author: DOMENGEAUX, Judge. FORET, Judge,

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Fred FRANKLIN and Rose C. Franklin, Defendants-Appellants.
    No. CR82-658.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 12, 1983.
    Concurring and Dissenting Opinion Oct. 19, 1983.
    Rehearing Denied Nov. 28, 1983.

      Charles J. Yeager, Kennedy & Yeager, Alexandria, for defendants-appellants.
    William E. Tilley, Dist. Atty. and Asa A. Skinner, Asst. Dist. Atty., Leesville, for plaintiff-appellee.
    Before DOMENGEAUX, FORET and YELVERTON, JJ.
   DOMENGEAUX, Judge.

The defendants, Fred and Rose Franklin, were charged by a joint bill of information with the crime of receiving stolen things valued over One Hundred Dollars ($100.00), specifically, fifty pounds of boned catfish filets, and twenty-four cans of frozen orange juice, in violation of La.R.S. 14:69. The defendants were tried jointly before a six member jury and were found guilty of receiving stolen things having a value of One Hundred Ninety-four and 50/100 ($194.50) Dollars. Subsequently, they were each given the identical sentence; to-wit: two years at hard labor, suspended, payment of a $2,000.00 fine plus court costs, and five years supervised probation subject to all of the conditions enumerated in La.C. Cr.P. Art. 895. In addition, each of the defendants was ordered to pay the fine and court costs assessed, supra, within one hundred twenty days, and each defendant was further sentenced to pay restitution in the amount of $9,000.00 a piece, at the rate of no less than $150.00 per month as per an approved schedule of payments.

From their convictions and sentences, the defendants perfected eleven assignments of error. However, for reasons provided herein, we reach only four of these assignments, viz:

(1) The trial court erred in denying the defendants’ motion for mistrial based on and arising from the prosecutor’s reference in the State’s opening statement to other uncharged crimes by the defendants, allegedly part of an ongoing agreement for conspiracy with Ralph Thomas, for which the notice required by State v. Prieur, 277 So.2d 126 (La.1973), had not been provided.
(2) The trial court erred in denying defendants’ motion for mistrial based upon the introduction of other uncharged crimes by the State through the testimony of Deputy Willard Horton for which no Prieur notice and no foundation for admission under the Prieur guidelines had been given.
(3) The trial court erred in denying defendants’ objection to the testimony of Ralph Thomas as to his prior acts of theft from Deloy Ross, on the ground that no Prieur notice or showing for admissibility had been made.
(4) The trial court erred in denying defendant’s motion for mistrial based upon the testimony of Ralph Thomas that the defendants had acted as principals with him in the last act of theft from Ross, for which other uncharged' crimes no Prieur notice or showing had been made. For the purposes of this opinion, these four assignments of error will be combined into one discussion herein.

FACTS

On November 15, 1979, the defendants, Fred and Rose Franklin, discussed during the late evening with Ralph Thomas, their purchase from him of fifty pounds of catfish filets and two cases (24 32 oz. cans) of orange juice. Thomas, a friend of the Franklins, was employed as kitchen manager and head chef at the Ross Continental Lodge in. Vernon Parish, and his duties included purchasing and picking up the necessary foods required for the Lodge. In late October, 1979, Thomas’ employer, Deloy Ross, had discovered discrepancies between his food bills and the food actually being consumed at the Lodge. Ross confronted Thomas about the billing discrepancies, and the latter admitted that he had been stealing from his employer. Thomas agreed during the first week of November to cooperate with the authorities in any investigation they might wish to conduct into the matter.

On the morning following his discussion with the Franklins about the catfish and orange juice, Thomas notified his employer, Ross, of the proposed transaction. Ross contacted the Vernon Parish Sheriff’s Department, which sent Deputy Willard Horton to investigate. Deputy Horton instructed Thomas to call the defendants by telephone the following morning (November 17,1979) and to tell them that he could provide them with the fish and juice that evening. That phone call was recorded at the Sheriff’s Office with Thomas’ consent. The call was made, and defendants agreed to drive from their home in Rapides Parish to Thomas’ home in Leesville that evening to pick up the desired items. Subsequent to that call, at the direction of Deputy Horton, Thomas picked up the fish and juice from a local produce company, and, as he had in the past, charged those goods to the account of the Continental Lodge.

When the Franklins arrived at Thomas’ house, they received the goods and wrote him a check for $303.00. Immediately thereafter, they were arrested by Sheriff’s deputies who had been hiding in a back bedroom at the Thomas residence.

ARGUMENTATION

The defendants assign as error the State’s alleged references to other crimes committed by the defendants, which counsel contends were made without compliance with the rules set forth in State v. Prieur, supra. Accordingly, the defendants urge that a mistrial should have been granted by the district judge.

State v. Prieur set judicial guidelines as to the requirements which the State must meet before it can enter evidence of other crimes under the exceptions delineated in La.R.S. 15:445 and 15:446. Those guidelines provide:

“(1) The State shall within a reasonable time before trial furnish in writing to the defendant a statement of the acts or offenses it intends to offer, describing same with the general particularity required of an indictment or information. No such notice is required as to evidence of offenses which are a part of the res gestae, or convictions used to impeach defendant’s testimony.
(2) In the written statement the State shall specify the exception to the general exclusionary rule upon which it relies for the admissibility of the evidence of other acts or offenses.
(3) Prerequisite to the admissibility of the evidence is a showing by the State that the evidence of other crimes is not merely repetitive and cumulative, is not a subterfuge for depicting the defendant’s bad character or his propensity for bad behavior, and that it serves the actual purpose for which it is offered.
(4) When the evidence is admitted before the jury, the court, if requested by defense counsel, shall charge the jury as to the limited purpose for which the evidence is received and is to be considered.
(5) Moreover, the final charge to the jury shall contain a charge of the limited purpose for which the evidence was received, and the court shall at this time advise the jury that the defendant cannot be convicted for any charge other than the one named in the indictment or one responsive thereto.”

Prieur also requires that the State must present clear and convincing evidence that other crimes were committed by the accused before it may enter evidence of those crimes. The introduction of other crimes evidence involves constitutional problems because of the danger that a defendant may be tried for charges of which he has no notice and for which he is unprepared and which unfairly prejudiced him in the eyes of the jury. State v. Goza, 408 So.2d 1349 (La.1982).

In the instant case there is no doubt that the State provided no notice of other crimes, nor was there a clear and convincing showing that the defendants committed other crimes. In fact, the State has constantly averred that it was not its intention to include in its evidence any past acts of the defendants, and a review of the record supports this contention. However, there is some testimony that may be read to inferentially refer to other acts of the defendant and the issue before us is whether that testimony so prejudiced the defendants as to affect their substantial rights. La.C. Cr.P. Art. 921.

