author: JASPER E. JONES, Judge.

text:
    STATE of Louisiana, Appellee, v. Dan JOHNSON, Appellant.
    No. 16296-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 1984.
    Writ Denied Nov. 16, 1984.

      Smith & Hingle by J. Randolph Smith, Monroe, for appellant.

      William J. Guste, Jr., Baton Rouge, Atty. Gen., Johnny Parkerson, Dist. Atty., Michael Fontenot, Asst. Dist. Atty., Monroe, for appellee.
    Before MARVIN, JONES and NORRIS, JJ.
   JASPER E. JONES, Judge.

The defendant, Dan Johnson, was found guilty after a bench trial of simple burglary in violation of LSA-R.S. 14:62 and of unauthorized use of a movable having a value of over $1,000.00 in violation of LSA-R.S. 14:6s. The trial judge sentenced defendant to nine years and nine months at hard labor on the burglary conviction and to eighteen months at hard labor on the unauthorized use conviction with the sentences to run concurrently. Defendant appeals his convictions and sentences relying on seven assignments of error. We affirm.

FACTS

On Monday morning, November 8, 1982, an employee of Tri-State Delta Chemicals, Inc. found evidence that the fenced compound housing the company had been illegally entered over the weekend. An inspection of the compound revealed that the office building and a warehouse building had been broken into and a 10-wheeler truck was missing from the yard. An inventory of the contents of the warehouse was subsequently taken and it was discovered that agricultural chemicals valued at over $200,000.00 were missing.

The investigation of the incident led deputies Monroe Hilton, Jr. and Richard Me-daries of the Ouachita Parish Sheriffs department to Mississippi. There the truck and most of the missing chemicals were recovered and a number of arrests were made. Defendant’s brother, Robert Johnson, was one of those persons arrested. Robert gave a statement to Deputy Hilton implicating defendant in the offenses. This information was relayed to Ouachita Parish authorities and a warrant was issued for defendant’s arrest on November 19, 1982. Hilton and Medaries, who were in Mississippi, were informed by telephone and teletype that the warrant had been issued.

Defendant was arrested later the same day near his home in Tutwiler, Mississippi by Hilton, Mississippi Highway Patrolman Jimmy Dees and Chief Deputy Doyle Morrow of the Tallahatchie County, Mississippi Sheriff’s Department. A copy of the arrest warrant was not shown to defendant at the time of his arrest but the officers read him his Miranda rights. Defendant was subsequently taken to the Tallahatchie County jail in Sumner, Mississippi. When defendant arrived at the jail he was questioned by Hilton and Medaries after he was again advised of his rights and after he signed a waiver of rights form. On this occasion defendant gave an exculpatory statement.

On December 6, 1982 defendant, while still in jail, sent for Dees and Morrow indicating he was prepared to make a statement. Before taking the statement the officers again advised defendant of his rights and had him sign a waiver of rights form. Defendant gave a full confession which was recorded by the officers.

On this occasion defendant admitted that he actively participated in the planning and commission of the offenses. He stated he and his accomplices held several meetings to discuss their plans and on one occasion, several days before committing the crime, he and two other men made a trip to Monroe to inspect the chemical company. Defendant also stated that the missing truck had been used to transport the chemicals to Mississippi.

A short time after giving the confession defendant signed a waiver of extradition form. Later the same day he asked Morrow for some paper so he could write the facts about the commission of the crimes in order to get them correct. Morrow supplied the paper but did not give defendant Miranda warnings prior to doing so. The next day defendant handed Morrow an eighteen page written statement in which he detailed his entire involvement in the offenses. Morrow accepted the statement without giving defendant Miranda warnings but he did have defendant sign each page of the written confession. Morrow also signed and dated each page then locked the statement in his desk.

Upon being informed of defendant’s confession and his waiver of extradition Hilton and Medaries went to Mississippi to take custody of defendant and transport him to Monroe. They arrived in Sumner on the morning of December 8, 1982. When they arrived in Sumner, Morrow supplied them with the recorded and written statements, the waiver of rights form signed by defendant and the waiver of extradition form. They brought defendant to Monroe the same day. Upon arriving in Monroe they questioned defendant. Before doing so they read defendant his rights and had him sign another waiver of rights form. Defendant repeated his earlier confessions. This statement was recorded.

Prior to trial defendant filed numerous motions including a motion to suppress the three confessions and the waiver of rights forms he signed in connection with them. After a hearing on the motion to suppress, it was denied.

Assignment No. 1

By this assignment defendant contends the trial court erred in denying his motion to suppress the confessions and waiver of rights forms. He argues this evidence should have been suppressed because: (A) his arrest was illegal; (B) he confessed under the influence of threats and promises made by the various officers taking the statements; and (C) he was given no Miranda warnings in connection with the written statement.

A

Defendant argues his arrest was illegal because it was not based on probable cause.

A confession or inculpatory statement, which is the direct result of an illegal arrest, should be suppressed. State v. Rebstock, 418 So.2d 1306 (La.1982); State v. Edwards, 375 So.2d 1365 (La.1979); State v. Giovanni, 375 So.2d 1360 (La.1979). A lawful arrest, whether warrant-less or pursuant to a warrant, must be based upon probable cause. State v. Serrato, 424 So.2d 214 (La.1982); State v. Leatherwood, 411 So.2d 29 (La.1982).

The applicable standard for determining when an arrest warrant is based on probable cause was set out by the supreme court in State v. Rodrigue, 437 So.2d 830 (La.1983) as follows:

Probable cause for an arrest exists when the facts and circumstances, of which the police have reasonably reliable information, justify the belief that the person to be arrested has committed a crime. The magistrate may issue an arrest warrant based on the facts and circumstances asserted in the affidavit, as well as those asserted verbally by the officer at the time the warrant is obtained. State v. Haynie, 395 So.2d 669 (La.1981).
The process of determining probable cause for the issuance of search and arrest warrants does not involve certainties or proof beyond a reasonable doubt, or even a prima facie showing, but rather involves probabilities of human behavior, as understood by persons trained in law enforcement and as based on the totality of circumstances. See Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). The process simply requires that enough information be presented to the issuing magistrate to enable him to determine that the charges are not capricious and are sufficiently supported to justify bringing into play the further steps of the criminal justice system. Jaben v. United States, 381 U.S. 214, 85 S.Ct. 1365, 14 L.Ed.2d 345 (1965).
Furthermore, this case involves the review of a magistrate’s determination of probable cause prior to issuing the warrant. Such a determination is entitled to significant deference by reviewing courts. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). As the Supreme Court stated in Gates “after-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review.” 462 U.S. at -, 103 S.Ct. at 2331. Additionally, because of “the preference to be accorded to warrants”, marginal cases should be resolved in favor of a finding that the issuing magistrate’s judgment was reasonable. United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965). (footnotes omitted).

Whenever the information contained in the affidavit is supplied to the officer by a third person the underlying credibility of that person must be established. Credibility is to be determined from the totality of circumstances. State v. Brooks, 452 So.2d 149 (La.1984); State v. Morace, 446 So.2d 1274 (La.App.2d Cir.1984).

The affidavit from which the arrest warrant was issued states that defendant committed theft of the farm chemicals and truck or in the alternative he received and concealed the chemicals and the truck under such circumstances that he knew or had good reason to believe them to be the subject of a theft. The affidavit contains the following information relevant to the charges:

On the morning of November 8, 1982, Jack Holloway reported a burglary at Tri-State Chemical Company, Ouachita Parish. Taken was $204,000 worth of farm chemicals and a 1981 bobtail truck, valued at $50,000.00. On November 9, 1982, the 1981 International truck was recovered near Batesville, Mississippi empty of its contents. Subsequent investigation has resulted in the arrest of one Robert Johnson, black male, DOB: 6/21/62 of Rt. 1 Box 155, Tutwiler, Miss. This subject was charged by the St. Landry Parish Sheriff’s Department with felony receiving of stolen property with bond being set at $100,000.00; this subject is presently incarcerated in the Talla-hatchie County Sheriff’s Office, Sumner, Mississippi, awaiting extradition. Robert Johnson has subsequently given a recorded statement to Dy. Monroe Hilton of the Ouachita Parish Sheriff’s Department, who related to affiant that Robert Johnson stated he and his brother Dan livved (sic) together in the same residence. That Dan Johnson did not come home during the night of November 7, 1982; Dan Johnson came home 8:00 to 9:00 A:M. on Monday, November 8. At this time he asked his brother Robert to go with him to Clarksdale, Mississippi to rent a U-Haul truck and that he, Dan would pay Robert to help him unload some chemicals. Dan and Robert Johnson went to The Hardluck Hunting Club located on the Tallaha Road east of Charleston, Mississippi; upon arrival there, they were met by a white male who was introduced as Billy Ray Ford. Robert states Billy Ray Ford and Dan Johnson inventoried the contents of a large International truck which was parked behind the hunting club; he states after the inventory, that he and his brother, Dan swapped the load of chemicals from the International truck to the U-Haul rental truck. After the load was swapped, Robert Johnson left this location leaving his brother Dan and Billy Ray Ford in possession of the chemicals. Robert further states that he and his brother Dan on Thursday, November 11, went to Clarksdale, Mississippi where he rented another Ford rental truck; he states that he and Dan then met with Earl Williams a black male, south of Matson, Mississippi on Miss. Hwy. 49. At this time, the three went to the residence of A.C. Johnson in Coahoma County where all the chemicals were loaded onto the second rental ruck (sic). He further states that on that date, that Dan and Earl Williams started toward Louisiana in the rental truck and they were followed by a Lee Arthur Martin a black male and this is the last that he saw of them. On November 18, 1982, additional chemicals were recovered from a storage building on the property of A.C. Johnson by the Ouachita Parish Sheriffs Department and the Mississippi Highway Patrol; these chemicals have been positively identified as having come from the Tri-State Chemical burglary.

This information is sufficient to justify a belief that defendant at least committed the offense of receiving stolen property. Robert Johnson’s credibility is established by the fact that he is defendant’s brother and lives with defendant and by the fact some of the chemicals were recovered from a place Robert said they had been stored. The totality of the circumstances establish there was probable cause for the issuance of the warrant and for defendant’s arrest.

