author: CRAIN, Judge.

text:
    Timothy RICCA v. CITY OF BATON ROUGE, et al.
    No. 83 CA 0723.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 1984.

      Robert Kleinpeter, Baton Rouge, for plaintiff-appellee Timothy Ricca.
    Stephen Wilson, Baton Rouge, for defendant-appellant City of Baton Rouge.
    Before SHORTESS, LANIER and CRAIN, JJ.
   CRAIN, Judge.

This is an appeal taken by the City of Baton Rouge and Marvin Castello, Chief, Baton Rouge Fire Department, (appellants), from a judgment of the trial court issuing a writ of mandamus directing appellants to reinstate Timothy Ricca (appel-lee) to his employment.

The instant matter arises as a result of injuries received by appellee on or about August 29, 1979, when he was enrolled in a firefighting school at LSU and was injured in an explosion and fire. Appellee received severe burns over approximately 65% of his body.

Following recuperation, appellee returned to employment with the appellants and worked at several non-firefighting positions. Appellee remained classified as a firefighter.

On January 4, 1983, the Fire Chief for the Baton Rouge Fire Department (Marvin Castello) issued a letter to appellee terminating him under La.R.S. 33:2500, subd. A(13)

Pursuant to La.R.S. 33:2501 , appellee perfected an appeal to the Municipal Fire and Police Civil Service Board (Board). After a hearing on February 1, 1983, the Board overturned the appointing authority and ordered appellee to be reinstated with full back pay from the date of removal.

Following this decision, appellants, on February 16, 1983, perfected an appeal pursuant to La.R.S. 33:2501 from the decision of the Board to the Nineteenth Judicial District Court. However, no judgment has been rendered and the matter is presently pending before that court.

In a letter dated March 2, 1983, Robert Kleinpeter, counsel for appellee, made a formal demand on Fire Chief Marvin Cas-tello to have appellee reinstated as of the date of his termination with full back pay pursuant to the decision of the Board. Ap-pellee was not reinstated and consequently appellee in a separate action filed a petition for a writ of mandamus pursuant to La.C. C.P. arts. 3862 and 3863.

In a judgment rendered May 20, 1983, the trial court made preemptory the alternative writ of mandamus and ordered appellant to reinstate appellee to his place of employment with full back pay to the date of termination. It is from this judgment that appellant appeals alleging one assignment of error. Specifically, appellant alleges the trial court erred in granting the writ of mandamus under the present facts and circumstances.

La.C.C.P. art. 3861 provides as follows:

“Mandamus is a writ directing a public officer or a corporation or an officer thereof to perform any of the duties set forth in Articles 3863 and 3864.”

Under La.C.C.P. art. 3863 a mandamus may be directed to a public officer to compel the performance of a ministerial duty required by law. However, the use of the writ of mandamus is limited to cases where the law provides no relief by ordinary means or where the delay involved in obtaining ordinary relief may cause injustice. La.C.C.P. art. 3862.

Appellee, after being terminated, followed the procedures outlined in La.R.S. 33:2501 and appealed his termination to the Board. After a hearing, the Board rendered a decision ordering that appellee be reinstated pursuant to La.R.S. 33:2501, which provides as follows:

After such investigation, the board may, if the evidence is conclusive, affirm the action of the appointing authority. If they find that the action was not taken in good faith for cause under the provisions of this Part, the board shall order the immediate reinstatement or reemployment of such person in the office, place, position, or employment from which he was removed, suspended, demoted, or discharged, which reinstatement shall, if the board so provides, be retroactive and entitle him to his regular pay from the time of removal, suspension, demotion, discharge, or other disciplinary action. The board may modify the order or removal, suspension, demotion, discharge, or other disciplinary action by directing a suspension without pay, for a given period. (Emphasis added)

This statute creates a mandatory duty on the appointing authority to reinstate immediately any employee that the Board concludes was not terminated in good faith for cause.

Pending appellants’ appeal, appellee is entitled by law to be reinstated with full back pay to the date of removal.

We hold that a writ of mandamus was the proper procedure to enforce the legal authority granted to the Board under La. R.S. 33:2501.

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

Affirmed.

      . Sec. 2500. Corrective and disciplinary action for maintaining standards of service
      A. The tenure of persons who have been regularly and permanently inducted into positions of the classified service shall be during good behavior. However, the appointing authority may remove any employee from the service, or take such disciplinary action as the circumstances warrant in the manner provided below for any one of the following reasons:

      (13) The development of any defect of physical condition which precludes the employee from properly performing the duties of his position, or the development of any physical condition that may endanger the health or lives of fellow employees.

      . Sec. 2501. Appeals by employees to the board
      Any regular employee in the classified service who feels that he has been discharged or subjected to any corrective or disciplinary action without just cause, may, within fifteen days after the action, demand, in writing, a hearing and investigation by the board to determine the reasonableness of the action. The board shall grant the employee a hearing and investigation within thirty days after receipt of the written request.


source: Caselaw Access Project

author: SHORTESS, Judge.

license: Public Domain

text:
    Leroy CONRAD v. JACK DONAHUE CONTRACTORS, INC., et al.
    No. 83 CA 0736.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 1984.
    Cameron C. Gamble, New Orleans, for plaintiff, appellant.
    James L. Donovan, Metairie, for defendant, appellee.
    Before SHORTESS, LANIER and CRAIN, JJ.
   SHORTESS, Judge.

Leroy Conrad (plaintiff) was employed by Jack Donahue Contractors, Inc. (defendant), a firm which specialized in commercial remodeling and renovations. On June 19, 1981, he and some fellow employees were unloading a steel beam from a truck. Someone slipped and he caught all of the beam’s weight. However, he was not any more sore than usual, so after the weekend was over, he went back to work. On June 23, while working at defendant’s job at the Andrew J. Bell Junior High School at Ursuline and Galvez Streets in New Orleans, Louisiana, he felt a pull in his back while carrying concrete blocks and had pain in his head and back. On June 25, he went to Slidell Memorial Hospital for emergency treatment. On July 7, 1981, he was admitted as a patient. Compensation benefits were paid until October 3, 1981. He has not worked since the date of the accident.

