author: GARRISON, Judge. WARD, Judge, SAMUEL, Judge Pro Tem.,

text:
    AURORA COMMUNITY ASSOCIATION, INC., et al v. SOUTHWOOD PATIO HOMES, et al.
    No. CA 1760.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 31, 1984.
    Rehearings Denied Oct. 29, 1984.
    Writs Denied Dec. 14, 1984.
    James P. Magee, Baldwin & Haspel, Russ M. Herman, Herman, Herman & Katz, New Orleans, for plaintiffs-appellees.
    Daniel R. Martiny, Lee, Martiny & Carac-ci, Metairie, Salvador Anzelmo, City Atty., Karen Milner, Asst. City Atty., New Orleans, for defendants-appellants.

      Before GARRISON and WARD, JJ., and SAMUEL, J. Pro Tem.
   GARRISON, Judge.

This is an appeal from a judgment of the district court rendered January 3, 1983 granting judgment as follows:

“1. IT IS ORDERED, ADJUDGED AND DECREED that the defendants, Lacour Investments, Gulf South Development & Management Company, Pearson Construction Company, Providence Memorial Park, Inc. and Century Graphics, Inc. are dismissed without prejudice upon Motion of plaintiffs.
2. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that a mandatory injunction is issued herein directing defendant, Southwood Limited Partnership, a/k/a Southwood Patio Homes, to file a new application with the City Planning Commission of the City of New Orleans for approval, modification or denial of a Residential Planned Community (RPC) and Conditional Use zoning status with reference to and in accordance with the Site Plan recorded December 2, 1981, C.O.B. 776, folio 259, Parish of Orleans. Southwood is further ordered to make the new application and file same with the City Planning Commission of the City of New Orleans within thirty (30) days of the rendition of this judgment.
3. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the City of New Orleans, through the City Planning Commission is ordered to receive the new application of Southwood and to process same in accordance with the provisions of the Zoning Ordinance of the City of New Orleans and within the time delays provided therein and to provide such public notices and public hearing as the Zoning Ordinance requires. Further, the City of New Orleans, through the City Council of the City of New Orleans is ordered to docket and consider the new application of Southwood after receipt of recommendations from the City Planning Commission in accordance with the time delays, public notices and public hearing required by the Zoning Ordinance of the City of New Orleans for approval, denial or modification of such application.
4. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Building Permits issued Southwood for construction in accordance with the Site Plan recorded on December 2, 1982, in C.O.B. 776, folio 259, Parish of Orleans, are not now revoked or rescinded pending the final approval, modification or denial of the new application for zoning by Southwood. In the event that the new application of Southwood is approved, modified or denied by the City Council, then the City of New Orleans, through its Department of Safety and Permits shall be charged with the duty under the Zoning Ordinance to confirm such Building Permits in accordance with an approval, or to amend such Building Permits in accordance with a modification or to revoke Building or Use and Occupancy Permits in accordance with a denial of the application.
5. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Defendants shall pay all costs of these proceedings.”

Plaintiffs in the instant appeal are:

1. Tall Timbers Owners Association, a non-profit property owners group of 500 homeowners, and Michael J. Aratingi, John H. Norman and Pamela Johnson, both in their capacity as officers of the association and individually.

2. Aurora Community Association, Inc., a non-profit property owners corporation of 700 homeowners, and Paul G. Richard, both in his capacity as an officer and individually.

3. Bocage Civic Association, Inc., a nonprofit corporation of 300 homeowners, and Joseph J. Sabatino, both in his capacity as an officer and individually.

4. Park Timbers Association, Inc., a non-profit property owners corporation of 300 homeowners, and James Wessel, both in his capacity as an officer and individually.

All of the 1800 homeowners are domiciled in the parish of Orleans in Algiers.

The defendants are as follows:

1. All City Councilmen and the Mayor, in their official capacity as representatives of the City of New Orleans.

2. Harold Gorman, Director of the Department of Safety and Permits.

3. Southwood Limited Partnership d/b/a Southwood Pation Homes, a Louisiana partnership which has a development or ownership interest in the development at issue, and its partners Dr. Lawrence J. Derbes, Carl J. Eberts, John J. Derbes, and Ronald L. Brignac, Managing Partner.

4. Lacour Investment, a Louisiana partnership voluntarily dismissed without prejudice by plaintiff.

5. Gulf South Development and Management Co., Inc., also voluntarily dismissed.

6. Pearson Construction Corporation, also voluntarily dismissed.

7. Providence Memorial Park, Inc., also voluntarily dismissed.

8. Century Graphics, also voluntarily dismissed.

On December 21, 1970 H.C. Bynum and R.A. McCloud, owners of the property Parcels B and B-l, Fifth Municipal District bounded by Simpson Place, Sunflower Street and Tullís Drive, filed a request with the City Planning Commission requesting a Conditional Use, i.e. Townhouse in an RD-2 (Two-Family Residential) District and Residential Planned Community status (R.P.C.).

The RD-2 zoning controlled the use of the property as well as density and other factors:

“Section 2. RD-1, and RD-3 Two-Family Residential Districts.
2.1 Purpose of the Districts.
The purpose of these districts is to provide for two-family or townhouse dwelling developments (in the RD-1 and RD-3 Districts) mixed with single-family dwellings, together with such churches, recreational facilities and with accessory uses as may be necessary or are normally compatible with residential surroundings. RD-1 is intended to provide for more spacious developments, generally in the outlying sections of the City; RD-2 and RD-3 provide for developments on smaller lots generally in older, more densely populated sections and the height of buildings in all RD Districts are low enough to be compatible with neighboring single-family development. Permitted community facilities are the same as for the single-family residential districts.
2.2 Permitted Uses.
A building or land shall be used only for the following purposes:
1. Any use permitted in the RS-1 and RS-2 Single Family Residential Districts.
2. Two-family dwellings.
3. Townhouses in the RD-1 and RD-3 Districts only.
4. Homes for the aged, nursing homes, convalescent homes and orphan homes on a site of not less than 65,000 square feet, or 700 square feet for each occupant, whichever is the greater, including permanent employees who will be domiciled upon the site and provided further that the total ground floor area of the building or buildings shall not exceed 50 per cent of the total site area.
5. Child Care Centers provided that ...
2.4 Permitted Conditional Uses
In order to provide for certain uses which, because of their unique characteristics, cannot be properly classified in a particular zoning district, the City Council under the provisions of Article 15 and specifically under Section 2.6 shall authorize the following conditional uses:
When it has been determined by the City Council that such conditional uses will promote the public welfare, public safety, and public health, and that the proposal is in general compatibility with adjacent or nearby land uses. Applications for the following conditional uses shall be transmitted to the City Planning Commission for a public hearing and action in accord with the provisions of Article 15.
3. Townhouses, in RD-2 when located on a site containing at least 2,000 square feet of lot are per unit with a minimum lot width of 18 feet and lot depth of 90 feet and a height limit of forty (40) feet and provided further that such structures will provide a front yard of at least 20 feet, a side yard of 10 feet and a rear yard of 20 feet and further that said structures will conform to the supplemental regulations governing two-family dwellings and townhouses of Article 10, except, however, that no townhouses shall be permitted in the RD-2 District where it has been applied to the area bounded by St. Charles Avenue, the downtown side of Jackson Avenue, Magazine Street and the uptown side of Louisiana Avenue, inclusive of lots bordering on said boundary frontages where RD-2 zoning is applicable, commonly referred to as the Garden District.”

None of the permitted uses or permitted conditional uses allow for apartments or multi-family dwellings in RD-1, RD-2, or RD-3 zoned areas. Multi-family dwellings or apartments are allowed only under the RM (Multiple-Family Residential) classifications only in areas zoned RM-1, RM-2, RM-3, and RM-4.

The Bynum and McCloud request for RD-2 townhouse zoning was assigned docket number 41/70. A public hearing was held before the City Planning Commission at which time the Commission recommended that if the property owners met seven additional conditions then the application should be approved.

On April 11, 1971 the City Council, accepting the recommendation of the Commission, required the owners to meet the seven additional provisos and tentatively approved the application, subject to those provisos, as M.C.S. Ordinance 4536. On April 19, 1971, Mayor Landrieu signed that Ordinance including the additional seven conditions. The ordinance additionally provided for a delayed effective date, due to the tentative nature of its approval:

“That this ordinance shall be effective only after all of the provisos listed in the report of the City Planning Commission, dated February 4, 1971 have been fulfilled and no building permits shall be issued until final adoption of this ordinance.” (emphasis added).

Under our theory of government, the government only exists because of its “compact” or contract with the people. See: U.S. Constitution, Amendment IX, Corwin, “The ‘Higher Law’ Background of American Constitutional Law” 42 Harv.L. Rev. 149; Remarks of James Madison introducing the Bill of Rights in the House of Representatives, June 8, 1789, in 2 Schwartz, The Bill of Rights: A Documentary History 1029 (1971). Louisiana Constitution of 1974 Article 1 Section 24. Both under the compact and under both constitutions a separation of powers is created and a limitation upon those powers exists. U.S. Constitution Article I Section 1, Article II Section 1, Article III Section 1; Louisiana Constitution of 1974, Article II Section 1, Article II Section 2. While a legislative body may appoint groups to study, write, recommend, and report to it, the body cannot delegate “the power to make laws.” The actual legislative power — the power to make laws — is more than a power, it is a non-delegable duty. See: Springer v. Government of Phillipine Islands, 277 U.S. 189, 48 S.Ct. 480, 72 L.Ed. 845 (1928); State ex rel. Guste v. Legislative Budget, 347 So.2d 160 (La., 1977). Thus the “final adoption of this ordinance” can only be effected by exercise of the exclusive legislative power of the Council. The legislative power exclusively vested in Council can no more be delegated than this Court could take it upon itself to appoint twelve people to decide all cases and then take a twelve month vacation. While the Council may, on occasion, merely “rubber-stamp” recommended ordinances, the power to decide to accept or reject those recommendations lies solely in the Council. Even the Council itself cannot violate its constitutionally non-delegible duty “to make laws” and thus breach the fiduciary duty imposed by the compact.