The defendants initially allege reversible error in the State’s opening statement. At that time, the prosecutor made the following remarks:

“They were arrested, they had the goods in their possession and they were arrested at that time. The evidence will show you that Ralph Thomas has pled guilty to theft over Five Hundred Dollars. And he has been sentenced by this court, here in Vernon Parish. The evidence will further show, that there was an agreement between Mr. Ralph Thomas and these two defendants for them receiving these goods and them paying him half the value of the goods that they received.”

Next, defendants attack the following statements made by Deputy Horton, who was hidden in Thomas’ house prior to arresting the defendants:

“Q. Okay. Did you hear anything said by Mrs. Franklin?
A. I did.
Q. And what did you hear said by her?
A. She mentioned to Mr. Thomas to the effect that, you know, they were in a discussion about what sold the best and what didn’t sell, she told him not to bring anymore rib-eye steaks because they wasn’t selling too good and they had a good many on hand.
Q. I see. And did she say anything else to Mr. Thomas?
A. They had a discussion about payment for a previous order that he had brought them.”

Additionally, the defendants contend that the trial court committed reversible error in denying their objection to the testimony of Thomas as to his prior acts of theft from the Continental Lodge, as no notice or showing under Prieur had been made. Specifically, Thomas stated in his testimony:

“Q. All right, would you explain to the jury and to the court exactly what you told Mr. Ross?
A. I told Mr. Ross, when he called me back in the office, I told Mr. Ross that I had been taking some stuff from the Continental and I had been taking the stuff and selling it.
Q. Would you explain to the court and to the jury the period of time that you had been taking things from the Continental?
A. Two years about, approximately two years.”

Finally, the defendants challenge a portion of Thomas’ testimony which allegedly implied that he had carried stolen food previously to the Franklins. We quote the pertinent colloquy from Thomas’ testimony as follows:

“Q. What did you say to Mr. Franklin before he said that?
A. The only thing I asked him, uh, I told him, I say, ‘okay, I got your catfish and orange juice in here’, that’s all and we sat down and talked.
Q. Did you ask him anything else at that time?
A. Not right then we — after she, uh,— she was writing the check on my coffee table for the stuff from the week before — the last time I carried over there.”

The defendants moved for a mistrial at the time that this evidence was presented, but the trial judge concluded that an admonition was sufficient to insure the defendants a fair trial.

In their brief, the defendants argue that the cumulative effect of the reference in the opening statement by the prosecutor, supra, as well as the testimony of Deputy Horton and Ralph Thomas, supra, was to portray the events of November 17,1979, as part of a continuing criminal conspiracy between Thomas and the Franklins. The State responds, however, that the crimes impliedly referred to by the prosecutor merely referred to Ralph Thomas’ prior acts of theft, and were not in reference to any prior dealings between Thomas and the Franklins. Furthermore, the State argues that the other statements made by Deputy Horton referred to acts which formed a part of the res gestae and that the admonition given to the jury in response to Thomas’ remarks was sufficient to rectify any prejudice which may have existed.

La.C.Cr.P. Art. 770 deals with the ordering of a mistrial based upon prejudicial remarks made by a judge, district attorney, or court official:

“Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
(1) Race, religion, color or national origin, if the remark or comment is not material and relevant and might create prejudice against the defendant in the mind of the jury;
(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;
(3) The failure of the defendant to testify in his own defense; or
(4) The refusal of the judge to direct a verdict.
An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the de- . fendant, however, requests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial.”

Furthermore, La.C.Cr.P. Art. 771 provides in pertinent part, with reference to remarks or comments made by a witness or person other than the judge, district attorney, or a court official:

“In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
(2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770.
In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.”

While we are not prepared to conclude that any one of the four instances cited by the defendants, supra, individually warranted a mistrial, we do feel that when these incidents are viewed in light of the cumulative effect on the jury and the trial judge, that they did create such a degree of prejudice against the defendants that they could not be assured of a fair trial, even by admonitions to the jury. We are also unconvinced that any of these prior acts inferentially referred to during the course of the trial formed any part of the res gestae from which the defendants were actually charged. Therefore, we are constrained to conclude that the district judge erred in denying the defendant’s motion for a mistrial.

The prejudice suffered by the defendants both at trial and during the sentencing proceedings is clearly reflected by several statements made by the district judge. Pri- or to his admonishing the jury concerning Thomas’ statements that Mrs. Franklin had written him a check for goods he brought to them the previous week, the judge observed:

“Now, gentlemen, I want to state for the record, and I would like for the Assistant District Attorney to understand that we are treading very, very close in this matter and the court considers this to be a very, very serious question and we have had — this is at least the second time that a witness has, with some appearance of inadvertence, at least not in direct response to a direct question, come out with some reference to prior involvement of these defendants in other activity which may be criminal, arising out of their association with Mr. Thomas. In the absence of compliance of the Prieur requirement, I understand that there has been no notice given within the prescribed delays of any intent on the part of the State to establish an M.O. by showing prior offenses, the court is of the opinion that any evidence of prior offenses by these defendants is not admissible. When counsel for the defense objected at the time the answer just given was given, the court maintained that objection. The court is going to observe that if such a remark or such a statement had been made by the Judge, the District Attorney or a court official within the hearing and presence of the jury, that the court would have no alternative but to declare a mistrial in this matter.”

During the sentencing proceedings of Fred Franklin, the trial judge also observed:

“I’m going to observe that the harm caused by the conduct of the defendant on November 17, 1979, was very little. Whatever harm may have been caused was economic. I’m going to note, however, that the totality of the losses to the victim not as a result of the offense for which the defendant was tried, but, as a result of a series of offenses involving, according to information furnished, Ralph Thomas and these defendants, was very substantial. Being figures estimated variously between thirty-seven thousand dollars and fifty-two thousand dollars. Over a period of approximately two years.”

The trial judge also made similar statements during Rose Franklin’s sentencing proceedings.

It is quite obvious to us that the judge’s conclusion ordering the defendants to pay $9,000.00 each in restitution to the victim of the crime, even though they were merely charged with receiving stolen goods having a value of less than $200.00, was based upon prior acts of the defendants for which they were never charged nor tried— in fact, this was readily admitted by the judge in the sentencing proceedings. Therefore, we reluctantly conclude that the prejudice suffered by the defendants denied them a fair trial and a fair sentencing, and that a mistrial should have been declared.

For the above and foregoing reasons, it is Ordered that the judgment of the trial court overruling the defendants’ motions for mistrial on the grounds of the State’s introduction into evidence of other crimes allegedly committed by the defendants, be and the same is reversed, and a mistrial is hereby declared. The defendants’ convictions and sentences are vacated, subject to any further proceedings which may be allowed by law.

MISTRIAL DECLARED AND DEFENDANTS’ CONVICTIONS AND SENTENCES VACATED.

FORET, J., concurs in part, dissents in part and assigns written reasons.

FORET, Judge,

concurring and dissenting.