B

Defendant contends he would not have confessed in the absence of certain threats and promises made by the officers taking his statement. He contends the officers threatened to do him physical harm and to see that he received the maximum possible sentence if he did not confess. He also states the officers promised to let him go free if he helped them make a case against other men involved in the offenses.

Before a confession can be introduced into evidence, the state has the burden of affirmatively proving that it was free and voluntary and not made under the influence of fear, duress, menaces, threats, inducements or promises. LSA-R.S. 15:451; LSA-C.Cr.P. art. 703. The admissibility of a confession is in the first instance a question for the trial judge. His conclusions on the credibility and weight of testimony relating to the voluntariness of a confession will not be overturned on appeal unless they are not supported by the evidence. State v. Sonnier, 379 So.2d 1336 (La.1979); State v. Perry, 420 So.2d 139 (La.1982); State v. Broadway, 440 So.2d 828 (La.App.2d Cir.1983).

At the hearing on the motion to suppress defendant presented no evidence to corroborate his testimony that the threats and promises were made. The four officers involved all testified they made no threats or promises to defendant and denied defendant’s specific allegations of threats and promises. We find no error in the trial court’s determination that the confessions were free and voluntary and not made under the influence of threats and promises.

C

The record indicates that defendant freely and voluntarily gave the written confession and that the confession was not given in response to police interrogation or any other compelling influence. Such statements are admissible in evidence in the absence of Miranda warnings. State v. Smith, 407 So.2d 652 (La.1981); State v. Robinson, 384 So.2d 332 (La.1980); State v. George, 371 So.2d 762 (La.1979).

This assignment of error lacks merit.

Assignments No. 2 and 3

By these assignments defendant contends the trial court erred in admitting state’s exhibits S-6 through S-14b into evidence and in permitting the witness who prepared exhibit S-6 to testify as to the contents of the exhibit.

Exhibit S-6 is a list of the chemicals taken during the burglary of the Tri-State warehouse. The value of the chemicals are shown on the list. It was admitted in connection with the testimony of Ms. Jacqueline Holloway, the bookkeeper for TriState. Ms. Holloway testified that she compiled the list from the inventory taken of the warehouse after the burglary was discovered. She was present in the warehouse off and' on during the taking of the inventory. She stated that she prepared and maintained in her office a continuous running inventory of the contents of the warehouse and that she was able to determine what was missing by comparing the information she received from the persons taking the physical inventory with the running inventory contained in her office. She determined the value of the missing items by looking at invoices from Tri-State’s suppliers.

Defendant contends the list is inadmissible hearsay because Ms. Holloway did not personally take the physical inventory. It was taken by other persons who supplied their findings to Ms. Holloway and she compiled the list from this information. Although the list itself as compiled by Ms. Holloway is hearsay, the supreme court has held that such a list is admissible under the business records exception to the hearsay rule. State v. Lewis, 288 So.2d 348 (La.1974).

Defendant argues that such a list cannot fit under the business records exception because it was compiled in response to a burglary; not in the regular course of business. Although a burglary is not an everyday business occurrence, it is a normal practice for businesses to take an inventory to ascertain what is missing when a burglary occurs. We find that exhibit S-6 was properly admitted into evidence insofar as it lists the missing chemicals and their value.

The list included the missing truck and its value. Ms. Holloway obtained the estimated value of the truck by calling Tri-State’s home office. The value of the truck is an essential element of the offense of unauthorized use of a movable valued at over $1,000.00. The trial judge erred in admitting evidence which was pure hearsay on an essential element of this offense. He should have ordered this information striken from the exhibit before allowing it to be admitted. However, the failure to order this information striken was not reversible error. A trial court’s erroneous ruling on the admissibility of an item of evidence does not warrant reversal of a conviction unless the error is prejudicial to the defendant. See LSA-C.Cr.P. art. 921. As will be pointed out in our discussion on Assignment No. 4, defendant was not prejudiced by the court’s ruling because it was established by admissible evidence that the truck had a value in excess of $1,000.00.

Exhibits S-7, S-8 and S-9 are photographs of U-Haul trucks. Defendant objected to the admission of these exhibits on the basis of relevancy. The relevancy of the exhibits is established by defendant’s confessions. Defendant admitted that when he and his accomplices returned to Mississippi after committing the offenses, they concealed the Tri-State truck full of chemicals in a rural area behind a hunting camp. Defendant and others subsequently rented U-Haul trucks in order to transfer the chemicals from the Tri-State truck to various locations. (See the excerpt quoted from the arrest warrant affidavit, supra.)

Assignment No. 4

By this assignment defendant contends there was insufficient evidence to support his convictions.

The standard of appellate review of the sufficiency of the evidence is to determine whether, after viewing, the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the state proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Edwards, 420 So.2d 663 (La.1982).

Defendant’s argument that there was insufficient evidence is based upon the assumption that his confessions will be found to be inadmissible and will not be considered by this court in reviewing the evidence.

We have found the confessions admissible and based upon them a rational trier of fact could find the prosecution had proved beyond a reasonable doubt all elements of the crime of simple burglary. See State v. Smith, supra, which holds that inculpatory statements are in themselves sufficient evidence to support a verdict of guilty.

The confessions are also sufficient proof that defendant’s use of the truck was unauthorized; however, they do not, in themselves, prove that the value of the truck was over $1,000.00. Since we hold that the value placed on the truck in exhibit S-6 is inadmissible, we must decide whether there was sufficient admissible evidence on this issue to support the trial court’s finding on this essential element of the offense.

The only admissible evidence contained in the record concerning the value of the truck is circumstantial in nature. In order to meet the Jackson v. Virginia test for sufficiency of evidence, circumstantial evidence must exclude every reasonable hypothesis of innocence. LSA-R.S. 15:438; State v. Willis, 446 So.2d 795 (La.App.2d Cir.1984); State v. Chism, 436 So.2d 464 (La.1983). In applying the circumstantial evidence rule to the facts of the instant case we must decide whether there was sufficient evidence to establish that the truck was worth more than $1,000.00 and to exclude a finding that it was worth less than $1,000.00.

The truck is a 1981 International bobtail truck. Ms. Holloway testified that Tri-State purchased the truck for approximately $40,000.00 eleven months before it was taken. Her testimony was based on invoices to which she had ready access as the company bookkeeper. Further evidence shows that a large amount of chemicals were taken from the warehouse and these chemicals were loaded into the truck and hauled a substantial distance from Monroe to some point in Mississippi. The facts that the truck was relatively new, cost approximately $40,000.00 and was capable of hauling a large load a substantial distance are sufficient to exclude a finding that it was worth $1,000.00 or less. There was sufficient evidence to find defendant guilty of unauthorized use of a movable having a value of over $1,000.00.

This assignment of error lacks merit.

Assignments No. 5, 6 and 7

By these assignments defendant contends the trial judge inadequately complied with LSA-C.Cr.P. art. 894.1 in imposing sentence and the sentences imposed are constitutionally excessive.

The maximum sentences to which defendant was exposed were twelve years at hard labor on the burglary conviction and three years at hard labor on the unauthorized use conviction. The actual prison time defendant received is well within the statutory limits.

The sentencing judge is given wide discretion in imposing a sentence within the statutory limits and such a sentence should not be set aside as excessive in the absence of a manifest abuse of discretion by the sentencing judge. State v. Hammonds, 434 So.2d 452 (La.App.2d Cir.1983); State v. Brooks, 431 So.2d 865 (La.App.2d Cir.1983); State v. Square, 433 So.2d 104 (La.1983).

A sentence is constitutionally excessive in violation of Louisiana Constitution of 1974 Art. 1, § 20 if it is grossly out of proportion to the severity of the offense or nothing more than a needless and purposeless imposition of pain and suffering. State v. Bonanno, 384 So.2d 355 (La.1980); State v. Cunningham, 431 So.2d 854 (La.App.2d Cir.1983).

The sentencing guidelines of LSA-C.Cr.P. art. 894.1 provide the criteria to consider in determining whether a sentence is excessive. State v. Tully, 430 So.2d 124 (La.App.2d Cir.1983); State v. Sepulvado, 367 So.2d 762 (La.1979). While the trial judge need not articulate every aggravating and mitigating circumstance outlined in art. 894.1, the record must reflect that he adequately considered these guidelines in particularizing the sentence to the defendant. State v. Hammonds, supra; State v. Cunningham, supra; State v. Smith, 433 So.2d 688 (La.1983).

Prior to defendant’s sentencing hearing the trial judge had a form prepared listing all the 894.1 factors. He checked off the presence or absence of each factor and at the bottom of the form listed his reasons for selecting the sentences imposed. The completed form was filed in the record. At the sentencing hearing, the trial judge only articulated his reasons for selecting the sentences and did not discuss all the 894.1 factors. This practice has been held to be adequate compliance with 894.1. State v. Lemons, 430 So.2d 150 (La.App.2d Cir.1983); State v. Fergus, 418 So.2d 594 (La.1982).

A presentence investigation report compiled at the direction of the trial judge shows that defendant has no prior criminal record. The trial judge noted this fact but felt it was outweighed by the circumstances of the instant offenses. The circumstances taken into account by the trial judge are: the burglary of the warehouse was well planned and defendant participated in the planning; defendant made an advance trip to the crime site to survey the scene; a large amount of chemicals were taken in the burglary; and a truck belonging to the company burglarized was used by the participants as an aid in the commission of the burglary. After reviewing the record we find no abuse of discretion in the sentences imposed.

These assignments of error lack merit.

Defendant’s convictions and sentences are AFFIRMED.

      .Defendant was charged by amended bill of information with simple burglary and theft of a truck having a value of over $500.00 in violation of LSA-R.S. 14:67. At trial, prior to the taking of testimony, the bill was further amended to state that the value of the truck was approximately $35,000.00. The court minutes reflect that defendant did not object to the amendment. Unauthorized use is a responsive verdict to a theft charge. LSA-C.Cr.P. art. 814.

