text:
    STATE of Louisiana v. Donnie Ray CHEATWOOD.
    No. 83-KK-2615.
    Supreme Court of Louisiana.
    Nov. 26, 1984.

      Bobby L. Culpepper, Culpepper, Teat, Caldwell & Avery, Jonesboro, for relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ronald C. Martin, Dist. Atty., Michael Bonnette, John G. Williams, Asst. Dist. Attys., for respondent.
   LEMMON, Justice.

We granted a writ of review to determine whether the evidence in this case was sufficient to support defendant’s conviction of criminal neglect of family.

Defendant and his former wife were divorced on November 14, 1980. The judgment awarded the wife custody of their two minor children and ordered defendant to pay $200 per month to his former wife for support of the children. Although defendant made a payment soon after that, he quickly fell behind. The wife filed a rule in the civil proceeding to have the amount of past due alimony determined and made executory, and the court in February, 1981 rendered judgment for $700. When defendant had still not provided any additional support by October, 1981, the present criminal proceeding was instituted, formally charging him with criminal neglect of family in violation of La.R.S. 14:74.

At the trial, defendant did not contest the fact that he had not provided financial support for the children, but explained that an injury had disabled him from working. He testified that he was injured two days after his divorce and eventually underwent surgery in December, 1981. According to his unchallenged testimony, he was still wearing a back brace at the time of trial and was unable to work. Without objection, defendant introduced a March, 1983 statement from an orthopedic brace supplier which indicated receipt of an authorization for a new back brace, and he read a statement from a medical report by his attending physician that he “is disabled because of a chronic lumbar sacral disc syndrome”. According to defendant, the physician had prescribed various medications and warned defendant that he would risk paralysis if he did not properly care for his back.

After hearing the evidence, the judge found defendant guilty and sentenced him to serve six months in jail. The court of appeal, by a divided vote, denied defendant’s application for writ of review on the basis that there was “no error in the trial court’s ruling”. Defendant then applied to this court for a writ of review, which was granted. 444 So.2d 1227.

In order to convict a parent of criminal neglect of family under La.R.S. 14:74, the state must prove more than the parent’s mere noncompliance with a court order in a civil proceeding based on La.C.C. Art. 227. State v. Guillot, 389 So.2d 68 (La.1980). The state must prove that the parent intentionally failed to support his children and that the children were in destitute or necessitous circumstances. State v. Moran, 400 So.2d 1359 (La.1981).

Criminal neglect of family is a general intent crime. La.R.S. 14:10 and 11. Since the prohibited conduct is the “negative act” of failing to perform his affirmative duty to support, the “intentional nonsupport” element of the crime is proved by evidence that (1) the parent failed to provide support and (2) the parent was, or under the circumstances should have been, aware of the need for support.

A person’s otherwise criminal conduct may be justified under certain circumstances. See La.R.S. 14:18. Physical inability to perform an affirmative duty is statutorily recognized as a defense which negates criminal responsibility. Since “justification” defenses are not based on the nonexistence of any essential element of the offense, but rather on circumstances which make the accused’s conduct excusable on policy grounds, such defenses should be treated as affirmative defenses which the accused must establish by a preponderance of evidence. Moreover, in cases involving criminal neglect of family, the Legislature apparently intended for physical incapacity to be an affirmative defense, because La.R.S. 14:74B includes the provision that “[pjhysical incapacity which prevents a person from seeking any type of employment constitutes a defense to the charge of criminal neglect of family”. Therefore, a parent who knowingly fails to support his children who are in necessitous circumstances may nevertheless escape culpability by establishing (by a preponderance of evidence) that his failure to perform his affirmative duty was caused by “physical impossibility” (such as physical incapacity to work or perhaps lack of opportunity for work without fault on the parent’s part).

In the present case, defendant admitted that he knowingly failed to provide support to his needy children, but defended on the basis that he did not have the means or the physical ability to provide support. Therefore, defendant had the burden to prove the affirmative defense by a preponderance of the evidence.

Defendant testified that he was disabled from working because of an injury two days after the divorce and because of subsequent surgery and ongoing treatment. His testimony as to the injury, surgery and continuing disability was corroborated by testimony of his present wife and by hearsay evidence introduced without objection. Additionally, defendant’s former wife and her mother admitted that defendant had supported his children prior to the divorce and that they had heard of his injury and surgery.

The state did not challenge defendant’s contention that a disabling injury prevented him from seeking gainful employment and left him dependent for his own support on monthly food stamps in the amount of $26 and on his present wife’s limited means. There was no evidence that defendant was either working or physically able to work.

An appellate court, in reviewing any criminal conviction, must determine whether the overall evidence, viewed in the light most favorable to the prosecution, was sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the accused was guilty of every element of the offense. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In reviewing a conviction in which the defendant offered evidence tending to establish the affirmative defense of justification, an appellate court must determine whether a rational trier of fact could have concluded by a preponderance of the evidence, viewed in the light most favorable to the prosecution, that defendant’s failure to perform his affirmative duty did not result from physical incapacity to work. The evidence in the present case, viewed in the light most favorable to the prosecution, clearly preponderated in favor of a conclusion that defendant was physically incapacitated because of a back injury and was unable to work, and a rational trier of fact could not have reached a contrary conclusion on this evidence.

Accordingly, defendant’s conviction and sentence are reversed, and defendant is ordered discharged.

DIXON, C.J., and MARCUS, J., concur.

DENNIS, J., concurs in the decree.

      . Defendant’s hearsay testimony concerning the medical report was admissible because it was received without objection. See State v. Allien, 366 So.2d 1308 (La.1978); State v. Bouttee, 384 So.2d 773 (La.1980). A later prosecution objection barred admission of the actual report.

      . Because a parent’s obligation to support his children is dependent upon the children’s need for support and the parent’s awareness of that need, the word "intentionally" in the statute may be equated with “knowingly".

      . La.R.S. 14:18(5) provides:
      “The fact that an offender’s conduct is justifiable, although otherwise criminal, shall constitute a defense to prosecution for any crime based on that conduct. This defense of justification can be claimed under the following circumstances:
      ******
      “(5) When the crime consists of a failure to perform an affirmative duty and the failure to perform is caused by physical impossibility;’’

      . See State v. Moore, 444 So.2d 253 (La.App. 1st Cir.1983), and State in the Interest of White, 411 So.2d 537 (La.App. 1st Cir.1982), treating the justification defense of "compulsion” as an affirmative defense to be established by defendant by a preponderance of the evidence. See also State v. Freeman, 427 So.2d 1161 (La.1983), n. 5; State v. Landry, 381 So.2d 462 (La.1980).
      In Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977), the Court said:
      "[T]he Due Process Clause requires the prosecution to prove beyond a reasonable doubt all of the elements included in the definition of the offense of which defendant is charged. Proof of the non-existence of all affirmative defenses has never been constitutionally required _” 97 S.Ct. at 2327.
      Except in a few specific instances, such as La.R.S. 14:63 (trespassing), La.R.S. 14:69 (possession of stolen property) and La.R.S. 14:14 (insanity), Louisiana statutory criminal law does not directly address the burden of proof for "defenses". Nevertheless, there is a logical distinction between those defenses which actually defeat an essential element of the offense and those defenses which present exculpatory circumstances that defeat culpability, despite the state’s proof beyond a reasonable doubt of all the essential elements. In the first category are defenses such as intoxication (La.R.S. 14:15) and mistake of fact (La.R.S. 14:16), which preclude the presence of a mental element of the offense. When such defenses are raised by the evidence, the state must overcome the defense by evidence which proves beyond a reasonable doubt that the mental element was present despite the alleged intoxication or mistake of fact. Otherwise, the state would fail to meet its constitutional and statutory burden of proving guilt beyond a reasonable doubt of each element of the offense charged. La. Const. Art. I § 16 (1974); La.C.Cr.P. Art. 804; La.R.S. 15:271. However, defenses such as justification (La.R.S. 14:18) are truly "affirmative” defenses, because they do not negate any element of the offense. Compare United States v. Mitchell, 725 F.2d 832 (2nd Cir.1983) with State v. Burrow, 293 Or. 691, 653 P.2d 226 (1982); see also Model Penal Code, Proposed First Draft No. 1, § 1.12(2) (1961).
      It is logical to conclude that the Legislature intended to require the state to prove beyond a reasonable doubt only the elements of the offense and to require defendant to prove by preponderance of evidence the exculpatory circumstances constituting the "affirmative” defense. See W. Lafave & A. Scott, Criminal Law § 8 (1972). The statutory provisions setting forth the state’s burden of proof refer only to the requirement that the state prove the elements of the crime — not that the state disprove the exculpatory circumstances constituting defenses which defeat criminal culpability despite proof of the presence of all elements of the offense. See La.R.S. 15:271; La.C.Cr.P. Art. 804; former La.C.Cr.P. Arts. 263 and 387 (1928). See also State v. Freeman, 427 So.2d 1161 (La.1983), Lemmon, J., concurring.

      . Defendant had filed a motion in the civil proceeding to suspend the support order temporarily on account of his disability.

      . Prior to his remarriage, defendant had received monthly disability benefits (first of $56.00 and later of $91.00) from Family Security, but these benefits had been discontinued prior to trial. Defendant had also applied for Social Security benefits for himself and his children, but the claim was still pending at time of trial.
      Defendant and his new wife lived in a home that she owned by inheritance from her former husband. Her only income was in the form of social security benefits, which she claimed was not enough to pay her living expenses.

      .Both determinations employ a rational fact-finder standard, and both accord deference to the factfinder by requiring the evidence to be viewed in the light most favorable to the side that the factfinder favored in the verdict. In the first, the appellate court determines the issue of the sufficiency of the evidence; in the latter, the appellate court determines the issue of the preponderance of the evidence. Both are issues of law.
      In State v. Roy, 395 So.2d 664 (La. 1981), this court employed a standard similar to the latter standard in reviewing the evidence offered in support of the affirmative defense of insanity. See also State v. Gerone, 435 So.2d 1132 (La. App. 1st Cir.1983); State v. Bryan, 454 So.2d 1297 (La.App. 3rd Cir.1984).


source: Caselaw Access Project

license: Public Domain

text:
    STATE ex rel. Johnny STANSBERRY v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 84-KH-1692.
    Supreme Court of Louisiana.
    Nov. 26, 1984.
   IN RE: Stansberry, Johnny, Applying for REMEDIAL WRITS Parish of Orleans Criminal District Court Div. “D” Number 229-182

Granted. The ruling of the trial court is set aside and the case is remanded to the trial court for reconsideration in light of State ex rel. Becnel v. Blackburn, 410 So.2d 1015 (La.1982).

MARCUS,' J., dissents from the order. See my dissent in State ex rel. Becnel v.Blackburn, 410 So.2d 1015 (La.1982).

BLANCHE, and LEMMON, JJ., dissent for reasons assigned in Becnel.


text:
    STATE of Louisiana v. Raymond A. TUCKER.
    No. 84-KH-1790.
    Supreme Court of Louisiana.
    Nov. 26, 1984.
   IN RE: Tucker, Raymond A., Applying for Writ of Certiorari, Writ of Review Parish of Orleans Criminal District Court Div. “G” No. 257140.