At the time that M.C.S. 4536 was “passed”, the area was largely undeveloped. Within the next ten years, however, the area was rapidly developed and the subdivisions Tall Timbers, Aurora, Bocage, and Park Timbers were built. Approximately ten years after No. 4536, new developers executed an option on the Bynum-McCloud property. The managing partner testified that before the group executed the option they were already aware of the RD-2 zoning (which precluded use as apartments) and the seven conditions. The new developer did not comply with all of the seven provisos, but did, nonetheless obtain building permits, in direct violation of the delayed effective date provision of the ordinance and without ever obtaining final approval of the ordinance. He then proceeded to construct not townhouses, but federally-subsidized apartments.

In Cross v. City of New Orleans, 446 So.2d 1253 (La.App. 4th, 1984), writ denied 449 So.2d 1359 (La.,1984), this court approved the revocation of all permits issued to a good-faith renovator and operator of a youth hostel where the City had issued permits in error due to the plaintiffs lack of a few parking spaces. In essence, Steven Cross, who was totally in good faith, lost his business and livelihood over a few parking spaces.

In contrast, the developer in the instant case not only knew of the zoning restrictions on the property prior to expending one dime, but also consciously and intentionally decided that he would build the structures in defiance of the ordinance and that he would not take any steps to obtain proper zoning classification for his project:

“Q. Well, you are familiar with the zoning ordinance of the City of New Orleans prior to this project?
A. I think as a developer I am, yes.
Q. So you are a knowledgeable developer?
A. I would think so.
Q. And you made a conscious decision not to have this project submitted to any sort of public hearing before you went forward and made a final site plan or obtained permits?
A. Yes. (Tr. p. 257).
A. At the time it didn’t make any difference to me because as far as I was concerned it was there. See, there was no advantage to me to use the RPC because I had to go to public hearing to build it, as well as if I had tried to develop the property in some other manner I would not have been issued a permit, you can’t remove the RPC without going back through the same process.” (Tr. p. 265).

In the instant case, the developer is clearly in bad faith by his own admission. We find that the trial court’s remedy is clearly supported by the evidence and testimony present and is, in fact, somewhat mild under the circumstances.

For the reasons discussed, the judgment of the district court is affirmed.

AFFIRMED.

WARD, J., and SAMUEL, J., Pro Tem. concurs with written reasons.

WARD, Judge,

concurring.

I would affirm the Trial Court, but for different reasons. The Comprehensive Zoning Ordinance provides that the site plan must be recorded within thirty (30) days after final approval by the City Council. Because the applicant failed to timely record the plan, development cannot proceed. Additionally, the Trial Court held that ten years was too long for the seven provisos to be met. I agree. The City Council’s approved ordinance stipulated that seven conditions must be fulfilled before final approval for conditional use could be given by the City Planning Commission. The ordinance should be interpreted as contracts are interpreted, that is, the conditions must be fulfilled within a reasonable time. In this case, they were not. Ten years is an unreasonable length of time. In the rapidly growing areas of New Orleans, ten years can see the entire character of a neighborhood change. A standard based upon the requirements of a decade ago is unreasonable and not in the best interests of the people who live in the affected neighborhoods.

SAMUEL, Judge Pro Tem.,

concurring:

Although I agree with the result reached, I would affirm with additional reasons.

The property was not zoned for multifamily residences; it was zoned for dual/townhouses (RD-2); and the system requires Council approval of zoning. The Council had approved only the RD-2 zoning on condition that the seven provisos were met. Not only did the new owners not intend to build townhouses, but there were amendments made to the provisos on August 5, 1981. The plan, as approved by the Council, was not the plan implemented. The amended plan has not been approved by the Council, nor has there been a public hearing thereon.

It is also my view that even had the plan been effected as conditionally approved by the Council, ten (10) years unquestionably was too long a time to fulfill the seven provisos. Many changes could have oc-cured in the neighborhood during that time, which changes could require other and additional considerations by the Council.

Accordingly, I respectfully concur.


source: Caselaw Access Project

author: CIACCIO, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Mary M. DAVIS and Alvin R. Thomas. No. KA-1694.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 31, 1984.
    Rehearing Denied Oct. 29, 1984.
    Writ Denied Jan. 7, 1985.
    Birch P. McDonough, McDonough & McDonough, New Orleans, for appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry Connick, Dist. Atty., Donal D. Winston, Asst. Dist. Atty., Assisted by Paul Knoth, Law Clerk, New Orleans, for appellee.
    Before GULOTTA, BARRY and CIAC-CIO, JJ.
   CIACCIO, Judge.

An unanimous jury of six persons found both defendants guilty as charged of having violated La.R.S. 14:106, obscenity. Defendants appeal based upon two assignments of error. We have considered defendants’ assignments of error and have also reviewed the record for errors discoverable by a mere inspection of the pleadings and proceedings, La.C.Cr.P. Art. 920(2), and for sufficiency of the evidence. We have found no error warranting reversal of defendants’ convictions. We, therefore, affirm.

FACTS

On May 11, 1983, a detective of the Vice Division of the New Orleans Police Department entered the Ciné Royale Theatre located at 912 Canal Street, New Orleans. For six ($6.00) dollars he purchased a ticket for admission.

Over a period of approximately one hour and forty minutes the detective viewed an entire film entitled “Pandora’s Mirror”. The film exhibited clearly visible close-up camera shots of the male and female genitals, the female breast nipples, public hair, anus, vulva, and the erected male penis. The film depicted males and females engaged in various acts, including sexual intercourse, fellatio, cunnilingus, masturbation and ejaculation.

After viewing the film the detective returned to his office and composed an application for a search warrant to search the theater and seize the film “Pandora’s Mirror”. The next day the detective presented the application to the criminal court magistrate. The magistrate issued an order of search.

Later that day three other Vice Division detectives executed the search warrant and seized the film “Pandora’s Mirror” which was being shown at the time of their search. After seizing the film the detectives arrested the cashier, defendant Mary Davis, and the projectionist, defendant Alvin Thomas.

ERRORS PATENT

We have inspected the pleadings and the record of the proceedings and have found no errors.

SUFFICIENCY OF THE EVIDENCE

We have conducted an independent review of the film, and have reviewed the evidence connecting these two defendants with the display of the film. As noted above, the film depicts “exposure of the genitals, public hair, anus, vulva, [and] female breast nipples.” La.R.S. 14:106A. (1). Additionally, the film depicts “hard core sexual conduct” as that term is defined by La.R.S. 14:106A.(2)(b)(i-v). The film was displayed in a public place; the portrayal of the hard core sexual conduct was for its own sake, and for ensuing commercial gain; the defendants participated in the presentation and display of the film. Further, applying contemporary community standards, the conduct depicted “taken as a whole, appeals to the prurient interest; ... is presented in a patently offensive way; and ... lacks serious literary, artistic, political, or scientific value”. La.R.S. 14:106A.(2)(a).

We find that the record contains sufficient evidence to prove every element of the offense beyond a reasonable doubt. We also find that any rational trier of fact could have found that every element of the offense charged was proven beyond a reasonable doubt. The record contains sufficient evidence to support the convictions of defendants.

ASSIGNMENT OF ERROR NUMBER ONE

By their first assignment of error defendants argue that the trial court erred by denying the Motion to Quash on the ground that La.R.S. 14:106 is unconstitutional. Defendants challenge that the statute is “vague, overbroad and ambiguous.” The crux of this challenge is that particular terms, viz., “contemporary community standards”, “prurient interest”, and “patently offensive”, are not defined with adequate precision.

La.R.S. 14:106 has been held constitutional on numerous occasions. See State v. Walden Book Co., 386 So.2d 342 (La.1980); State v. Burch, 365 So.2d 1263 (La.1978); State v. Wrestle, Inc., 360 So.2d 831 (La.1978). The terms “contemporary community standards”, “prurient interest”, and “patently offensive” have been determined to be not so indefinite as to render the statute unconstitutional, because persons of ordinary intelligence could determine what conduct was regulated by the statute. This statute complies with state and federal constitutional requirements.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER TWO

By their second assignment of error defendants argue that the trial judge erred when he denied a motion for mistrial on the ground that the film had been broken and could not be shown to the jury in continuous unbroken fashion.

This film lasts approximately one hour and forty minutes. When it was seized the film was placed onto four reels. When shown to the jury, the film was shown from the four reels apparently with three “intermissions” as the projectionist changed reels.

First, we find that the viewing interruptions which apparently occurred while the projectionist changed reels would not have hampered the jury’s ability to assess the film as a whole. In fact, we viewed the film in this same manner.

Secondly, if the reels were not shown in their proper order (which defendants imply, but offer no indication of which order was used), then a different situation is presented. One task of the finder of facts is to determine whether the film taken as a whole lacks serious literary, artistic, political, or scientific value. Arguably this determination would be hampered if the film was not viewed in its proper order, or was not seen in its entirety.

There is no indication that the jury did not view the entire film, so there was no error in that regard. Likewise we find no error concerning any interruptions caused while the projectionist changed reels. If the film was not shown in its proper order, this would be error. Having viewed the film ourselves, however, we find that if this error occurred, it was harmless.

We have viewed the film and find that the jury could have easily evaluated the film “taken as a whole”, regardless of the order in which the scenes were viewed. Further, the prohibited display of “hard core sexual conduct” occurs throughout the film. Viewing the film in its proper order does not give it salvaging literary, artistic, political or scientific value.

While it may have been error to allow the film to be viewed out of order by the jury, in this case the error was harmless. Further, mistrial is a drastic remedy. The trial court did not err by denying the motion for mistrial, because nothing had occurred which might have prevented defendants from receiving a fair and impartial trial.

This assignment of error is without merit.

CONCLUSION

Having found no error in the proceedings in the trial court, the evidence sufficient to support the convictions, and no merit in the two assignments of error, we affirm the convictions of defendants.