      . The keys to the truck were taken from the office building.

      . The simple burglary charge was based upon the theft of the chemicals from inside the warehouse.

      . Defendant, also intimates that his arrest was illegal because he was not shown a copy of the warrant at the time of his arrest. This contention is totally without merit. Defendant cites no authority, and we found none, which requires an arresting officer to show the person arrested a copy of the warrant in the absence of a request by that person to see it. See LSA-C.Cr.P. art. 217 which specifically provides “The officer need not have the warrant in his possession at the time of the arrest.” At the hearing on the motion to suppress defendant admitted on cross-examination that he did not ask to see the warrant.

      . Exhibits S-10, S-ll, S-12, S-13 and S-14b are the taped and written confessions and the waiver of rights forms signed by defendant. The admissibility of these items is discussed in Assignment No. 1 and these exhibits are admissible for the reasons therein given.

      . We further note that there is an abundance of evidence in the record that a burglary was committed wherein a truck load of farm chemicals were taken without considering S-6. Under these circumstances the detailed list of chemicals that were stolen is cumulative and if it is classified as inadmissible hearsay the admission of it is harmless error. The value of the chemicals shown on the list is not an essential element of the burglary charge.

      .In brief defendant complains that the state did not lay a proper foundation for the admission of these exhibits. Defendant did not urge this as a grounds for his objection at trial and we do not consider it here. A new ground for an objection cannot be raised for the first time on appeal. LSA-C.Cr.P. art. 841; State v. Davis, 357 So.2d 1125 (La.1978); State v. Fowlkes, 352 So.2d 208 (La.1977).

      . Ms. Holloway stated that the truck itself cost $32,800.00 and that approximately $8,000.00 worth of accessories were added to it at the time of purchase.


source: Caselaw Access Project

author: SEXTON, Judge.

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. James Michael BENNETT, Appellant.
    No. 16398-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 1984.

      Kidd & Kidd by Paul Henry Kidd, Monroe, for appellant.
    William J. Guste, Jr., Atty. Gen., Johnny Parkerson, Dist. Atty., Michael J. Fontenot, Asst. Dist. Atty., Monroe, for appellee.
    Before HALL, FRED W. JONES, Jr. and SEXTON, JJ.
   SEXTON, Judge.

James Michael Bennett was charged in a single bill of information with three counts of unlawful distribution of a controlled dangerous substance, marijuana, contrary to the provisions of LSA-R.S. 40:966. He was subsequently convicted by a jury of two counts of distribution of marijuana and one count of attempted distribution of marijuana. On appeal, defendant relies upon two assignments of error for reversal of his conviction and sentences. We find no merit to these assignments and affirm for the reasons assigned herein.

Defendant has declined to designate the trial transcript for this Court’s review of his complaint. We therefore have adduced the following facts underlying the prosecution from the affidavit in support of the arrest warrant contained in the record. This affidavit states that on November 1, 1982, while working in an undercover capacity in Ouachita Parish for the Metro Narcotics Unit, a police officer of the West Monroe Police Department travelled to a residence located at 122 Garden Lane, Monroe, Louisiana. There he met a white male identified as Jimmy Bennett. The officer purchased one plastic bag of marijuana from Bennett, paying him $40. The contraband was later analyzed by the North Delta Crime Lab and found to be marijuana. The affidavit further provides that on November 4, 1982, while working in an undercover capacity in Ouachita Parish for the Metro Narcotics Unit, a police officer of the West Monroe Police Department trav-elled to a residence located at 122 Garden Lane, Monroe, Louisiana and met a white male identified as Jimmy Bennett. The officer purchased one plastic bag of marijuana from Bennett, paying him $60. The contraband was later analyzed by the North Delta Crime Lab and found to be marijuana. The affidavit goes on to state that on November 17, 1982, while working in an undercover capacity in Ouachita Parish for the Metro Narcotics Unit, a police officer of the West Monroe Police Department travelled to the E-Z Pak Store located on Old Sterlington Road, Monroe, Louisiana and met a white male known to the officer as Tommy Dubois and a white male known to the officer as Jimmy Bennett. After a conversation in his car between Dubois and the officer, Dubois instructed the officer and Bennett to go outside and look in his car for some marijuana. Bennett and the officer went to the car and Bennett removed one plastic bag of marijuana and handed it to the officer. The officer then went inside and paid Dubois $50 for the plastic bag of marijuana. This contraband was also analyzed by the North Delta Crime Lab and was determined to be marijuana.

Assignment of Error No. 1

Defendant sought to establish entrapment as a defense. In his first assignment, he argues that the trial court erred in allowing the State to establish his predisposition to commit the first enumerated criminal offense by introducing evidence of offenses allegedly committed subsequent to the initial distribution.

Federal jurisprudence has rejected similar defense arguments and found that a defendant’s actions both before or after the commission of the crime may be considered on the issue of his predisposition. United States v. Aguirre Aguirre, 716 F.2d 293 (5th Cir.1983); United States v. Carreon, 626 F.2d 528 (7th Cir.1980).

In United States v. Carreon, supra, the Court explained that while it is true that predisposition turns on a defendant’s mental state prior to commission of a crime, that mental state may be proved by relevant and admissible evidence concerning the defendant’s actions either before or after the commission of the crime.

“Given Carreon’s later actions, some of which are listed in text, infra, the trial court could properly have found that Carreon at some point acquired the desire to sell heroin and knowledge of how to do so. It would also have been reasonable, on the record, to conclude that this desire and knowledge on Carreon’s part did not come into existence during the course of the events at issue, but rather had existed from the outset of a series of transactions charged.”

We find the reasoning of Aguirre Aguirre and Carreon persuasive. The fact that Bennett sold marijuana subsequent to the initial sale was relevant to show that he was predisposed to commit the offense of distribution. As in Carreon, it is reasonable to conclude that Bennett’s desire to distribute controlled dangerous substances had been in existence from a point in time preceding the instant crimes. We therefore find no merit to this assignment.

Assignment of Error No. 2

In his second assignment, defendant claims that the trial court committed reversible error in failing to sustain his pretrial motions to quash and sever based upon the prejudicial misjoinder of offenses. He alleged in these motions that the joinder of the charged offenses operated to deprive him of the opportunity to present effectively his only plausible defense, entrapment.

After the denial of his motions to quash and sever, defendant sought this Court’s supervisory review of the trial court’s ruling, urging that the simultaneous trial of three separate offenses would be prejudicial to the defense of entrapment. This Court ruled that the nature of the defense expected to be asserted is no grounds for the defendant to move to quash an information citing LSA-R.S. C.Cr.P. Art. 532, and accordingly, denied his request for supervisory relief.

Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan; provided that the offenses joined must be triable by the same mode of trial. LSA-C.Cr.P. Art. 493. If it appears that a defendant or the State is prejudiced by a joinder of offenses in an indictment or bill of information or by such joinder for trial together, the court may order separate trials, grant a severance of offenses, or provide whatever other relief justice requires. LSA-C.Cr.P. Art. 495.1.

The three charges of distribution of marijuana are of a same or similar nature. The mode of trial necessary to convict on each charge is likewise the same. Hence, the offenses were properly joined in the same information. Although properly joined, defendant may apply for a severance through the motion to quash if he will be prejudiced by the joinder. See LSA-C. Cr.P. Art. 495.1, supra.

State v. Washington, 386 So.2d 1368 (La.1980), delineates the burden of proof that the proponent of a severance must sustain for success:

It is well-established in the federal courts that the defendant has a heavy burden of proof when he alleges prejudicial joinder. United States v. Allstate Mortgage Corporation, 507 F.2d 492 (7th Cir.1974). A motion for relief from a prejudicial joinder is addressed to the sound discretion of the trial court and the court’s ruling should not be disturbed on appeal absent a showing of an abuse of that discretion. United States v. Olson, 504 F.2d 1222 (9th Cir.1974); United States v. Ziperstein, 601 F.2d 281 (7th Cir.1979). Thus, in order for an appellate court to reverse the trial court’s ruling, there must be a showing of clear prejudice. United States v. Bowman, 602 F.2d 160 (8th Cir.1979).
In ruling on the motion, the trial court must weigh the possibility of prejudice versus the important considerations of judicial economy and administration. In determining whether prejudice may result from the joinder, the court should consider whether the jury would be confused by the various counts; whether the jury would be able to segregate the various charges and evidence; whether the defendant could be confounded in presenting his various defenses; whether the crimes charged would be used by the jury to infer a criminal disposition and finally, whether, especially considering the nature of the charges, the charging of several crimes would make the jury hostile. See Drew v. United States, 331 F.2d 85 (D.C.Cir.1964); United States v. Weber, 437 F.2d 327 (3rd Cir.1970).

State v. Carter, 352 So.2d 607 (La.1977) held that normally severance is required when the offenses were joined simply because of their “same or similar” nature unless the evidence of such offenses would have been respectively admissible at separate trials. However, no prejudice results from the joinder of two offenses when the evidence of each offense is relatively simply and distinct, even though evidence might not have been admissible in separate trials of the offenses because, with a proper charge, the jury can easily keep the evidence of each offense separate in its deliberations. State v. Williams, 418 So.2d 562 (La.1982); State v. Robinson, 404 So.2d 907 (La.1981); State v. Washington, supra.

We are in the peculiar position of having to review the merit of appellant’s claim without benefit of a trial transcript. Counsel’s designation of the record included that portion of the record including the pre-trial hearing of the motion to quash based upon the prejudicial misjoinder of offenses and that portion of the record including the jury’s verdict and jury poll as to all counts.

