree and fumbled with something at its base. Crawford walked back to the truck, which subsequently drove from the scene.

The officers then observed the defendant begin to walk from the scene. They testified that they lost view of Crawford for about thirty or forty-five seconds. They pulled out onto St. Claude Avenue and noticed that Crawford had returned to the place where he had been standing. The officers pulled up to Crawford, ordered him to stop, and one officer frisked him. The other officer retrieved from the base of the tree a dark cloth drawstring bag which contained six tinfoil packets each holding a pink/beige pill, later found to be pentazo-cine, and a blue pill described as a “non-violation drug.” Crawford was then arrested.

The officers testified that they did not observe anyone else approach the tree. They observed only one other person in the area, a man with pock-marks on his face who appeared to be blind in one eye, but a search of him revealed no drugs or money. One officer testified that he used binoculars to observe the transactions, and although he could not clearly distinguish Crawford’s face, his clothes, build, and coloring matched those of the only man the officers had observed going to the tree. Although night had fallen, the scene of the transaction was well-lit.

The defendant, Donald Crawford, testified that on the night of his arrest he was drinking in Shirley’s Bar at the corner of St. Claude Avenue and Delery Street. He testified he left the bar sometime between 9:00 and 9:30 p.m., and ran into a man with “bumps” on his face. The man asked him a question, and then a police officer approached Crawford and ordered him to follow him. Crawford was placed under arrest and searched. Crawford denied meeting anyone on the street, putting the drugs under the tree, or even going near the tree. He maintained that another man (“Butsie”) was also in the area at the time and that this man was a known drug dealer.

Errors Patent

A review of the record reveals there are no errors patent.

Assignments of Error

By his first assignment of error, the appellant contends that there was insufficient evidence to support his conviction for possession with intent to distribute pentazo-cine. Specifically, he alleges that the fact that the officers could not clearly distinguish his face and momentarily lost sight of him created enough doubt as to whether he was the man the officers had observed to render the guilty verdict against him invalid.

In its review of the sufficiency to support a defendant’s conviction, this court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Fuller, 414 So.2d 306 (La. 1982). Where the conviction is based upon circumstantial evidence, R.S. 15:438 provides that such evidence must exclude every reasonable hypothesis of innocence. State v. Camp, 446 So.2d 1207 (La.1984); State v. Wright, 445 So.2d 1198 (La.1984).

Here, the officers observed a man matching the appellant’s description, coloring, and build removing an object from the base of a tree where pentazocine was found. He was observed passing something he obtained from the tree base to one man in exchange for currency. The officers observed no one else near the tree. The officers did not get a clear look at the man’s face and momentarily lost sight of him. However, he was out of their sight for less than one minute and the appellant’s build, clothes, and coloring matched the man they saw fumbling at the base of the tree where the drugs were found. Although a search of the appellant revealed no money, the jury could well have adduced that the appellant somehow disposed of his money during the time he was out of the officers’ sight. Thus, viewing the evidence in the light most favorable to the prosecution, the jury could well have excluded the possibility that the appellant was not the man who had control of the drugs and who exchanged an object from under the tree for currency. By so doing, the jury could well have found the appellant guilty of possession with intent to distribute pentazocine beyond a reasonable doubt. State v. Sharp, 414 So.2d 752 (La.1982). This assignment is without merit.

By his second assignment of error, the appellant contends that the trial court erred by permitting the State to present evidence of other crimes in contravention of C.Cr.P. art. 770. He does not specify when this evidence was presented nor of what it consisted. The only possible reference to “another crime” to which the appellant objected appears to have occurred during the State’s closing argument with the prosecutor’s reference to the appellant “selling drugs.” Both times the defense attorney objected and requested a mistrial, which was denied by the court. Apparent- , ly, the basis of the appellant’s contention is that he was charged with possession with intent to distribute pentazocine, not with the sale of pentazocine, and as such the reference to his selling drugs was a reference to another crime.

Article 770 of the Code of Criminal Procedure mandates the granting of a mistrial upon a prosecutor’s reference to, among other things, “another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible.” However, here the instances of “selling” pentazocine were part of the res gestae of the crime charged, possession with intent to distribute pentazocine. They were references to the events which comprised the crime charged, not to totally alien events. As such, these references were not prohibited by art. 770, and the trial court did not err by refusing to grant the appellant’s motion for mistrial on this issue. This assignment is without merit.

Accordingly, for the reasons expressed above, appellant's conviction and sentence are hereby AFFIRMED.

AFFIRMED.