AFFIRMED.


author: LOBRANO, Judge.

text:
    STATE of Louisiana v. Joseph J. BAILEY.
    No. KA-1211.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 31, 1984.

      James A. McCann, McCann, McCann & Mirabile, New Orleans, for defendant/appellant.
    John F. “Jack” Rowley, Dist. Atty., Glenn E. Diaz, Asst. Dist. Atty., Chalmette, for plaintiff/appellee.
    Before GULOTTA, LOBRANO and ARMSTRONG, JJ.
   LOBRANO, Judge.

The defendant, Joseph Bailey, was charged by bill of information with the February 14, 1981 negligent homicide of three year old, Samantha Kelly, a violation of LSA R.S. 14:32. On June 8, 1981, defendant was arraigned and pled not guilty. His first trial resulted in a mistrial. His second was held February 9, 10 and 11, 1983. A six person jury found the defendant guilty as charged. On April 14, 1983, defendant was sentenced to three years, Department of Corrections and fined $2,000.00.

FACTS:

The evidence shows that on February 14, 1981, at approximately 9:00 p.m., Karen Carreras was driving a friend’s 1980 Thunderbird automobile in an easterly or “up the road” direction on St. Bernard Highway. In the front seat, as a guest passenger, was her three year old daughter, Samantha Kelly.

At the same time and location, defendant Joseph Bailey, Jr., was driving his uncle’s 1980 Pontiac Trans-Am automobile in a westerly or “down the road direction. With him in the front seat as guest passenger was Joseph Moran.

Also at the same time and location, Mr. Edward Ceaser was driving his 1968 Oldsmobile automobile directly in front of the vehicle driven by Karen Carreras. With him, as guest passengers, were Dolores Major and Ruth Reddix. At some point in time, while all three drivers were simultaneously operating their vehicles, defendant’s vehicle side-swiped the Ceaser vehicle and collided head-on with the Carreras vehicle. The three year old child, Samantha Kelly died as a result of the collision. Defendant was arrested on charges of negligent homicide, by driving while intoxicated and at an excessive rate of speed. From his conviction and sentence, defendant appeals asserting six assignments of error:

1) The State did not carry its burden of proving guilt beyond a reasonable doubt;
2) The trial court erred in allowing the jury to view a photograph of the dead child;
3) Counsel for defense was erroneously precluded from unfettered cross-examination of the State’s witnesses;
4) The trial court erred in allowing the State to present cumulative expert testimony;
5) The defendant was erroneously denied a fair trial due to improper closing argument by the prosecution and uncalled for theatrics at the close of the State's case;
6) The trial court erroneously imposed a harsh and excessive sentence.

This case was vigorously prosecuted and defended. The record has been carefully reviewed not only as to each assignment of error cited by defendant but also for errors patent and sufficiency of evidence as mandated by law. La.C.Cr.P. Art. 920(2); State v. Raymo, 419 So.2d 858 (La.1982); Jackson v. Virginia; 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1970), and State v. Edwards, 400 So.2d 1370 (La.1981).

ERRORS PATENT:

We find none.

SUFFICIENCY OF EVIDENCE:

ASSIGNMENT OF ERROR 1.

Defendant contends that there was not sufficient credible evidence for the jury to have found him guilty beyond a reasonable doubt. Whether evidence is credible or not is not a determination appropriate for appellate review. Evaluations of credibility are well within the province of the jury as trier-of-fact. State v. Shepherd, 332 So.2d 228 (La.1976). The question of sufficiency is proper for review, but depends on whether the court, after viewing the evidence in the light most favorable to the prosecution, can determine that there was sufficient evidence for the jury to have found the defendant guilty beyond a reasonable doubt on every essential element of the offense. Jackson v. Virginia, supra; State v. Fuller, 414 So.2d 306 (La.1982). In addition, when circumstantial evidence partly forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Shapiro, 431 So.2d 372 (La.1983); State v. Austin, 399 So.2d 158 (La.1981).

Defendant was convicted of negligent homicide. The elements of the offense consist of:

1) The killing

2) of a human being

3) by criminal negligence

Criminal negligence is “such disregard of the interest of others that the offender’s conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances.” LSA R.S. 14:12.

At trial, defendant’s guest passenger, Joseph Moran, testified that he accompanied defendant on the night in question to a local bar where defendant consumed between eight and nine beers within an hour and half. Dr. Monroe Samuels, the state’s expert in toxicology, testified that a man of defendant’s height and weight would have a blood alcohol content of .15-. 19 after consuming that much alcohol. Samuels further testified that such an individual’s reaction would be slowed and his vision impaired.

Moran further testified that defendant was traveling between 65 and 70 m.p.h., possibly faster, at the moment of impact, and that he thought the defendant was traveling east or “down the road”. However, on redirect, he stated that because he was “drunk” he wasn’t sure whether they were traveling “up or down” the road.

The only eye witness who testified that the defendant was traveling east, not west and the victim was traveling west, was Rodney Jones. However, Mr. Jones’ testimony can hardly be construed as exculpating the defendant since he testified that the defendant passed him, was weaving quite a bit, and struck the victim’s car in the opposite lane of traffic. The impression he got while watching the defendant’s car was that defendant was a drunk driver. Moreover the credibility of either all or part of Mr. Jones testimony was for the jury to decide. Upon cross examination, he claimed to have invented all automobiles on the road, the design for the space shuttle and various other items. He claimed his designs were “stolen from his mind” because his “eyes give off Morse Code”.

The defendant also offered the testimony of Janice Brock, a friend who had seen defendant at the bar on the night in question. She could not remember if he was drinking but did remember that he turned left, or headed down the road, when he left the bar.

Ross Macklin, accident reconstruction specialist, calculated the defendant was traveling between 62-67 m.p.h. at the moment of impact.

John Rigol, accident reconstruction specialist testified that the defendant’s car was traveling west on St. Bernard Highway, veered out of control and collided with the victim’s car. The paint scrapings taken from the victim’s car and Mr. Ceaser’s car could have come from the defendant’s white Trans-Am.

When the evidence is considered in the light most favorable to the prosecution to the exclusion of every reasonable hypothesis of innocence, a reasonable trier of fact could have concluded that defendant was drunk and driving at an excessive rate of speed when he crashed into the victim’s car thus causing the death of three year old Samantha Kelly.

This assignment of error lacks merit. ASSIGNMENT OF ERROR 2:

Defendant contends that a photograph of the victim admitted into evidence was unduly prejudicial and constitutes reversible error.

At trial, the defense offered to stipulate to the fact that Samantha Kelly died as a result of the collision. Nevertheless, the state offered two photographs of the child, exhibits S-16 and S-17. The trial judge refused to admit S-16 as unduly prejudicial, but received into evidence S-17 which depicts the victim shortly after the accident. The court ruled the picture was probative of death and not gruesome.

Exhibit S-17, while disquieting, is not gruesome as that word is ordinarily meant. In State v. Edwards, 406 So.2d 1331 (La.1981), the Louisiana Supreme Court stated:

“Photographs of the victim’s body are generally relevant to prove corpus de-licti; to corroborate other evidence of the manner in which death occurred; to establish the location, severity and number of wounds; to establish the identity of the victim. State v. Manieri, 378 So.2d 931 (La.1979); State v. Cooper, 334 So.2d 211 (La.1976). The fact that the photographs may be gruesome does not in and of itself render them inadmissible. State v. Beach, 320 So.2d 142 (La.1975); State v. Curry, 292 So.2d 212 (La.1974). The defense argues that its offer to stipulate to the identity of the victim and the nature of the death, together with testimony of Dr. Massey, of investigating officers and of the photographer rendered the admission of the photographs cumulative rather than probative. However, the admissibility of photographs is primarily a question reserved to judicial discretion.” Citations omitted. Id. at 1349.

On this issue we do not feel the trial judge abused his discretion.

Defendant also asks this court to view the photograph in light of the remarks made by the district attorney in his closing argument. “If it triggered your sympathy, it triggered your passion, I am glad it did, but I ask that that not be part of your consideration in determining guilt or innocence and I am telling you — I can’t tell you — -I am asking that it not be part of it.” The defendant failed to object or move for a mistrial at the time these remarks were made and cannot now raise them on appeal. La.C.Cr.P. Art. 841.

This assignment of error lacks merit. ASSIGNMENT OF ERROR 3.

Defendant asserts that he was precluded from unfettered cross-examination and from an orderly presentation of his defense by certain rulings of the trial judge. Specifically he claims that he was not allowed to cross examine the victim’s mother on the issue of whether she had filed a civil damage suit against defendant. The state objected on grounds of relevancy and the trial judge sustained the objection. The defendant avers that Ms. Carreras had not filed such a suit and that the jury could have drawn a negative inference about her credibility.

The defendant further complains that the trial judge should have allowed the defense to show the jury S-8, a picture of defendant’s car, while he was attempting to impeach a witness’ identification of the vehicle. Instead, at the state’s request, the court withheld the photograph until the prosecution rehabilitated the witness on redirect.

Defendant does not urge that these rulings would merit reversal in and of themselves, but argues that their cumulative effect prevented an orderly presentation of his case and precluded him from unfettered cross-examination.

The control of the examination of witnesses in within the sound discretion of the trial judge and will not be disturbed absent an abuse of discretion. State v. Jackson, 419 So.2d 425 (La.1982); State v. Coleman, 406 So.2d 563 (La.1981); State v. Eaker, 380 So.2d 19 (La.1980).

The record reveals the defendant was given ample opportunity to present his defense. The rulings complained of are neither crucial nor material to a defense. Even were the alleged errors cumulated, they do not show an abuse of discretion that would merit reversal.

This assignment lacks merit. ASSIGNMENT OF ERROR 4.

Defendant contends that the trial court erred in permitting the expert testimony of Ross Macklin and John Rigol as being cumulative. In addition he argues that their findings as to the speed of defendant’s car were unsupported by the record.