The case was submitted to the trial court on the basis of the following documents: plaintiff’s deposition and hospital records from Slidell Memorial Hospital for emergency care on June 25, 1981, for hospitalization beginning on July 7, 1981, and for a subsequent hospitalization which began on February 17, 1982. The depositions of Dr. J. Monroe LaBorde, Dr. William Purser, Dr. Stan Owen, and Dr. William Chapel were also introduced. The trial court, after reviewing this documentary evidence, handed down written reasons for judgment wherein it made the following findings of fact:

This Court makes the following findings of fact. The claimant suffered an injury on June 23, 1981 in the course and scope of his employment. The defendants paid the claimant workmen’s compensation and submitted medical bills until October 3, 1981. The claimant’s work related injury consisted of a lumbar strain. The claimant’s impairment had ceased before the date that compensation benefits were cut off, that is, before October 3, 1981. Finally, while this Court does not dispute that subsequent injuries to the plaintiff may have occurred, this Court holds that the plaintiff has not carried the burden of showing that the disabilities herein sued upon continued past September, 1981. This Court accordingly holds that the defendants were proper in terminating compensation benefits as of October 3, 1981.

Plaintiff filed this appeal and argues that the lower court erred in finding that he failed to prove by a preponderance of the evidence that he was partially disabled beyond October 3, 1981.

Inasmuch as this entire case was submitted to the trial court by deposition and report, the manifest error rule is not applicable to our review of the record. Gould v. State, Louisiana Department of Corrections, 435 So.2d 540 (La.App. 1st Cir.1983), writ denied, 438 So.2d 1107 (La.1983).

The plaintiff in a workers’ compensation suit must establish by a preponderance of the evidence that the injury sustained was caused by the accident at issue. Martin v. Zachry, 424 So.2d 1002 (La.1982); West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979). Absent proof of an intervening cause, a claimant's disability is presumed to have resulted from an accident, if before the accident the injured person was in good health and symptoms of the disabling condition commenced at the time of the accident and continuously manifested themselves after-wards, providing that the medical evidence shows there to be a reasonable possibility of causal connection between the accident and the disabling condition. Lucas v. Insurance Company of North America, 342 So.2d 591 (La.1977). See also Guillory v. USF & G, 420 So.2d 119 (La.1982).

The presumption of causation is not irrebuttable, rather when established, its effect is to shift the burden of proof to the defendant. Haughton v. Fireman’s Fund American Insurance Co., 355 So.2d 927 (La.1978).

In evaluating the evidence, the trier of fact should accept as true the uncontra-dicted testimony of a witness, even though the witness is party, where the record indicates no sound reason for its rejection. West v. Bayou Vista Manor, Inc., 371 So.2d 1146, 1147 (La.1979); Olds v. Ashley, 250 La. 935, 200 So.2d 1 (1967); Farley v. Ryan Stevedoring Co., 238 La. 1048, 117 So.2d 587 (1960); Bonanno v. Decedue, 186 La. 1041, 173 So. 756 (1937).

The record shows that plaintiff did sustain an occupational injury on June 23, 1981; that he received medical attention within a day or so after the accident and was placed on physical therapy as an outpatient; that when his symptoms persisted he was placed in the hospital on July 7, that he was discharged at his own request apparently after a disagreement between him and Dr. Charles Krieger over the proper pain medication; that on September 4, 1981, he was seen in New Orleans for evaluation at defendant’s request by Dr. J. Monroe LaBorde, an orthopedic surgeon; that Dr. LaBorde found no objective signs of cervical or lumbar spinal injury or mus- ■ cle spasm and felt plaintiff could return to work; that based on Dr. LaBorde’s opinion, defendant terminated compensation benefits on October 3, 1981; that Dr. William Purser, an orthopedic surgeon, saw plaintiff on October 21 and made a diagnosis of lumbar and cervical strain; that Dr. Purser found minimal muscle spasm in the left lumbar area but moderate spasm on the right; that Purser referred plaintiff to Dr. Stanford Owen for his headache complaints; that Dr. Owen, an internist who did considerable work in neurology, saw plaintiff initially on October 23, 1981; that his initial diagnosis was neuralgia of the occipital nerves, primarily C-l and C-2; that he saw plaintiff again on February 15, 1982, and his examination revealed that plaintiffs neck was basically the same as on the initial visit but he had more spasm of his muscles in the lower back, particularly on the left side; that he admitted plaintiff to Slidell Memorial on February 17, 1982, for evaluation of his recurrent persistent back pain which he characterized as chronic; that all tests were negative and plaintiffs muscle spasms decreased during his hospitalization; that both Dr. Owen and Dr. Joe Jabre, a consultant, felt that while plaintiff exhibited no pathological neuropa-thy during his hospitalization, they did find plaintiff to be extremely anxious and depressed which might be contributing to his overall problem; that Dr. Owen noted that plaintiff responded well to anti-depressant medication, and he prescribed Phenergan which is a muscle relaxant and anti-anxiety agent; that Owen saw plaintiff on June 23, 1982, with complaints of neck and lower back pain; that Owen’s diagnosis remained basically the same, i.e., occipital neuralgia causing chronic pain with secondary muscle spasm in the lower back and a large amount of anxiety and depression.

Dr. Owen was of the opinion, based on plaintiff’s history and his treatment, that either the initial injury when plaintiff was carrying the steel beam or the subsequent injury where he was carrying concrete blocks did in fact cause his pain. He would not recommend heavy work at that time because plaintiff’s pain, combined with anxiety, would cause distraction and interfere with his daily activities and interfere with his ability to function on the job.

This record clearly shows that (1) plaintiff was injured while employed by defendant; (2) plaintiff has not worked since the date of his injuries; (3) no physical intervening cause has been shown; and (4) plaintiff exhibited objective signs of injury after his compensation benefits were terminated on October 3, 1981.

We find that plaintiff did present sufficient evidence to prove some disability by a preponderance of the evidence through his February 1982 hospitalization; however, we are unable to determine the extent of that disability. Further, the evidence is not sufficient to reflect his condition after that time. There is no objective evidence or diagnosis of a physical disability connected with the accident after the February hospitalization. Plaintiff still complains of disability, and Dr. Owen who treated plaintiff after October 21, 1981, through at least June 23, 1982, was of the opinion that anxiety more than physical infirmity accounted for plaintiff’s inability to work. Dr. LaBorde also felt that plaintiff should see a neurologist or psychiatrist because of his inconsistent findings. The record is not sufficient for us to relate mental anxiety to the initial injury. However, in the interest of justice and recognizing that plaintiff has not worked between the initial accident and the trial of this suit, we find it proper to remand the case so a hearing can be held to determine (1) the extent of plaintiff's disability (total or partial) from the date compensation was terminated, October 3, 1981, until February 24, 1982, (2) whether plaintiff was disabled after February 24, 1982, and if so, whether that disability was caused by his accident, and (3) if plaintiff is disabled, the extent of disability after February 24, 1982.