Granted. The ruling of the trial court is set aside and the case is remanded to the trial court for reconsideration in light of State ex. rel Becnel v. Blackburn, 410 So.2d 1015 (La.1982). ■

MARCUS, J., dissents from the order. See my dissent in State ex rel. Becnel v. Blackburn, 410 So.2d 1015 (La.1982).

BLANCHE and LEMMON, JJ., dissent for reasons assigned in Becnel.


author: PER CURIAM.

text:
    STATE of Louisiana v. Earl BROOMFIELD.
    No. 84-KP-1905.
    Supreme Court of Louisiana.
    Nov. 26, 1984.
   IN RE: Broomfield, Earl, Applying for REMEDIAL WRIT Parish of Orleans Criminal District Court Div. “A”, No. 278-474.

PER CURIAM.

Granted. On the representation that counsel received the transcript of the trial in July, 1982, the Clerk of the Criminal District Court is ordered to lodge the record of appeal in this court at or before 10:00 a.m., December 7, 1984, or to show cause in this court at that time why the record has not been lodged.


text:
    STATE of Louisiana v. Jobe ELLIS.
    NO. 84-KK-1795.
    Supreme Court of Louisiana.
    Nov. 2, 1984.
   ORDER

Writ Granted. Defendant’s guilty plea to DWI was uncounseled, with no valid waiver of counsel evidenced, and thus the conviction that resulted therefrom was not admissible at his probation revocation hearing. State v. Varnado, 384 So.2d 440 (La. 1980). The trial judge relied on this inadmissible evidence in rendering the judgment revoking defendant’s probation. (See the Per Curiam responses of the trial judge to defendant’s assignments of error.) Accordingly, the judgment revoking defendant’s probation is reversed and set aside and defendant is ordered released.

DENNIS and LEMMON, JJ., dissent.


text:
    STATE ex rel. Eddie J. CATES v. Hon. Matthew S. BRANIFF, Judge & Clerk of Court Section B, Parish of Orleans.
    No. 84-KH-1706.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In re Cates, Eddie J., applying for writ of certiorari, writ of review, Parish of Orleans, Criminal District Court, Div. “B”, No. 251-375.

Granted in part. The district court is ordered to furnish relator with a transcript of his guilty plea.


text:
    STATE of Louisiana v. Phillip Keith YOUNG and Roy K. Young.
    No. 84-KK-1345.
    Supreme Court of Louisiana.
    Oct. 26, 1984.
   In rp Phillip Keith Young, applying for reconsideration of denied writ of October 5, 1984, 457 So.2d 1196; 1st Judicial District Court, Parish of Caddo, No. 125003; Court of Appeal, 2nd Circuit, No. 16586-KW.

Not considered. See Rule 9 § 6 La.Supreme Court Rules.

CALOGERO and DENNIS, JJ„ would grant the writ.


text:
    STATE of Louisiana ex rel. Elvin E. BROOKS v. Steve A. ALFORD, III Warden.
    No. 83-KH-2185.
    Supreme Court of Louisiana.
    Nov. 2, 1984.
   In re Rudolph F. Becker, III, applying for reconsideration, of Action of this Court dated 9/14/84, from Criminal District Court, Parish of Orleans, No. 276-792, “E”.

Granted for clarification. It is ordered that the trial judge either (a) enforce the plea bargain or (b) set aside the guilty plea and transfer the case to another judge for further proceedings according to law.


text:
    STATE of Louisiana v. Clyde T. BACCHUS.
    No. 84-K-1758.
    Supreme Court of Louisiana.
    Nov. 2, 1984.
   In re State of Louisiana, applying for writ of review to the Court of Appeal, Fourth Circuit, No. KA-1751; Parish of Orleans, Criminal District Court, Div. “F”, No. 289-436.

Not considered. Not timely filed.

DIXON, C.J., and CALOGERO and DENNIS, JJ., would deny the writ.


text:
    STATE of Louisiana, ex rel. Michael Anthony WILLIAMS v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 83-KH-2556.
    Supreme Court of Louisiana.
    Nov. 2, 1984.
   In re Michael Anthony Williams, applying for writs of certiorari and habeas corpus from the Nineteenth Judicial District Court, No. 90061, Parish of East Baton Rouge.

Denied.


text:
    STATE of Louisiana ex rel. Kenneth SMOTHERS—DOC # 89904 v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 84-KH-0493.
    Supreme Court of Louisiana.
    Nov. 2, 1984.
   In re Kenneth Smothers, applying for remedial writs to the Seventeenth Judicial District Court, No. 90919, Parish of La-fourche.

Denied.


text:
    STATE of Louisiana ex rel. Henry VINSON v. Donald R. GUILLORY, Warden, Correctional Center.
    No. 84-KH-0494.
    Supreme Court of Louisiana.
    Nov. 2, 1984.
   In re Henry Vinson, applying for writ of certiorari, prohibition, mandamus, supervisory and remedial writs from 4th Judicial District Court, Parish of Ouachita, No. 40689.

Denied.


text:
    STATE of Louisiana ex rel. Troy Murphy OATSVALL v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 84-KH-0506.
    Supreme Court of Louisiana.
    Nov. 2, 1984.
   In re Troy Murphy Oatsvall, applying for writ of mandamus, 22nd Judicial District Court, Parish of Washington, Nos. 37045, 37204.

Denied.


text:
    STATE ex rel. Mark D. SMITH v. Ross MAGGIO.
    No. 84-KH-0641.
    Supreme Court of Louisiana.
    Nov. 2, 1984.
   In re Mark D. Smith, applying for writ of mandamus, from the Twenty-Ninth Judicial District Court, Parish of St. John the Baptist, No. 5-75.

Denied.


text:
    STATE of Louisiana ex rel. Frank M. SCIANNA v. 16TH JUDICIAL DISTRICT, CRIMINAL DISTRICT COURT, PARISH OF ST. MARY.
    No. 84-KH-0642.
    Supreme Court of Louisiana.
    Nov. 2, 1984.
   In re Frank M. Scianna, applying for writ of mandamus to the Sixteenth Judicial District Court, Parish of St. Mary, No. 115677.

Denied.


text:
    STATE of Louisiana ex rel. James R. THOMAS v. STATE of Louisiana.
    No. 84-KH-0668.
    Supreme Court of Louisiana.
    Nov. 2, 1984.
    Reconsideration Denied Dec. 7,1984.
   In re James R. Thomas applying for writ of certiorari, from Nineteenth Judicial District Court, Parish of East Baton Rouge, No. 58817, Sec “I”.

Denied.


text:
    STATE of Louisiana ex rel., Marvin MILLER v. Hon. Matthew S. BRANIFF, Judge, Criminal District Court.
    No. 84-KH-0684.
    Supreme Court of Louisiana.
    Nov. 2, 1984.
   In re Marvin Miller, applying for writ of mandamus, Criminal District Court, Parish of Orleans, No. 251-951.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Melvin BAZILE, Sr. v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary, State of Louisiana.
    No. 84-KH-0721.
    Supreme Court of Louisiana.
    Nov. 2, 1984.
   In re Melvin Bazile, Sr., applying for writ of habeas corpus, from Criminal District Court, Parish of Orleans, No. 261-833.

Denied.


text:
    STATE of Louisiana ex rel. Johnny WHITE v. Ross MAGGIO, Jr. Warden, Louisiana State Penitentiary.
    No. 84-KH-0745.
    Supreme Court of Louisiana.
    Nov. 2, 1984.
   In re Johnny White, applying for supervisory writ to the Twenty-Fourth Judicial District Court, Parish of Jefferson, No. 79-1290.

Denied.


text:
    STATE of Louisiana, ex rel. Robert PITTMAN v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 84-KH-0746.
    Supreme Court of Louisiana.
    Nov. 2, 1984.
   In re Robert Pittman, applying for writ of habeas corpus, 22nd Judicial District Court, Washington Parish, No. 36-612.

Denied.


text:
    STATE of Louisiana ex rel. Cleveland BELL v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 84-KH-0751.
    Supreme Court of Louisiana.
    Nov. 2, 1984.
   In re Cleveland Bell, applying for writ of certiorari, prohibition, mandamus or habeas corpus, to the Twenty-Fourth Judicial District .Court, Parish of Jefferson, No. 78-2318, Division D.

Denied.


text:
    STATE of Louisiana ex rel. Larry J. WALKER v. N. Burl CAIN, Warden, Dixon Correctional Institute.
    No. 84-KH-0760.
    Supreme Court of Louisiana.
    Nov. 2, 1984.
   In re Larry J. Walker, applying for writ of certiorari to the Fourteenth Judicial District Court, Parish of Calcasieu, No. 2902-83; Third Circuit Court of Appeal, No. K83-760.

Denied.


text:
    STATE of Louisiana ex rel. Odessa ROBINSON v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 84-KH-0822.
    Supreme Court of Louisiana.
    Nov. 2, 1984.
   In re Odessa Robinson, applying for writ of habeas corpus to the Criminal District Court, Section “F”, Parish of Orleans.

Denied.


text:
    STATE of Louisiana ex rel. Johnny W. ROBBINS v. W. Orie HUNTER, Jr., Clerk, First Judicial District Court, Parish of Caddo, State of Louisiana.
    No. 84-KH-0896.
    Supreme Court of Louisiana.
    Nov. 2, 1984.
   In re Johnny W. Robbins, applying for writ of mandamus to the First Judicial District Court, No. 109698, Parish of Cad-do.

Denied.

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


text:
    STATE of Louisiana ex rel. Charles WELCH v. Ross MAGGIO, Jr., Warden, Department of Corrections.
    No. 84-KH-0904.
    Supreme Court of Louisiana.
    Nov. 2, 1984.
   In re Charles Welch, applying for writ of certiorari or review to the Nineteenth Judicial District Court, Parish of East Baton Rouge, No. 5-80-376.

Denied.


text:
    STATE of Louisiana ex rel. Albert SMITH v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 84-KH-0931.
    Supreme Court of Louisiana.
    Nov. 2, 1984.
   In re Albert Smith, applying for writ of certiorari, mandamus, and/or habeas corpus, to the Twentieth Judicial District Court, Parish of West Feliciana, No. 20380.

Denied.


text:
    STATE of Louisiana ex rel. Gerald J. GARNER v. Steve ALFORD, Warden, Washington Correctional Institute.
    No. 84-KH-1001.
    Supreme Court of Louisiana.
    Nov. 2, 1984.
   In re Gerald J. Garner, applying for remedial writs from the Criminal District Court, Parish of Orleans, No. '274-568. Section “I”.

Denied.


text:
    STATE of Louisiana ex rel. Eddie WRIGHT v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 84-KH-1011.
    Supreme Court of Louisiana.
    Nov. 2, 1984.
   In re Eddie Wright, applying for application for post conviction relief to the Criminal District Court, Section “A”, No. 245-709, Parish of Orleans.