I concur in the majority’s finding that at trial, the State violated the State v. Prieur rule with reference to evidence of other crimes.

However, I am of the opinion that under Jackson v. Virginia, we should have reversed the convictions and dismissed the charges against defendants. The goods that these defendants purchased on the particular night in question for which they were charged and convicted, in my opinion, were not stolen property. The State failed to prove that the goods purchased by the defendants were “the subject of any robbery or theft” under the provisions of R.S. 14:69. The goods were procured by the seller with the full authority and consent of the owner of these goods, in cooperation with the Vernon Parish Sheriff’s Department.

I am aware of the recent Supreme Court decision in State v. Johnson, 408 So.2d 1280 (La.1982). However, in that ease, the defendant was fully aware that the goods which were the subject of that scenario were to be “stolen” goods. The defendant stated so in a secret taping of a telephone conversation with him. The issue in Johnson was raised on a motion to suppress, that is, whether probable cause existed for the issuance of the search warrant and the arrest warrant. So Johnson went off on a probable cause situation. Justice Blanche, the author of Johnson, pointed out that evidence may support the issuance of a search warrant based on probable cause, but that yet such evidence may not be sufficient to support a conviction.

R.S. 14:69 states that the defendant knew or should have known that the goods were stolen. In this particular case, not only were the goods not stolen, but there is insufficient evidence in the record to support a finding that the defendants knew or should have known that the goods were stolen, under the Johnson test. Absent such a showing by the State, there is no intent to possess stolen goods and therefore, a rational trier of fact in this particular case under the Jackson v. Virginia rule could not have found the defendants guilty as charged.

I respectfully dissent. The convictions of the defendants should be reversed and the charges against them dismissed.

      . Although this article was amended by Acts 1982, No. 552, § 1, such that it is now entitled “Illegal possession of stolen things”, the substance remains unchanged. The article provides, in pertinent part:
      “A. Illegal possession of stolen things is the intentional possessing, procuring, receiving, or . concealing of anything of value which has been the subject of any robbery or theft, under circumstances which indicate that the offender knew or or had good reason to believe that the thing was the subject of one of these offenses.

      (2) When the value of the stolen things is one hundred dollars or more, but less than five hundred dollars, the offender shall be imprisoned, with or without hard labor, for not more than two years, or may be fined not more than two thousand dollars, or both.”

      . La.R.S. 15:445 states:
      “In order to show intent, evidence is admissible of similar acts, independent of the act charged as a crime in the indictment, for though intent is a question of fact, it need not be proven as a fact, it may be inferred from the circumstances of the transaction.”

      . La.R.S. 15:446 provides:
      “When knowledge or intent forms an essential part of the inquiry, testimony may be offered of such acts, conduct or declarations of the accused as tend to establish such knowledge or intent and where the offense is one of a system, evidence is admissible to prove the continuity of the offense, and the commission of similar offenses for the purpose of showing guilty knowledge and intent, but not to prove the offense charged.”


source: Caselaw Access Project

author: FORET, Judge. DOMENGEAUX, Judge,

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Joseph DAIGLE, Appellant.
    No. CR82-819.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 12, 1983.
    Rehearing Denied Nov. 28, 1983.
    Writ Denied Jan. 27, 1984.

      Jack Miller, Don Landry and Michael Harson, Asst. Dist. Attys., Crowley, for ap-pellee.
    Gerald J. Block, Showers & Guidry, Lafayette (Michael Skinner, Lafayette, of counsel), for appellant.
    Before DOMENGEAUX, FORET and YELYERTON, JJ.
   FORET, Judge.

Joseph Daigle (defendant) was indicted by the Lafayette Parish Grand Jury for the second degree murder of Lucille Castille, in violation of LSA-R.S. 14:30.1. Defendant entered a plea of not guilty to the charge. Subsequently, he was tried by a jury and found guilty as charged. The trial court then imposed the mandatory sentence of life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.

Defendant appeals from his conviction and makes the following assignments of error:

(1) The trial court erred in denying defendant’s motion for a change of venue, thereby depriving him of his right to a fair and impartial trial.
(2) The trial court erred in allowing the State, over defendant’s objection, to introduce evidence of prior criminal acts committed by defendant, when the probative value of such evidence was greatly outweighed by its prejudicial effect on the jury.
(3) The trial court erred in allowing in evidence certain photographs of the victim, which were of such a gruesome nature as to unduly prejudice the jury against defendant.
(4) The trial court erred in denying defendant’s motion for a new trial, as the jury’s verdict was contrary to the law and evidence.
(5) The trial court erred in denying defendant’s motion for a post-verdict judgment of acquittal, as the State failed to prove every essential element of the crime charged beyond a reasonable doubt.
(6) The trial court erred in refusing to modify defendant’s conviction from second degree murder to manslaughter.
(7) The trial court erred in denying defendant’s motion to suppress a statement made by defendant to law enforcement officers, as that statement was unconstitutionally obtained.
(8) The trial court erred in refusing to give defendant’s requested special instruction number 3 to the jury, as this instruction would have better enabled the jury to understand the responsive verdict of guilty of manslaughter.
(9) The trial court erred in refusing to allow defendant to introduce in evidence the autopsy report prepared by the pathologist who conducted the autopsy on the victim.

FACTS

On the morning of October 19, 1981, a maintenance crew discovered a badly decomposed body stuffed in a garbage barrel that was partially submerged in a small pond located in a park in Lafayette. Later that day, the body was identified as being that of Lucille Castille (age 23). The decomposition of the body necessarily hindered the autopsy performed to determine the cause of death. However, the autopsy did indicate that the victim had not drowned, nor had she died from a drug overdose (although her blood-alcohol level was found to be .216).

On the same day on which the body was found, defendant was arrested by officers of the Lafayette City Police Department. He had been living with the victim for approximately six years. The next day, defendant gave police a taped statement in which he admitted that he had beaten the victim three times during the early morning hours of October 15, 1981. Alerted by a friend of the victim (who had witnessed the first two beatings), the Lafayette City Police Department sent two officers to the residence where defendant and the victim were living. Initially, they were unable to enter the residence, but were subsequently allowed in by defendant. The officers saw the victim lying on a bed in what appeared to be a drunken stupor. However, they did clearly detect that she was breathing regularly and also observed that she had some swelling above her left eye. Apparently, defendant had just beaten the victim for the third time as he was perspiring heavily when he answered the door. After this, the victim was never seen alive again.

ASSIGNMENT OF ERROR NUMBER 1

Defendant contends that he was denied the right to a fair and impartial trial because of extensive pre-trial publicity regarding the crime with which he was charged. He argues that the trial court erred in denying his motion for a change of venue based on this ground.