Accordingly, for the reasons stated, the decision of the trial court is reversed and this case is remanded. Costs are taxed to defendant.

REVERSED AND REMANDED.


author: COLE, Judge.

text:
    Craig G. HEBERT and Lisa Hoffman Hebert v. Randell M. BROUSSARD and Judy Choate Broussard.
    No. 83 CA 0743.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 1984.

      Louis Thad Toups, Thibodaux, for appel-lees and plaintiffs.
    Richard A. Thalheim, Jr., Thibodaux, for appellants and defendants.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COLE, Judge.

The primary issues in this quanti minoris action relate to the correctness of the trial court’s factual findings and the amount of damages awarded.

Plaintiffs, Craig and Lisa Hebert, purchased a house from defendants, Randell and Judy Broussard, on June 2, 1981. Mr. Hebert believed mistakenly that defendants were to obtain a termite certificate prior to the sale, but learned of his error on the morning of the sale. Nevertheless, upon receiving assurance from Mr. Brous-sard that he had not experienced any termite problems, the Heberts decided to proceed with the sale as scheduled and obtain a termite certificate later.

Approximately two weeks thereafter Mr. Hebert discovered termite damage to the house. On July 10, 1981 an inspection by Charles Beasley of Beasley Pest Control revealed an active infestation of termites in the house. Plaintiffs repaired the damages and treated the house to eradicate and prevent a reoccurrence of the infestation. They then filed this suit seeking a reduction in the purchase price of the house by the amount necessary to eradicate the termites and repair the damage caused by them. Following trial, the court rendered judgment in favor of plaintiffs for $1,054.91. Additionally, $150 was awarded to Mr. Beasley as an expert witness fee, to be taxed as costs. Defendants have appealed from this judgment.

Defendants argue the trial court erred in basing its decision on the following factual conclusions: that the house was infested with termites and had termite damage at the time of the sale; that defendants did not disclose any existing damage to plaintiffs; and, that the damage present was not discoverable by a simple inspection (so as to preclude recovery by plaintiffs). A trial court’s factual conclusions are entitled to great weight upon appellate review and will not be disturbed in the absence of manifest error.

There is ample evidence supporting the trial court’s conclusions that there was termite damage to the house. Mr. Hebert, Mr. Guidry, (the carpenter who did the repair work), and Mr. Beasley, who was qualified as an expert in the field of termite inspection, detection and treatment, each testified to the presence of such damage. Mr. Beasley further testified that in his opinion the termite infestation was present in the house at the time of the sale to plaintiffs.

Defendants argue, however, the trial court erred in accepting and according too much weight to the testimony of Mr. Beasley. Defendants maintain Mr. Beasley was permitted to testify in areas in which he was not qualified as an expert, particularly with respect to his opinion as to the length of time the infestation had been present in the house. Mr. Beasley was examined extensively as to his qualifications as an expert in his field. He has worked in this field for approximately 25 years and periodically takes courses and attends seminars related thereto. A trial court has great discretion in determining a witness’s competence to testify as an expert. We find no abuse of discretion herein, particularly since experience alone is sufficient to qualify a person as an expert. Abshire v. W.D.L. Investments, Inc., 428 So.2d 1145 (La.App. 1st Cir.1983), writ denied 433 So.2d 161 (La.1983).

Nor is there any merit to defendants’ other allegations of factual error. A careful review of the record by us fails to disclose manifest error in any of the factual conclusions complained of by defendants.

The remaining issues raised by defendants concern the amount of damages awarded by the trial court. Defendants complain the trial court erred by failing to take into account the evidence they presented as to the alleged value of the house. They argue this evidence proved plaintiffs were not entitled to a reduction in price because the purchase price was already well below the actual value of the house. They claim, in fact, the difference between the price paid by plaintiffs and the actual value of the house exceeded the amount of damages claimed by plaintiffs herein. We do not find this argument persuasive, concluding instead that plaintiffs paid a fair price for the house. In any event, a measure of recovery in price reduction cases involving buildings is the amount necessary to convert an unsound structure into a sound one. Fraser v. Ameling, 277 So.2d 633 (La.1973); Lem-oine v. Hebert, 395 So.2d 353 (La.App. 1st Cir.1980). The trial court did not err in applying this measure of damages in the present case.

Defendants also argue at least a portion of the damage to the house was due to water rather than termites. They argue the trial court erred in allowing plaintiffs to recover any expenses relating to the repair of water damages since plaintiffs did not allege or pray for recovery of such damages. Although there was some mention of water damage at the trial, the court obviously concluded any such damage which may have been present was so minimal as not to affect the amount or manner of repairs already required to rectify the termite damage. We find no manifest error in this conclusion.

Another issue raised by defendants is whether plaintiffs complied with the requirement of La.Code Civ.P. art. 861 that items of special damages be specifically alleged. Defendants argue plaintiffs did not comply with this requirement as regards the costs of treating the hoúse to eradicate and prevent the re-entry of termites. Upon examination of the plaintiffs’ petition, however, we agree with the trial court this petition gave defendants fair notice that the damages claimed by plaintiffs included this expense. Plaintiffs specifically alleged in their petition they contracted with certain individuals in an effort to eradicate the termites and repair the termite damage to the property, with said repairs amounting to a total of $1,255.33. In the context of the present case, we conclude treatment to eradicate and prevent a reoccurrence of a termite infestation should be considered a necessary “repair,” since the termites would otherwise present a danger of continuing damage.

Lastly, defendants complain the trial court should have held a contradictory hearing to establish the proper amount to be awarded for the expert witness fee. A trial court may fix expert witness fees based upon trial testimony without holding a contradictory hearing. La.R.S. 13:3666(B). Furthermore, the amount of expert witness fees is a matter within the trial court’s great discretion, which will not be disturbed absent manifest error. Young v. State Farm Fire & Cas. Ins. Co., 426 So.2d 636 (La.App. 1st Cir.1982), writ denied, 433 So.2d 148 (La.1983) and 433 So.2d 171 (La.1983). We find no abuse of discretion in the amount awarded.

Accordingly, the judgment is affirmed.