Recently, this Court was faced with a situation where defense counsel purposely excluded a portion of the record critical for the determination of the merit of an assigned error. We quote at length from State v. Booth, 448 So.2d 1363 (La.App.2d Cir.1984):

La.C.Cr.P. Art. 914.1 states that the party making the motion for appeal shall request that portion of the proceedings necessary for a review in light of the assignments of error to be urged. La.C. Cr.P. Art. 914.1 states as follows, in pertinent part:
A. The party making the motion for appeal shall, at the time the motion is made, request the transcript of that portion of the proceedings necessary, in light of the assignment of errors to be urged. Not later than five days after the motion, the opposing party may designate in writing the transcript of that portion or portions of the proceedings necessary to oppose the appeal.
In State v. Augustine, [252 La. 983], 215 So.2d 634 (1968), the Supreme Court held that only that which is in the record may be reviewed, and it is the obligation of the appellant to bring his appeal property (sic) before the court. In State v. Le-Blanc, 367 So.2d 335 (La.1979), the Supreme Court found that the failure to make contemporaneous objections and to designate parts of the record for appellate review may procedurally bar the right of judicial review. In the present case, the minutes reflect that the defendant did make a contemporaneous objection, but the defendant failed to designate that portion of the record necessary for review. In State v. Oubichon, 422 So.2d 1140 (La.1982), the Supreme Court held again that only that which is in the record may be reviewed by the court, citing State v. Augustine, supra.
Art. 1, § 19 of the Louisiana Constitution of 1974, grants the right of judicial review based upon a complete record whenever a person is subject to imprisonment for forfeiture of rights or property. State v. LeBlanc, supra. The Supreme Court in LeBlanc found that Art. 1, § 19 of the constitution does not require that the record be transcribed in all cases, but a record must be available to one who might choose to take advantage of his right of review. The court in LeBlanc concluded that if the defendant makes a knowing and intelligent waiver of the right, the record need not be transcribed.

The defendant states in his brief that “the prejudice to the defendant is best illustrated by the polling of the jury as to counts 1 and 2. He contends that the fact that the jury ^as divided as to the first count and unanimous as to the second count indicates that the entrapment defense lost credibility due to the cumulative weight of the evidence.” Contrary to defendant’s assertions, we are inclined to believe that the jury poll showing different votes on counts 1 and 2 and finding him guilty of a responsive verdict on count 3 supports the opposite inference: that the jury was able to easily distinguish the evidence as to each charge and to vote accordingly. Nonetheless, considering the state of this record, we are unable to find merit in the assignment.

Accordingly, defendant’s convictions and sentences are affirmed.

AFFIRMED.


author: MARVIN, Judge.

text:
    Sherry Ann Blackwell MATHEWS, Plaintiff-Appellee, v. Richard Durham MATHEWS, Defendant-Appellant.
    No. 16445-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 1984.
    0. Bernard Boddie, Bossier City, for defendant-appellant.
    Touchstone & Wilson by David Touchstone, Shreveport, for plaintiff-appellee.
    Before HALL, MARVIN and NORRIS, JJ.
   MARVIN, Judge.

The divorced husband appeals a judgment partitioning the community formerly existing between himself and his wife. He contends the court erred in not allowing him to traverse the detailed descriptive list filed by his ex-wife.

In answer to the appeal, the ex-wife contends that because her ex-husband did not traverse her detailed descriptive list, the trial court erred in not accepting, at face value, her evaluation of the debts and assets of, and her claims against, the community. We amend and affirm.

LRS 9:2801 sets forth “rules” for the conduct of a proceeding to partition community property when the spouses are unable to agree on a partition or on the settlement of claims between them. These rules afford considerable discretion to the trial court.

The wife filed the petition to partition the property in September 1983 along with her sworn list of assets, debts, claims and credits. At that time the court signed an order which was served with the petition effectively allowing the husband 15 days from date of service to file his sworn list and an additional 10 days to traverse the wife’s list. The husband was served on October 20. § 2801(1), (2). He answered the wife’s petition on November 2, 1983, but did not attempt to file his sworn list until December 29, 1983, sometime after he hired counsel. At the trial on January 4, 1984, the court sustained the wife’s objection to the introduction of his sworn list.

The court shall set a time limit for the filing of each list. § 2801(1). The court shall also “fix a time limit” within which each party shall either traverse or concur in the list of the other party. § 2801(2). In this and other subsections, the statute provides that the court may try at one hearing all issues, may appoint experts (3), and that the court shall value the assets and adjudicate the claims (4). The trial court did not err in its rulings.

Neither the husband nor the wife offers a more equitable partition, generally or in detail, than that ordered by the trial court. The wife’s list, the disallowed list of the husband, a copy of a federal tax lien, are in the record. It is also apparent that the trial court was presented with a NADA book valuation of the motor vehicles owned by the community and with valuations used by one or both spouses in bankruptcy proceedings.

From this record, we find that the trial court did not err in applying the statute.

The tangible property of the community was valued as follows by the litigants and the court:

(1) Ford $ 4,950. $ 6,000. $ 5,900.
(2) Chevrolet 4,900. 3,000. 4,075.
(3) TV 40. 40. 40.
(4) Couch, etc. 500. 100. 250.
(5) Freezer 200. 20. 100.
(6) Washer, dryer 100. 100. 100.
(7) Stereo 1,000. 1,000.
(8) Camera 100. 900. 375.
TOTALS $10,790. $11,160. $11,840.

The wife possesses items (2), (4), (5), and (6), the total value of which, by the court’s valuation, is $4,525. The husband possesses the other items which total $7,315 as valued by the court.

The litigants apparently do not dispute that the community owes or owed:

GMAC $763.00
Dupont Mortgage $10,762.00
IRS $1,577.00
TOTAL $13,102.00

The trial judge found the debts of the community totaled that amount. The trial judge found that the wife paid GMAC and Dupont ($11,525) with her separate funds and ordered each spouse to pay one-half of the IRS debt still outstanding. We see no error in the court’s finding or the court’s order.

The judgment orders the husband to pay the wife one-half the value of each item in his possession or turn over the items to her at a certain date. The judgment did not otherwise pass on his claims or her claims against the community. In reasons for judgment the trial court stated that the wife should receive credit for the $11,524 in community debts she paid with her separate funds. The judgment did not mention this “credit.”

If the judgment is carried out as contemplated by the husband’s payment to the wife, she will be paid one half of $7,315 ($3,658). Adding this to the value of property she possesses, would result in her receiving $8,183 in cash or property. This result ignores the court’s finding that she paid $11,525 in community debts with separate funds. We shall recast the judgment to recognize her payment.

LRS 9:2801 does not prohibit further proceedings to adjudicate the claims that the husband might institute that the wife’s separate property was enhanced by the community. At this juncture the matters thus far determined, however, should be placed on a course of reaching finality. Succinctly put, the community owes the ex-wife $11,-525. One-half of this amount (owed by the husband) is $5,763. She has received community property valued at $4,525 and is still owed $1,395 as an adjustment to reach one-half of the total community value. The husband possesses items valued at $7,315. He owes her then one-half of the community debt ($5,763) plus $1,395, or $7,158.

Accordingly, we amend the judgment insofar as the alternative provision is concerned by increasing the amount the husband should pay the wife from one-half of $7,315 to a total of $7,158 if he elects to retain all items in his possession. Should the husband elect to return one or more items he now possesses, he shall receive credit against the $7,158 owed to the wife for the proportionate value of that item (7158/7315, or 97.85 percent of the value assigned by the court). We also amend the date the husband shall either pay or surrender the items to the wife and fix that date at 15 days after this opinion becomes final.

Costs here and below are assessed against the husband.

Amended, and as amended, AFFIRMED.


author: FRED W. JONES, Jr., Judge. PER CURIAM.

text:
    Robert W. MORELAND, Plaintiff-Appellee, v. Lamar SMITH, Defendant-Appellant.
    No. 16510-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 1984.
    Rehearing Denied Oct. 26, 1984.
    Writ Denied Dec. 14, 1984.
    McConnell, Harris & Associates by Charles E. McConnell and John B. Slattery, Jr., Springhill, for defendant-appellant.

      Campbell, Campbell & Johnson by John T. Campbell, Ninden, for plaintiff-appellee.
    Before PRICE, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   FRED W. JONES, Jr., Judge.

The plaintiff, Robert W. Moreland, sued the defendant, Lamar'Smith, for $150,000, the purchase price for some bank stock previously transferred to the defendant. The trial judge ruled in favor of the plaintiff. The defendant appealed alleging that the trial judge should have declared the sale null on the grounds that Smith was under a unilateral error of fact. The judgment for the plaintiff is affirmed for the reasons hereinafter explained.

In a letter dated July 19, 1983, to the directors of the Claiborne Bank and Trust Company, Planters Bank and Trust Company offered to purchase all the outstanding stock of Claiborne Bank for $3.00 per share. After much discussion, it became clear that three of the Claiborne directors wanted to sell. Phillip Sims, a director who wanted to prevent the sale, offered to find buyers who would purchase the stock of the “dissenting directors” at the same price. Lamar Smith was the buyer that Phillip Sims located to purchase 50,000 shares of Robert Moreland’s stock.

Smith told Sims that he needed thirty days to raise the money necessary to complete the transaction. Moreland related through Sims that he wanted a contract to sell and buy with earnest money. The parties eventually agreed to the amount of $50,000 earnest money. Sims, Moreland and Smith were all present in the attorney’s office while the contract was dictated, amended and drawn up to be signed in authentic form. The contract stated simply that Moreland agreed to sell and Smith agreed to buy 50,000 shares of Claiborne Bank stock for $3.00 per share. The sale was set to take place within thirty days of the contract date, August 17, 1983. The parties each wrote a check for $50,000 to be held in escrow by the attorney as earnest money.

On Friday, September 16, 1983, the parties met in the office of J.D. St. Clergy, president of Claiborne Bank. Smith wrote a check payable to Moreland drawn on the “Lamar Smith Investments” account at Citizens Bank & Trust Company, a bank in Springhill, Louisiana, where Smith is a director. Moreland delivered a stock certificate issued to Lamar Smith Investments for 50,000 shares. Moreland deposited the check into his account at Claiborne Bank in the presence of Smith.

Smith alleges that on Sunday, September 17, 1983, he found out for the first time that Claiborne Bank was having some deficient capitalization problems which had involved intervention by the Federal Deposit Insurance Corporation. On September 19, 1983, Smith wrote a letter to Moreland explaining why he stopped payment on the check:

“... there was too many' unknowns with the main reason being, not knowing the true book value. What happens October 18, 1983, is this stock here in question going to be part of control stock? What is the actual loan loss going to be?”