LSA-C.Cr.P. Article 622 provides:

“Art. 622. Grounds for change of venue ⅞
A change of venue shall be granted when the applicant proves that by reason of prejudice existing in the public mind or because of undue influence, or that for any other reason, a fair and impartial trial cannot be obtained in the parish where the prosecution is pending.
In deciding whether to grant a change of venue the court shall consider whether the prejudice, the influence, or the other reasons are such that they will affect the answers of jurors on the voir dire examination or the testimony of witnesses at the trial.”

Under this article, the defendant must prove more than mere public knowledge of facts surrounding the offense to be entitled to have his trial moved to another parish. The burden of proof is on the defendant to show that there exists such prejudice in the collective mind of the community that a fair trial is impossible. State v. Watson, 423 So.2d 1130 (La.1982); State v. Vaccaro, 411 So.2d 415 (La.1982). Whether defendant has made the requisite showing is a question addressed to the trial court’s sound discretion which will not be disturbed on review in the absence of an affirmative showing of error and abuse of discretion. State v. Vaccaro, supra; State v. Adams, 394 So.2d 1204 (La.1981).

The trial court gave the following reasons for denying defendant’s motion for a change of venue:

“The Defendant’s Motion For Change of Venue was heard in open Court on April 8, 1982.
After considering the evidence presented, the Court denies the Motion For Change of Venue. The Court does not find the pre-trial publicity to be so extensive as to unduly influence the public or to instill prejudice in the mind of the public. The publicity surrounding the apparent homicide can be divided into three segments. The stories of October 19 and October 20, 1981, related that a body had been found and later identified. The stories of October 20 and 21, 1981 related that a suspect had been arrested. The stories of November 11 and 12 related that the grand jury had handed down its indictment against the defendant. There were no further new stories covering the events, and this was approximately five months ago. The Court is of the impression that, because this story was not one of public notoriety, the defendant can obtain a fair and impartial trial in this Parish.”

We have reviewed the record of the hearing held on defendant’s motion for a change of venue, and agree with the ruling of the trial court thereon. We note that the trial court’s ruling was made on April 12, 1982, and that defendant’s trial began on October 11, 1982. Thus, approximately one year had elapsed between the date of publication of the last news stories regarding this case and the date of defendant’s trial.

There is no merit to this assignment of error.

ASSIGNMENT OF ERROR NUMBER 2

Defendant contends that the trial court erred in allowing the State to introduce evidence of another crime committed by him. He argues that said evidence was irrelevant, and was introduced for the sole purpose of prejudicing the jury against him.

A review of the record shows that the State furnished defendant with written notice of its intent to introduce evidence of other crimes committed by him as required by State v. Prieur, 277 So.2d 126 (La.1973). The notice states that the evidence of these other crimes would be offered to show defendant’s intent, and to prove the continuity of the offense, under the authority of LSA-R.S. 16:445 and 446.

The other crimes evidence of which defendant complains consists of photographs taken of the victim on August 16, 1981, and the testimony of the victim’s sister and Lafayette City Police Officer C.J. Dartez. The photographs and testimony indicate that defendant severely beat the victim on that date. Generally, evidence of other acts of misconduct is not admissible; however, there are statutory and jurisprudential exceptions to this exclusionary rule, when the evidence of other acts tends to prove a material issue and has independent relevance other than showing that the defendant is a man of bad character. LSA-R.S. 15:481; State v. Germain, 433 So.2d 110 (La.1983); State v. Prieur, supra. Even if independently relevant, the probative value of such evidence must be weighed against its prejudicial effect. State v. Germain, supra.

LSA-R.S. 15:445 provides:

“§ 445. Inference of intent; evidence of acts similar to that charged
In order to show intent, evidence is admissible of similar acts, independent of the act charged as a crime in the indictment, for though intent is a question of fact, it need not be proven as a fact, it may be inferred from the circumstances of the transaction.”

LSA-R.S. 15:446 provides:

“ ‘§ 446. Evidence where knowledge or intent is material and where offense is one of a system
When knowledge or intent forms an essential part of the inquiry, testimony may be offered of such acts, conduct or declarations of the accused as tend to establish such knowledge or intent and where the offense is one of a system, evidence is admissible to prove the continuity of the offense, and the commission of similar offenses for the purpose of showing guilty knowledge and intent, but not to prove the offense charged.”

Evidence of other similar acts or offenses, preceding or subsequent to the charge in question, may be relevant to show the presence of intent when there is a real and contested issue of intent at trial. LSA-R.S. 15:445 and 446; State v. Germain, supra; State v. Prieur, supra.

In the case sub judice, specific intent was a real and genuine issue at trial. Defendant was charged with second degree murder which is defined in LSA-R.S. 14:30.1 as “.. . the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm”. Defendant asserted as his defense that he hit the victim in an attempt to stop her from drinking and neglecting their children, but that he never intended to kill her or to inflict great bodily harm on her. By this assertion of innocence, or lack of intent, defendant directly put the question at issue of his having the requisite criminal intent for the commission of the crime.

In attempting to determine defendant’s intent, the jury had only his testimony, a less than conclusive autopsy report, and the testimony of two individuals that defendant had stated that he might kill the victim. Thus, the evidence of the beating that took place on August 16, 1981, approximately two months before the victim’s death, had great probative value. This evidence tended to show the severity of the beatings administered the victim by defendant, and provided the jury with highly relevant evidence regarding defendant’s intent when he beat her.

However, the probative value of the evidence of other offenses must also be balanced against its “prejudicial nature” to determine its admissibility. “Prejudicial” is used in this phrase to limit the introduction of probative evidence of prior misconduct only when it is unduly and unfairly prejudicial. State v. Germain, supra.

In a case in which a defendant is charged with second degree murder, when the intent of the offender is an issue in the case, it is not unduly and unfairly prejudicial to expose to the fact-finder earlier incidents between the defendant and the victim which tend to prove that the murder charged against the defendant was committed with the required specific intent to kill or inflict great bodily harm. In this sense, it can be said that the probative value of the evidence of the earlier beating outweighed its prejudicial nature. Thus, the trial court properly allowed the State to introduce evidence of defendant’s earlier beating of the victim.

There is no merit to this assignment of error.

ASSIGNMENT OF ERROR NUMBER 3

Defendant contends that the trial court erred in allowing the State to introduce in evidence certain photographs of the victim’s body. He argues that these photographs were not relevant to any issues in the case, and were so gruesome as to unduly inflame and prejudice the jury against him.

Generally, photographs of the body of the victim depicting the fatal wounds are relevant to prove the corpus delicti; to corroborate other evidence of the manner in which the death occurred; to establish the location, severity, and number of wounds; and, to establish the identity of the victim. The test of admissibility is whether the probative value of the photographs outweighs the prejudice that may result from the display to the jury. State v. Michel, 422 So.2d 1115 (La.1982); State v. Lewis, 353 So.2d 703 (La.1977); State v. Cooper, 334 So.2d 211 (La.1976).