AFFIRMED.


author: COVINGTON, Judge.

text:
    Charlie W. JORDAN v. Ray T. SUTTON, Commissioner of Conservation, State of Louisiana, etc.
    No. 83 CA 0746.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 1984.
    See also, La.App., 411 So.2d 1170.
    Bobby L. Culpepper, Jonesboro, Hal R. Henderson, Arcadia, for plaintiff-appellant Charlie W. Jordan.
    V. David Devillier, Eunice, for defendant-appellee Patrick H. Martin.
    Kerry Massari, Lafayette, for intervenor-appellee.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COVINGTON, Judge.

The present suit seeks judicial review of an order by the Commissioner of Conservation, dated April 20, 1979. Southern Natural Gas Company intervened in the suit. In his petition, plaintiff, Charlie W. Jordan, alleged that the April 1979 order (order 78-F-4) was based on erroneous, false and misleading information, particularly such information supplied by Southern Natural Gas, that the Pettit Limestone Formation, Reservoir A, of the Bear Creek Field was a single reservoir, which had been depleted of oil capable of being produced in paying quantities. The trial court dismissed plaintiffs demand, finding that due to his unreasonable delay in filing his suit, he was barred by the equitable doctrine of laches.

On appeal, this Court ruled that although certain relief was barred by the plaintiff’s unreasonable delay, Jordan was not barred from seeking an order directing that tests be performed on Cummings # 1 well to determine its capabilities for producing hydrocarbons in paying quantities. In connection with our ruling, we indicated that Jordan was entitled to have Cummings # 1 well tested, so that he could obtain productivity information concerning the well. We further ruled that plaintiff was not barred from seeking an order directing the Commissioner to produce and allow plaintiff to inspect certain information pertinent to his attempt to verify his theory that the Pettit Limestone Formation is two separate and distinct reservoirs, rather than one interconnected reservoir, and, also, in his attempt to establish that there were commercially recoverable hydrocarbons remaining in the lower zone of the Pettit Limestone Formation. After these rulings, we remanded the case to the lower court for further proceedings consistent with the opinion.

On remand, the trial court refused to grant a mandamus ordering the Commissioner to test or to order a test of Cummings # 1 well. Thus, the trial court held that the plaintiff had no right or cause of action as to the remedy of mandamus, and dismissed plaintiffs suit. The plaintiff has appealed this judgment.

In his suit, plaintiff sought, among other relief, the following:

1. An order directing the Commissioner to test or cause to be tested the Cummings # 1 well, so that its potential for producing oil in paying quantities can be determined.
2. An order directing the Commissioner to produce and allow inspection by plaintiffs experts of certain logs and reports concerning wells drilled in certain sections of the Pettit Limestone Formation.
3. An order directing the Commissioner to answer certain interrogatories propounded to him by the plaintiff.

The trial court found that mandamus would not lie because it was discretionary with the Commissioner to order a test of the well. We agree. However, in our previous opinion we reviewed the difficulty which the plaintiff had encountered in his attempt to obtain productivity information of the Cummings # 1 well, and we pointed out that the obtaining of pertinent information concerning such information was a main objective of the plaintiff in his suit.

Under the circumstances of this case, we do hereby order, adjudge and decree:

1. That the Commissioner of Conservation perform or cause to be performed such tests on Cummings # 1 well as necessary to determine the productivity of said well within 60 days of the effective date of this order.
2. That the Commissioner of Conservation produce and allow inspection in his office at Shreveport, Louisiana, of pertinent electric logs, porosity logs, drilling histories and work resume’ reports of wells, drilled in Sections 1, 2, 10, 11 and 12, Township 16 North, Range 6 West, Bien-ville Parish, since February 22,1979, within 60 days of the effective date of this order and that plaintiff’s attorney be notified when said records are available for inspection.
3. That the Commissioner of Conservation answer the interrogatories attached to plaintiff’s petition, which are pertinent to the remaining issues before the court, categorically, in writing, and under oath in accordance with LSA-C.C.P. arts. 1491 et seq., within 60 days of the effective date of this order.

REVERSED AND RENDERED.

      . In Corbello v. Sutton, 446 So.2d 301 (La.1984), our Supreme Court ruled that the equitable doctrine of laches "has no place in the law of this state.”

      . Jordan v. Sutton, 424 So.2d 305 (La.App. 1st Cir.1982). A detailed recitation of the facts are set forth in the previous decision, so it is unnecessary to restate them herein. In the decision, we agreed with the trial court’s ruling that the doctrine of laches barred those items of relief in plaintiff's suit attacking the finality of Order No. 78-F-4 and seeking to enjoin the issuance of any supplemental orders thereof. This Court held the order to be final as to the establishment, use, operation and service of the underground storage facility.


author: SAVOIE, Judge.

text:
    W. Randall PEAY, et ux v. HEIRS OF Handy ROBINS, et al.
    No. 83 CA 0749.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 1984.

      George H. Ware, Jr., Ligón & Ware, Clinton, for plaintiffs-appellees.
    Murphy W. Bell, Robert Judge Eames, Baton Rouge, for defendants-appellants.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   SAVOIE, Judge.

Defendant, Robins, Inc., appeals the trial court’s judgment granting plaintiffs’ motion for litigious redemption. We find that no litigious right existed as defined under L.S.A.-C.C. art. 2653 and, accordingly, reverse the judgment.

Plaintiffs, Mr. and Mrs. W. Randall Peay, and the Heirs of Handy Robins (the Heirs) were owners in indivisión of certain immovable property located in East Felicia-na Parish. On September 19, 1980, plaintiffs filed a suit against the Heirs, seeking a partition of the property by licitation. On November 3, 1981, plaintiffs and the Heirs entered into a stipulation designating the ownership interest of each party. Thereafter, the Heirs transferred their interest in the property to Robins, Inc. of Baton Rouge, defendant herein, who was substituted as the sole defendant.

On August 13, 1982, plaintiffs filed a motion for litigious redemption pursuant to L.S.A.-C.C. art. 2652. Plaintiffs contended this right arose when the Heirs transferred their interest to a third party (Robins, Inc.) during the course of the partition proceeding. Contrarily, defendant asserted that the transfer was not a sale of a litigious right within the meaning of that article.

The trial court held that the action constituted a transfer of a litigious right. Subsequently, it found that plaintiffs had deposited the purchase price of the transfer plus interest with the Clerk of Court. The trial court then ruled that plaintiffs be declared the owners of right of all the property claimed by Robins, Inc. except for an undivided interest owned by Keith and David Crenshaw and not owned by the Estate of Robins.