Plaintiff filed this suit asking the defendant to make his check good. The defendant argues that the sale should be rescinded because of unilateral errors which vitiated his consent. Specifically, defendant alleges: (1) he thought the book value of the stock was $3.00 per share, when in fact the testimony establishes the value to be $1.68 per share; (2) he never received information on bad loans that he had requested; and (3) he thought the stock was part of a “control group.” Defendant further argues that these conditions were known to Sims whose knowledge should be imputed to Moreland as Sims’ principal.

The first issue is whether Sims acted as an agent for Moreland, or should be deemed to have acted as an agent for Moreland. The trial judge found that the evidence failed to establish an agency relationship. We agree. The record reflects that Sims was trying to find a buyer for Moreland’s stock to prevent a takeover by Planters Bank. Sims was not working for the welfare or benefit of either Moreland or Smith but out of his own desire to block the takeover. Sims did not have the power to execute the agreement to sell or the final sale. Moreland had no control over Sims, nor did Moreland make it appear that Sims had any authority to act for him. There was no agency.

The second issue is whether the contract of sale should be rescinded for the errors which Smith alleges vitiated his consent. The trial judge properly allowed parole evidence to be heard on the issue of error. At the close of evidence, the trial judge ruled the defendant failed to prove his defense. We agree.

Defendant contends that there is no consent when the consent has been produced by error, and cites the following articles of the Civil Code:

Art. 1819. Consent being the concurrence of intention in two or more persons, with regard to a matter understood by all, reciprocally communicated, and resulting in each party from a free and deliberate exercise of the will, it follows that there is no consent, not only where the intent has not been mutually communicated or implied, as is provided in the preceding paragraph, but also where it has been produced by—
Error;
Fraud;
Violence;
Threats.
Art. 1821. That is called error of fact, which proceeds either from ignorance of that which really exists, or from a mistaken belief in the existence of that which has none.
Art. 1823. Errors may exist as to all the circumstances and facts which relate to a contract, but it is not every error that will invalidate it. To have that effect, the error must be in some point, which was a principal cause for making the contract, and it may be either as to the motive.for making the contract, to the person with whom it it is made, or to the subject matter of the contract itself.
Art. 1825. The error in the cause of a contract to have the effect of invalidating it, must be on the principal cause, when there are several; this principal cause is called the motive, and means that consideration without which the contract would not have been made.
Art. 1826. No error in the motive can invalidate a contract, unless the other party was apprised that it was the principal cause of the agreement, or unless from the nature of the transaction it must be presumed that he knew it.
Art. 1827. But wherever the motive is apparent, although not made an express condition, if the error bears on that motive, the contract is void. A promise to give a certain sum to bear the expenses of a marriage, which the party supposes to have taken place, is not obligatory, if there be no marriage.

Smith claims to have been mistaken about the value of the stock. He contends that he thought the $3.00 per share price was the book value of the stock. It is undisputed that Moreland did not represent the price to be the book value, so there is no evidence of fraud or misrepresentation on his part. There is abundant evidence in the record that the fair market value of the stock was $3.00 per share. Smith is a bank director who dealt at arm’s length in the transaction; if he desired to make an independent assessment of the book value before the sale, he could have done so. Even when there is a false assertion as to value it will not invalidate a sale when the complaining party might with ordinary attention detect the falsehood. La.Civil Code Article 1847(3); Nugent v. Stanley, 336 So.2d 1058 (La.App. 3d Cir.1976).

Smith alleges that he never received information on bad loans that he had requested. The fact, according to his own testimony, that he requested the bad loan information before he signed indicates that the information was not a “principal cause” of the contract. Smith did not request that the sale be made conditional on receipt of the information. He signed the contract and completed the sale without having received the information he says he asked for. He cannot be heard to complain of failure to receive the information after the sale when he had adequate opportunity before the sale to secure that data.

Finally, Smith explains that he thought the stock was part of a “control group.” Even if the contract had expressly been conditioned on the stock being part of the “control group,” the record is devoid of evidence that the stock purchased is not in a “control group.” Consequently, no error has been proved.

The judgment of the trial court is affirmed at appellant’s cost.

ON APPLICATION FOR REHEARING

Before HALL, JASPER E. JONES, FRED W. JONES, Jr., SEXTON and PRICE, JJ.

PER CURIAM.

In his application for a rehearing defendant correctly points out that the record does contain evidence that the stock in question was not part of the control group stock. However, this does not change the result of the opinion since the record further establishes that plaintiff was unaware prior to the contract to sell the stock that defendant desired it to be part of the control group. Under these circumstances, defendant’s unilateral error would not justify a rescission of the stock sale.

For these reasons, the application for rehearing is denied.


author: EDWARDS, Judge.

text:
    Georgia LEONARD, TUTRIX OF the Minor, Latoya M. BLAND, and Administrator of the Estate of Linda Bland v. CONTINENTAL ASSURANCE COMPANY and the Board of Trustees, State Employees Group Benefits Program.
    No. 83-CA-0982.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1984.
    Writ Denied Nov. 26, 1984.

      Raymond L. Simmons, Baton Rouge, for plaintiff-appellant Georgia Leonard Tutrix of the Minor, Layota M. Bland and Admin, of the Estate of Linda Bland.
    Tommy Teague, Baton Rouge, for defendant-appellee Board of Trustees of the St. Employees Group Benefits Program.
    Paul H. Spaht, Baton Rouge, for defendant-appellee Continental Assurance Co.
    Before EDWARDS, SHORTESS and SA-VOIE, JJ.
   EDWARDS, Judge.

Georgia Leonard appeals a summary judgment granted in favor of the defendants, Continental Assurance Company (CAC) and The Board of Trustees of the State Employees Group Benefits Program (the Board). We affirm.

Linda Bland, a State employed food service worker at Earl K. Long Memorial Hospital, was insured under a group life insurance policy issued to the Board of Trustees of the State Employees Benefits Program, the policyholder, by Continental Assurance Company, the insurer. When she died on November 11, 1981, of accidental carbon monoxide asphyxiation while asleep at her home, CAC paid the face value of the policy, $17,000.00.

As administrator of Mrs. Bland’s estate and tutrix of her daughter and sole surviv- or, Latoya M. Bland, Georgia Leonard sued CAC and the Board to recover additional benefits allegedly owed under the life insurance policy’s accidental death benefits provision. CAC denied liability under the policy and filed a motion for summary judgment on the basis of the following exclusion:

No benefit will be paid for any loss caused by or resulting from:
(7) taking of poison whether voluntary or involuntary or asphyxiation from or inhaling gas, whether voluntary or involuntary, which does not arise out of or in the course of the Insured Employee’s employment.

After a hearing, the trial court granted CAC’s motion.

Immediately following that judgment, the Board filed a motion for summary judgment on the basis of the same exception and on the additional ground that as policyholder, the Board is not liable for the payment of any proceeds or benefits under the policy. The trial court granted this motion as well.

Plaintiff has taken a consolidated appeal from both judgments. The principal issue is whether there are any genuine issues of material fact and whether the defendants are entitled to judgment as a matter of law.

Appellant first contends that CAC and the Board are not entitled to judgment because the exception relied upon is ambiguous. In support of this contention, appellant’s counsel makes the following argument, which we choose to quote from his brief rather than paraphrase:

[Ajsphyxiation from or inhaling gas .... Does this suggest that the policy excludes loss caused by asphyxiation from inhaling gas, but not asphyxiation from not inhaling gas; or does it suggest that policy excludes loss caused by asphyxiation or inhaling gas. Considering the fact that the root word “asphyxia” is defined as, unconsciousness caused by too little oxygen and too much carbon dioxide in the blood (Black’s Law Dictionary, Fourth Edition and by Funk & Wag-nail’s, Standard Desk Dictionary, 1977), and the fact that carbon dioxide is a gas and that gases get into the body by breathing, inhaling, does the exclusion provided for not paying a loss caused by a condition brought on by “inhaling gas (carbon dioxide) or inhaling gas”, or by “inhaling gas from inhaling gas.” Is this vague, ambiguous and confusing, I think so.

We think not, unless he is referring to his own argument.

CAC’s counsel has cited to us several persuasive decisions rendered by courts in other jurisdictions upholding exclusions similar to the one in this case. See Transport Life Insurance Company v. Karr, 491 S.W.2d 446 (Tex.Civ.App.1973); Cf. Welch v. Professional Insurance Corporation, 140 Ga.App. 336, 231 S.E.2d 103 (1976); see also Samuel v. Sun Life Assurance Company of Canada, 587 F.2d 203 (5th Cir.1979).

The exclusion upheld in Karr denied liability for the “taking of poison or asphyxiation from or inhaling of gas, whether voluntary or involuntary,” language identical to that of the exception involved in this case. The Texas appellate court said,

The group policy language controls and it is clear. Death by poison or inhalation of gas, irrespective of whether the act be voluntary or involuntary, is excluded from coverage. Upon establishment that the insured’s death resulted from carbon monoxide poisoning or inhaling carbon monoxide gas, it became immaterial whether it was voluntarily or involuntarily for, in either event, the insurance company was not liable under the group policy-

Karr, 491 S.W.2d at 447-448.

We agree with the Texas court’s conclusion in Karr that the exclusion, here as well as there, is both controlling and clear. Exclusions, when ambiguous, will be construed in favor of the insured, but as this court has said before, “tortured constructions which seize on every word as a possible source of confusion will be dismissed as mere sophistry.” Authement v. Security Industrial Insurance Company of Donaldsonville, 401 So.2d 402, 403 (La.App. 1st Cir.1981).

Appellant next contends that a genuine issue of fact exists as to whether the decedent’s accidental death arose out of her employment. Plaintiff’s argument in support of this contention, which is the only argument made in her affidavit filed in opposition to CAC’s motion for summary judgment, is that the decedent purchased the house in which she died because its convenient proximity to nearby babysitters would increase her efficiency as both a mother and a worker.