First, a review of the record reveals that John Rigol’s testimony was confined to the direction of the vehicles and the point of impact and Ross Macklin’s testimony was confined to the speed of the vehicles. The testimony of Macklin as to the point of impact or direction of the vehicles was elicited by the defense on cross-examination.

Second, the defendant bases his complaints of Macklin’s calculations on the Louisiana Supreme Court’s holding in State v. Self, 353 So.2d 1282 (La.1977). In Self the Supreme Court determined that the accident reconstruction expert did not understand the model he employed to calculate speed and they reversed. Furthermore, the Court appeared to view the test the expert used with disfavor.

In the instant case, Macklin based his calculations on a different test. Measuring the six points of definition of damage on the defendant’s car, he was able to come close to Joseph Moran’s eyewitness estimate that defendant was traveling at 65-70 m.p.h. Macklin estimated the speed at 62-67 m.p.h. Macklin stated that the test he used was one currently employed by federal agencies and private entities and the test was accurate to “a point, plus or minus 5 m.p.h. at 100 m.p.h.” He also testified that the margin of error decreased with a decrease in the rate of speed.

This assignment of error lacks merit. ASSIGNMENT OF ERROR 5.

Defendant contends that remarks and conduct by the district attorney prejudiced defendant’s right to a fair trial and requires reversal. These remarks occurred during closing argument. One was the impermissible use of a presumption against defendant and the other was a plebicite on crime indulged in by the district attorney. Even if we felt these remarks had serious merit, we will not consider them since no objection was taken, nor mistrial asked for at the time they occurred. See, La.C.Cr.P. Art. 431; State v. Russell, 416 So.2d 1283 (La.1982); State v. Johnson, 406 So.2d 153 (La.1981).

Defendant also complains of the conduct of the victim’s mother, Karen Carreras. Defendant asserts that the witness was'put on the stand solely for the purpose of appealing to the jury’s sympathy and that not only did the witness cry but made an emotional display outside the courtroom, within hearing of the jury. He contends the state allowed her to remain within the judge’s anteroom in order for her grief to be audible.

The state contends that the direction of the vehicles was in issue and that this witness’s testimony was necessary to re-butt the defendant’s theory of the case. Furthermore, the trial judge, in his reasons for denying the motion for a mistrial, stated that the witness was audible only when the courtroom door was opened, and that he immediately sent his court reporter to remove the witness to his office to remedy the situation.

This court has held that mistrial is a drastic remedy and should not be ordered unless the court is absolutely convinced that the complained of conduct contributed to the verdict. State v. Allen, 431 So.2d 808 (La.App. 4th Cir.1983). The trial judge has the discretion of determining if the complained of activity or comments so prejudiced the defendant that he could not receive a fair trial. La.C.Cr.P. Art. 77; State v. Domangue, 350 So.2d 599 (La.1977).

The instant case does not reveal an abuse of discretion warranting the substitution of this court’s judgment for that of the trial judge who conducted the trial and who was in the best position to assess the impact of the witness’ conduct upon the jury. State v. Allen, supra.

This assignment of error lacks merit. ASSIGNMENT OF ERROR 6.

Defendant contends that his three year prison term and $2000 fine is excessive and unduly harsh.

The penalty provision of LSA R.S. 14:32 states as follows: “Whoever commits the crime of negligent homicide shall be imprisoned with or without hard labor for not more than five years, fined not more than five thousand dollars, or both.”

The Louisiana Constitution prohibits the imposition of excessive punishment. Art. 1, Sec. 20. The imposition of a sentence, although within the statutory limit, may violate a defendant’s constitutional right against excessive punishment that is enforceable by this Court on appellate review of his conviction. State v. Sepulvado, 367 So.2d 762 (La.1979). The sentencing judge must articulate reasons for an “apparently severe” sentence tailoring it to the individual offender and the particular offense. State v. Tilley, 400 So.2d 1363 (La.1981).

While not articulating every mitigating and aggravating circumstance, the sentencing judge noted that defendant was a second offender and, therefore, not eligible for a suspended sentence. See La.C.Cr.P. Art. 893. Additionally, the judge stated that regardless of whether the defendant was a second offender, he had killed a three-year-old child and was under the influence of alcohol at the time of the offense. Thus, the judge found that any lesser sentence would deprecate the seriousness of the offense. Furthermore, the defense was allowed to read excerpts of the pre-sentence report into the record pri- or to the rendition of sentence.

Insofar as the length of the sentence, five year sentences have been upheld in State v. Kersey, 406 So.2d 555 (La.1981) and State v. Baranda, 398 So.2d 1053 (La.1981). In Kersey, supra, the Louisiana Supreme Court affirmed the maximum sentence notwithstanding the trial judge’s failure to state each and every mitigating and aggravating circumstance. In Daranda, supra, on appeal after remand, the Supreme Court found that the five year sentence was not unduly harsh, given the defendant’s excessive level of intoxication at the time of the offense.

Defendant cites the court to State v. Spence, 418 So.2d 583 (La.1982 and State v. Prescott, 431 So.2d 85 (La.App. 5th Cir.1983) as authority for his argument. In neither case, however, were the details of the offenders’ backgrounds and personal histories discussed. Although both received suspended sentences for convictions on two counts of negligence homicide, the judge in the instant case was precluded from giving defendant a suspended sentence because he is a second offender.

This assignment of error lacks merit.

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

AFFIRMED.

      . La.R.S. 14:32:
      "Negligent homicide is the killing of a human being by criminal negligence.
      The violation of a statute or ordinance shall be considered only as presumptive evidence to such negligence.
      Whoever commits the crime of negligent homicide shall be imprisoned with or without hard labor for not more than five years, fined not more than five thousand dollars, or both.”

        . Defendant was charged in 1981, prior to the 1983 enactment of R.S. 14:32.1, the vehicular homicide statute.

      . At various times during closing argument, the state alluded to the absence of defendant’s uncle, brother, or patrons of the bar who might have testified as to whether the defendant had been drinking before the accident. In addition, on rebuttal argument, the D.A. referred to the absence of Valdetta Jones, the ex-wife of defendant’s witness, Rodney Jones. The D.A. commented that the jury could presume that Ms. Jones’ testimony would be unfavorable to the defendant. Defendant argues that Ms. Jones’ whereabouts are unknown to the defense and that she had been subpoenaed by the state. Thus, she was not under the defendant’s control and the 15:438 presumption should not have been argued to the jury under State v. Simms, 381 So .2d 472 (La.1980).

      . The state also made several remarks during closing argument which were clearly improper such as asking the jurors to "send out a message" that drivers like the defendant would not be tolerated. However, even when such remarks have been objected to and have been reviewed on appeal, the convictions have usually been upheld, if there is substantial evidence justifying the verdict. See, State v. Messer, 408 So.2d 1354 (La.1982); State v. Sugar, 408 So.2d 1329 (La.1982); State v. Johnson, 406 So.2d 153 (La.1981); State v. McClinton, 399 So.2d 178 (La.1981).


author: KLIEBERT, Judge.

text:
    Glenna C. GLOVER v. Milton J. SOWADA.
    No. 83-CA-763.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 25, 1984.
    Rehearing Denied Oct. 17, 1984.
    Writ Denied Dec. 7, 1984.

      William B. Birner, Daniel E. Becnel, Jr., Reserve, Becnel, Landry & Becnel, La-Place, for plaintiff-appellee.
    Ronald J. Landry, Law Office of Ronald J. Landry, LaPlace, for defendant-appellant.
    Before CHEHARDY, KLIEBERT and GRISBAUM, JJ.
   KLIEBERT, Judge.

The plaintiff, Glenna C. Glover, sued her former boy friend, Milton J. Sowada, defendant, to recover an alleged indebtedness of $40,000.00 from him. The suit was coupled with a request for the issuance of a temporary restraining order, without bond, prohibiting defendant from disposing of any assets or inventory of a business known as S & S Vans. The restraining order was granted without bond and expired without a hearing on or the granting of a temporary injunction.

Plaintiffs pleadings alleged an indebtedness arising out of the liquidation of S & S Vans. The defendant filed an exception of vagueness predicated on the lack of specifics as to the business relationship alleged by the plaintiff. After defendant’s exception of vagueness was denied, he filed an answer denying the existence of any business agreement and reconvened for damages for the improvident issuances of a restraining order. After the introduction of evidence, plaintiff’s suit was urged as though it was one to establish the existence of a partnership coupled with a demand for one-half of the value of its assets at the time the litigants’ relationship terminated.

Following a trial on the merits, the judge made the following specific findings:

(1) The parties were the principals of a ' business partnership known as S & S Vans by mutual assent;
(2) The business known as S & S Vans began operations sometime in 1976 and ceased operations by mutual assent sometine in early-1980; and,
(3) The plaintiff, Glenna C. Glover, is entitled to a 50% share of the business liquidated as S & S Vans.

Then, concluding the tools and inventory of S & S Vans sold for $27,500.00 and that defendant had converted $30,000.00 in savings to his own use, he found the assets of S & S Vans at the time plaintiff ceased working there were valued at $57,500.00. From this, he deducted an estimated $5,088.33 for losses during the portion of the year 1980 the litigants worked together, and rendered judgment in favor of the plaintiff and against defendant for one-half of the balance or $26,205.84 (as corrected by the amended judgment of April 7, 1983).

The defendant timely brought this devol-utive appeal urging error by the trial judge in (1) concluding the litigants had entered into a contract of partnership, and (2) in calculating the amount owed to the plaintiff. The plaintiff neither appealed or answered the defendant’s appeal. For the reasons hereafter stated, we reverse the judgment of the trial court.