Defendant appeals from this judgment, alleging three assignments of error. First, defendant contends that the trial court erred in granting plaintiffs’ motion for litigious redemption when no litigious right existed. Since we find merit in this allegation, we need not address defendant’s other assignments of error.

“A right is said to be litigious, whenever there exists a suit and contestation on the same.” (Emphasis added). L.S.A.C.C. art. 2653.

Defendant contends there is no litigious right in this matter because there is no contestation as required by L.S.A.-C.C. art. 2653. Defendant argues there is no contes-tation since there is no dispute as to the proportionate interests of the parties in the property. Contrarily, plaintiffs assert that a contestation exists as to the manner by which the property is to be partitioned. As the basis for this assertion, plaintiffs point out that they sought a partition by licitation, whereas, by answer, it was requested that the partition be in kind.

We agree that there is no dispute as to the parties’ proportionate interest in the property, this having been previously stipulated. Further, neither party disputes the others’ right*to demand a partition. Thus, the substantive questions which might have been raised in this type of suit are not present. There remains only a determination as to the procedural vehicle by which this partition is to be effected.

Either or both parties may offer proof of the property’s indivisibility or inconvenience of divisibility. L.S.A.-C.C. art. 1339. However, neither party has a right to demand the manner in which the property is to be partitioned since the nature of property dictates whether the partition is to be in kind or by licitation. L.S.A.-C.C. arts. 1337, 1339, 1340, and L.S.A.-C.C.P. art. 4606. Thus, the question of how the property is to be partitioned is a mere incident of the partition suit and is not a “contestation” within the meaning of L.S. A.-C.C. art. 2653.

This view is supported by L.S.A.-C.C. art. 1335. It provides:

“All points, arising before the judge having cognizance of the suit for partition, on the manner of making the collation ór other operations relating to the partition, being merely incidental to the suit, shall be decided on the simple motion of the party interested in having them decided, the same being duly notified to the other heirs or their attorneys, and a reasonable time being granted to answer thereto.”

Further, support for our conclusion can be found in Crain v. Waldron, 210 La. 561, 27 So.2d 333 (1946), rehearing denied, July 3, 1946. In that case, Duncan Crain filed suit against his ten children, alleging that they are owners in indivisión of certain lands. Crain prayed that he be recognized as the owner of a 32⅛ interest and each child be recognized as the owner of a Vaao interest in the property. Further, he prayed for a judgment decreeing a partition by licitation.

The children answered, admitting they were owners of the interest set forth in the petition. As in the instant case, they further requested that the partition be in kind. However, unlike the instant case, they claimed an additional interest in the property-

About a month after Crain filed his suit, he transferred his interest in the property to three persons who were substituted as parties plaintiff. Thereafter, during trial, the children claimed the right of litigious redemption under L.S.A.-C.C. art. 2652. The trial court found that the substituted parties had purchased a litigious right and allowed the defendants to redeem the whole of the interest purchased from Crain.

On appeal, the Supreme Court stated: “The substituted plaintiffs contend that the sale of property involved in a partition suit is not a transfer of a litigious right under the codal article, since all parties admitted the others’ rights to a partition. This is a correct principle of law. However, in the case at bar, the petition, aside from the request for a partition, contained a prayer that petitioner be recognized as the owner of a 32⅛ (2⅝4) interest in the property leaving in defendants the remaining '⅛ (%64) interest. Defendants, in their answer (filed prior to the sale to the substituted plaintiffs) conceded that Duncan R. Crain owned an undivided 4⅝8 (13%g4) interest in the property but asserted that the remainder (12%64) belonged to the defendants in equal proportions. It is, therefore, obvious that at the time of the May 17, 194-5 purchase, a m/m interest —2⅜4 (claimed by Duncan R. Crain) less the 13%64 (conceded to him by defendants’ answer) — was in contestation and, therefore, litigious under Articles 2652 and 2653, R.C.C.” (Emphasis added). 27 So.2d at 334.

However, contrary to the trial court’s action, the Supreme Court held the substituted parties’ right to be litigious only as to the actual portion in dispute, i.e., the additional interest claimed by the children. Thus, it is apparent that the Supreme Court did not consider the question of the manner of the partition as a “contestation” within the meaning of L.S.A.-C.C. art. 2653.

For the foregoing reasons, the judgment of the trial court is reversed. Costs of the appeal are to be borne by plaintiffs.

REVERSED.

      . L.S.A.-C.C. art. 2652 provides:
      "He against whom a litigious right has been transferred, may get himself released by paying to the transferee the real price of the transfer, together with the interest from its date.”

      . Defendant also assigned as error the trial court’s granting plaintiffs a right of litigious redemption beyond their actual ownership in the property to be partitioned and its ruling that plaintiffs made a valid tender to defendant.

      . "There are definitely two points which are contested. The first is the ownership of the property in question and the second is whether the property is to be divided in kind or by licitation.” Crain v. Waldron, Supreme Court Record, Appeal from the Fourteenth Judicial District Court in and for the Parish of Cameron, at page 43.


text:
    Eric STREET v. Dr. Charles F. MITCHELL, a Medical Corporation, et al.
    No. 83 CA 0754.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 1984.
    Walter C. Dumas, “The Lawyers Complex”, Baton Rouge, for plaintiff-appellant Eric Street.
    Randy P. Zinna, Baton Rouge, for defendant-appellee Our Lady of the Lake Hosp., Inc.
    Donald S. Zuber, Baton Rouge, for defendant-appellee Dr. Charles F. Mitchell and Dr. Robert G. Penden.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COVINGTON, Judge.

This is an appeal from a judgment dismissing plaintiff’s suit on the grounds of prescription. Plaintiff, Eric Street, brought suit for damages against Dr. Charles F. Mitchell, a Medical Corporation, Dr. Robert G. Peden, a Medical Corporation, and Our Lady of the Lake Hospital, Inc., alleging that he developed type C hepatitis as a result of a blood transfusion. In the original petition plaintiff made the following allegations:

5.
“Petitioner went to Dr. John T. Howe, on November 21, 1979, for treatment of his illness. Petitioner was complaining of weight loss, nausea, vomiting, malaise, darker urine and lighter stools. Dr. John T. Howes, diagnosed petitioner’s condition as having developed type C Hepatitis.
6.
Petitioner alleges that he developed type C Hepatitis, as a result of the blood transfusion he received at Our Lady of the Lake Medical Center, which was administered by defendants, because the blood was defective.”