Denied.


text:
    STATE ex rel. Charles Ray SPEARS v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 84-KH-1026.
    Supreme Court of Louisiana.
    Nov. 2, 1984.
   In re Charles Ray Spears, applying for writ of mandamus to the Twenty-First Judicial District Court, Division “B”, No. 41918, Parish of Tangipahoa.

Denied.


text:
    STATE ex rel. Donald CARSON v. TWENTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF WASHINGTON.
    No. 84-KH-1057.
    Supreme Court of Louisiana.
    Nov. 2, 1984.
   In re Donald Carson, applying for writ of mandamus to the Twenty-Second Judicial District, Parish of Washington, No. 37445.

Denied.


text:
    STATE of Louisiana v. Clarence RANDOLPH.
    No. 84-KH-1081.
    Supreme Court of Louisiana.
    Nov. 2, 1984.
   In re Clarence Randolph, applying for writ of mandamus and prohibition to the Criminal District Court, Parish of Orleans, No. 267-145.

Denied. Moot.


text:
    STATE ex rel. William Larry MERCER v. JUDGE, DIVISION “B” and Morgan J. Goudeau, III, District Attorney, 27th Judicial District Court, Parish of St. Landry.
    No. 84-KH-1082.
    Supreme Court of Louisiana.
    Nov. 2, 1984.
   In re William Larry Mercer, applying for writ of mandamtis, Parish of St. Landry, 27th Judicial District Court, Nos. 36493 and 36494.

Denied. Moot.


text:
    STATE ex rel. Matthew HENDERSON v. Ross MAGGIO, Warden, et al.
    No. 84-KH-1085.
    Supreme Court of Louisiana.
    Nov. 2, 1984.
   In re Matthew Henderson, applying for habeas corpus to the Criminal District Court, Parish of Orleans, Section “F”, No. 255000.

Denied.


text:
    STATE of Louisiana ex rel. Gary JENKINS v. Honorable Fred BOWES and Clerk of Court, et al., 24th Judicial District Court, Parish of Jefferson, State of Louisiana.
    No. 84-KH-1165.
    Supreme Court of Louisiana.
    Nov. 2, 1984.
   In re Gary Jenkins, applying for writ of mandamus to the Twenty-Fourth Judicial District Court, Parish of Jefferson, No. 79-1165, Division “E”.

Denied. Moot.


text:
    STATE ex rel. Henry Lee TAYLOR v. STATE of Louisiana et al., Ross Maggio, Jr. Warden, Louisiana State Penitentiary.
    No. 84-KH-1198.
    Supreme Court of Louisiana.
    Nov. 2, 1984.
   In re Henry Lee Taylor, applying for supervisory writ to the Criminal District Court, Parish of Orleans, No. 279726.

Denied.


text:
    John K. McALLISTER v. Isaac RUFFIN, Jr., et al.
    No. 84-C-1456.
    Supreme Court of Louisiana.
    Nov. 2, 1984.
   In re McAllister, John K., applying for writ of certiorari, writ of review to the Court of Appeal, Second Circuit, No. 16307-CA; Parish of Caddo, 1st Judicial District Court, Div. “G”, No. 275877.'

Denied.

DIXON, C.J., and CALOGERO and LEM-MON, JJ., would grant the writ.


text:
    Ronald CHERRY v. OFFICE OF CRIMINAL SHERIFF.
    No. 84-C-1481.
    Supreme Court of Louisiana.
    Nov. 2, 1984.
   In re Cherry, Ronald, applying for writ of certiorari, writ of review to the Court of Appeal, Fourth Circuit, No. CA-1052; Civil Service Commission, Div. “ ”, No. 1700.

Denied.

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


text:
    Johana Walker COBURN v. COMMERCIAL NATIONAL BANK.
    No. 84-C-1498.
    Supreme Court of Louisiana.
    Nov. 2, 1984.
   In re Coburn, Johana Walker, Walker, Johana Coburn, applying for writ of certio-rari, writ of review to the Court of Appeal, Second Circuit, No. 16310-CA; Parish of Caddo, 1st Judicial District Court, Div. “I”, No. 283534.

Denied.

DENNIS, J., would grant the writ.


text:
    STATE ex rel. Nolan Joseph GASPER v. STATE of Louisiana.
    No. 84-KH-1563.
    Supreme Court of Louisiana.
    Nov. 2, 1984.
   In re Gasper, Nolan Joseph, applying for writ of certiorari, habeas corpus, prohibition and mandamus, Parish of Orleans, Criminal District Court, Div. “B”, Nos. 256051, 258619.

Denied.


text:
    Mary Ann GAUDIN, divorced wife of Gustave Joseph Mara v. Gustave Joseph MARA.
    No. 84-C-1573.
    Supreme Court of Louisiana.
    Nov. 2, 1984.
   In re Mara, Gustave Joseph, applying for writ of certiorari, writ of review to the Court of Appeal, Fourth Circuit, No. CA-1324; Parish of Orleans, Civil District Court, Div. “F”, No. 81-12965.

Denied.


text:
    Arthur C. DALE v. FRENCH MARKET CORPORATION.
    No. 84-C-1575.
    Supreme Court of Louisiana.
    Nov. 2, 1984.
   In re French Market Corporation, applying for writ of review to the Court of Appeal, Fourth Circuit, No. CA-1339; Civil Service Commission, City of New Orleans, Div. “ ”, No. 2012.

Denied.


text:
    ASSOCIATED EXECUTIVE CONTROL, INC. v. BANKERS UNION LIFE INSURANCE COMPANY.
    No. 84-C-1576.
    Supreme Court of Louisiana.
    Nov. 2, 1984.
   In re Associated Executive Cont. Inc., applying for writ of certiorari, writ of review to the Court of Appeal, Fourth Circuit, No. 12-912; Parish of Orleans, Civil District Court, Div. “B”, No. 595-110.

Denied.

DIXON, C.J., and CALOGERO, J., would grant as to the offset only.


text:
    ASSOCIATED EXECUTIVE CONTROL, INC. v. BANKERS UNION LIFE INSURANCE COMPANY.
    No. 84-C-1577.
    Supreme Court of Louisiana.
    Nov. 2, 1984.
   In re Bankers Union Life Ins. Co., applying for writ of certiorari, writ of review to the Court of Appeal, Fourth Circuit, No. 12912; Parish of Orleans, Civil District Court, Div. “B”, No. 595-110.

Denied.


text:
    STATE of Louisiana v. Kent W. VERCHER.
    No. 84-KK-1579.
    Supreme Court of Louisiana.
    Nov. 2, 1984.
   In re Vercher, Kent W., applying for writ of certiorari, prohibition and mandamus, Parish of Morehouse, 4th Judicial District Court, Div. “D”, No. 83-3164-A; to the Court of Appeal, Second Circuit, No. 16694-KW.

Denied.


text:
    USTICA ENTERPRISES, INC., d/b/a The Music Box v. JOSEPH M. COSTELLO, INC., d/b/a Gulf South Broadcasters (WRNO).
    No. 84-C-1581.
    Supreme Court of Louisiana.
    Nov. 2, 1984.
   In re Ustica Enterprises, Inc. d/b/a, Music Box, applying for writ of certiorari, writ of review to the Court of Appeal, Fifth Circuit, Nos. 5-401, 5-401; Parish of Jefferson, 24th Judicial District Court, Div. “I”, No. 249701.

Denied.

DENNIS, J., would grant the writ.


text:
    Merrel Loubat CAIRE v. Harry G. CAIRE.
    No. 84-C-1582.
    Supreme Court of Louisiana.
    Nov. 2, 1984.
   In re Caire, Harry G., applying for writ of certiorari, writ of review to the Court of Appeal, Fourth Circuit, No. CA-1362; Parish of Orleans, Civil District Court, Div. “E”, No. 78-8924.

Denied.


text:
    STATE of Louisiana v. James A. MOORE.
    No. 84-KK-1592.
    Supreme Court of Louisiana.
    Nov. 2, 1984.
   In re Moore, James A., applying for writ of certiorari, writ of mandamus, prohibition and remedial writs, Parish of Morehouse, 4th Judicial District Court, Div. “B”, No. T83-2793A; to the Court of Appeal, Second Circuit, No. 16728-KW.

Denied.


text:
    Wayne J. VERGES v. NEW ORLEANS PUBLIC SERVICE, INC., American LaFrance, Inc., Adolph Mayer, John M. Davis and the City of New Orleans.
    No. 84-C-1604.
    Supreme Court of Louisiana.
    Nov. 2, 1984.
   In re Verges, Wayne J., applying for writ of certiorari to the Court of Appeal, Fourth Circuit, No. CA-1964; Parish of Orleans, Civil District Court, Div. “L”, No. 77-17926.

Denied.


text:
    Many HEYMANN v. ALLSTATE INSURANCE COMPANY, State Farm Mutual Automobile Insurance Company and Sherryl B. Kay.
    No. 84-C-1605.
    Supreme Court of Louisiana.
    Nov. 2, 1984.
   In re Allstate Insurance Co. et al., Kay, Sherryl B., applying for writ of certiorari, writ of review to the Court of Appeal, Fifth Circuit, No. 83-CA-846; Parish of Jefferson, 24th Judicial District Court, Div. “G”, No. 253-331.

Denied.


text:
    Mrs. Danuta KROTOSKI v. Dr. Wojciech KROTOSKI.
    No. 84-C-1606.
    Supreme Court of Louisiana.
    Nov. 2, 1984.
   In re Krotoski, Wojciech Dr., applying for writ of certiorari to the Court of Appeal, Fourth Circuit, No. CA-1645; Parish of Orleans, Civil District Court, Div. “I”, No. 81-8702.

Denied.


text:
    Edward MAGEE v. JEFFERSON RENTALS, J-R Equipment Corporation, Desa Industries, Inc. and Best Construction Equipment Company.
    No. 84-C-1610.
    Supreme Court of Louisiana.
    Nov. 2, 1984.
   In re Desa Industries, Inc., applying for writ of certiorari to the Court of Appeal, Fifth Circuit, Nos. 5-330, 5-330; Parish of Jefferson, 24th Judicial District Court, Div. “I”, No. 171-093.

Denied.

MARCUS, J., would grant the writ.


text:
    Mrs. Patricia Church Wife of Jay Butler TEASDEL v. Jay Butler TEASDEL.
    No. 84-C-1619.
    Supreme Court of Louisiana.
    Nov. 2, 1984.
   In re Church, Patricia, Teasdel, Patricia Church, applying for writ of review to the Court of Appeal, Fourth Circuit, No. CA-1689; Parish of Orleans, Civil District Court, Div. “I”, No. 515-924.

Denied.

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


text:
    CITY OF MONROE v. Alan PESNELL.
    No. 84-KK-1630.
    Supreme Court of Louisiana.
    Nov. 2, 1984.
   In re Monroe, City of, applying for writ of review, and/or supervisory writs to the Court of Appeal, Second Circuit, No. 16618-KW; Parish of Ouachita, 4th Judicial District Court, Div. “D”, No. 347; City Court of the City of Monroe, Div. “B”, Nos. 5946, 5947.

Denied.