After examining the photographs in question (only the hands and feet of the victim were visible), we conclude that they were not especially gruesome. Moreover, the photographs were properly identified as depicting the scene of the crime by the investigating officers who had taken the pictures. Finally, the photographs were relevant to identify the victim (by means of distinguishing tatoos on the hands), and to establish the location of the crime. Since the probative value of the photographs outweighed any possible prejudicial effect, the trial court committed no error in admitting them in evidence.

There is no merit to this assignment of error.

ASSIGNMENTS OF ERROR NUMBERS 4, 5 & 6

By these assignments of error, defendant contends that the State failed to prove every essential element of the crime for which he was convicted beyond a reasonable doubt. Specifically, defendant contends that the State failed to prove that he had the required specific intent to kill or inflict great bodily harm on the victim. Thus, he argues that his conviction should be reversed. In the alternative, defendant contends that this Court should modify the jury’s verdict and render a judgment of conviction of the lesser included offense of manslaughter. See LSA-C.Cr.P. Article 821.

LSA-R.S. 14:30.1 provides, in pertinent part:

“§ 30.1. Second degree murder
Second degree murder is the killing of a human being:
(1) When the offender has a specific intent to kill or to inflict great bodily harm; or”

Thus, defendant is correct in noting that an essential element of the crime of second degree murder is that the offender must have “... a specific intent to kill or to inflict great bodily harm; . .. ”.

LSA-R.S. 14:10 provides, in pertinent part, that:

“§ 10. Criminal intent
Criminal intent may be specific or general:
(1) Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.”

However, specific intent is a state of mind, and need not be proven as a fact, but may be inferred from the circumstances of the transaction and the actions of the defendant. State v. Graham, 420 So.2d 1126 (La.1982), and authorities cited therein.

As noted above, evidence was introduced to show that on August 16,1981, defendant beat the victim to such an extent that she required medical attention. The photographs of the victim show that she was subjected to a savage and brutal beating on that date. In his recorded statement given to the police officers, defendant admitted that he had beat the victim in the past. Further, defendant testified that he beat the victim three times within a period of approximately an hour to an hour and a-half on the night she died. It must be remembered that, at this time, the victim was very intoxicated and was probably unable to defend herself in any manner.

James Prejean testified that the victim had gone to a store with him to purchase various items on the night she was killed. He stated that defendant was waiting at the victim’s father’s house when they returned. Defendant became angry upon seeing them, and demanded that the victim tell him where she had obtained money to purchase the items she had bought. When the victim failed to reply, defendant began beating her with his fists with such force that he knocked her against an automobile. Prejean testified that the defendant struck the victim more than once or twice, and that the blows were aimed at her head. Defendant then threatened to beat Prejean if he did not leave, and Prejean left and went to his house.

A short while later, defendant and the victim appeared at Prejean’s house, and defendant demanded to know where Prejean had been with the victim. Prejean stated that he had repeated what he had told defendant earlier, i.e., that he and the victim had gone to a store. Defendant then began to beat the victim again. Prejean testified that defendant struck the victim quite a few times, and described the severity of the beating as being “... very harshly”. Prejean was the person who called the police that night and directed them to the victim’s residence.

Dale Patton, a Lafayette City Police Officer, testified that he was one of the officers dispatched to the victim’s residence. When they arrived- there, they knocked on the door for approximately five minutes but got no response. Finally, defendant came to the door and was “... sweating profusely.. . ”. He was reluctant to allow the officers to enter, but finally did so. Officer Patton stated that the victim was laying on a bed, partially covered. He did not notice any bruises on the victim’s neck. The other officer attempted to awaken the victim by shaking her, but was unable to do so. Officer Patton noted that there was “... an extremely heavy odor of alcohol”. However, the victim was breathing regularly, and the officers left.

Dr. James A. Freeman was accepted by the trial court as an expert in the field of forensic pathology. He performed the autopsy on the victim. Under the circumstances, Dr. Freeman felt that dissection of the body was necessary and he proceeded to do this. He testified that:

“In starting the dissection and in raising — in doing so, you raise portions of the skin to view the muscles and the tissues underneath the chest walls, and we discovered hemorrhages, or bleeding — we call them ecchymoses; you call them hemorrhages or blood blisters — in the area of the right neck and in the area of the two (2) strap muscles of the neck, or the (2) main muscles that run from the back of the ear near the head down to the front part of the chest or breast bone, we call the sternomastoid muscles.”

Dr. Freeman then went on to state that the manner in which the victim’s body had been stuffed into the garbage barrel could account for the hemorrhages on the right side of the victim’s neck. However, it could not account for the hemorrhages found in the strap muscles. Dr. Freeman testified that the most common cause of injuries of this type is “... some type of ligature around the neck or strangulation”. He further testified that:

“We could not, with a hundred percent (100%) fact, determine the exact cause of death in this particular patient because the body was so macerated. We assumed because of the marks on the neck that these were consistent with strangulation. And, of course, we have to assume that the manner of death is homicide. You don’t strangle yourself.
Q Was that assumption and opinion rendered with reasonable medical certainty?
A Yes, it is.”

Dr. Freeman then stated that, at the time he gave his opinion as to the cause of the victim’s death, he did not know that she had been beaten by anyone.

Under cross-examination, Dr. Freeman testified that he did not open the victim’s skull and examine the brain. He explained that the skull was not fractured, and thus, it was not deemed relevant or necessary to do that in this particular case. Under re-direct examination, Dr. Freeman again stated that, based on his knowledge and experience as a forensic pathologist, the probable cause of the victim’s death was traumatic contusions or strangulation. When he was talking about traumatic contusions, he explained that he meant, “... some blunt force applied to the right side of the neck and the area of muscles on either side of the neck, ... ”. He stated that such injuries could produce results identical to strangulation.

Mrs. Sandra Castille Burney, the victim’s sister, testified that she saw the victim after the August 16 beating. She stated that she talked to defendant a few days after this beating had occurred, and asked him to stop. According to Mrs. Burney, defendant replied that the “... next time he wasn’t going to beat her; he was going to kill her”.

Clifton Mouton testified that he spoke with defendant on the evening of October 15, 1981. He stated that defendant told him that, “... whenever he found Lucille that he was going to beat her up and everything and perhaps maybe kill her”. Defendant also told him that: “He had a mind to drive himself and Lucille off the bridge.” These statements were apparently made by the defendant after the victim’s death.

Sergeant C.J. Dartez testified that he spoke with defendant after the August 16 beating. After advising defendant of his “Miranda” rights, he began to question defendant about this incident. Defendant admitted that he had beaten the victim, and that he had done so with his hands and a black jack. He also admitted that he had bitten the victim.