This suit was filed on May 6, 1982. To this petition the defendants filed exceptions of prescription. After a hearing on the exceptions, the trial judge maintained the exceptions and gave the plaintiff until March 11, 1983 to amend his petition. On February 18, 1983, plaintiff filed a supplemental and amending petition in which he added the following paragraph:

“Petitioner lost weight, became nauseated, began vomiting, began passing dark urine and lighter stools. Petitioner alleges that his illness resulted from the joint and/or individual acts of omission and/or negligence of defendants. Petitioner has not yet determined the cause of his illness.”

Thereafter, the defendants filed a second set of exceptions of prescription on the grounds the supplemental and amending petition did not cure the prescription defect. On March 11, 1983, plaintiff filed a second supplemental and amending petition in which he deletes paragraphs 5 and 6 and rewords paragraph 7 of the original petition. On April 14, 1983, after hearing on the exceptions, the trial judge rendered a second judgment dismissing the suit with prejudice. From this judgment, plaintiff has appealed.

Since this is a medical malpractice suit the prescription period is governed by LSA-R.S. 9:5628 which reads as follows:

Section 5628. Actions for medical malpractice
A. No action for damages for injury or death against any physician, chiropractor, dentist, or hospital duly licensed under the laws of this state, whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission or neglect, or within one year from the date of discovery of the alleged act, omission or neglect; provided, however, that even as to claims filed within one year from the date of such discovery, in all events such claims must be filed at the latest within a period of three years from the date of the alleged act, omission or neglect.
b. The provisions of this Section shall apply to all persons whether or not infirm or under disability of any kind and including minors and interdicts.

Plaintiff alleged that he was given a blood transfusion in October 1979 and was diagnosed as having type C hepatitis on November 21, 1979. He filed this suit May 6, 1982. In response to the judge’s order giving him time to amend his petition, he attempted to cure the exception of prescription by deleting these allegations. The trial judge then held that the allegations in the original petition constituted a judicial admission which was not expunged by the second supplemental and amending petition. He based his opinion on LSA-C.C. art. 2291 which anticipates this situation and provides as follows:

Art. 2291. Judicial confession
The judicial confession is the declaration which the party, or his special attorney in fact, makes in a judicial proceeding.
It amounts to full proof against him who has made it.
It can not be divided against him.
It can not be revoked, unless it be proved to have been made through an error in fact.
It can not be revoked on a pretense of an error in law.

The record reveals no allegations of error of fact to justify revoking this judicial admission. Neither does the plaintiff allege any facts which, if true, would indicate an interruption or suspension of prescription. In these additional pleadings the plaintiff merely alleges that he knows not the origin of his disease. This allegation does not negate the previous allegation that his hepatitis was diagnosed on November 21, 1979. Thus he had one year from that date in which to file suit. Therefore, the trial judge correctly considered the allegations of the original petition in holding that this suit had prescribed according to the allegations of the plaintiffs pleadings.

For the foregoing reasons, the judgment of the district court is affirmed at appellant’s costs.

AFFIRMED.


text:
    In the Matter of the Filiation of Robert THOMAS, Jr.
    No. 83 CA 0761.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 1984.
    Otha C. Nelson, Sr., Baton Rouge, for plaintiff-appellant Robert Thomas, Jr.
    Craig Raster, Baton Rouge, for defendant-appellee Lucille Kemp.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COVINGTON, Judge.

This is an appeal from judgment maintaining defendant’s exception of prescription under LSA-C.C. art. 209 in a filiation proceeding. We affirm.

Petitioner, Robert Thomas, Jr., a/k/a Freddie Shropshire, filed suit to establish filiation. He sought to be recognized as the child “in fact of Robert Thomas, Sr., now deceased, and Lizzie Shropshire.” The Succession of Laura Turner, through Craig L. Raster, attorney of record, and Lucille Kemp were served in the proceedings. Petitioner wanted to establish his filiation to the late Robert Thomas, Sr. in order that he might be declared an heir of the succession of Laura Turner, the mother of Robert Thomas, Sr. Lucille Kemp, defendant, filed a peremptory exception of prescription and an exception of no cause of action.

The petitioner alleged that he was born on February 28, 1946. Laura Turner died on July 1, 1982, and her succession was opened, with Lucille Kemp, as the alleged sole heir, put in possession. Mrs. Kemp is the sister of Robert Thomas, Sr., who died in 1978. This filiation proceeding was filed on March 22, 1983.

The petitioner instituted a filiation proceeding under LSA-C.C. art. 209(B), which reads:

A child not entitled to legitimate filiation nor filiated by the initiative of the parent by legitimation or by acknowledgment under Article 203 must prove filiation as to an alleged deceased parent by clear and convincing evidence in a civil proceeding instituted by the child or on his behalf within the time limit provided in this article.

A proceeding under Article 209(B) is subject to the time limitations of subsection (C) of Article 209, which provides:

The proceeding required by this article must be brought within one year of the death of the alleged parent or within nineteen years of the child’s birth, whichever first occurs. This time limitation shall run against all persons, including minors and interdicts. If the proceeding is not timely instituted, the child may not thereafter establish his filiation.

LSA-C.C. art. 209(C) establishes two standards for the time limitation. The proceeding “must be brought within one year of the death of the alleged parent or within nineteen years of the child’s birth, whichever first occurs.” This provision further states: “If the proceeding is not timely instituted, the child may not thereafter establish his filiation.”

In the case at bar, nineteen years from the child’s birth occurred first. To be timely, suit for filiation had to be brought within the nineteen years. It was not; it was not brought until nearly eighteen additional years had elapsed. The trial court properly ruled that the action had prescribed under the provisions of LSA-C.C. art. 209(C).

The petitioner’s right to bring a filiation proceeding also prescribed under the “grace period” provided by the legislature for persons in the petitioner’s situation.