DENNIS, J., would grant the writ.


text:
    Leonard D. MILTON, Jr. v. CONTINENTAL INSURANCE, CO. et al.
    No. 84-CC-1635.
    Supreme Court of Louisiana.
    Nov. 2, 1984.
   In re Continental Insurance Co. et al., applying for writ of certiorari, writ of review, Parish of Tangipahoa, 21st Judicial District Court, Div. “B”, No. 64590; to the Court of Appeal, First Circuit, No. CW-84-1036.

Denied.

LEMMON, J., would grant the writ.


text:
    SALES TAX COLLECTOR, ST. CHARLES PARISH v. DELTA SERVICES INDUSTRIES and Delta Transload, Inc.
    No. 84-C-1655.
    Supreme Court of Louisiana.
    Nov. 2, 1984.
   In re Delta Services Industries et al., Delta Transload, Inc., applying for writ of certiorari to the Court of Appeal, Fifth Circuit, No. 83-CA-797; Parish of St. Charles, 29th Judicial District Court, Div. “E”, No. 25866.

Denied.

CALOGERO and MARCUS, JJ., would grant the writ.


text:
    Pamela SINGLETARY, Individually and as the Natural Tutrix of the Minor Child, Jonothan Derek Singletary; and Mrs. Charles Delaughter, Individually and as the Natural Tutrix of the Minor Children, Charles Ray Delaughter, Clay E. Delaughter and Roxanne Delaughter v. BEAU CHENE, INC.; T.L. James Company, Inc., Waldemar S. Nelson and Company, Inc.; Louisiana Paving Company, Inc.; ABC Insurance Company; DEF Insurance Company; GHI Insurance Company; and XYZ Insurance Company.
    No. 84-CC-1659.
    Supreme Court of Louisiana.
    Nov. 2, 1984.
   In re Beau Chene Inc. et al., applying for supervisory writs, Parish of St. Tammany, 22nd Judicial District Court, Div. “B”, No. 71581; to the Court of Appeal, First Circuit, No. CW 84 0799.

Denied.

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


text:
    James JORDAN v. SOUTHERN NATURAL GAS COMPANY and Home Insurance Company.
    No. 84-C-1660.
    Supreme Court of Louisiana.
    Nov. 2, 1984.
   In re Jordan, James, applying for writ of review to the Court of Appeal, Second Circuit, No. 16399-CA; Parish of Bienville, 2nd Judicial District Court, Div. “B”, No. 26241.

Denied. The result is correct.

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


text:
    Willie Mae COFFIL v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. 84-C-1668.
    Supreme Court of Louisiana.
    Nov. 2, 1984.
   In re Coffil, Willie Mae, applying for writ of certiorari to the Court of Appeal, Fourth Circuit, No. CA-1490; Parish of Orleans, Civil District Court, Div. “G”, No. 82-8006.

Denied.

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


text:
    SCHEFFLER, Jean Ann Mayeaux v. SCHEFFLER, William J., III.
    No. 84-C-1669.
    Supreme Court of Louisiana.
    Nov. 2, 1984.
   In re Scheffler, William J., Ill, applying for writ of certiorari, writ of review to the Court of Appeal, Fifth Circuit, No. 83-CA-813; Parish of Jefferson, 24th Judicial District Court, Div. “0”, No. 224-253.

Denied.


text:
    STATE of Louisiana v. Jack W. WILLIAMS.
    No. 84-KK-1670.
    Supreme Court of Louisiana.
    Nov. 2, 1984.
   In re Williams, Jack W., applying for writ of certiorari, writ of review, Parish of LaSalle, 28th Judicial District Court, Div. “ ”, No. 30626; to the Court of Appeal, Third Circuit, No. K-84-708.

Denied.


text:
    CITY OF BATON ROUGE v. Arnold AMBEAU.
    No. 84-KK-1671.
    Supreme Court of Louisiana.
    Nov. 2, 1984.
   In re Ambeau, Arnold, applying for writ of certiorari, City Court, City of Baton Rouge, Div. “C”, Nos. F-42406, T-21408; Parish of East Baton Rouge, 19th Judicial District Court, Div. “C”, No. 4-84-693; to the Court of Appeal, First Circuit, No. CW-84-1050.

Denied.


text:
    Maxine C. JEFFERSON, Simuel Hibler (a/k/a Callihan), Mary Della Callihan, Ida Beatrice Callihan, Loretta Callihan, Willie Callihan & Darrell Callihan v. Sam SARAGUSA and L. “Barbee” Ponder, Jr.
    No. 84-C-1675.
    Supreme Court of Louisiana.
    Nov. 2, 1984.
   In re Jefferson, Maxine et al., Hibler, Simuel a/k/a, Callihan, Simuel, Callihan, Mary Della, Callihan, Ida Beatrice, Calli-han, Loretta, Callihan, Willie, Callihan, Darrell, applying for writ of certiorari, writ of prohibition and mandamus to the Court of Appeal, First Circuit, No. 83-CA-0834; Parish of Tangipahoa, 21st Judicial District Court, Div. “D”, No. 54831.

Denied.

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


text:
    Lonnie CRAFT v. CALDWELL PARISH POLICE JURY.
    No. 84-C-1676.
    Supreme Court of Louisiana.
    Nov. 2, 1984.
   In re Snellings, Louise Marie, Snellings, George Jr. Est. dba, Snellings Farms, Louisiana Farm Bur. Mut. Ins. Co., applying for writ of certiorari to the Court of Appeal, Second Circuit, No. 16161-CA; Parish of Caldwell, 37th Judicial District Court, Div. “ ”, No. 12785.

Denied.

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


text:
    SELECT PROPERTIES, LTD. v. Peter RANDO and Anna Perigoni, dba Rando’s Bar & Game Room.
    No. 84-C-1680.
    Supreme Court of Louisiana.
    Nov. 2, 1984.
   In re Rando, Peter, et al., Perigoni, Anna, Rando’s Bar & Game Room, applying for writ of certiorari to the Court of Appeal, Fourth Circuit, No. CA 1606; Parish of St. Bernard, 34th Judicial District Court, Div. “C”, No. 45-016.

Denied.

CALOGERO and MARCUS, JJ., would grant the writ.


text:
    STATE of Louisiana v. Johnny Ray DUNN.
    No. 84-K-1723.
    Supreme Court of Louisiana.
    Nov. 2, 1984.
   In re Dunn, Johnny Ray, Dunn, John, applying for writ of certiorari to the Court of Appeal, Second Circuit, No. 16276-KA; Parish of Winn, 8th Judicial District Court, Div. “ ”, No. 28811.

Denied.


text:
    STATE ex rel. Carl BENION v. Hon. Rudolph F. BECKER.
    No. 84-KH-1751.
    Supreme Court of Louisiana.
    Nov. 2, 1984.
   In re Benion, Carl, applying for remedial writs, Parish of Orleans, Criminal District Court, Div. “E”, No. 226-712.

Denied. Boykin transcript is unavailable.


text:
    STATE of Louisiana v. Jack TUESNO.
    No. 84-K-1756.
    Supreme Court of Louisiana.
    Nov. 2, 1984.
   In re Tuesno, Jack, applying for writ of certiorari to the Court of Appeal, Fourth Circuit, No. KA-1822; Parish of Orleans, Criminal District Court, Div. “F”, No. 295917.

Denied.


text:
    STATE of Louisiana ex rel. James SHERRY v. STATE of Louisiana.
    No. 84-KH-1782.
    Supreme Court of Louisiana.
    Nov. 2, 1984.
   In re Sherry, James, applying for writ of mandamus, Parish of Orleans, Criminal District Court, Div. “A”, No. 294-714.

Denied. Relator may obtain briefs from counsel when prepared.


text:
    Heidi M. STERN v. DEPARTMENT OF HEALTH AND HUMAN RESOURCES-NORTHWEST LOUISIANA STATE SCHOOL.
    No. 84-CC-1796.
    Supreme Court of Louisiana.
    Nov. 2, 1984.
   In re Health & Human Res. Dept, et al., Northwest Louisiana State School, applying for stay, supervisory writ and writ of mandamus, Civil Service Commission, Div. “ ”, No. 3908; to the Court of Appeal, First Circuit, No. CW84-1177.

Denied.

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


text:
    STATE ex rel. Donald Ray BERRY v. Isom J. GUILLORY, Honorable Trial Judge.
    No. 84-KH-1805.
    Supreme Court of Louisiana.
    Nov. 2, 1984.
   In re Berry, Donald Ray, applying for writ of certiorari, writ of review, Parish of St. Landry, 27th Judicial District Court, Div. “C”, No. 34998.

Denied.


text:
    In re Edwina ELLISON Applying for Permission to Take the Louisiana Bar Examination.
    No. 84-OB-1649.
    Supreme Court of Louisiana.
    Nov. 2, 1984.
   In re Ellison, Edwina In re, applying for admission.

Denied.


text:
    STATE of Louisiana, DEPARTMENT OF TRANSPORTATION & DEVELOPMENT v. SAVOIE TRACTOR AND IMPLEMENT COMPANY.
    No. 84-CC-1590.
    Supreme Court of Louisiana.
    Nov. 2, 1984.
   In re Agricultural Implement Co. Inc., Acadia Machine & Equip. Co., applying for writ of review to the Court of Appeal, Third Circuit, No. 84-606; Parish of Acadia, 15th Judicial District Court, Div. “E”, No. 46153B.

Granted.


text:
    STATE ex rel. Mitchell MOORE v. Hon. Frank SHEA, Judge, Section “G”, Parish of Orleans.
    No. 84-KH-1551.
    Supreme Court of Louisiana.
    Nov. 2, 1984.
   In re Moore, Mitchell, applying for mandamus, Parish of Orleans, Criminal District Court, Div. “G”, No. 252-943.

Granted. The trial court is ordered to rule on relator’s application in 45 days.


text:
    Armand J. DUVIO, Sr. v. CONTINENTAL CASUALTY COMPANY, Executive Officers, Directors and Shareholders of Building Engineering Services Company, Inc.
    No. 84-C-1558.
    Supreme Court of Louisiana.
    Nov. 2, 1984.
   In re Continental Casualty Co. et al., Bouy, Maurice, applying for writ of certio-rari to the Court of Appeal, Fourth Circuit, No. CA-1365; Parish of Orleans, Civil District Court, Div. “B”, No. 77-7128.

Prior report: 452 So.2d 182.

Granted. Case remanded to the Court of Appeal to decide the case on the record. See Gonzales v. Xerox Corp., 320 So.2d 163 (La.1975).

DIXON, C.J., and LEMMON, J., dissent.


text:
    Linda Ann Razza RAPP v. Frederick Joseph RAPP.
    No. 84-C-1560.
    Supreme Court of Louisiana.
    Nov. 2, 1984.
   In re Rapp, Linda Ann Razza, applying for writ of certiorari to the Court of Appeal, Fourth Circuit, No. CA-0807; Parish of Orleans, Civil District Court, Div. “F”, No. 80-8644.