Defendant denied that he had beaten the victim with his fists, or a black jack at any time. He also denied having told anyone that he would kill the victim. He stated that, after he beat her for the last time on the night of her death, he went to bed. He further stated that both he and the victim got up the next morning around 8:00 o’clock a.m. The two started talking and decided it was time to end their relationship. Dalton Williams, one of defendant’s friends, came by the house around this time and defendant invited him in. They stayed inside for about five minutes and then went outside on the porch, where they spoke for approximately forty-five minutes. See footnote 1.

Defendant stated that he then re-entered the house and spoke to the victim. However, she failed to answer. Because he got no response, defendant walked to where the victim was sitting and shook her. Being unable to get her to regain consciousness, he felt for her heartbeat, but there was none, and he was unable to detect any signs of breathing. Defendant testified that he then panicked, locked the doors to the house, and began riding around the city, trying to figure out what to do. It wasn’t until late that evening that he decided to dispose of the victim’s body in the manner noted at the beginning of this opinion. Defendant denied that he intended to kill the victim, or inflict great bodily harm on her.

Specific intent is an ultimate legal conclusion to be resolved by the fact-finders. State v. Graham, supra; State v. Lecompte, 371 So.2d 239 (La.1978). The defendant was tried by a twelve-member jury of his peers. The jury returned a unanimous verdict of guilty as charged. Since the jury is the ultimate trier of fact, they necessarily reached a conclusion that specific intent was present, along with all of the other elements of the crime of second degree murder. We find that this conclusion is within the jury’s discretion.

After thoroughly reviewing the record, we are convinced that, after viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found beyond a reasonable doubt that defendant had the specific intent to inflict great bodily harm on the victim (the essential element of the crime at issue). See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

There is no merit to these assignments of error.

ASSIGNMENT OF ERROR NUMBER 7

Defendant contends that the trial court erred in denying his motion to suppress the tape recorded statement he made to the police on October 20, 1981. He argues that the statement was unconstitutionally obtained, was not made voluntarily, and was made under the influence of fear, duress, intimidation, menaces, threats, inducements and promises. We find no merit to defendant’s argument.

In his testimony, defendant admitted that he freely and voluntarily gave the statement to the police officers. Further, the State introduced in evidence two separate waiver of rights forms signed by defendant. One is dated October 19,1981, and the other is dated October 20, 1981. Both the forms contain the following statement:

“WAIVER OF RIGHTS
I have read this statement of my rights and I understand what my rights are. I am willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I am doing. No promises or threats have been made to me and no pressure or coercion of any kind has been used against me.”

Defendant also argues that the statement should have been suppressed because he could not afford to retain an attorney at the time it was given. Again, we find no merit to defendant’s argument. Both “waiver of rights” forms contain information to the effect that: “If you cannot afford a lawyer, one will be appointed for you before any questioning if you wish.” Defendant indicated that he had completed the tenth grade in high school. Certainly, he understood the meaning of the above mentioned information and, yet, chose to go ahead and give a statement to the police officers.

There is no merit to this assignment of error.

ASSIGNMENT OF ERROR NUMBER 8

Defendant contends that the trial court erred in refusing to give his requested special jury charge number 3. He argues that, without this charge, the jury was unable to understand the relationship between the crimes of simple battery and second degree battery, and how those offenses are related to the crime of manslaughter.

A review of the record shows that defendant merely objected to the trial court’s refusal to give this charge, but failed to state any grounds for his objection as required by LSA-C.Cr.P. Article 841. The defendant is required to state the basis of his objection to the trial court so that the trial court will have an opportunity to rule on the objection and to avoid or cure any error. State v. Baylis, 388 So.2d 713 (La.1980); State v. Lewis, supra.

Thus, we will give no further consideration to this assignment of error.

ASSIGNMENT OF ERROR NUMBER 9

Defendant contends that the trial court committed reversible error in refusing to allow into evidence a copy of the autopsy report on the victim prepared by Dr. Freeman. In support of his contention, defendant cites State v. Andrews, 369 So.2d 1049 (La.1979), and LSA-C.Cr.P. Article 105. We find Andrews to be inapposite.

Initially, we observe that defendant wanted the autopsy report in evidence, “not so much to show it to the jury, but to have something for [his] forensic pathologist to refer to”.

However, defendant’s expert did have prior access to the report and was aware of all its contents. LSA-C.Cr.P. Article 105 does not create the right for either party to have a complex medical report submitted to the jury. It merely declares such evidence to be competent. In State v. Winzer, 354 So.2d 533 (La.1978), and in State v. Vincent, 338 So.2d 1376 (La.1976), the Louisiana Supreme Court recognized the primary purpose of LSA-C.Cr.P. Article 105 to be the providing of the flow of information needed by the district attorney’s office in apparent homicide cases.

The trial court’s determination of admissibility and relevance are not to be disturbed in the absence of a clear showing that he has abused his wide discretion. State v. West, 419 So.2d 868 (La.1982). In refusing to allow the jury to attempt to decipher the medically prepared report, the trial court did not abuse its great discretion. Through the intensive testimonies of both Dr. Freeman and Dr. McQuown , the jury was thoroughly informed as to the contents of the autopsy report.

There is no merit to this assignment of error.

DECREE

For the reasons assigned, defendant’s conviction is affirmed.

AFFIRMED.

DOMENGEAUX, J., concurs and assigns reasons.

DOMENGEAUX, Judge,

concurring.

I agree completely with the majority opinion, but in keeping with my position on the review of facts doctrine I reiterate the views stated in my previous concurring opinion in State v. Gatson, 434 So.2d 1315 (La.App. 3rd Cir.1983). I feel that the continued application of the review of facts rationale set out in Jackson v. Virginia, supra, and State v. Mathews, 375 So.2d 1165 (La.1979), results in our appellate courts becoming nothing more than second guessers of the triers of fact.

      . Defendant testified that one Dalton Williams came by his house the next morning, and that Williams ... “told her hello”. However, the victim just looked at him and turned her head back. Curiously, neither the State nor the defendant called Williams as a witness at the trial of this matter.

      . Defendant raised the issue of the sufficiency of the evidence used to convict him by means of a motion for a new trial, and a motion for a post-verdict judgment of acquittal. Both motions were denied by the trial court. Because of our decision herein, we agree with the trial court’s denial of these two motions.

      . In his closing argument to the jury, the prosecutor stated that certain evidence had been presented to show that defendant intended to inflict great bodily harm on the victim when he beat her. Apparently, the State believed that it could not (and had not) proven that defendant had the specific intent to kill the victim.

      . Dr. Albert L. McQuown was accepted by the trial court as an expert in the fields of anatomical and clinical forensic pathology. Essentially, Dr. McQuown was of the opinion that the autopsy performed on the victim was incomplete because the skull had not been opened and the brain had not been examined. He disagreed with Dr. Freeman’s opinion that the victim had been strangled, although he admitted that it was possible that she had been killed in this manner. However, he stated that it was impossible for him to determine the cause of death because of the incomplete autopsy.
      It is apparent that the jury accepted the opinion of Dr. Freeman and rejected that of Dr. McQuown. We can find no basis for upsetting this determination.


author: BOWES, Judge.

text:
    Anthony T. MICHEU, III v. Marilyn Fabre, Wife of Anthony T. MICHEU, III.
    No. 83-CA-294.
    Oct. 12, 1983.
    Court of Appeal of Louisiana, Fifth Circuit.