In his reasons for judgment, the trial judge found the parties mutually assented to combine their talents toward a definite purpose; i.e., the purchase, conversion and sale of vans under the trade name S & S Vans, and based his conclusion on the following factual findings:

(1) The parties deposited 50% of the income of S & S Vans into a checking account at a bank where plaintiff formerly banked (Bank of St. John) and 50% where defendant formerly banked (Riverlands National Bank);
(2) Both parties had free access to these funds;
(3) The defendant continued to work a 40 hour week for a utility company and customized vans only at night and on weekends, while the plaintiff quit her former job to devote full time to their mutual purpose;
(4) A short time after the business commenced, the defendant moved into the residence with the plaintiff and shared the home with her mother, father and children, with the work being performed at the house.

Then, citing Tilly v. Cook County, 103 U.S. 155, 26 L.Ed. 374 (1880), to support the legal principle that the parties had a valid contract where (1) they were competent and there is (2) mutual assent, (3) consideration, and (4) a valid subject matter, he concluded the parties had agreed to form an oral partnership.

Although we fully agree with the cited law, it is not the proper law to apply in deciding whether the litigants had formed a partnership in this case.

Of the four types of partnerships provided for by Louisiana law, all must be evidenced by a written contract, except that of a commercial partnership. The litigants here agree there was no written partnership agreement; hence, the only partnership which could have existed between the parties, if any would have been a commercial partnership. LSA-C.C. Article 2852. Foshee v. Simkin, 174 So.2d 915 (1st Cir.1965); Schwegmann v. Schwegmann, 441 So.2d 316 (5th Cir.1983), writ denied 443 So.2d 1122, — U.S. —, 104 S.Ct. 2389, 81 L.Ed.2d 347.

The supreme court, in Darden v. Cox, 240 La. 310, 123 So.2d 68 (1960), at page 71, set out the prerequisites for establishing an oral commercial partnership agreement as follows:

“The Civil Code and the jurisprudence set out several things which are necessary to a business relationship before it can be considered a partnership as between the parties to it. First, the parties must have mutually consented to form a partnership and to participate in the profits which may accrue from property, skill or industry, furnished to the business in determined proportions by them. Arts. 2801, 2805 of the Civil Code; Labat v. Labat, 232 La. 627, 95 So.2d 129. Secondly, all parties must share in the losses as well as the profits of the venture. Art. 2814 of the Civil Code; Amacker v. Kent, 144 La. 545, 80 So. 717. Thirdly, the property or stock of the enterprise must form a community of goods in which each party has a proprietary interest. Art. 2808 of the Civil Code; Belden v. Read & Hunt, 27 La.Ann. 103; Chaffraix & Agard v. Lafitte & Co., 30 La. Ann. 631; Shushan Bros. & Co. v. Drennan & Hillcoat, 158 La. 480,104 So. 214. Even if the parties call their relationship a partnership, and agree that they gave their mutual consent to form it, it will not be considered a partnership, as between the parties, unless it is evident that the other two factors result from their agreement. In the case of Amacker v. Kent, supra [144 La. 545, 80 So. 720], this Court held on this subject as follows:
‘If it be found that they have agreed upon all those matters which, in law, constitute a contract of partnership, it must be presumed that they intended that contract. If, on the other hand, some essential element to that contract is omitted, it is not a contract of partnership, no matter what it may be called.’ ”

Thus, for the plaintiff to establish the existence of a partnership she has the burden of showing: (1) she and the defendant mutually agreed to form a partnership to participate in the profits which would accrue from the property, skill and industry furnished to the business in determined proportions by them, (2) both agreed to share in the losses as well as the profits of the venture, and (3) the property or stock of the enterprise formed a community of goods in which each party has a proprietary interest. Under our law, as it then existed, in the absence of any one of these factors, there could be no partnership.

The following facts are virtually undisputed by the litigants. The plaintiff and defendant were both residents of Gretna and met there in 1975. Sometime thereafter, the defendant, who was a full time employee of a utility company, commenced a business at his home in Gretna, Louisiana, operating under the trade name S & S Van Accessories.

Sometime in early 1976 the business, using the trade name, S & S Van Accessories, commenced operating from the home of plaintiffs parents at 1713 Ellerslie Avenue in LaPlace, Louisiana. The business consisted of selling, at retail, parts and accessories needed to customize vans and the purchasing of stripped-down vans from automobile dealers, customizing same and re-selling them as customized vans. The parties began working together in the business in early 1976 and terminated their relationship in April 1980.

As to his business relationship with the plaintiff, the defendant testified that he owned the business operated under the trade name “S & S Vans” and that the plaintiff was his girl friend who helped him with the business by doing most of the paper work and otherwise helping in any way she could, and in return had his authority to spend on herself and her children any of the funds belonging to S & S Vans.

In contrast, the plaintiff testified that their business relationship was as follows:

“Q. When you and he began running the business out of your parents’ home, what was the agreement between you and he?
A. Originally, it was going to be a partnership because I would be working all during the day while he was working elsewhere, and originally all of the money or monies that were had went back into the business. But the business started showing a profit and we split the business up, it was fifty-fifty (SO-SO). Inventory and assets were received and money collected each day, and we split that fifty-fifty (50-50), as well.”

Thus, the difference in the respective position of the litigants arises from the lack of a predetermined agreement for the division of losses or profits or a definite agreement as to the nature of their business relationship. Both litigants agree they each contributed labor to the business in accordance with their abilities and/or the needs of the business. Further, both agree each was authorized to and did utilize funds generated from the business operations, but disagree as to the basis for the authorization. Counsel for the plaintiff contends his client’s relationship with the defendant constituted a commercial partnership; whereas, the defendant’s attorney denies such a relationship. Although both litigants acknowledge residing in plaintiff’s parents’ home and the attorneys for each litigant intimate the existence of an overlying sexual relationship, both litigants deny such a relationship existed.

A prerequisite to establishing a partnership is the intent of both parties that there be a business relationship between the parties and the relationship has all of the major characteristics of a partnership. Darden v. Cox, supra. The plaintiff has failed to show this requisite intent.

According to the sales tax registration certificate dated April 23, 1979 (placed in evidence by joint stipulation of the parties) the business was registered in the name of Milton J. Sowada, doing business as S & S Van Accessories, with addresses of P.O. Box 1556 Oakwood Drive, Gretna, La., and 1713 Ellerslie Avenue, LaPlace, La. Consistent with the registration of the business as a sole proprietorship, the income and losses from the business were reported by the defendant on his individual tax returns for the years 1976, 1977, 1978, 1979 and 1980. Contrary to the findings of the trial court of a $500,000.00 profit, these returns showed the business sustained a loss from its operations in 1976 and 1980 which to-talled $18,665.00 and a net profit in the other years which totalled $28,773.00.

Accounting records of the business were maintained by the plaintiff. Although the business records included receipt and disbursement ledgers, these ledgers do not indicate whether the disbursements were by cash or by check, nor do they indicate the disposition of the receipts, i.e., whether or not deposited in the business checking account. Further, it is impossible to determine gross or net profits from the accounting records submitted in evidence. The only evidence as to net profits is that reflected by the defendant’s tax returns. The plaintiff filed no returns.

Thus, the documentary evidence contained in the record supports the defendant’s contention the business was a sole proprietorship for it was so considered by both parties for sales tax registration purposes and for income tax purposes. Nevertheless, the plaintiff testified she was entitled to and did in fact share the profits and losses of the business equally with the defendant. In essence, her position was grounded in the contention the gross receipts and disbursements were allotted to each of them on a daily basis and adjusted daily by transfer of funds from one bank checking account to the other. The record does not support her position.

Introduced into evidence were bank statements and cancelled checks showing S & S Vans had two separate checking accounts; one at the Bank of St. John where plaintiff formerly banked and one at River-lands National Bank where defendant formerly banked. When asked why there were two checking accounts, the plaintiff said:

“A. That was dividing the money. It was really my account and his account though both names were on it, my money went to St. John and his went to Riverlands National Bank. The reason both names were on the account was in the event something happened, one or the other for some reason and the business needed money from one or the other we would both have access. We were trusting friends and we had no problems of having both names on the account, though the money was as I said separately.”

She contended the division was accomplished by maintaining a “separate log” not contained in the books and records introduced at trial.

After plaintiff had testified she divided the profits and losses on a daily basis, on cross-examination, when pressed as to how this division took place with respect to the taxes paid on the business operations reported along with his salary by the defendant on his individual tax returns, she said:

“Q. Now, back to the confusing part of the fifty-fifty (50-50) split. On direct examination you said that when taxes are due you paid Mr. Sowada for half of the taxes?
A. Yes.
Q. Do you have any receipts?
A. No, none at all.
Q. None at all?
A. No.
Q. Did you pay this in cash?
That is possible, I don t recall. I would not have written a check say, with the footnote being ‘taxes’. I would just have written a check for him, were that the case, for the amount owed, which might incorporate more than the amount of the taxes or less; depending on what the records were at that time; if he owed me money for a shipment that was received. In other words say if we had a shipment — and this is just a situation that may or may not exist; but I’m just trying to tell you how it worked. Say the day that he paid $5,000.00 for the taxes which I owed $2500.00, I paid a $5,000.00 inventory that would have come in that day, then the record would have been even because then he owed me $2500.00 and I owed him $2500.00 and this is how it worked. If that is confusing, well — the record keeping was done in a very lackadaisical or unethical, or whatever, and in just a very relaxed fashion and, you know, a bookkeeper I am not. Mr. Sowada is the one who set up the system and he told me how he wanted it done. He decided what receipts would be recorded and whatever, and I just did it. A.
If you did make a payment to Mr. Sowada by check what checking account would you have used? Q.
Probably, the Bank of St. John Account under S & S Vans, because again, though it has both names that was my account.
Would you look through these checks and I think they are marked Glover 1 through 4 inglobo? Would you look in 1978 and see if you can find any checks paid out to Mr. Sowada? Q.
I would not necessarily have made it to him, I might have made it to S & S Vans; which he would then deposit in his account at Riverlands Bank.
Do you find a check to S & S Vans in there? ¿Q
I don’t see any. >■
You don’t see any? <©
No. ¡>
I could probably have you look through the rest of them, do you think you will find a check to Mr. Sowada? <©
I don’t know how, at the time it was just handled however, you know, you have to understand the way the business worked. It is not probable, though possible, that I wrote a check depending on how the records were at the time — and who owed who.”