Granted. The ruling of the Court of Appeal is reversed and the case is remanded to the Court of Appeal for reconsideration. C.C.P. 2121 and 2161; Traigle v. Gulf Coast, 399 So.2d 183 (La. 1981); and Taddonio v. Taddonio, 429 So.2d 442 (La. 1983) and 431 So.2d 412 (La.1983) are applicable and govern this case.

MARCUS, J., dissents.


text:
    Willie BURLEIGH, et ux v. STATE FARM INSURANCE, et al.
    No. 84-C-1657.
    Supreme Court of Louisiana.
    Nov. 2, 1984.
   In re Burleigh, Willie et ux, Burleigh, Emeline, applying for writ of certiorari, writ of review to the Court of Appeal, Third Circuit, No. 84-471; Parish of St. Landry, 27th Judicial District Court, Div. “C”, No. 84359-1.

Prior report: 453 So.2d 321.

Granted. The judgment of the Court of Appeal is set aside, and the appeal is reinstated.


text:
    STATE of Louisiana v. Norman SMITH.
    No. 84-KK-1877.
    Supreme Court of Louisiana.
    Nov. 2, 1984.
   In re Smith, Norman, applying for writ of certiorari, writ of review, stay, prohibition and mandamus, Parish of Orleans, Criminal District Court, Div. “B”, Nos. 288-745, 288-746; to the Court of Appeal, Fourth Circuit, No. K-2692.

Granted. Writ is granted. Stay order denied. The rulings of the courts below are reversed. The case is remanded for an evidentiary hearing to be held within 60 days, in default of which the district judge is ordered to dismiss the case.


text:
    STATE of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT v. SAVOIE TRACTOR & IMPLEMENT COMPANY.
    No. 84-CC-1590.
    Supreme Court of Louisiana.
    Nov. 29, 1984.
   Granted. Dismissed on request of all parties.


author: CRAIN, Judge.

text:
    Mrs. Ophelia E. GUIDRY, Individually and as Tutrix of Her Minor Child, Bonita Fay Guidry and Tyrone McDonald Guidry and Valerie Renese Guidry v. Mrs. Faye Hart Fugler Bowers, the Wife of Robert BOWERS, Individually, and as Tutrix of Her Minor Child, Steven Fugler, et al.
    No. 83 CA 0935.
    Court of Appeal of Louisiana, First Circuit.
    July 5, 1984.
    Rehearing Granted Aug. 24, 1984.
    Warren D. Ponder, Baton Rouge, for plaintiff-appellant Ophelia E. Guidry, Etc.
    Steve Le Blanc, Baton Rouge, for defendant-appellee Mrs. Faye Hart F. Bowers, Etc.
    Kenneth E. Barnette, Baton Rouge, for defendant-appellee Prudential Property and Casualty Ins. Co.
    Before SHORTESS, LANIER and CRAIN, JJ.
   CRAIN, Judge.

This is an appeal from a decision of the trial court holding that there existed no valid, enforceable compromise agreement between plaintiff and defendant. Plaintiff appealed.

FACTS

On May 13, 1979, Steven Fugler, minor son of defendant, Faye Hart Fugler Bowers (Mrs. Bowers), lost control of his mother’s car and hit McKinley Guidry. Guidry was riding a bicycle and had stopped at the intersection when he was hit and seriously injured. He died nine days later. He was survived by his wife, Ophelia Guidry, and three children, Tyrone, Valerie and Bonita Guidry. At the time of his death, Valerie and Bonita Guidry were minors.

Steven Fugler’s negligence was never at issue and his mother’s liability insurer, Prudential Property and Casualty Insurance Company (Prudential), indicated from the outset that it was willing to pay the $10,-000 limits of its policy to the Guidrys.

Defendant subsequently made an oral offer, sometime prior to September, 1979, to personally pay an additional $10,000 to the Guidrys to settle the cause of action by way of compromise. Mrs. Guidry accepted this oral offer. By letter, dated September 14, 1979, Mrs. Guidry through her attorney stated that she would accept in settlement of the claim on behalf of herself and her minor daughters, a $5000 cash payment from Mrs. Bowers along with a promissory note executed by Mrs. Bowers for $5000 payable at the rate of $50 per month, at an annual interest rate of 8%. A letter was also written at this time by Mrs. Guidry’s attorney to Tyrone Guidry, the major son, seeking to have Tyrone execute a release of the claim based on the $10,000 compromise. There is nothing in the record to indicate that he ever did this.

On October 26, 1979, defendant executed a “collateral mortgage” on her home together with a “collateral mortgage note” as security for her agreement to pay plaintiff $10,000. She attempted to borrow $10,-000 to settle the claim, but was never able to secure financing and therefore never issued a hand note in connection with the mortgage.

In order to avoid prescription, a wrongful death suit was filed on May 13, 1980, by Mrs. Guidry, individually and as tutrix of her minor child, Bonita Faye Guidry, and by her major children, Tyrone Guidry and Valerie Guidry, asking for $297,746.46 from the defendant. The compromise was not mentioned. Defendant, through her attorney, Joseph Gladney, then sent Mrs. Guidry the following letter dated May 27, 1980, which reduced the terms of the compromise to writing and which Mrs. Guidry signed:

Dear Mr. Gladney:

Please be advised that as of this date I have been unable to secure a loan in order to pay the $10,000.00 owed as a result of this accident. As soon as the interest rates go down sufficiently for me to do so, I will borrow the necessary funds to pay this obligation in its entirety-
Thank you kindly for bearing with me. I can assure you that I will not unnecessarily delay the completion of our settlement agreement.
Sincerely yours,
t/Faye Hart Fugler Bowers sgd: Faye Hart Fugler Bowers
June 6, 1980
Accepted:
I, Mrs. Ophelia Guidry, ind. and as tutrix of my minor children, Valerie Renese Guidry and Bonita Faye Guidry, accept, approve and ratify our previous agreement whereby you agreed to pay me and my children $10,000.00 in addition to the $10,000.00 which Prudential Property and Casualty Insurance Company has offered to pay me and the children due to the negligence of your son, Steven Fu-gler. I also acknowledge receipt of the mortgage note executed by you, Faye Hart Fugler Bowers, in the principal sum of $10,000.00, dated October 26, 1979, plus interest at 12% per annum from date, until paid. I agree to give you a reasonable time to borrow the necessary funds to pay the mortgage note, which should be within two years. Note received as pledge to secure obligation,
sgd: Ophelia Guidry and Tyrone M. Guidry t/ Ophelia Guidry, Individually and as tutrix

On June 17, 1980, defendant was sent a letter authorized by Mrs. Guidry, informing defendant that Mrs. Guidry would herself accept the mortgage note.

On February 4, 1981, Mrs. Guidry’s attorney wrote to defendant’s attorney, threatening to have the compromise agreement declared null and cancelled because of defendant’s inability to pay the $10,000.

On February 8, 1981, Mrs. Guidry sent her attorney the following letter:

Dear Mr. Gladney:
I read the letter you sent to Mr. Bert Garraway on February 4, 1981 concerning annulling and cancelling my agreement with Mrs. Faye Bowers to accept $10,000 from her. After thinking it over, I have decided that I do not want to cancel my agreement with Mrs. Bowers. I feel that this amount will be the most that she will be able to pay.
I know that this is a small amount and will never replace the lost [sic] of my husband, but I will stand by the agreement that I made with Mrs. Bowers to accept the $10,000 from her and the $10,-000 from her insurer, Prudential Insurance.
Yours truly, sgd: Ophelia E. Guidry t/(Mrs.) Ophelia E. Guidry

Pretrial conference was finally held on March 22, 1982, and trial was set for August 23, 1982. In May of 1982, defendant filed for bankruptcy. In August, 1982, plaintiffs filed an amended petition seeking $300,000 in damages, plus the $10,000 secured by the mortgage, and seeking to be treated as a secured creditor to the extent of the $10,000 collateral mortgage.

The case was actually tried on June 30, 1983. After settlement in open court with Prudential and stipulation that there would be no liability on the part of Mrs. Bowers over and above the amount of any compromise agreement found valid by the court, the issues remaining before the court were the validity of the compromise agreement and the enforceability of the mortgage executed by defendant, Mrs. Bowers, on October 26, 1979. After trial on the merits, the trial judge rendered judgment in favor of defendant and against the plaintiff, holding that the parties had never reached an enforceable compromise settlement and finding the collateral mortgage to be unenforceable.

From that judgment, plaintiffs appeal. The only two issues on appeal are:

1. Whether a valid, enforceable compromise agreement existed, and if so,
2. Whether the mortgage executed as security is enforceable.

THE COMPROMISE AGREEMENT

Ln. C.C. art. 3071 reads as follows:

A transaction or compromise is an agreement between two or more persons, who, for preventing or putting an end to a lawsuit, adjust their differences by mutual consent, in the manner which they agreed on, and which every one of them prefers to the hope of gaining, balanced by the danger of losing.
This contract must be either reduced into writing or recited in open court and capable of being transcribed from the record of the proceeding. The agreement recited in open court confers upon each of them the right of judicially enforcing its performance, although its substance may thereafter be written in a more convenient form.

Ordinarily, the agreement reduced to writing by Mrs. Bowers’ letter dated May 27, 1980, and signed by Mrs. Guidry and Tyrone M. Guidry on June 6, 1980, would be an enforceable compromise under La.C.C. art. 3071. However, in this case, Mrs. Guidry attempted to compromise the claim on behalf of her minor child, Bonita Guidry, as well as herself. The Louisiana Code of Civil Procedure carefully details the manner in which the claims of a minor may be compromised and settled. Essential to the validity of that settlement is specific court approval. La.C.C.P. arts. 4265, 4271; Johnson v. Ford Motor Company, 707 F.2d 189 (5th Cir.1983).

La.C.C.P. art. 4265 sets out the requirement of judicial approval as follows:

With the approval of the court as provided in Article 4271, a tutor may compromise an action or right of action by or against the minor, or extend, renew, or in any manner modify the terms of an obligation owed by or to the minor.

La.C.C.P. art. 4271 specifies the contents of the petition and the manner in which the matter is to be presented to the court for decision.

Compromises entered into absent these protections have no legal effect. Johnson, 707 F.2d at 194.

While Mrs. Guidry alleges in her petition that she has qualified as tutrix of Bonita Guidry by letters of tutorship issued October 16, 1979, there is no evidence of this in the record. More importantly, there is no evidence, whatsoever, in the record that Mrs. Guidry at any time obtained specific approval from a court to compromise Bonita Guidry’s claim for any amount. Obviously then, the “compromise agreement” alleged in this case has no legal effect regarding the claim of the minor, Bonita Guidry.

Not only did the compromise have no effect on Bonita Guidry’s claim, it also had no effect on her major child, Valerie Gui-dry, who was not a party to the agreement. La.C.C. art. 1780. The parties clearly contemplated that this “compromise agreement” would fully release the defendant from any further claims by each of the plaintiffs, Ophelia Guidry, Valerie Guidry, Bonita Guidry and Tyrone Guidry. Since this was not accomplished, it is apparent that there was no “meeting of the minds”, no consent and no valid compromise. La. C.C. arts. 1797, 1819, 1825.

We therefore affirm the holding of the trial court that there exists no enforceable compromise in this case.