This argument is unavailing. Even if true, and we have no reason to doubt it, Mrs. Bland’s reason for moving where she did does not turn her tragic death at home into an employment-related accident, rendering the policy exclusion inapplicable. Otherwise, as CAC’s counsel points out in his brief, virtually every accident that befalls an employee could be construed as arising out of his employment, regardless of the type of accident, the location of the accident, or the connection between the accident and the employment. The only pertinent inquiry would be whether the activity engaged in at the time of the accident was prompted even partially by the employee’s desire to improve his work efficiency. Neither public policy nor common sense requires us to interpret employment activity so broadly.

Plaintiff’s third contention is that the decedent was not provided with a copy of the insurance policy or its equivalent as required by LSA-R.S. 22:215 A(l)(a).

LSA-R.S. 22:215 A(l)(a) provides in part that an insurer issuing a group health and accident insurance policy “shall issue to the employer or association [the policyholder] for delivery to each employee or member insured under such group policy, an individual certificate containing a statement as to the insurance protection to which he is entitled and to whom payable.” The purpose of this requirement is plain— to insure that every insured employee or member is made aware of the available benefits and applicable limitations of the group insurance plan without requiring the insurance company or the policyholder to provide each and every employee or member with a copy of the policy.

Kolmaister v. Connecticut General Life Insurance Company, 370 So.2d 630 (La.App. 4th Cir.1979) and Davey v. Louisiana Health Services and Indemnity Company, 357 So.2d 1170 (La.App. 4th Cir.1978) both hold that the “State Employees Group Benefits Program” booklet, prepared and distributed by the Board of Trustees to the various State employing departments and agencies for delivery to insured employees and members, is equivalent to certificates of insurance under LSA-R.S. 22:215 A(1)(a). Daigle v. Travelers Insurance Company, 421 So.2d 302 (La.App. 1st Cir.1982), places the burden oí proving nondelivery on the insured.

In the instant case, the affidavits and documents filed in connection with CAC’s and the Board’s motions for summary judgment clearly establish that the Board delivered these booklets to Earl K. Long Memorial Hospital, decedent’s employer, in October of 1981 for distribution to that hospital’s insured employees. Copies of this booklet and the insurance policy in effect in November of 1981, which were also filed in connection with the two motions for summary judgment, both contain the policy exclusion quoted above. Thus, CAC and the Board have made a prima facie showing of compliance with the statute.

The only evidence of nondelivery of this booklet, on the other hand, is the allegation of nondelivery in plaintiffs petition. Since CAC and the Board have established through appropriate documentation sufficient proof that the booklet was made available to the decedent, plaintiffs mere allegation in her petition that decedent never received the booklet is insufficient to generate a genuine factual issue of nondelivery. See LSA-C.C.P. art. 967.

Plaintiffs final contention that the Board held itself out as the insurer is totally unsupported by any evidence in the record. As policyholder, the Board is not liable for the payment of any proceeds under the group plan in any event. See Wheelahan v. State of Louisiana through the Louisiana State Claims Review Board, 376 So.2d 576 (La.App. 4th Cir.1979); LSA-R.S. 22:215 A(1)(a). The trial judge was correct in granting the Board’s motion for summary judgment.

For the foregoing reasons, the judgment of the trial court is affirmed at appellant’s cost.

AFFIRMED.

      . The court in the Welch case held that the exclusion for any loss resulting from the "taking of poison or asphyxiation from or voluntary inhaling of gas, or fumes" excluded only the voluntary inhalation of gas and distinguished it from the "usual exclusion, exemplified by [the Karr decision].” 231 S.E.2d at 104.
      The exclusion in the Samuel case excluded coverage for death resulting from "any gas, poison, drug or medicine taken, administered, inhaled or absorbed, voluntarily or otherwise The Fifth Circuit rejected the plaintiff’s argument that the word “otherwise” rendered the exclusion ambiguous.


author: SAVOIE, Judge.

text:
    HANOVER INSURANCE CO., et al. v. FORTE AND TABLADA, INC. CITY OF PLAQUEMINE FORTE AND TABLADA, INC. and Saia Electric Company.
    Nos. 83 CA 0984, 83 CA 0985.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1984.

      R. Loren Kleinpeter, Baton Rouge, for Hanover Ins. Co. et al.
    William C. Dupont, Plaquemine, for City of Plaquemine.
    David A. Hurlburt, Lafayette, and Patrick W. Pendley, Plaquemine, for Forte & Tablada, Inc.
    H. Evans Scobee, Baton Rouge, for Saia Elec. Co.
    Before EDWARDS, SHORTESS and SA-VOIE, JJ.
   SAVOIE, Judge.

Appellants, Hanover Insurance Company, Southern American Insurance Company, Royal Globe Insurance Company, National American Insurance Company, Hartford Fire Insurance Company and the City of Plaquemine, appeal the trial court’s dismissal of their tort suit against appellee, Forte and Tablada, Inc. We affirm.

FACTS

The City of Plaquemine owned and operated a steam powered electrical generating plant during 1976. The plant had been designed and built in 1961 under the supervision of appellee, Forte and Tablada, Inc., an engineering firm. The City had no full-time engineers on payroll, but rather retained Forte and Tablada, Inc. as consulting engineers. Forte and Tablada, Inc. continued to receive retainage fees for electrical consultation services from August, 1972 through 1976.

In February, 1976, a fire of undetermined origin at the steam plant damaged the power potential transformers (PPT's). On recommendation of Forte and Tablada, Inc., the City ordered new PPT’s the day after the fire. In order to get the plant back on line, a temporary bank of transformers was set up on a pole just outside the plant building.

The temporary bank of transformers served the same function as the PPT’s which was to step the power down from 13.2 KV to the 240 volts necessary to supply the exciter cubicle of the generator. City employees hung the transformers and ran the connecting cable between the transformers. Employees of Saia Electrical Company made the connections between the transformers and the generator.

The new PPT’s arrived at the plant in June, 1976, but were not installed until after November 11, 1976. In the meantime, the PPT’s, which were designed for permanent placement in a cabinet in the generating plant, remained on the main floor in plain view of anyone walking by. During this period, an addition was being made to the plant and employees of Forte and Tablada regularly walked through the main floor.

On November 11, 1976, another fire broke out at the steam plant, causing extensive damage. Appellant insurance companies paid more than $66,000.00 to the City for the damage. The City suffered an additional loss of approximately $20,000.00 not covered by insurance. This suit was brought against Forte and Tablada for failing to advise the City to install the new PPT’s immediately upon delivery.

ACTION OF THE TRIAL COURT

The insurers and the City filed separate suits against Forte and Tablada and Saia Electrical Company as a result of the November fire. Saia was subsequently dismissed from the suit. These suits were consolidated for trial. After appellants presented their evidence, the trial court granted appellee’s motion for dismissal pursuant to L.S.A.-C.C.P. art. 1810. Appellants appeal that judgment.

ASSIGNMENT OF ERROR

Appellants argue that the trial court erred in finding that they did not carry their burden of proof regarding the failure of Forte and Tablada to instruct the City to install the permanent PPT’s.

L.S.A.-C.C.P. art. 1810(B) provides:

“B. In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.”

In non-jury cases, the appropriate standard for the trial court’s determination of a motion for directed verdict is whether the plaintiff has presented sufficient evidence on his case-in-chief to establish a claim by a preponderance of the evidence. In making this determination, the trial court is not required to review the evidence in the light most favorable to the plaintiff but may instead render judgment based upon a preponderance of the evidence. In such cases, the trial court should not be reversed in the absence of manifest error. See Succession of Jacque, 424 So.2d 1152 (La.App. 1st Cir.1982), writ denied, 429 So.2d 145 (La.1983).

We note that both appellants have characterized this case as a tort case and properly so. Since it is a tort case, application of the duty-risk analysis as set out in our decision in Everett v. Louisiana Department of Transportation and Development, 424 So.2d 336 (La.App. 1st Cir.1982) would be applicable hereto. In Everett, supra, we stated:

“It is well settled in Louisiana that for a .plaintiff to recover in negligence, he must prove:
“(1) that the act complained of was a cause-in-fact of the accident,
“(2) that the defendant had a duty, either statutory or non-statutory, to protect this plaintiff against the cause of harm complained of,
“(3) that the defendant breached this duty to protect plaintiff, and “(4) that the plaintiff was harmed by this breach of the duty owed.

It follows therefore that plaintiff must first prove that the act complained of was a cause-in-fact of the accident. We find that appellants never proved that Forte and Tablada failed to advise the City to install the new PPT’s immediately upon delivery or that such failure was the cause-in-fact of the accident.

We note that the cause of the fire was ■never proven and the trial court, in its judgment, made no finding regarding the cause of the fire. Appellants contend that the fire was caused by the failure of the stress cones. All of the evidence shows that City employees constructed and installed the stress cones, that they did this type of work on a routine basis, and that at no time was Forte and Tablada ever requested or expected to inspect the stress cones.' Finally, Mr. Forte’s uncontradicted testimony was that General Electric made the decision to set up the temporary bank of outside transformers.

Thus, an examination of appellants’ claim in the light of the duty-risk analysis reveals that they have not met, by a preponderance of the evidence, the first requirement under the duty-risk analysis for a plaintiff to recover in negligence, i.e., they have not shown any act of Forte and Tablada which was a cause-in-fact of the fire. Since the first requirement was not met, we need not go further.

We find no manifest error on the part of the trial court and we agree completely with its conclusion.

For the foregoing reasons, the judgment of the trial court is affirmed. Costs are to be borne by appellants.

AFFIRMED.

      . This article was amended by Acts 1983, No. 534. Paragraph B does not belong in the section dealing with jury trials and was moved to Art. 1672 which governs involuntary dismissals.


text:
    BRIGHTWAY SIGNS, INC. v. W.W. SHARKEY d/b/a Sharkey’s Restaurant.
    No. 83-CA-0986.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1984.

      Brent K. Kmchen, Baton Rouge, for plaintiff-appellee Brightway Signs, Inc.
    Ray Dawson, Baton Rouge, for defendant-appellant W.W. Sharkey d/b/a Shar-key’s Restaurant.
    Before EDWARDS, SHORTESS and SA-VOIE, JJ.
   EDWARDS, Judge.