Thus, there was no per se determination of what constituted the business’ net profits or losses other than the tax returns or a per se division of either, nor was the plaintiff able to explain how the division of the gross receipts and expenses effected a division of profits and losses.

The defendant testified several bank accounts were used because of a desire to develop a good business relationship with several banks and explained the reason for plaintiff’s name being on the accounts which belonged to him as follows:

“Q. Why did you put her name on your business account if she was not part of the business?
A. So she could write checks if she had to. If inventory came in she would be able to pay for it and she was my girl friend at the time and spent money as needed.”

In further support of his position, defendant introduced bank statements showing there was also a checking account in the name of S & S Vans at the Bank of the South in Gretna, Louisiana. Although not as active as the accounts with the LaPlace banks, the account was opened in 1977 and remained open until 1980, but only the defendant was authorized to sign the checks on the account.

The only other person who testified directly on the relationship was the plaintiff’s mother. She testified that the business was conducted from her home at 1713 Ellerslie Avenue in LaPlace, because the plaintiff’s daughter needed constant attention due to brain damage; hence, plaintiff could not hold a regular job but could work in the van business while caring for the child at home. Then, in seeking to explain why the defendant did not pay expenses of the house (from which the business was being conducted) she said:

“Q. You never asked for it [the expenses]?
A. No, because my daughter was spending from the business, it was good business for her under the circumstances, and we had no complaints about the business.” (Emphasis supplied)

From our review of the accounts at the LaPlace banks, it is apparent the accounts were not entirely business accounts of S &

S Vans. Rather, co-mingled with the business deposits were the salary checks of the defendant. Further, a review of the accounts shows both parties drew from either account for non-personal expenditures. In essence, the accounts were no different than those of married couples who co-mingle funds from whatever source, separate or community, wages or business, and make disbursements from the accounts as funds are available and the needs arise, without regard to their source.

The defendant denied the plaintiff requested any portions of the bank accounts when their relationship terminated. Although she was aware the defendant continued to utilize those accounts for his personal use, the plaintiff made no effort to assert a claim until one year after the relationship terminated.

Although the litigants did have a business relationship, the relationship did not have all of the major characteristics of a partnership. The litigants did not mutually consent to_ form a partnership to participate in the profits in a predetermined proportion; nor does the evidence substantiate the plaintiff’s contention that profits and losses were divided equally by the parties. The agreement to share in profits from an enterprise is not sufficient to create the status of a partnership; nor is the division of profits alone sufficient to create a commercial partnership. Fiesta Foods, Inc. v. Ogden, 159 So.2d 577 (1st Cir.1963); SAS Jaworsky v. LeBlanc, 239 So.2d 176 (3rd Cir.1970), writ denied 256 La. 911, 240 So.2d 373; Pennington v. Simmons, 138 So.2d 189 (1st Cir.1962); Terry v. Slidell Refrigerating and Heating, Inc., 271 So.2d 536 (1st Cir.1972).

The intent to share in the profits and losses must be expressed and should not be implied from the parties’ conduct. Partnership by its nature is synallagmatic and reciprocal and assent to it must be expressed. LSA-C.C. Articles 1766 and 1801; Foshee v. Simkin, supra.

It is apparent the litigants had a personal relationship interwoven with a business relationship. The litigants shared in the funds generated by their business relationship. That, standing alone, is not sufficient to establish the existence of a commercial partnership. Neither has the plaintiff proven a profit-share agreement nor a net profit generated by the business which would entitle her to recover from the defendant.

For the reasons stated, therefore, the judgment of the trial court is reversed and the plaintiff’s action is dismissed. Each party is to bear his own cost of the appeal.

REVERSED.

      . Title XI of Book III of the Louisiana Civil Code of 1970 entitled Of Partnership previously consisted of Article 2801 through 2890, was revised, amended and re-enacted by Acts of 1980, No. 150, effective January 1, 1981 and now consists of revised Articles 2801 through 2848. The business relationship involved here was terminated prior to this revision of the Code. Thus, the partnership law applicable to the case here is the one in effect prior to the revision of the Act 150 of 1980.

      . The initial records submitted in evidence uses this name. Subsequently, the records and the parties refer to the business as "S & S Vans”.

      . The plaintiff testified she believed the termination was in the latter part of April while the defendant testified it was April 7, 1980.


author: PRICE, Judge. MARVIN, Judge,

text:
    Billy G. HALLEY, Plaintiff-Appellee, v. Brenda Scoggins HALLEY, Defendant-Appellant.
    No. 16157-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 1984.
    Rehearing Denied Oct. 26, 1984.
    Writ Denied Dec. 7, 1984.
    McLeod, Swearingen, Verlander & Dollar, by Robert P. McLeod, P.C., Monroe, for defendant-appellant.
    Blackwell, Chambliss, Hobbs & Henry by James A. Hobbs, West Monroe, for plaintiff-appellee.
    Before PRICE, HALL, MARVIN and SEXTON, JJ., and McCLENDON, J. Pro Tern.
   PRICE, Judge.

On rehearing we have reconsidered appellant’s argument that the trial court erred in denying her motion for a continuance thus depriving her of a fair trial. We reverse and set aside our original opinion and remand this matter to the trial court for a new trial for the following reasons.

The record reveals that this matter was originally set for trial on July 18, 1983. On that date, a joint motiqn for a continuance was filed stating that the defendant had not sufficient time in which to answer additional pleadings. The continuance was granted and the trial date was reset for September 19, 1983. On August 19, 1983, defendant filed a motion for a continuance due to a conflict with the scheduled trial date. Because of a conflict in the trial schedule of defendant’s attorney a continuance was granted and the trial rescheduled for September 27, 1983.

A joint motion for a continuance was filed on September 27, 1983, and the trial date was refixed on October 4, 1983.

On October 4, 1983, defendant filed a motion for a continuance stating that she was hospitalized and therefore unable to attend court. A statement from defendant’s physician was attached to the motion. The trial was then continued until October 7, 1983.

On October 6, 1983, defendant’s attorneys filed a motion to withdraw as counsel. The motion stated that conflicts had arisen between the attorneys and the defendant and further that the attorneys no longer practiced law together causing practical difficulties in the handling of the case. The court allowed the attorneys to withdraw. On the same date, defendant filed a motion in proper person for a continuance stating that she was obtaining new counsel. A letter was filed into evidence confirming that defendant had retained new counsel and that a reasonable time period was necessary to sufficiently prepare for trial. The motion was denied by the court. In court on October 7, 1983, defendant again renewed her motion for a continuance which was denied. The court stated that it believed the motion to be a ploy to delay the trial. The trial then proceeded with the defendant unrepresented.

Although the trial court did provide some assistance to the defendant, a review of the record clearly reveals that there was not adequate cross-examination, objections to hearsay or inadmissible evidence and questioning of the defendant’s witnesses. Further, it appears that defendant became so frustrated and confused with the proceedings that she did not testify. Throughout the trial, defendant continued to express her complete lack of knowledge of how to proceed properly.

La.C.C.P. Art. 1601 provides that a “... continuance may be granted in any case if there is good ground therefor.” It is well-settled that the trial court has large discretion in granting a motion for a continuance and its ruling should not be disturbed on appeal in the absence of clear abuse. Matthews v. Matthews, 220 So.2d 246 (La.App. 3d Cir.1969). However, there is an abuse of discretion if such discretion is exercised in such a way so as to deprive the litigant of his day in court. Marpco, Inc. v. South States Pipe & Supply, 371 So.2d 525 (La.App. 3d Cir.1979).

It is clear that by denying defendant’s motion for a continuance, the trial court effectively denied defendant her day in court. Unrepresented by counsel, defendant was not able to properly defend herself or to present her case. The previous motions filed with the court do not suggest delay tactics on the part of the defendant but rather a series of unavoidable occurrences which acted to postpone the trial. Each of the motions for a continuance presented valid grounds such as defendant’s hospitalization and the withdrawal of her attorneys due to difficulties in handling the case.

For these reasons, the judgment of the trial court is reversed and set aside and this matter is remanded to the trial court for a new trial. Costs of this appeal are assessed to plaintiff, Billy G. Halley. All other costs to await final disposition of this matter.

MARVIN, J., dissents and assigns reasons.

SEXTON, J., dissents for the reasons assigned by MARVIN, J.

MARVIN, Judge,

dissenting.

The trial court’s denial of a continuance to the wife, after the case had been continued on four occasions, was not assigned by her as an error in her appeal. When questioned by the trial court about the continu-anee, she admitted that she was not hospitalized for treatment, but for tests.

As couched by the majority, the issue is whether the wife got a fair trial. The record satisfies me that she did.

She cross-examined each one of the three witnesses called by her husband.

She called and examined four witnesses of her own.

After discussion with the trial judge, she made a deliberate and informed decision not to testify.

During the trial she did state more than one time that she “didn't know about these [trial procedure] things,” and argued here that she could not adequately represent herself.

This appeal was argued March 26 and our original opinion was rendered April 30. She sought a rehearing on May 14, 1984, again arguing that she could not adequately represent herself. On May 2, 1984, she filed an action in the Ouachita. Parish district court in proper person to partition the community property. On June 6, 1984, she filed, also in proper person, a supplemental petition in that action. Certified copies of those pleadings were.filed here in support of the husband’s unsuccessful motion to dismiss the appeal.

In the light of this record, I find no support for this court saying that the trial judge, by denying the wife a continuance, denied her a fair trial or a day in court. The trial judge consulted with the wife’s doctor when he granted a continuance on October 4, 1983, to October 7, 1983. When she later sought a continuance of the October 7 trial date because she didn’t have a lawyer, the trial court, after questioning her, concluded:

“the matter ... has been continued and continued. I think that its a ploy to keep the case from going to trial and I’m not going to permit it.”