THE MORTGAGE

At the time the mortgage was executed on October 26, 1979, there was no enforceable compromise agreement because the oral agreement had not been reduced to writing. La.C.C. art. 3071. While the subsequent letter dated May 27, 1980, by Mrs. Bowers and signed June 6, 1980, by Mrs. Guidry fulfilled the written requirement of La.C.C. art. 3071, it does not constitute an enforceable compromise due to lack of agreement as to what could be accomplished by the compromise and thus lack of consent on the part of both parties.

La.C.C. art. 3285 states:

Consequently, it is essentially necessary to the existence of a mortgage, that there shall be a principal debt to serve as a foundation for it.
Hence it happens, that in all cases where the principal debt is extinguished, the mortgage disappears with it.
Hence also it happens that, when the principal obligation is void, the mortgage is likewise so; this, however, is to be understood with certain restrictions which are established hereafter.

In this case we find no valid principal debt. At the time the mortgage was executed by Mrs. Guidry, both she and Mrs. Bowers intended it as security for the $10,000 compromise. Since the compromise was void, it follows that the mortgage is void for lack of a principal debt. La. C.C. art. 3285.

For the foregoing reasons, we affirm the judgment of the trial court. All costs are to be paid by the appellant.

AFFIRMED.

ON APPLICATION FOR REHEARING.

Rehearing GRANTED, and the case is remanded for a new trial. Based upon the record, the opinion rendered by this court is correct. However, it is apparent from the rehearing application that pertinent evidence was not presented at trial. We cannot consider this evidence on appeal. Therefore, in the interest of justice, we remand this matter for the introduction of the pertinent evidence and disposition in accordance with law.

      . Although both Valerie and Bonita Guidry were minors at the time of their father’s death, by the time suit was filed, Valerie Guidry was a major, having reached 18 years of age on December 11, 1979.

      . Mrs. Guidry also signed the agreement as tu-trix of her minor child, Valerie Guidry. This was obviously an error, since her petition establishes that Valerie had reached majority by June 6, 1980. See Footnote 1.

      . La.C.C.P. art. 4271 states:
      The tutor shall file a petition setting forth the subject matter to be determined affecting the minor's interest, with his recommendations and the reasons therefor, and with a written concurrence by the undertutor. If the court approves the recommendations, it shall render a judgment of homologation. The court may require evidence prior to approving the recommendations.
      If the undertutor fails to concur in the tutor’s recommendations, the tutor shall proceed by contradictory motion against him. After such hearing and evidence as the court may require, the court shall decide the issues summarily and render judgment.

      . See Footnote 2.

      . In view of our finding that the mortgage is invalid for lack of an underlying principal debt, we find it unnecessary to classify the mortgage in this case as being either a collateral mortgage, future advances mortgage, or an ordinary mortgage. First Guaranty Bank v. Alford, 366 So.2d 1299 (La. 1978). However, we do note that it clearly does not qualify as a collateral mortgage, despite its designation as such.
      Three instruments are required for a valid collateral mortgage: a mortgage, a mortgage note (also called a "ne varietur” note) and a hand note. The hand note is the evidence of the indebtedness. In this case, no hand note was ever executed; therefore, the two instruments that were executed by the defendant — the document entitled “Collateral Mortgage” and the accompanying promissory note, both in the amount of $10,000 — do not fulfill the requirements for a collateral mortgage. Mingledorff v. American Bank and Trust Company in Monroe, 420 So.2d 463 (La.App. 2d Cir. 1982), writ denied, 423 So.2d 1161 (1982).


author: SHORTESS, Judge. CRAIN, Judge, CRAIN, Judge.

text:
    STATE of Louisiana v. Walter E. JOHNSON.
    No. KA/83/1325.
    Court of Appeal of Louisiana, First Circuit.
    July 10, 1984.
    On Rehearing Oct. 30, 1984.

      Ossie Brown, Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Johnny Matthews, Baton Rouge, William J. Guste, Jr., Atty. Gen., State of La., New Orleans, for defendant-appellant.
    Before SHORTESS, LANIER and CRAIN, JJ.

      . La.R.S. 14:60.

   SHORTESS, Judge.

Defendant, Walter E. Johnson, was charged by bill of information with aggravated burglary in violation of La.R.S. 14:60. He waived trial by a jury. Following a bench trial, defendant was found guilty as charged and sentenced to twenty years at hard labor. He now appeals his conviction and sentence, alleging five formal assignments of error and arguing a sixth. FACTS

On April 2, 1982, Avis Michele Richard (Ms. Richard), a fourteen year old female, was asleep in her bed at her mother’s residence. At approximately 3:80 a.m., she was awakened by a man wearing a cloth over the lower part of his face standing over her holding a knife. The man put one hand over her mouth, but when she jumped up, he ran into the next room which was the kitchen. At the same time, Ms. Richard heard her younger brother go to the bathroom and return to his bedroom across the hall. Prior to this time Ms. Richard did not recognize the intruder; however, a light was on in the bathroom across the hall which gave some illumination to the kitchen. When the intruder looked back into Ms. Richard’s room a few moments later, Ms. Richard saw that there was no longer any covering on his face and immediately recognized him. When the intruder went further into the kitchen, Ms. Richard ran screaming to her mother’s room where she, her brothers and sister and her mother locked the door. The police were called and by the time they arrived the intruder had fled. The police found that the front glass storm door had been shattered and that the window next to the front door had been broken.

Ms. Richard told the police officers who the intruder was, and her brother showed the officer where the intruder lived in the neighborhood. The officers returned to the Richard home with the defendant, and Ms. Richard made a positive identification. A kitchen knife belonging to Ms. Richard’s mother was found by police officers outside the Richard residence. Ms. Richard also positively identified the knife as the one the intruder had been holding in his hand when he awakened her. Defendant was arrested, charged, and convicted of aggravated burglary.

On appeal, defendant briefed the following assignments of error:

1. The trial court erred upon [sic] allowing the State to introduce evidence of another crime.
2. The trial court erred in not granting defendant’s motion for a new trial.
3. The trial court erred upon [sic] sentencing defendant to an excessive sentence of twenty (20) years, considering the fact that defendant was a first offender.

Defendant has not briefed his two remaining assignments of error. Therefore they are considered abandoned. Rule 2.12-4. Uniform Rules — Courts of Appeal, State of Louisiana; State v. Trevathan, 432 So.2d 355 (La.App. 1st Cir.1983), writ denied, 437 So.2d 1141 (La.1983).

ASSIGNMENTS OF ERROR NUMBERS 1 and 2

Defendant’s first assignment of error is based on his contention that the trial court erred when it admitted evidence of another crime allegedly committed by defendant. In his second assignment of error, defendant contends that the trial court committed reversible error when it denied defendant’s motion for new trial alleging prejudicial error to defendant when the trial court ruled that evidence of another crime was admissible at trial.

On the day of trial, May 18, 1983, prior to opening arguments, the State filed a written motion for a Prieur hearing. In its motion the State asked to be allowed to introduce evidence that defendant had committed an aggravated rape on October 28, 1982, while he was out on bond on the instant charge under circumstances similar to those present in this aggravated burglary. The State offered to submit such evidence for the purpose of showing that there were certain similarities between the two crimes from which it could be concluded that defendant was the perpetrator in both those incidents. Additionally, the State urged that the fact defendant committed an aggravated rape in the October 28 incident was proof that he intended to do so in this incident, thereby proving his intent to commit a felony upon entering the house, a requisite element of aggravated burglary.

At the close of the State’s presentation of evidence on the aggravated burglary charge, the court held a Prieur hearing over the objection of defense counsel. At the hearing, evidence was admitted of an incident wherein a fifteen year old white female was raped (McManus incident). Defendant was charged with that rape and tried by a 12-man jury. That trial ended in mistrial when the jury could not reach a decision — nine voting for acquittal and three for conviction.

The evidence offered at the Prieur hearing consisted of the testimony of five persons who had been involved in the rape trial: the victim, the investigating officers, and the technicians who matched blood samples and conducted the rape examination. The rape victim testified that she could not identify her assailant in any way but stated that he wore a dark ski mask and held a knife to her throat. The investigating officers testified that defendant’s fingerprints were found on the window sill by the broken window which was the suspected point of entry. Also, a dark ski mask and knife were found in defendant’s room. However, State and defense counsel stipulated that the rape victim could not say that the ski mask and the knife were the ones used by her assailant. The victim had dried blood on her back and face and quite a bit of blood was found in the victim’s bedroom. Defendant had only one small cut on the surface joint of one finger when he was arrested. The lab technicians testified that there was a quantity of blood in various places around the victim’s bedroom, some Type A which was the victim’s type, and some Type 0 which was the defendant’s type. However, blood samples were inconclusive evidence because of the common type, and because the blood found at the point of entry was the victim’s type while the blood found on the ski mask was defendant's type. The rape kit technician testified that, although pubic hairs were found on the victim which were not the victim’s hairs, neither did those hairs belong to the defendant. Defendant took the stand at the Prieur hearing and testified that during the day he had gone by the rape victim’s house to talk to her father, who was not at home. He had noticed the broken window and had touched the area around it to see what had happened. He denied that he had committed the rape.

At the completion of the State’s evidence at the Prieur hearing, defense counsel stated that he had been the counsel for defendant at the prior trial for aggravated rape and that the facts were essentially as stated in the testimony. However, he further stated that much of the testimony received at that trial had not been heard at the Prieur hearing. He objected to the introduction of the related crime evidence on the grounds that defendant had never been identified as the rapist in the McMa-nus incident and the McManus jury had declined to convict defendant. Thus, he argued, serious doubt was cast on defendant’s connection with the McManus incident when the rape trial ended in a mistrial.

At the close of the Prieur hearing, the trial judge found that the fingerprint evidence was sufficient to establish beyond a reasonable doubt that defendant was, in fact, the intruder in the McManus incident. Thus, the evidence of the McManus crime was used and from it could be inferred the intent required to prove aggravated burglary in the instant trial.

Generally, evidence of other crimes committed by a defendant is inadmissible due to substantial risk of grave prejudice to the defendant. State v. Prieur, 277 So.2d 126 (La.1973). There are, however, a few exceptions to this exclusionary rule, as set out in State v. Kahey, 436 So.2d 475, 487 (La.1983):

Aside from the related offenses admissible as part of the res gestae and convictions admissible for impeachment purposes, Louisiana statutes provide for only three instances where other crimes evidence is ‘substantially relevant’ such as to qualify as an exception to the general rule of exclusion: acts relevant to show intent, knowledge, or system. La. R.S. 15:445, 446 _ Admission of another crime committed by the same ‘system’ as the offense charged might also be relevant to show the identity of the defendant as the offender. (Citations omitted).

The case of State v. Moore, 440 So.2d 134 (La.1983), sets forth guidelines for determining when other crimes evidence has “substantial relevancy” that qualifies it for admission as an exception to the exclusionary rule.