      Floyd J. Reed, New Orleans, for plaintiff-appellee.
    Ross P. La Dart, Gretna, for defendant-appellant.
    Before CHEHARDY, BOWES and CUR-RAULT, JJ.
   BOWES, Judge.

Defendant-appellant perfects this appeal from a judgment of the trial court:

1. Ordering an increase in the previous child support award;
2. making absolute a rule for executory judgment for past due support (subject to a credit for payments made after the filing of said rule);
3. making absolute a rule for contempt subject to the proviso that defendant was deemed to have “purged” himself of said contempt by payment of past-due support;
4. awarding attorney’s fees to plaintiff in the amount of $1,200.00; and
5. ordering defendant pay all court costs.

We affirm in part, reverse in part, and amend that judgment.

Plaintiff and defendant were divorced in 1975, and have since returned several times to the district court for clarification and changes in child support payments, including at least one other rule for contempt (for failure to pay said support), rules to terminate visitation, contempt of visitation, etc. Suffice it to say for our purposes that the relationship between the parties has, at best, been antagonistic. Prior to the present rule, the trial court, in January of 1980, sentenced defendant to a suspended sentence of 15 days for failure to make support payments; at the same time, defendant was ordered to pay $400.00 per month child support for the two minor children of the marriage, payable in increments of $200.00 on the 12th and 28th of each month, adding that a penalty of $20.00 would be assessed against defendant if the payment due on the 28th was not made before the first of the following month. This last proviso evidently was an attempt to keep the ever-delinquent Mr. Micheu on guard, and prevent his former wife from experiencing unnecessary financial difficulty, inasmuch as her rent was due on the 1st of every month.

The action before us today was filed on April 15, 1982, and styled “Fourth Rule for Contempt, To Make Past Due Child Support Executory, and For Attorney’s Fees and For Increase in Child Support.” The rule was filed “In Forma Pauperis” by Mrs. Mi-cheu.

On April 23, Mr. Micheu filed a rule to traverse the forma pauperis application of his former wife; and on May 7, he filed a rule for a decrease in child support. (The forma pauperis order was annulled on that day, and Mrs. Micheu ordered to pay all costs incurred in connection with bringing the rule to traverse. This judgment was never appealed and is not at issue before us).

Appellant presents the following specifications of error:

1. That the trial court erred in granting an increase in child support payments.
2. That the trial court erred in denying a reduction in child support payments.
3. That the trial court erred in finding that the appellant was in arrears regarding his obligations to pay child support as per the provisions of the trial court’s judgment of January 10, 1980.
4. That the trial court erred in finding that the appellant was in contempt of the provisions of the trial court’s judgment of January 10, 1980.
5. That the trial court erred in awarding attorney’s fees.
6. Alternatively, the trial court erred in that the award of attorney’s fees is excessive.
7. That the trial court erred in ordering that the appellant pay all costs of these proceedings.

Regarding appellant’s first two issues that it was error to increase the award and not to decrease the amount, an examination of the record reveals the following pertinent information:

In 1979, the tax year prior to the setting of the $400.00 award, Mr. Micheu and his second wife had a combined income of $27,-420.00. In 1980, their combined income was approximately $30,000.00; in 1981, approximately $28,941.94. (The income tax form for 1981 was not filed into evidence and the above sum was computed based on the testimony of Mr. Micheu). Significantly, Mr. Micheu testified that income for 1982 at the time of the trial was approximately at the same rate as the year before, but that he expected to do better in the coming summer months. It should be noted here that Mr. Micheu is an air-conditioning and refrigeration mechanic, who quit his job at General Electric in 1981 to start his own business.

The income of defendant from 1979, just prior to the $400.00 award, and the date of the hearing, did not significantly change, certainly not sufficiently to justify an increase in support to $700.00 per month. Nor do any other factors presented at trial lead us to conclude such an increase was warranted. The former Mrs. Micheu’s income increased dramatically, to approximately $25,000, in 1981 (from approximately $6,500.00 at the time of the 1980 rule).

The determination, then, to be made is — has a substantial change of circumstances occurred since the award of alimony, or since the last change in that award? This analysis is to be made each time either spouse files a rule to increase, decrease, or terminate alimony previously granted. Vial v. Vial, 422 So.2d 523 (5th Cir.1982). The court, in the aforementioned decision, has stated that the lower court is bound to limit its inquiry into a substantial change in circumstances of either or both spouses. In the case before us, then, we are bound to consider the increase in Mrs. Micheu’s ability to provide support for her children, as well as any substantial change in the children’s needs.

In examining the record, and taking the matter as a whole, we find that it was error to increase the child support order: “... in an effort to remedy past inequities, including but not limited to the necessity of a mother working excessive overtime hours, the ramifications of which are viewed by this Court as being detrimental to the well-being of the minor children; namely, Lisa Marie Micheu and Anthony T. Micheu, IV.”

The trial judge’s admirable effort here to encourage the family unit is not of itself grounds to increase child support. The testimony of plaintiff and of one John Gagli-ano, a personnel director of plaintiff’s employer, disclose that Mrs. Micheu’s job requires overtime — overtime of at least eight hours per week is “built in” to the position. Also, as manager, she would likely have to work certain holidays. Overtime does not seem to be a matter of choice for Mrs. Micheu, unless she were to choose resigning or changing her position. As long as she works for Time-Saver, Inc., Mrs. Micheu will probably be obliged to work the same hours, and an increase in child support payments will not change that fact. Should there be a substantial change in her employer’s policy regarding overtime, Mrs. Mi-cheu, of course, would be entitled to bring another rule.

We have also concluded, however, that it was not error to deny defendant’s motion for a reduction. In Graval v. Graval, 355 So.2d 1057 (4th Cir.1978), the Fourth Circuit stated:

There can be no equivocation about the obligation imposed by Article 227 of the Civil Code. Parents share the obligation of supporting, maintaining, and educating their children. The degree of support is determined by the need of the child and the ability of “those who are to pay it.” C.C. Art. 231; Ducote v. Ducote, 339 So.2d 835 (La.1976).