Her witnesses and the husband’s witnesses were present in court and ready to proceed. Under these circumstances, the trial judge did not abuse his discretion. Barham v. Barham, 337 So.2d 289 (La.App. 2d Cir.1976), writ refused.

I cannot uphold a litigant who (playing games?) argues that she cannot adequately represent herself while at the same time is proceeding in a related action in the trial court by filing pleadings in proper person. The real issue is permanent alimony fault and the practical effect of protracting separation proceedings and alimony pendente lite. The fault issue was resolved in the original opinion.

I would affirm for the reasons expressed in the original opinion and must respectfully dissent from this opinion on rehearing.


author: HALL, Judge.

text:
    STATE of Louisiana, Appellee, v. Lynn Zell JONES, Appellant.
    No. 16288-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 1984.
    Rehearing Denied Oct. 26, 1984.
    Writ Denied Jan. 7, 1985.

      Timothy R. Fischer, Shreveport, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., Baton Rouge, Paul J. Carmouche, Dist. Atty., Scott J. Crichton, Tommy J. Johnson, Asst. Dist. Atty., Shreveport, for appellee.
    Before HALL, MARVIN and NORRIS, JJ.
   HALL, Judge.

Assigning three errors, defendant appeals his convictions by a jury of armed robbery and of attempted manslaughter, after being charged with armed robbery and attempted first degree murder.

Defendant’s assignments contend that a photographic lineup was improperly conducted, that a bullet fragment was unlawfully admitted as' evidence, and that an employee of the regional crime lab was erroneously accepted as a firearms identification expert. We affirm the convictions.

Facts

Shortly after midnight on November 6, 1982, the victim, Melvin Goines, stopped his automobile at a Shreveport intersection. Defendant entered the passenger side of the automobile, placed a gun to Goines’ head, and commanded Goines to drive around the Allendale section of Shreveport.

At defendant’s later demand, Goines surrendered to defendant his car keys and 12 one-dollar bills. Defendant, apparently angered at the small amount of money, ordered Goines to remove his coat and boots. Goines refused because he did not want to be stranded without clothes or car. Defendant then beat Goines with the butt of the gun. When Goines blew the car horn, defendant shot Goines four times, twice in the head, and in the arm and hand. After defendant ran away, Goines staggered to a nearby residence for help. The entire encounter lasted approximately 15 minutes.

Defendant was identified as the assailant by the victim from a photographic lineup and in court. Defendant’s girlfriend testified defendant told her he committed the crime. Fragments of bullets found in the car door and in the hospital where the victim was treated were identified by a firearms expert as having been fired from a pistol found in the defendant’s bedroom.

Assignment of Error No. 1:

Defendant contends that the trial court erred in refusing to suppress the results of a photographic lineup conducted at the hospital where the victim was recovering from his wounds. He argues that Goines’ in-court identification was tainted by the photographic lineup.

The issue is whether the lineup procedure was so unnecessarily suggestive and so conducive to an irreparable mistaken identification that the defendant was denied due process of law. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); State v. Neslo, 433 So.2d 73 (La.1983). A lineup is unduly suggestive -if the identification procedure displays the defendant so that the witness’s attention is focused on the defendant. State v. Nicholas, 397 So.2d 1308 (La.1981); State v. Robinson, 386 So.2d 1374 (La.1980).

The photographic lineup was assembled after one of the detectives investigating the case received information that the defendant might be a suspect in the robbery and shooting. The detective went to the hospital where Goines was recovering from his wounds. After ascertaining that Goines was alert, the detective showed Goines the photographs of six people. The lineup photographs are included in the record. The other photographs in the lineup sufficiently resemble the defendant so as to properly test the identification. After observing these photographs for less than one minute, the victim identified Lynn Zell Jones as his attacker.

Goines testified at the preliminary examination and at trial that the detective did nothing to suggest which photograph he should choose. Goines said that he was not told, before his identification of the defendant, that the lineup contained a suspect, and that it was only after he identified defendant that he learned that one of the men in the lineup had reportedly talked about having shot someone on the same night.

Defendant’s claim that the photo identification was suggestive because the detective implied there was a suspect among the photographs is not supported by the record. Assuming arguendo, however, that some factual support for defendant’s claim exists, it has been held that a statement to a victim of a crime that police have a suspect for the victim to view in a lineup does not constitute impermissible suggestiveness because it is generally assumed if one is requested to view a photographic or physical lineup there is a suspect in the lineup. State v. Wright, 410 So.2d 1092 (La.1982); State v. Stewart, 389 So.2d 1321 (La.1980); State v. White, 446 So.2d 1317 (La.App.2d Cir.1984), writ denied 450 So.2d 957 (La.1984).

The likelihood of misidentification is the basis for finding that a defendant’s due process rights have been violated. State v. Guillot, 353 So.2d 1005 (La.1977); Manson v. Brathwaite, supra. Reliability of identification is tested by five factors set forth in Neil v. Diggers, 409 U.S. 188, 92 S.Ct. 375, 34 L.Ed.2d 401 (1972). These factors were reiterated in Manson, supra, and by the Louisiana Supreme Court in Guillot, supra. Application of these factors to this record reveals:

(1) The opportunity to view:
The victim and defendant were in the front seat of a car for approximately 15 minutes. Goines testified that the street lights made it light enough for him to clearly see defendant’s face even though it was nighttime.
(2) The degree of attention:
The victim testified that defendant at one point during the robbery told him to “get a good look at him.” Goines said he used the opportunity to study defendant’s face.
(3) The accuracy of the description:
Immediately after the crime, when Goines was being treated in the hospital emergency room, he told the detective that he remembered his assailant. Goines accurately described his assailant as a young black man in his early 20s, of thin to medium build, and weighing 170 to 180 pounds. Goines told the officer that the man had a goatee, an Afro hairstyle, and, had worn a knee-length green military overcoat. Goines also observed that his assailant had a gold upper tooth.
(4) The witness’s level of certainty:
The victim and the detective who presented the photographic lineup testified that Goines took less than one minute to identify defendant’s photograph. The victim testified that he could not forget his assailant’s face and was certain of his identification even though the defendant had changed his hairstyle and shaved his goatee since the crime.
(5) The time between the crime and the confrontation:
Goines was shown the photographic lineup two days after the robbery.

Under these circumstances, it is evident that even if the identification procedure had been suggestive there was no significant chance of misidentification. The trial court did not err in refusing to suppress the photographic lineup.

Further, the in-court identification by the victim under the totality of the circumstances was well supported by independent sources. No violation of defendant’s due process rights occurred. State v. Gipson, 359 So.2d 87 (La.1978); State v. Guillot, supra; State v. Clark, 437 So.2d 879 (La.App.2d Cir.1983).

Assignment of Error No. 2:

The bullet fragment of which defendant complains was recovered from the floor of the LSU Medical Center X-ray room where the victim was taken for treatment.

To admit demonstrative evidence at trial, the law requires that the object be identified. State v. Smith, 430 So.2d 31 (La.1983); State v. Moore, 419 So.2d 963 (La.1982). This identification can be visual or established by testimony that the object sought to be introduced into evidence is related to the case. State v. Robertson, 358 So.2d 931 (La.1978); State v. King, 355 So.2d 1305 (La.1978). A sufficient foundation has been laid for the admission of demonstrative evidence if it is established that it is more probable than not that the object is connected with the case. State v. Sharp, 414 So.2d 752 (La.1982); State v. Davis, 411 So.2d 434 (La.1982). Lack of positive identification goes to the weight of the evidence rather than to its admissibility. Ultimate connexity is a factual matter for determination by the jury. State v. Robertson, supra.

Detective Wilson testified that upon receiving the call about the robbery and shooting, he went directly to the LSU Medical Center emergency room where the victim was being treated. The detective accompanied the victim, who was awake and alert, from the emergency room to the X-ray room. While there, the detective stepped on a hard object in a clump of hair that was under the victim’s gurney. Upon closer inspection by the detective, the hard object was revealed to be a bullet fragment. The detective testified that the victim’s hair had been clipped in the emergency room and that the hair on the table, as well as the hair on the floor was similar to the hair on the head of the victim. The detective placed the bullet fragment in a vial which he labeled and signed. He later took the bullet fragment in this container to the North Louisiana Crime Lab. This evidence establishes a sufficient foundation for the admission of the bullet fragment. Ultimate connexity of the bullet with the crime was a matter for the jury’s determination.

Assignment of Error No. 3:

The defendant challenges the trial court’s acceptance of Stephen McKinney as an expert in the field of firearms identification.

The competence of an expert witness is a question of fact within the sound discretion of the trial judge. LSA-R.S. 15:466; State v. White, 430 So.2d 174 (La.App.2d Cir.1983). The trial court’s ruling on the qualification of experts will not be disturbed unless clearly wrong. State v. Coleman, 406 So.2d 563 (La.1981).

The record indicates that McKinney received his BS degree in zoology and MA in organic chemistry from Louisiana Tech University. He had worked and trained for approximately two years in firearm identification at the North Louisiana Crime Lab. Additionally, McKinney had attended a seminar of the Louisiana Association of Forensic Scientists and had studied journals of the Association of Firearms and Tool Marks Examiners. The trial judge did not abuse his discretion by accepting McKinney as an expert in firearms identification.

Decree

Other assignments of error made by appellate counsel, but not briefed, are considered abandoned. State v. Williams, 338 So.2d 672 (La.1976).

Defendant’s convictions are affirmed.

Affirmed.


author: MARVIN, Judge.

text:
    STATE of Louisiana, Appellee, v. Ray Wayne DANIELS, Appellant.
    No. 16390-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 1984.
    Rehearing Denied Oct. 26, 1984.
    Writ Denied Dec. 14, 1984.

      Richard E. Hiller, Indigent Defender Office, Shreveport, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, Paul Carmouche, Dist. Atty., Robert J. Gillespie, Jr. and John A. Broadwell, Asst. Dist. Attys., Shreveport, for appellee.
    Before PRICE, MARVIN and SEXTON, JJ.
   MARVIN, Judge.