First, there must be clear and convincing evidence that the defendant committed the other crimes. Second, the other crimes evidence must be substantially relevant for some other purpose than to show defendant’s general criminal character. Third, the other crimes evidence must tend to prove a material fact genuinely at issue. Fourth, the method of commission of both the charged and the uncharged crime must be so distinctly similar that one may logically infer that the same person committed both crimes. Fifth, the probative value of other crimes evidence must outweigh its prejudicial effect. State v. Moore, 440 So.2d at 137.

The serious attack of the other crime evidence in this case is based on the contention that defendant’s identity was not proved in the related crime. This contention is based on the fact the jury failed to convict defendant of the related crime. We hold this fact not to be determinative of the identity of the defendant in the related crime for purposes of admissibility of other crime evidence.

According to McCormick’s Handbook of the Law of Evidence, Sec. 190, 451-452 (E. Cleary 2nd ed. 1972):

In the first place, it is clear that the other crime, when it is found to be independently relevant and admissible, need not be established beyond a reasonable doubt, either as to its commission or as to defendant’s connection therewith, but for the jury to be entitled to consider it there must of course be substantial evidence of these facts, and some courts have used the formula that it must be ‘clear and convincing.’ And it is believed that before the evidence is admitted at all, this factor of the substantial or unconvincing quality of the proof should be weighed in the balance, (footnotes omitted).

Louisiana courts have applied the “clear and convincing” evidence test in determining whether a defendant committed a related crime. State v. Gaines, 340 So.2d 1294 (La.1976). What constitutes clear and convincing evidence has been defined in Succession of Lyons, 452 So.2d 1161, 1165 (La.1984), as follows:

The traditional measure of persuasion in civil cases is a preponderance of the evidence, but there are a limited number of claims and contentions governed by an intermediate standard, usually termed ‘clear and convincing evidence.’
Generally, this third burden of proof requires more than a ‘preponderance of the evidence’ but less than ‘beyond a reasonable doubt.' The existence of the disputed fact must be highly probable, that is, much more probable than its non-existence. Louisiana State Bar Association v. Edwins 329 So.2d 437 (La., 1976). This standard is usually employed ‘where there is thought to be special danger of deception, or where the court considers that the particular type of claim should be disfavored on policy grounds.’ McCormick on Evidence, Section 340(b), p. 798 (2nd ed. 1972).

To further put this definition in perspective, and as indicated in the above quote, clear and convincing evidence requires more proof than a “preponderance of the evidence.” A preponderance of the evidence has been defined as follows:

A preponderance of the evidence means evidence of greater weight or evidence which is more convincing than that offered in opposition to it.

Starks v. Kelly, 435 So.2d 552, 556 (La. App. 1st Cir.1983).

And clear and convincing evidence is less than ‘beyond a reasonable doubt.’ ‘Beyond a reasonable doubt’ has been defined as follows:

A reasonable doubt is not a mere possible doubt. It should be an actual or substantial doubt. It is such a doubt as a reasonable man would seriously entertain. It is a serious doubt, for which you could give good reason.

State v. Taylor, 410 So.2d 224, 225 (La. 1982).

A careful analysis of this record shows that the other crime evidence was not clear and convincing for the following reasons:

1. The victim in the McManus incident could not identify the offender;
2. The victim in the McManus incident could not identify the ski mask worn by the offender or the knife he carried;
3. Although there was a great deal of blood not belonging to the victim in the victim’s room and on her person, Johnson only had a small nick on his finger;
4. The blood on the broken glass at the suspected point of entry was blood type A and not that of Johnson;
5. The foreign pubic hair found on the victim’s body was not Johnson’s.

Accordingly, defendant’s conviction and sentence are set aside and this ease is remanded for retrial consistent with this opinion.

REVERSED AND REMANDED.

CRAIN, J., dissents and assigns reasons.

CRAIN, Judge,

dissenting.

I respectfully dissent from the holding of the majority that the other crime evidence is inadmissible because the evidence presented is not “clear and convincing” as to the defendant’s identity in the related crime.

“Clear and convincing” evidence of identity of the defendant in the related crime is the appropriate test. State v. Gaines, 340 So.2d 1294 (La.1976). However, the evidence does not have to clearly convince appellate judges if it clearly convinces the trial judge and that determination is not a clear abuse of discretion. Evidence of similar acts is admissible to show intent. La. R.S. 15:445. If evidence shows intent, it is relevant. La.R.S. 15:441. “Whether evidence is relevant is within the discretion of the trial judge and his ruling will not be disturbed on appeal in the absence of a clear abuse of this discretion.” State v. Chaney, 423 So.2d 1092, 1100 (La.1982). (Emphasis added). Even where the trial judge must determine that the evidence is sufficient beyond a reasonable doubt, such determination is entitled to great weight and will not be overturned on appellate review unless not supported by the evidence. State v. Smith, 409 So.2d 271 (La. 1982); State v. Davis, 407 So.2d 666 (La. 1981).

The trial judge here did not clearly abuse his discretion in finding the evidence of defendant’s identity in the related crime clear and convincing for one crucial reason not mentioned by the majority. The trial judge knew the identity of the defendant in the ease being tried. Knowing that this defendant was present in the Richards’ home, and the similarity in circumstances between the defendant’s presence in the Richards’ home and the perpetrator of the McManus incident, it was logical for the trial judge to conclude that it was this defendant who committed the McManus rape. It is then reasonable to infer from the McManus incident that the defendant had the same intent to commit rape when he entered the Richards’ home.

A careful analysis of the record results in the conclusion that the trial judge did not clearly abuse his discretion in determining the evidence was clear and convincing of defendant’s identity in the McManus incident for the following reasons:

(1) Defendant was present in the Richards’ home under circumstances almost identical to those present in the McManus incident.
(2) Both the McManus and Richards’ girls were approximately the same age.
(3) The defendant, McManus and Richard lived in the same neighborhood.
(4) Blood matching defendant’s type was found in the McManus girl’s room. Defendant did have a cut on his finger.
(5) The perpetrator of the McManus rape wore a ski mask and wielded a knife. A ski mask and knife were found in defendant’s room.
(6) Blood was found on the ski mask although it was defendant’s type.
(7) Defendant’s fingerprints were found at the point of entry into the McMa-nus home.

The conviction should be affirmed. I respectfully dissent.

ON REHEARING

CRAIN, Judge.

In the original opinion in this case, the majority found that the other crime evidence which was admitted into evidence was not “clear and convincing” as to defendant’s identity in having committed the other crime. Consequently, it was held that the other crime evidence was improperly admitted, and the case was reversed and remanded for retrial. We adhere to the original opinion as to the “clear and convincing” standard for determining identity in prior crime evidence and our definition of “clear and convincing” therein. A rehearing was granted by this court for the purpose of reconsidering the proper standard of appellate factual review when a ruling on the admissibility of evidence in a criminal case requires a determination of facts by the trial court.

We hold on rehearing the Arceneaux v. Domingue, 365 So.2d 1330 (La. 1978), standard to be applicable under these circumstances. Thus, the trial court’s findings of fact in rulings on the admissibility of evidence should not be disturbed unless clearly wrong. See State in the Interest of Racine, 433 So.2d 243 (La. App. 1st Cir.1983), writ denied, 440 So.2d 151 (La.1983).

To determine if defendant’s identity in committing the other crime has been established by “clear and convincing” evidence in the instant case, we must balance the facts militating against such proof (listed in the majority opinion) against the facts militating in favor of such proof (listed in the dissenting opinion) and determine if the ruling of the trial court is clearly wrong. As indicated in Racine, 433 So.2d at 245, under the “clearly wrong” standard we may not disturb reasonable evaluations of credibility and reasonable inferences determined by the trial court. However, we do have latitude to evaluate overall weight (credibility is an element of weight) of the evidence in determining whether the trial court was reasonable in its evaluations, and thus not clearly wrong. Racine, 433 So.2d at 245.

Whether defendant’s identity in committing the other crime was proved by clear and convincing evidence comes down to the question of how did his fingerprints arrive at the point of entry into the house where the other crime was committed. Two theories were presented to the district court to explain the presence of the defendant’s fingerprints on the broken window: (1) that of the State that they were made when the defendant made his unauthorized entry into the house; and (2) that of the defendant in his own testimony that he observed the broken glass and inspected it out of curiosity but did not enter the dwelling. The ruling of the district court reflects that the testimony of the defendant was rejected as not credible. A review of all of the evidence does not reflect that this determination is unreasonable, and accordingly, it must be accepted by us. Once the defendant’s hypothesis of innocence falls, the only remaining reasonable inference that can be made from the fact of the defendant’s fingerprints on the broken glass at the point of unlawful entry is that the defendant made them during the unlawful entry when the other crime was committed. State v. Captville, 448 So.2d 676, 680 (La.1984). After balancing this factual inference with the conflicting facts set forth above, we conclude that the district court was not clearly wrong in determining that the overall weight of the evidence was “clear and convincing” that the defendant committed the other crime.

Accordingly, for the foregoing reasons, we affirm defendant’s conviction and sentence.

AFFIRMED.

SHORTESS, J., dissents for reason originally assigned.

      . See State v. Prieur, 277 So.2d 126 (La. 1973).

      . The objection did not relate to sufficiency of the Prieur notice, but to the use of other crime evidence.

      . In dealing with the standard of appellate review in cases where the trial court has admitted evidence based on factual conclusions, such as whether a confession is admissible as free and involuntary, appellate courts have interchangeably referred to the "much discretion” of the trial court, and the absence of "clear abuse of discretion”. State v. West, 419 So.2d 868 (La. 1982); State v. Thomas, 439 So.2d 629, (La.App. 1st Cir.1983); State v. Easley, 432 So.2d 910 (La.App. 1st Cir.1983). Those terms beg the question and furnish appellate courts no guidance for determining when the trial court has or has not abused its much discretion. Our holding is that the trial court does not abuse its discretion unless its findings of fact are clearly wrong. This should not be confused with the Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), standard (nor the La.C. Cr.P. art. 821 standard) which applies only to review of the facts on the merits.


text:
    Blaz Z. TOUPS v. D.H.H.R., SOUTH LOUISIANA MEDICAL CENTER.
    No. 84 CM 0443.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 4, 1984.

      David W. Arceneaux, Houma, for appellant.
    Steven L. Mayer, Staff Atty., Dept, of Health & Human Resources, Baton Rouge, for appellee.
    Robert R. Boland, Jr., Civil Service Legal Counsel, Dept, of State Civil Service, Baton Rouge, for Herbert L. Sumrall.
    Before SHORTESS, LANIER and CRAIN, JJ.
   CRAIN, Judge.

This matter is before the court on motions of the Director of the Department of State Civil Service (appellant) and the Louisiana Department of Health and Human Resources, South Louisiana Medical Center (appellee) to dismiss Blaz Toups’ unlodged civil service appeal. At issue is whether his appeal was filed timely.

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

In the instant case, the civil service opinion was rendered on January 27,1984. The thirtieth day after the Commission’s decision was final was February 26, 1984 — a Sunday and legal holiday. The Notice of Appeal reveals that the present appeal was filed on February 27, 1984, thirty-one days after the decision became final.