Plaintiff sued to recover the balance due on a contract to manufacture and install an advertising sign for defendant. Defendant filed a general denial. After a judge trial on the merits, judgment was rendered for plaintiff in the amount of $6,095.27, plus 20% attorney fees as provided in the contract, plus legal interest from the date of judicial demand, and for all costs of the proceeding. Defendant appeals. We affirm.

Defendant acknowledged signing the contract, which contained the following terms:

9. The Company will secure the necessary Municipal permits that may be required for the installation of this Display. All costs for these permits shall be paid by the Customer.
10. Prior to the installation of Display the Customer shall obtain the necessary permission from the owner of the premises upon which the Display is to be installed and from all others whose consent is necessary. Failure on the part of Customer to obtain such permission will not release Customer from the terms of this contract.
12. The Customer shall not remove the Display from the address where installed, nor permit any third party to gain control of same until all amounts due the Company herein have been paid.... In the event the sign location becomes untenantable for any reason, the Company, at Customer’s expense, will move said sign to such other location as the Customer may direct.

Defendant refused to pay the balance due because he received notice from the State Department of Transportation and Development that the sign was in violation of LSA-R.S. 48:461.7 and therefore had to be removed. He makes two arguments in this regard: failure of consideration since the sign had to be removed, and nonperformance of the contract by plaintiff because plaintiff did not get approval for the sign from the Department of Transportation and Development.

Defendant contends that the trial court erred in not allowing him to introduce into evidence the letters he received from the State informing him that the sign had to be moved. The trial court stated that failure of consideration is an affirmative defense and that since defendant had not specifically pleaded failure of consideration, he could not introduce evidence thereof at trial.

The Code of Civil Procedure provides that failure of consideration and any other matter constituting an affirmative defense shall be set forth affirmatively in the answer. LSA-C.C.P. art. 1005. When an affirmative defense is not included in the answer, evidence can be adduced thereon only in the absence of an objection. Red Barn Chemicals, Inc. v. Lassalle, 350 So.2d 1315, 1317 (La.App. 3rd Cir.1977). See also Webster v. Rushing, 316 So.2d 111, 114-15 (La.1975). Accordingly, the evidence was clearly not admissible for the purpose of showing failure of .consideration.

The next issue concerns whether nonperformance of a contract is an affirmative defense which is waived unless specially pleaded. The jurisprudence distinguishes between defective or unworkman-like performance and nonperformance. An allegation of defective or unworkmanlike performance is an affirmative defense. See Womack Brothers, Inc. v. Equipment Rental Services, Inc., 399 So.2d 661 (La.App. 1st Cir.1981); Pace v. Reusing Rivers Construction Co., 377 So.2d 530 (La.App. 3rd Cir.1979). This is because an allegation of unworkmanlike performance raises an issue that has not been raised in the original petition.

On the other hand, when a plaintiff files suit for recovery of the balance due, the issue of performance is raised in the original petition. Martin v. Martin, 233 So.2d 718, 720 (La.App. 4th Cir.1970), deals with the question whether nonperformance must be specifically pleaded. The court observed that plaintiff’s petition alleged that the contract had been performed, and consequently, defendant’s general denial put those allegations at issue. Likewise, in Williams v. Fisher, 79 So.2d 127 (La.App. 1st Cir.1955), the court held that nonperformance is not a special defense, explaining that special allegations in the answer are not necessary to authorize introduction of evidence which directly tends to disprove what the plaintiff alleges.

In the instant case, plaintiff alleged in its petition that it had complied with the terms of the contract to manufacture and install the sign for the defendant. Therefore, defendant’s general denial puts at issue the question whether plaintiff did indeed perform the contract. Evidence of nonperformance therefore is admissible in this proceeding without the necessity of specially pleading nonperformance.

There is no contention that the plaintiff did not erect the sign. Defendant’s nonperformance argument is based solely on the fact that the plaintiff did not secure approval for the sign from the State Department of Transportation and Development. In support of this argument, the defendant sought to introduce into evidence letters from the Department of Transportation and Development which stated that the sign was in violation of state law and had to be moved. Plaintiff objected, contending that the letters were hearsay as well as evidence relating to an affirmative defense. The trial judge sustained the objection.

We have already determined that otherwise admissible evidence will not be excluded for purposes of nonperformance merely because it was not specially pleaded in the answer. The letters, however, were inadmissible because they were hearsay. Hearsay is an out-of-court statement or writing offeréd in court to prove the truth of the matter asserted and thus relying upon the credibility of an out-of-court witness. State v. King, 355 So.2d 1305, 1308-09 (La.1978); Anderson v. New Orleans Public Service, Inc., 433 So.2d 872, 875 (La.App. 4th Cir.1983), cert. denied, 439 So.2d 1077 (La.1983). Defendant sought to introduce the letters to show that the sign was in violation of state law (as asserted in the letters) and thus, that the plaintiff had not fully performed the contract in that plaintiff did not get state approval for the sign. The letters are thus an out-of-court writing offered in court to prove the truth of the matter asserted and, as hearsay, were properly excluded. Furthermore, even if the letters were admissible, the result would remain unchanged, since the trial judge expressly found that the plaintiff had performed all of its contractual obligations. Accordingly, the judgment in favor of the plaintiff is affirmed and the costs of this appeal are assessed against the defendant appellant.

AFFIRMED.


text:
    Phillip CRAIG, et al. v. G. FOURNET, et al.
    No. 83 CA 0990.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1984.

      Bernard S. Smith, Covington, for plaintiffs, appellants.
    Iddo Pittman Jr., Hammond, for defendants, appellees.
    Before EDWARDS, SHORTESS and SA-VOIE, JJ.
   SAVOIE, Judge.

Plaintiffs, Phillip and Estelle Craig, appeal the trial Court’s dismissal of their suit for workmen’s compensation under L.S.A.R.S. 23:1231 against defendants, George R. Fournet, Inc. (Fournet) and State Farm Insurance Company.

Thomas Craig, plaintiffs’ son, was employed from April 28, 1982 until June 30, 1982, as a general laborer by Fournet, a construction company. The principal work-site was located in Marina Beau Chene, a subdivision near Covington, Louisiana. Thomas and two other teenage boys were responsible for keeping the construction sites clean by removing scrap lumber and other debris. The boys worked five days a week from 7:00 A.M. until 3:30 P.M. with a thirty minute unpaid lunch break. They were not required to remain on the work-site during the lunch period, but due to the short lunch period and the lack of nearby restaurants, lunch was generally eaten at or near the site.

On June 30, 1982, the boys ate lunch on the bank of the Tchefuncte River, about a quarter of a mile from the jobsite. After eating, they decided to go swimming. Using a rope hanging from a nearby tree, they swung out over the river and either jumped or dove in. Thomas was the last to enter the water. He immediately encountered some difficulty and drowned before the other boys could rescue him.

ACTION OF THE TRIAL COURT

This suit was brought by plaintiffs as the surviving parents of their son under L.S. A.-R.S. 23:1231. Thomas left no legal dependents but had contributed to the support of his parents. Plaintiffs are seeking $20,000.00 each for the death of their son. After trial, the trial court dismissed their suit, finding that the accident did not arise out of and was not in the course of his employment. Plaintiffs appeal.

ASSIGNMENT OF ERRORS

Plaintiffs allege that the trial court erred in failing to find the decedent had been in the course and scope of his employment at the time of his death.

For an injury to be compensable under workmen’s compensation, it must have occurred within the course and scope of the employment. This dual requirement is explained by Professors Malone and Johnson in 13 Louisiana Civil Law Treatise § 144 (1980) in the following manner:

“The ‘during the course of requirement suggests that the trier look into the place and time the accident occurred and what the worker was doing when he was injured, while the ‘arising out of requirement focuses on the character of the risk that brought on the injury.” Page 282.

Ordinarily, an employee who leaves his employer’s premises and takes his lunch period at some place of his own choosing is outside the course of his employment from the time he leaves the work premises until he returns. Absent a further showing, it is assumed that the nature of his employment has not affected his personal eating practices. The mere fact that he expects to return to his job at the end of the lunch period is not enough to warrant the inclusion of this period within the course of his employment. Malone, supra, at § 163. See Smith v. Orleans Management Corporation, 242 So.2d 288 (La.App. 4th Cir., 1970).

The trial court found that the incident occurred off the employer’s premises during an unpaid, non-supervised lunch period. Further, the decedent was not required to remain on the premises during his lunch break. Finally, the trial court could find no work-related function from the swimming. Therefore, the trial court concluded that the accident was not within the course of the employment.

In order to determine whether the injury “arose out of” the employment, we must look at the nature of the risk which brought on the accident. Thomas’ work did not require him to be immediately adjacent to or over the water. The jobsite was located approximately a quarter of a mile from the river. There is no evidence that he had been sent down to the river for any work-related reason. Rather, Thomas simply joined his co-employees to eat lunch in the shade by the river. After eating, they decided to go for a swim. All of this transpired during the lunch period when Thomas was free to do anything he chose. The only restriction was that he be back on the job at the end of the lunch period. The trial court concluded that the accident did not arise out of the employment. We agree.

In addition to the factors enunciated in the trial court’s written reasons for judgment, another factor is often applied in workmen’s compensation cases. This factor is whether the employee faced any unusual, peculiar or greater hazard than the general public encountered. Wilson v. Evans Cooperage Company, Inc., 387 So.2d 72 (La.App. 4th Cir.1980).

We cannot say that Thomas faced any greater hazard as a result of his employment than the general public faced. The accident was a tragedy, but it did not occur within the course and scope of his employment.

For the above and foregoing reasons, the judgment of the trial court is affirmed. Costs are assessed against plaintiffs.

AFFIRMED.


author: SHORTESS, Judge.

text:
    Eugene BRUMFIELD, Administrator of the Succession of Mary Brumfield Dillon, et al. v. Marvin BRUMFIELD, et al.
    No. 83 CA 0998.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1984.