Time limitations on the right to bring such a suit were enacted as a result of the Louisiana Supreme Court’s decision in Succession of Brown, 388 So.2d 1151 (La.1980), which held that acknowledged illegit-imates are entitled to certain inheritance rights. Persons able to prove their filiation are also entitled to inheritance rights. Time limitations on the right to make such proof were necessary to provide stability in titles transferred in succession proceedings. The legislature provided these time limitations in LSA-C.C. art. 209, amended by Act No. 549 of 1980 and Act No. 720 of 1981. “Both amendments provided grace periods to allow those who would otherwise be barred by the enactment time to bring their action.” Harlaux v. Harlaux, 426 So.2d 602, 605 (La.1983). Section 2 of Acts 1981, No. 720 provided a one year grace period to bring a filiation suit to those whose actions would have otherwise been prescribed by, the time limitations of Article 209(C). The petitioner in this case, whose action was prescribed by the enactment of the 1981 amendment to art. 209 thus had the additional one year grace period, until September 12, 1982, to bring suit. Petitioner did not file suit within this time, and as provided in Section 2 of Acts 1981, No. 720: filiation may not thereafter be established. By his delay in filing his proceeding, petitioner is barred from bringing or has lost his right to bring this proceeding.

The appellant further addresses the issue of prescription, arguing that the out-of-state domicile of the alleged father would have interrupted prescription. No authority is cited for this proposition. We hold that an out-of-state domicile of the alleged father does not interrupt prescription (or peremption) under Article 209.

The appellant also contends that prescription was interrupted by the informal acknowledgment of the petitioner by the alleged father. The record does not establish that the appellant was ever “informally acknowledged” by the alleged father. But, even if he had been informally acknowledged, such acknowledgement does not interrupt the prescriptive period provided in LSA-C.C. art. 209. Informal acknowledgment is but one of the methods of proving filiation; it is not a means of interrupting prescription.

For the foregoing reasons, the judgment of the lower court maintaining the exception of prescription is affirmed at appellant’s costs.

AFFIRMED.


author: EDWARDS, Judge.

text:
    John C. TORREGANO v. UNITED STATES FIDELITY & GUARANTY COMPANIES, et al.
    No. 83-CA-0778.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 1984.

      Antoine Z. Laurent, Slidell, for plaintiff, appellant.
    Michael J. Paduda, Jr., Bogalusa, for Herron Wire Products, and U.S.P. & G., appellee (defendant).
    Ronald L. Ronzello, Metairie, for Fidelity & Casualty Co., of New York, intervenor, appellee.
    .Before LOTTINGER, EDWARDS and ALFORD, JJ.
   EDWARDS, Judge.

On October 23, 1979, John C. Torregano, in the scope of his employment, was injured when the vehicle he was driving collided with a vehicle driven by Edwin A. McCoy in the City of Slidell. McCoy was, at the time, in the scope of his employment with Herron Wire Products, Inc.

Torregano brought suit against Herron and its insurer, United States Fidelity & Guaranty Company. The Fidelity & Casualty Company of New York intervened to recover workmen’s compensation benefits paid to and on behalf of Torregano. Following a bench trial, the district judge found Herron Wire Products liable for the negligent acts of McCoy and cast Herron and USF & G for $20,000.00 in damages plus legal interest and all costs. The $20,-000.00 was awarded to Fidelity & Casualty Company, as intervenor. Torregano appeals. We affirm.

Torregano specifies that the trial court erred in:

1. refusing to allow Dr. Neville J. Reehlmann to testify in person rather than by deposition;
2. awarding all of the damages to the intervening workmen’s compensation carrier; and
3. denying plaintiff a new trial and refusing to award the damages prayed for.

When first filed, this case was assigned to Judge Hillary J. Crain, now of the First Circuit. Judge Crain required that, for bench trials, medical testimony be by deposition rather than live. Dr. Reehl-mann’s deposition was taken November 12, 1981. Trial was not till January 25, 1983, some fourteen months later. All parties had ample opportunity to, and did, depose whatever physicians they desired. No objection was made as to Judge Cram’s procedural ruling until the day of trial, at which time Judge Jones offered to hold the record open so that plaintiffs counsel might again depose Dr. Reehlmann to bring his medical testimony up to date. Counsel chose not to so avail himself.

We note that defense counsel followed the original procedure as laid down by Judge Crain. To have allowed one party live testimony when the other party, unsuspecting, had relied on established procedures and not brought live medical witnesses would have been unfair. We further note that Dr. Reehlmann, by deposition, testified carefully, in detail, and at great length. No significant change in his testimony could have taken place without Dr. Reehlmann’s impeaching himself. At most, the original order of Judge Crain was harmless error. Considering what transpired, Torregano’s case was prejudiced in no way and his specification of error is without merit.

Regarding the award of damages being given to the intervenor, we note that not only was said intervenor entitled to the funds as a matter of law but that all counsel stipulated as to the amounts and disposition. This specification of error is also without merit.

Essentially, Torregano objects to the $20,000.00 award, believing it should have been much higher. Torregano claims serious back injuries.

The record reveals plaintiff suffered four or five injuries prior to the October 23, 1979, accident. Torregano sued for at least one such prior injury and, at that trial, claimed to have been permanently and totally disabled since 1977. Plaintiff suffered a subsequent injury in June of 1980, which defendants maintained was the real source of plaintiff’s problems.

Dr. Reehlmann, who did not see plaintiff until May of 1980, was the only doctor called by plaintiff, despite Reehlmann’s testimony that Dr. Warren M. Barnes, the treating physician, would know better the cause of plaintiff’s problems. Doubtless, plaintiff called neither Dr. Barnes nor Dr. Graves, another physician he had consulted, because, as plaintiff himself testified at trial, neither of them could find anything seriously wrong with him.

The district judge wrote a thorough and well-reasoned opinion in which he carefully analyzed all the evidence and concluded that plaintiff had suffered “a moderately severe lumbar strain and a moderate cervical strain.” He found the plaintiff had not proved anything further. Our own searching review of the record convinces us that the trial court’s decision was correct.

For the foregoing reasons, the judgment appealed from is affirmed. All costs of this appeal are to be paid by John C. Torre-gano.

AFFIRMED.


author: CARTER, Judge:

text:
    Yvonne AUCOIN v. PARISH OF EAST BATON ROUGE.
    No. 83 CA 0779.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 1984.

      Arthur Cobb, Baton Rouge, for plaintiff-appellant Yvonne Aucoin.
    Stephen R. Wilson, Baton Rouge, for defendant-appellee Parish of East Baton Rouge.
    Before PONDER, WATKINS and CARTER, JJ.
   CARTER, Judge:

This is a suit against the Parish of East Baton Rouge seeking payment under an 1867 bond issued by the Parish of East Baton Rouge pursuant to an ordinance of the Police Jury passed on September 29, 1866.