Under Guillory v. Department of Transportation and Development, 450 So.2d 1305 (La.1984), the appeal was timely perfected. Guillory held that the 30 calendar day appeal delay provided by La. Const. Art. X, Sec. 12, is subject to the provisions of La.C.C.P. art. 5059. That article provides that, if the last day of the delay is a legal holiday, the delay runs until the next day which is not a legal holiday. Hence, Blaz Toups timely perfected his appeal on February 27, 1984.

For the foregoing reasons, the motions to dismiss Blaz Toups’ unlodged devolutive appeal are denied. All costs are to be paid by appellee.

MOTIONS DENIED.

      . The Director of the Department of the State Civil Service was recognized by this court as an indispensable party by order dated April 9, 1984.

      . Rehearing denied June 14, 1984.


author: ALFORD, Judge.

text:
    William M. WOLFE v. NORTHEASTERN FIRE INSURANCE COMPANY OF PENNSYLVANIA and Doctor M.L. Pittman.
    No. CA 84 0329.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 4, 1984.
    Leonard J. Cline, Metairie, for plaintiff, apjpellant.
    Northeastern Fire Ins. Co. of Pennsylvania, King of Prussia, Pa., for defendant, appellee, Northeastern Fire Ins. Co. of Penn.
    Laurence W. Larmann, Metairie, A. William Mysing, Covington, La., for defendant, appellee, Dr. M.L. Pittman.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   ALFORD, Judge.

The trial court in this case denied plaintiffs motion to supplement and amend his petition to add as an additional party defendant, the State of Louisiana, through the Department of Transportation and Development. Plaintiff appealed the denial of his motion. This court issued a show cause order on the grounds that the ruling complained of was not an appealable judgment.

The order of the trial court refusing to allow plaintiff to supplement and amend his petition was not a final judgment subject to appeal. LSA-C.C.P. arts. 1841, 2083. Further, plaintiff has neither made nor attempted to make any showing of record that the order of the trial court would cause him irreparable injury. Accordingly, plaintiff’s appeal is dismissed at plaintiff’s costs.

APPEAL DISMISSED.


author: COVINGTON, Judge.

text:
    FRED H. MORAN CONSTRUCTION CORPORATION v. Hameed A. ELNAGGAR, et al.
    No. CA 84/0589.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 4, 1984.

      J. Arthur Smith, III, Baton Rouge, for plaintiff-appellee Fred H. Moran Const. Corp.
    Robert R. Rainer, Baton Rouge, for defendant-appellant Hameed A. Elnaggar and Kathleen J. Elnaggar.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   ON MOTION TO DISMISS

COVINGTON, Judge.

Plaintiff-appellee moved to dismiss this appeal on the grounds that the ruling complained of is an interlocutory order designed to preserve the status quo pending trial on the merits. In the alternative, ap-pellee contends that, if the ruling is appeal-able, appellants are not entitled to a discretionary suspensive appeal because of their misuse of the judicial process, flagrant default on their obligations, and they have no likelihood to prevail on the merits. Alternatively, mover asks that we vacate the stay order issued by the trial court.

Plaintiff is the contractor which built a $235,000.00 home for defendants. One year after the purchase, defendants stopped paying the mortgage notes because of alleged serious redhibitory defects in the building. Plaintiff sued for executo-ry process and defendants then sought to enjoin the seizure and sale, asserting claims for damages resulting from redhibi-tory defects. The trial court enjoined the sale but denied damages. Defendants appealed and this court affirmed. Plaintiff then sought to lift the injunction preventing the seizure and sale of the house. The trial court denied the motion to lift the injunction, but ordered defendants to make all past-due payments and henceforth pay a rental equivalent to the amount of the note; in default thereof, the court decreed the injunction would be lifted. The court then granted defendants a suspensive appeal of this ruling.

Initially, it should be noted that defendants-appellants argue that appellee waived its right to request the appeal be dismissed by simultaneously filing an answer to the appeal and the motion to dismiss, citing several cases which indicate this result. The cases cited in brief refer to technical irregularities with the filing of the appeal, and not to a jurisdictional issue. This court could have noted the interlocutory status of the ruling ex proprio motu. Although appellees’ brief quotes some rather broad language indicating to the contrary, we do not believe the simultaneous filing of an answer with its motion to dismiss should be considered a waiver of the right to argue the appealability of the ruling at issue.

Appellant argues the trial court’s order of April 25, 1984 is not appealable under C.C.P. art. 3612 because it does not vacate the preliminary injunction. That article reads, in pertinent part, as follows:

There shall be no appeal from an order relating to a temporary restraining order.
An appeal may be taken as a matter of right from an order or judgment relating to a preliminary or final injunction, but such an order or judgment shall not be suspended during the pendency of an appeal unless the court in its discretion so orders.

This article grants a party affected by an order or judgment relating to an injunction the right to appeal that order or judgment. There is no authority for plaintiff’s argument that the order must vacate the preliminary injunction in order to be appealable.

The ruling complained of was issued in response to plaintiff’s motion to vacate the injunction, and was issued to protect plaintiff’s position while maintaining defendant’s injunction. It relates to the injunction and is appealable in connection therewith.

Plaintiff further argues that, if the ruling should be considered appealable, the trial court abused its discretion by permitting defendants to take a suspensive appeal.

Whether or not to grant a suspen-sive appeal from a preliminary injunction is a matter which addresses itself to the court’s discretion. Schwab v. Kelton, 399 So.2d 624 (La.App. 1st Cir.1981); C.C.P. art. 3612. All matters and things which induced the trial judge to grant or deny a suspension of the injunction pending appeal are relevant and should be considered by the reviewing court to determine whether there has been an abuse of the discretion he is authorized to exercise in such matters. Board of Supervisors of Louisiana State University v. Lewark, 281 So.2d 706 (La.1973). In the absence of a showing to the contrary, all of the evidence considered by the trial court in granting the injunction had some influence upon the exercise of that discretion. Id.

The transcript of the hearing on the motion to vacate the preliminary injunction indicates the trial judge was very familiar with the facts and equities of this case, having heard the matter twice before. Although the trial court fashioned an equitable remedy by his order requiring defendant to pay rent on the property, and then suspended it pending appeal, there is no showing the court abused its discretion in granting the suspensive appeal, or that plaintiff can not be adequately compensated in the event defendants do not prevail on appeal.

Plaintiff suggests a four part standard for the determination of whether a suspen-sive appeal should issue, in which the following factors are to be considered:

(1) The likelihood that the moving party will ultimately prevail on the merits of the appeal;

(2) the extent to which the moving party would be irreparably harmed by the denial of the stay;

(3) the potential harm to the opposing party if the stay is issued, and

(4) the public interest.

The case cited for this standard is a federal, Florida case wherein the issue was the propriety of an injunction which suspends enforcement of a criminal ordinance. There is no authority for the application of this standard in a case such as the instant action.

In connection with his argument that the trial court should consider the four factors enumerated above, plaintiff also submits and briefs several theories in support of that cause. Those arguments are in essence addressed to the merits of the injunction, and apply to the instant matter only insofar as they tend to support a showing that the trial court abused its discretion in granting the suspensive appeal.

Although plaintiff makes much note of his financial plight, and attempts to illustrate bad faith on the defendants’ part, the transcripts of the proceedings indicate both sides have suffered somewhat because of the actions of the opposing party. No abuse of discretion has been presented by the granting of a suspensive appeal. The motion is denied, at mover’s costs.

MOTION DENIED.

      . The underlying facts are presented in Fred H. Moran Construction Corp. v. Elnaggar, 441 So.2d 260 (La.App.lst Cir.1983), writ denied, 444 So.2d 1231 (La. 1984).


author: G. L. COVINGTON, Chief Judge.

text:
    Charles Daniel GRAVOIS v. UNIROYAL, INC., et al.
    No. CW 84-0528.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 4, 1984.

      Charles H. Braud, Jr., Office of George R. Covert, Baton Rouge, for plaintiff Chester Daniel Gravois.
    Wood Brown, III, Montgomery, Barnett, Brown & Reed, New Orleans, for defendant.
    Before COVINGTON, C. J., COLE and SAVOIE, JJ.
   G. L. COVINGTON, Chief Judge.

A writ of mandamus was issued herein, on application of Uniroyal, Inc., directing the trial judge to grant its Motion to Quash Notice of Deposition and of Subpoena Duc-es Tecum or, in the alternative that the said judge and/or Mr. Gravois show cause why the writ should not be made peremptory. Neither the judge nor the plaintiff-respondent have favored us with briefs.

A tort suit, for an alleged employment-related injury in 1972, was filed by the plaintiff in 1973, naming Uniroyal, Inc. as a defendant, along with two individuals and an insurance company, using fictitious names for the latter three. In other words, Uniroyal was the only real legal entity named as a defendant.

As to each of the fictitious defendants, “Mr. X, Safety Director”, “John Doe, Managing Employee” and “ABC Insurance Company” the notation on plaintiffs petition requests “Please withold service until further notice.” There is nothing in the record to show that service was ever made on any defendant other than Uniroyal.

About two months after suit was filed, Uniroyal filed a motion for summary judgment. It was heard on December 8, 1978 and taken under advisement. On June 13, 1980 summary judgment was granted in favor of the mover, dismissing plaintiff's suit against Uniroyal at plaintiffs cost. The judgment was not appealed and is final.

Therefore, the only legal entity named as a party defendant has not been in the case since 1980. Nevertheless, in November, 1983 plaintiffs counsel noticed Uniroyal to depose one of its representatives and also for a subpoena duces tecum for employment records. Uniroyal moved to quash the notice on three grounds: (1) as the summary judgment in 1980 dismissed the only legal entity defendant, the lawsuit ceased to exist; (2) if there is any viable proceeding against the fictitious defendants, there has been no action in prosecution or defense of them since the suit was filed on August 28, 1973 and under the self-operational provision of LSA-C.C.P. art. 561 the suit has been abandoned; (3) even if an amendment were permitted, identifying the two fictitiously named individual defendants, any cause of action against them has obviously prescribed. The trial court denied the motion to quash, granting plaintiffs right to proceed.

It is apparent that the plaintiff seeks the discovery in order to identify the two fictitiously named individual defendants, in order to amend and proceed against them. Query: may he do this 12 years after the accident, 11 years after the suit was filed, 7 years after the elapse of the 5-year abandonment period and 4 years after the only validly named defendant was dismissed from the suit? We think not.

As to those individual defendants, no step was taken in the prosecution of the suit for a period far in excess of the requisite five years. Murphy v. Hurdle, 331 So.2d 566 (La.App. 1 Cir.), writ refused 334 So.2d 434 (La.1976). The suit, as to them, has been abandoned and should be dismissed; accordingly, the motion of plaintiff for discovery should have been denied.

Parenthetically, Uniroyal, having been dismissed as a party defendant in 1980, should not now be subjected to the cost and inconvenience of the deposition and producing employment records of 12 years ago. For an uncommonly long time, seven years, the plaintiff did not take any action to ascertain the identity of the fictitiously named individuals. The matter is remanded to the trial court for compliance with the penultimate paragraph herein. Costs are assessed against the respondent-plaintiff.

WRIT MADE PEREMPTORY.