Further in that opinion, the court stated:

Here we have a wholly different proposition. Both parents are gainfully employed and must discharge their obligation in whole or in part by financial contributions for the benefit of the child... This mutual obligation, then, must be apportioned in each case as indicated by the parents’ respective abilities to support the needs of the child, (at p. 1063)

In scrutinizing both the testimony and expense sheet of Mrs. Micheu, we find the following a fair list of allowable expenses for the children, pro-rated whenever necessary:

House note or rent $150.00

Groceries 267.00

Utilities 67.00

* Medical 17.00

** Auto 133.00

Haircuts 20.00

Laundry 26.00

School expenses 55.00

Clothing 100.00

Recreation 100.00

TOTAL . $935.00

* -Average of medical expenses shown attributable to the children

**-Mrs. Micheu testified that her son uses one of the cars; it may also be fairly assumed that Mrs. Micheu uses her car for the use and benefit, partially at least, of her daughter.

Mrs. Micheu contended that the needs of the children had changed dramatically since the last rule — however, the list of expenses filed by her in the 1980 rule and in the present matter, as well as the testimony elicited at the hearing, do not show an increase in the children’s needs.

We do not see the issue as one of credibility, but as one of proof. This issue is whether or not (Mrs. Barbier) proved there had been a change in circumstances so as to warrant an increase in the child support payments. Appellee simply stated things cost more and her children needed more. These general allegations do not establish a significant change in circumstances, ... Barbier v. Barbier, 417 So.2d 57 (La.App. 1st Cir.1982)

Given the limited circumstances we are permitted to review, we cannot say that either Mr. Micheu’s earnings, or the needs of the children, permit an increase in the present award of $400.00.

Certainly they do not permit a decrease either, regardless of Mrs. Micheu’s augmented salary. The present award is less than one-half the allowable expenses, and this Court cannot place any further burden on the mother to assume the father’s financial duties.

As to appellant’s third and fifth assignments of error, that the trial court erred in finding Mr. Micheu in arrears and making such arrears executory, and, additionally, awarding attorney’s fees: The record supports the finding implicit in the judgment that at the time the rule was filed, Mr. Micheu was indeed in arrears and, on the afternoon of that same date the rule was filed, paid at least one payment and, as is evident in the court’s judgment, possibly two payments. He was also in arrears at least one $20.00 penalty payment. Appellee was within her rights to seek the rule; and even granted that the regular payments in question were paid before the initial hearing, the fact is that at least one penalty payment was outstanding, and that Mrs. Micheu properly filed the rule. We find no manifest error in that portion of the judgment which made the rule for past-due support executory subject to a credit for payments made after filing of the rule.

Louisiana Revised Statute 9:305 permits an award for attorney’s fees to the prevailing party except for good cause:

This statute vested a court rendering judgment in an action to collect alimony or child support arrearages with the discretion to award attorney fees to the prevailing party. The statute is apparently a codification of the jurisprudential theory that “alimony allowed should not be eaten up partiallly by attorney’s fees, and the child thereby deprived, in part, of the object and purpose of allotting it.” Newson v. Newson, 176 La. 699, 146 So. 473 (1933). See also Gardner v. Gardner, 366 So.2d 1022 (La.App. 1st Cir.1978). Trahan v. Trahan, 405 So.2d 1160 (La.App. 1st Cir.1981)

Interestingly, Trahan involved a rule for judgment for past-due alimony, and for contempt, and also a rule for a decrease filed by the husband. The Court made the past-due payments executory, while lowering the future payments. In that case, the Court noted that the husband-appellant did not seek a reduction of support until the wife had filed her rule. Combined with the fact that he was in arrears, the Court found that “good cause” was not shown to prevent an award of attorney’s fees to the wife’s attorney. We agree with this reasoning; however, we find the amount awarded to be excessive and reduce it by half, to $600.00, inasmuch as a great portion of the hearing consisted of the rule to traverse Mrs. Mi-cheu’s pauper status, which status was set aside.

Regarding the issue of contempt, appellant’s fourth assignment of error, the record reveals that Mr. Micheu sent an extra payment to his wife in September of 1981. Upon realization of this, he believed himself to be “ahead” in his payments, and so did not tender the penalty charges which accrued.

A. “... In September, my wife delivered a check to her before—two days before or three days before she was going in the hospital; I didn’t know it, I asked her two or three days ahead of time, I said “You paid Marilyn,” she said “No, I’m going to take care of it,” I said, “Okay.” And come the 28th or the 27th, I don’t remember which day it was, I have it down here, I said “Marilyn didn’t get paid,” I was across the river, I got a money order, and I shoved it under her door. She received three checks—three money orders in September. We’ve gotten tracers back on two that she’s cashed and the one check.” Tr. p.263

It was proven at trial, however, that Mrs. Micheu never received nor cashed this “extra” payment, after a trace on the money itself was had. (This occurred at a later hearing.)

However, inasmuch as we have found that the payment due April 12 was not paid until April 15, the day the rule was filed; and while the “extra” payment which Mr. Micheu believed the plaintiff received would certainly have covered the accrued penalty, such “payment” would not have sufficed to discharge the entire April 12 payment. Therefore technically, then, the defendant was in contempt of court, and we find no manifest error in the trial judge so holding, particularly in view of Mr. Mi-cheu’s past performance. Accordingly, we affirm the finding of contempt by the trial court.

The Louisiana Code of Civil Procedure, in Article 224, requires “willfullness” in a finding of contempt:

Because the object of a contempt proceeding is vindication of the authority and dignity of the court, and not for the benefit of the litigants, a party is not in contempt of a court order unless he wil-fully disobeys a direct court order issued prior to a contempt rule. City of Monroe v. Evans, 385 So.2d 912 (La.App. 2nd Cir.1980) [emphasis supplied]

We must assume the defendant “willfully” did not pay until April 15.

Finally, Code of Civil Procedure Article 1920 provides the court may render judgment for costs against any party as it may consider equitable. We find no abuse of discretion in the trial court’s taxation of defendant with costs. Plaintiff answered this appeal by requesting an increase in attorney’s fees, which we hereby deny.

Accordingly, we affirm that portion of the trial court’s judgment making the rule for past-due support executory, subject to a credit for payments made after the filing of the rule; also, we affirm taxation of defendant with court costs. We amend that portion of the judgment awarding attorney’s fees and reduce the amount to $600.00. We affirm the finding of contempt on the part of the defendant. Finally, we reverse the judgment of the trial court increasing child support payments, and reinstate the award of $400.00 per month for the support of the minor children. The judgment of the trial court denying a decrease in support is affirmed.

AFFIRMED IN PART, AMENDED IN PART, REVERSED IN PART, AND RENDERED.


text:
    James E. FELTON, Jr. v. STATE of Mississippi.
    No. 54368.
    Supreme Court of Mississippi.
    Aug. 3, 1983.
    Rehearing Denied Nov. 16, 1983.
    Thomas J. Lowe, Jr., Jackson, for appellant.
    Bill Allain, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before WALKER, P.J., and HAWKINS and ROBERTSON, JJ.
   Appeal from Circuit Court, Adams County; Edwin E. Benoist, Jr., Judge.

AFFIRMED.