      Ronald J. Brumfield, Franklinton, for plaintiff.
    Louis E. Pauratore, Covington, for defendant.
    Before EDWARDS, SHORTESS and SA-VOIE, JJ.
   SHORTESS, Judge.

Eugene Brumfield, Administrator of the Succession of Mary Brumfield Dillon, and Lucinda Brumfield Snyder, testamentary legatee (plaintiffs), filed suit against Marvin L. Brumfield and Ruth Nelson Brum-field. Their suit attacks the validity of a property transfer to Marvin Brumfield by Mary Brumfield Dillon ten days prior to her death and seeks to have it declared null and void and the property returned to her estate for distribution according to her will.

The trial court found that “Mary Brum-field Dillon was without mental capacity to contract or carry on business affairs on or about November 30, 1981,” held the attempted transfer null and ordered the return of the property to the estate.

The issues on appeal are:

(1) whether the cash deed was a sale or disguised donation;
(2) whether, if a donation, it met the codal requirements as to proper form; and
(3) whether parol evidence is admissible to prove that no consideration was paid or that the property transfer was not executed in authentic form.

FACTS

Mary Brumfield Dillon (decedent) was a widow with no surviving children. She raised a niece and nephew, plaintiff Lucinda Brumfield Snyder and defendant Marvin L. Brumfield, from childhood. In 1953 she executed a will bequeathing most of her property to Lucinda and Marvin. Decedent, 90 years of age, suffered from arteriosclerosis and other infirmities. She gave Marvin a power of attorney to manage her finances in 1981. She lived with his family during her last two months and after her release from the hospital for treatment of fainting spells, confusion and memory loss.

Ten days before her death decedent executed a “cash sale” transferring all of her immovable property to Marvin for the stated consideration of $15,000.00. At trial, Marvin admitted three times that no consideration was paid, that the transfer was “just a contribution.” The attorney who notarized the “cash sale” confirmed Marvin’s testimony, saying that he, too, thought it was a donation. He testified that the deed did not contain the standard “cash in hand, paid receipt wherein it is hereby acknowledged” language. There were no objections to Marvin’s three admissions by defendants’ attorney nor was there an objection to the notary’s testimony.

CASH SALE OR DISGUISED DONATION

A disguised transfer appears on its face to be a valid sale but is intended by the parties to be a donation or gift. A valid transfer takes place but is a donation rather than a sale and the Code articles on donations apply to the transfer when it is successfully attacked. See Moore v. Moore, 427 So.2d 1320 (La.App.2nd Cir.1983); Owen v. Owen, 336 So.2d 782 (La.1976); La.C.C. art. 1493, et seq. The testimony of both Marvin and the notary indicated that they had no doubt that decedent intended to donate all of her property to Marvin. Neither even remembered where the $15,000.00 figure on the deed came from, nor did the notary indicate receipt of any cash on the document itself. We find that the cash sale was in reality a disguised donation.

PROPER DONATIVE FORM

Civil Code arts. 1536 and 2234 require that donations of immovable property be executed in authentic form before a notary public in the presence of two witnesses, under penalty of nullity.

La.C.C. art. 1536 provides that:

An act shall be passed before a notary public and two witnesses of every donation inter vivos of immovable property or incorporeal things, such as rents, credits, rights or actions, under the penalty of nullity.

La.C.C. art. 2234 provides in pertinent part that:

The authentic act, as relates to contracts, is that which has been executed before a notary public or other officer authorized to execute such functions, in the presence of two witnesses, aged at least fourteen years, or of three witnesses, if a party be blind. If a party does not know how to sign, the notary must cause him to affix his mark to the instrument.

La.C.C. art. 2273 provides that:

The donor can not, by any confirmative act, supply the defects of a donation inter vivos null in form; it must be executed again in legal form.

The notary and both witnesses are not required to sign the document at the same time as all parties to the contract, but they must be present to witness the contracting parties’ signatures. Rittiner v. Sinclair, 374 So.2d 680 (La.App. 4th Cir.1978) (on rehearing 1979); American Bank and Trust Co. in Monroe v. Carson Homes, Inc., 316 So.2d 732 (La.1975).

There was no objection made to Marvin Brumfield’s testimony that only the contracting parties, the notary and his secretary were present when he and decedent signed the instrument. The required second witness was absent, neither witnessing the parties’ signatures nor signing until afterward. Clearly, the document was insufficient to meet the legal requisites for an authentic act.

PAROL EVIDENCE

Inasmuch as the document on its face was authentic in form, we must discuss whether parol evidence was even admissible to destroy the presumption of its validity.

La.C.C. art. 2236 provides that:

The authentic act is full proof of the agreement contained in it, against the contracting parties and their heirs or assigns, unless it be declared and proved a forgery.

La.C.C. art. 2276 provides that:

Neither shall parol evidence be admitted against or beyond what is contained in the acts, nor on what may have been said before or at the time of making them, or since.

Although La.C.C. art. 2276 precludes parol testimony to change the content of written instruments, limited exceptions to the parol evidence rule permit evidence to controvert an authentic act where contrary factual admissions are made by the parties thereto, to show that no consideration has been paid where parties intended a donation but used a simulated sale, or to disprove the form of an authentic act. Morrison v. Richards, 343 So.2d 375, 376, 377 (La.App. 4th Cir.1977); writ denied, 345 So.2d 503 (La.1977); Elrod v. LeNy, 193 So.2d 299 (La.App. 4th Cir.1966); Jackson v. Jackson, 411 So.2d 684, 686 (La.App. 4th Cir.1982); American Bank and Trust Co. in Monroe, 316 So.2d at 734; Union Savings and Loan Association v. The Grand Co., 239 So.2d 395 (La.App. 4th Cir.1970); Ford Motor Credit Co. v. Williams, 225 So.2d 717 (La.App. 1st Cir.1969); Finance Security Co. v. Williams, 42 So.2d 902 (La.App. 1st Cir.1949).

The sale of immovable property in authentic form cannot be attacked by a party thereto on the grounds that the consideration was not actually paid unless the attacking party alleges fraud, mutual error or force; or unless he produces written evidence in the nature of a counter letter; or unless the lack of consideration is indicated by answers to interrogatories or requests for admissions of facts. Jackson v. Jackson, 411 So.2d at 686; Roper GMC, Inc. v. Warren, 398 So.2d 542 (La.App. 3rd Cir.1981); Summers v. Summers Brothers, Inc., 385 So.2d 489 (La.App. 1st Cir.1980); Cordova v. Cordova, 382 So.2d 1050 (La.App. 2nd Cir.1980); Milton v. Milton, 364 So.2d 173 (La.App. 1st Cir.1978); writ denied, 366 So.2d 574 (La.1979); George M. Snellings, III, Admission of Parol Evidence to Annul an Authentic Act, 21 La. L.Rev. 680 (1961).

Counter letters and interrogatories have been considered written exceptions to the parol evidence rule. Interrogatories in particular afford the right and opportunity of “probing the conscience” of an adversary, with the price of being bound by unfavorable answers. The fact that interrogatories on facts were propounded and answered in open court does not preclude use of this procedure. Timely objection to such admissions is important. In this case, there were no objections made. Jackson, 411 So.2d at 686; Cosey v. Cosey, 376 So.2d 486 (La.1979); Milton v. Milton, 364 So.2d at 175, 176; Sexton v. Waggoner, 66 So.2d 634 (La.App. 2nd Cir.1953).

Parol evidence cannot be used to substitute a contract of a different nature in its place, that is, to change a sale to a donation. Milton, 364 So.2d at 173; Jackson, 411 So.2d at 687. In this case, the notarizing attorney’s testimony supports rather than contradicts the omission from the deed of any language acknowledging receipt of any consideration. Thus, this case is distinguished from those with contracts which recite receipt of the consideration. Roper GMC, Inc. v. Warren, 398 So.2d at 544; Bash v. Sims, 210 So.2d 180, 184 (La.App. 2nd Cir.1968).

Another permissible form of parol evidence is the judicial confession in La. C.C. art. 2275:

Every transfer of immovable property must be in writing; but if a verbal sale, or other disposition of such property, be made, it shall be good against the vendor, as well as against the vendee, who confesses it when interrogated on oath, provided actual delivery has been made of the immovable property thus sold.

This article contains the exception to the written requirement of immovable property transfers. Here, the intended donation fails for want of authentic form but may be an acknowledged act under private signature, falling under the La.C.C. art. 2275 “other disposition” category. Thus, the agreement could be effective upon judicial confession if actual delivery had taken place. Although Marvin Brumfield claims to have immediately taken possession the day the “cash sale” was signed, in his trial testimony he clearly admits that he neither lived on the property after the November 1981 transfer, nor rented it until over one year after he “acquired” the property — approximately ten months after this lawsuit was filed and three months prior to the trial.

La.C.C. art. 2235 provides that:

An act which is not authentic, through the incompetence or the incapacity of the officer, or through a defect of form, avails as a private writing, if it be signed by the parties.

La.C.C. art. 2242 provides that:

An act under private signature, acknowledged by the party against whom it is adduced, or legally held to be acknowledged, has, between those who have subscribed it, and their heirs and assigns, the same credit as an authentic act.

La.C.C. art. 2240 provides that:

All acts may be executed under private signature, except such as positive laws have ordained to be passed in presence of a notary.

La.C.C. art. 2242 is general and permits acknowledged acts under private signature, but La.C.C. art. 1536 more specifically requires authentic form for donations of immovable property rights. In American Bank and Trust Co. in Monroe, 316 So.2d at 735, the Louisiana Supreme Court held that the more specific, clear pronouncement of legislative will controls over the general provision of law. See Ducote v. Ducote, 442 So.2d 1299 (La.App. 3rd Cir.1983); writ denied, 445 So.2d 439 (La.1984).

CONCLUSION

For the reasons stated above, the decision of the trial court which held the attempted transfer null and ordered the return of the property to the estate is affirmed. Since the purported “cash sale” was found to be an improperly executed disguised donation, it is not necessary to discuss the other issues of mental incapacity, lesion beyond moiety, or whether the donor divested herself of all of her property without retaining some for her own support. Costs are taxed to defendant.

AFFIRMED.