Daniels appeals as excessive, his sentence to 4V2 years at hard labor after pleading guilty to carnal knowledge of a juvenile. LRS 14:80. He also contends that the trial court did not comply with CCrP Art. 894.1. We affirm.

Defendant was exposed to a 10-year sentence. As a second felony offender, he was exposed to a 20-year sentence, but as a part of the plea bargain, the State agreed not to invoke LRS 15:529.1. The trial court referred to a PSI report on defendant during the sentencing hearing. That report is contained in the appellate record.

The victim was the 16-year-old sister of defendant’s girlfriend. She contended that defendant raped her. Defendant asserted that the victim consented to sexual intercourse on his promise to pay her $30. The trial court considered the conflicting statements and was “not convinced one way or the other” that a rape occurred, but found that defendant “at least” admitted the crime of carnal knowledge. The trial court also considered the PSI which reveals defendant’s 1979 conviction of felony theft and his poor military record and work history.

While the trial judge need not articulate every aggravating and mitigating circumstance outlined in CCrP Art. 894.1, the record must reflect that he adequately considered these guidelines in particularizing the sentence to the defendant. State v. Hammonds, 434 So.2d 452 (La.App. 2d Cir.1983), writ denied; State v. Cunningham, 431 So.2d 854 (La.App.2d Cir.1983); State v. Smith, 433 So.2d 688 (La.1983).

The record sufficiently illumines the sentencing considerations of the trial court to. support the imposition of a 4'/a year hard labor sentence. The articulation of sentencing considerations by the trial court is not so insufficient as to warrant remand for resentencing. The sentence is not excessive in light of the circumstances of the offense and the defendant’s prior history.

AFFIRMED.


author: PRICE, Judge.

text:
    STATE of Louisiana, Appellee, v. Zebedee HALL, Appellant.
    No. 16396-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 1984.

      Ford E. Stinson, Jr., Asst. Indigent Defender, Benton, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, Henry N. Brown, Jr., Dist. Atty., Bobby L. Stromile, Asst. Dist. Atty., Benton, for appellee.
    Before PRICE, MARVIN and SEXTON, JJ.
   PRICE, Judge.

Defendant, Zebedee Hall, appeals his conviction of armed robbery, La.R.S. 14:64. The defendant and his co-defendant, Leroy Jackson, were charged with the robbery of the M.L. Johnson Grocery Store located on Highway 71 in Bossier Parish. Finding no error by the trial court, we affirm.

On July 12, 1983 the defendant, in his 1976 model Honda Civic, picked up Leroy Jackson in Shreveport for the purpose of driving Jackson to Ringgold, Louisiana to “case” a bank for a robbery the following week. On the way to Ringgold, defendant and Jackson stopped at the M.L. Johnson Grocery Store located on Highway 71 in Bossier Parish. Jackson went into the store and bought cigarettes. The two then left the store and proceeded toward Ring-gold in the defendant’s car. Approximately two to three miles from the store Jackson indicated to the defendant that the grocery store would be an easy target as he had only observed an old lady in the store counting cash. Defendant then drove Jackson back to the store and gave to Jackson his .38 caliber Smith and Wessen revolver.

In the defendant’s statement to the police, the defendant indicated that he heard two shots fired inside the store, then Jackson left the store and got into the defendant’s vehicle. Defendant indicated that Jackson told him that he fired the two shots at a person he had seen exiting the rear of the store.

The two then fled the scene and proceeded down Highway 71 towards Ringgold. After buying $2.00 worth of gas at a truck stop, the defendant let Jackson out of his car at a wooded area in Red River Parish. Defendant did not receive any proceeds of the robbery other than the $2.00 worth of gas.

On the same day of the robbery, July 12, 1983, the defendant was arrested by the Bossier Parish Sheriff’s Department. The defendant gave statements to Bossier Parish detectives, both on the day of his arrest and on the following day, July 13, 1983. In the defendant’s second statement, the defendant informed the detectives that the .38 caliber revolver was his. Defendant also informed the detectives of plans of Jackson to case the Ringgold Bank. The defendant also told the detectives that he was to receive $1,000 in return for supplying the getaway car when they robbed the bank in Ringgold.

On appeal, the defendant asserts that the trial court erred in allowing the introduction of the defendant’s second statement taken on July 13, 1983. The defendant asserts that the references in the statement concerning casing the bank in Ring-gold resulted in the jury being presented evidence of other crimes, namely a criminal conspiracy to commit robbery. The trial court allowed the statements to be presented to the jury in its entirety ruling that the reference to the Ringgold Bank plan was part of the res gestae.

The general rule is that the state cannot introduce evidence of other criminal acts by the accused. This prohibition does not bar the admission of evidence of other criminal acts, which are an inseparable part of the whole deed. State v. Haarala, 398 So.2d 1093 (La.1981); State v. Broadway, 440 So.2d 828 (La.App. 2d Cir.1983); State v. Johnson, 440 So.2d 838 (La.App. 2d Cir.1983). Such acts are denominated as part of the res gestae and are admissible under the authority of La.R.S. 15:447 and 15:448. Admissible res gestae events are related to the charged offense to such an extent that the state could not accurately present its case without reference to them. State v. Broadway, supra.

Criminal acts included in the events leading to the armed robbery of the grocery store were part of a continuous chain of events culminating in the robbery of the store. The statement of the defendant clearly indicates that the two changed their plan to case the bank to a plan to rob the M.L. Johnson Grocery Store. It is apparent that the plans of defendant and Jackson formed one continuous event leading to robbery and as such constituted part of the res gestae of the events charged.

Finding no merit to the defendant’s assignment of error, we affirm.

AFFIRMED.


text:
    STATE of Louisiana, Plaintiff-Appellee, v. Wiley TAYLOR, Jr., Defendant-Appellant.
    No. 16406-KW.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 1984.

      Larry D, Jefferson, Monroe, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, Lowen B. Loftin, Dist. Atty., Ray-ville, E. Rudolph McIntyre, Jr., Asst. Dist. Atty., Winnsboro, for plaintiff-appellee.
    Before PRICE, MARVIN and SEXTON, JJ.
   MARVIN, Judge.

On the application of Wiley Taylor, Jr., who was convicted of simple battery and sentenced to 30 days in jail and fined $250, we granted a writ and ordered the clerk of the trial court to lodge a transcript of the trial with this court.

Finding that the record is contrary to defendant’s three allegations of error in the writ application and that it supports defendant’s conviction, we affirm the conviction under this writ of review.

FACTS

Taylor was an inmate of the Franklin Parish Jail. Deputy Crum, in the presence of Deputy Ford and several other witnesses, entered a cell housing several prisoners and ordered Taylor to move away from the doorway and to his bunk so that Deputy Crum could move another prisoner from the cell. After some verbal abuse towards the deputies, Taylor grabbed Crum’s arm and pushed Crum across one of the bunks in the cell. At the direction of Deputy Ford, other inmates intervened and stopped Crum and Taylor who were then wrestling with one another. Taylor’s contention and testimony that he was acting in self defense is strongly contradicted by the testimony of all other witnesses. Defendant’s first assignment of error relating to the insufficiency of evidence and the state’s failure to meet its burden of proof relative to self defense is without merit.

ASSIGNMENT TWO

Defendant’s right of confrontation and cross-examination of Crum was not unduly restricted. Crum admitted on cross-examination that he had discussed the case with his private attorney who was representing him in a civil action arising out of the battery and that he had never had any civil actions filed against him before the one arising out of this altercation. While the trial court was in error in sustaining the State’s broad objection that the pending civil action was “irrelevant,” the fact of, but not the details of, the pending civil action against Crum was established by later questions.

ASSIGNMENT THREE

In this assignment, defendant complains that the trial court “permitted” Crum’s private counsel to “participate” in the prosecution. CCrP Art. 63 allows such participation at the discretion of the prosecuting attorney. The “participation” of Crum’s private attorney is illustrated by this colloquy, which arose during examination of a defense witness who was confined in the cell with defendant:

[Defense Counsel] “I want you to tell the Court specifically what you told me?
[Prosecutor]: “Objection, Your Honor.
[Private Counsel]: “If it please the Court, counsel is asking his own client
THE COURT: “You are not a party to this ...
[Prosecutor]: “He is helping me in the case.
THE COURT: “I hadn’t been notified of his association with you.
[Prosecutor]: “I would like to so notify you, Your Honor.
THE COURT: Not in this prosecution. I saw him sitting there, but I thought it was to get information, but I didn’t know that he had been associated with the District Attorney’s office in the prosecution of this case.
[Prosecutor]: “Yes, sir, he is being associated.
THE COURT: “Well, I had had no notice of it.
[Defense Counsel]: “Your Honor, I would like to pose an objection to his participation.
THE COURT: “I had not been notified of it.
[Defense Counsel] “... did Deputy Crum strike Mr. Taylor?
“I didn’t see no blows throwed.
“Have you on any occasion prior to today made that statement to anybody, that he did?
“No.
“You did not give that information to the F.B.I. or to myself?
“Not that I saw no blows throwed.
[Prosecutor]: “Objection, Your Honor, we are going back to the same thing. I will have to raise an objection.
THE COURT: “He has already testified that he saw no blows passed and he has reiterated it.”

Crum’s private counsel did not thereafter argue anything to the court or “appear” in the record although it seems apparent that he remained at or near the prosecutor’s table. The trial judge apparently “ruled” by implication that Crum’s private counsel would not be allowed to question witnesses, notwithstanding the express provision of CCrP Art. 63 allowing “participation.” Defendant’s allegation that the trial court “permitted” private counsel to participate in the prosecution is not supported by the record. Defendant’s allegation that there was some “unethical” private conversations between the judge, the prosecutor, and Crum’s private counsel is also refuted by the record.

DECREE

Finding no reversible error in the three assignments, defendant’s conviction is affirmed.