Plaintiff, Yvonne Aucoin, is the owner of Bond No. 176 in the amount of one hundred ($100.00) dollars. The bond was redeemable at the pleasure of the Police Jury of East Baton Rouge Parish from five to twenty years from date of issuance. The bond provided that interest be paid at the rate of six percent per annum, beginning on January 1, 1867. The sixteen coupons attached to the bond represented the interest payments due under the bond, from January 1, 1872 to January 1, 1887.

On July 11, 1979, plaintiff filed suit against the Parish of East Baton Rouge alleging that, despite demand, she has been unable to collect the amount due on the bond. The parish subsequently filed an exception of prescription, which was maintained by the trial court. From this adverse judgment, plaintiff appeals.

The prescription pleaded is founded on LSA-C.C. art. 3540, which provides:

-“Actions on bills of exchange, notes payable to order or bearer, except bank notes, those on all effects negotiable or transferrable by indorsement or delivery, and those on all promissory notes, whether negotiable or otherwise, are prescribed by five years, reckoning from the day when the engagements were payable.”

The obligation sued on contains all the elements of a negotiable promissory note. It is an unconditional promise by the defendant parish to pay definite sums of money at fixed dates. Therefore, the applicable prescriptive period is five years. LSA-C.C. art. 3540, Porter v. Town of Ville Platte, 158 La. 342, 104 So. 67 (1925); Littlefield v. City of Shreveport, 148 La. 693, 87 So. 714 (1921).

The case of New Orleans v. Warner, 175 U.S. 120, 20 S.Ct. 44, 44 L.Ed. 96 (1899), cited on behalf of plaintiff, has no application to the case at bar.

In the case sub judice, the bond bears interest at the rate of 6% per annum from January 1, 1867 and the principal of the bond (i.e. $100) is payable in “from five to twenty years” from date of issuance (January 1, 1867). Although the Police Jury had the option to redeem the bond from five to twenty years after it was issued, this option clearly expired on January 1, 1887 and after this date, the bond became due and payable upon demand of holder. The prescriptive period provided by LSA-C.C. art. 3540 began to run, and plaintiffs right to sue on the bond prescribed five years later (January 1, 1982). Plaintiffs right to sue on the bond had clearly prescribed when she filed suit in 1979, some 87 years late.

For the above reasons, the judgment of the trial court dismissing plaintiff’s suit on an exception of prescription is affirmed. Costs are to be paid by plaintiff-appellant.

AFFIRMED.

      . LSA-C.C. art. 3540 was repealed by Acts 1983, No. 173, effective January 1, 1984.


text:
    STATE of Louisiana v. Howard L. JACKSON.
    No. 83-KA-1129.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 1984.

      Bryan E. Bush, Jr., Baton Rouge, for defendant, Howard L. Jackson, and appellant.
    T. Barry Wilkinson, Asst. Dist. Atty., Port Allen, for State of La. and appellee.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   EDWARDS, Judge.

Howard L. Jackson, convicted of aggravated rape and sentenced to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence, appeals this conviction, alleging four assignments of error. We affirm.

Jackson abducted the victim outside a Baton Rouge nightclub, where she had been celebrating a friend’s birthday, on the night of February 19, 1983, and ordered her at gunpoint to drive across the river to Port Allen in West Baton Rouge Parish where, threatening to “blow her mother f_brains out” if she resisted, he raped her twice in a cane field in a place called Poplar Grove. In the respite between the rapes, he stole some money, a set of car keys, and some other items from her purse.

West Baton Rouge sheriff’s deputies spotted Jackson as he was driving out of the cane field, and mistaking him for another man they had been searching for that night, attempted to pull him over. Instead of pulling over, however, Jackson led them on a high-speed chase through the town, the police in pursuit with sirens blaring and lights flashing. He forced one of the police cars off the road into a ditch before cornering himself in a dead-end alley.

Huddled in the passenger seat with a gun at her head during the chase, the victim jumped out of the car when it stopped and ran to safety. Jackson attempted to escape on foot but was apprehended and subdued after a brief but violent struggle with the deputies under a dilapidated cypress shack behind a nearby residence.

In his first assignment of error, defendant contends that the trial court erred in overruling his objection to the State’s allusion during opening statements to an allegedly inculpatory statement.

During the rape, the rapist said several times, “Shut up bitch, I’m going to blow your mother f_brains out.” At a pretrial lineup, each participant or stand-in was asked to repeat the statement to aid the victim in identifying the rapist. The victim positively identified the defendant as the rapist when he repeated the statement.

In his opening statement, the District Attorney referred to the statement and the pretrial identification. Defense counsel objected, arguing that the statement was in-culpatory and prohibited under LSA-C. Cr.P. art. 767 from being referred to in the opening statement. The trial court overruled the objection, ruling that the statement was not inculpatory.

An inculpatory statement is defined as an admission of incriminating facts made by the defendant after, not before or during, the commission of the crime. See State v. Michel, 422 So.2d 1115 (La.1982). The statement here was repeated by each stand-in at the pretrial lineup in order to facilitate identification and was not therefore an admission of incriminating facts. Moreover, because the statement was originally made during the offense, it formed a part of the res gestae. See LSA-R.S. 15:448. References to the res gestae during opening statement are neither prohibited nor improper. See e.g., State v. Belgard, 410 So.2d 720 (La.1982); State v. Craddock, 435 So.2d 1110 (La.App. 1st Cir.1983). This assignment lacks merit.

In assignment of error No. 2, the defendant contends that the trial court erred in allowing the State to refer, again during opening statements, to allegedly inadmissible evidence of other crimes in violation of LSA-C.Cr.P. art. 770.

In opening remarks, the District Attorney said the State intended to introduce the money and the car keys taken from the victim during the rape. The defense counsel moved for mistrial. The State argued that the items referred to, like the statement above, were a part of the res gestae and relevant to the issue of the rapist’s identity. The trial court correctly denied the motion.

The prohibition against references to inadmissible evidence of other crimes under article 770 does not include evidence of words or actions which form a part of the res gestae. State v. Brown, 428 So.2d 438 (La.1983); LSA-R.S. 15:447. To constitute res gestae, those actions or words must be necessary incidents of the criminal act, or immediate concomitants of it, or form in conjunction with it one continuous transaction. LSA-R.S. 15:448.

In the present case, the theft of the money and the car keys can fairly be said to constitute one continuous transaction with the aggravated rape. Reference to this evidence was not therefore improper. This assignment accordingly lacks merit.

In assignment of error No. 3, defendant contends that the trial court erred in admitting into evidence a photographic display of the pretrial identification after the victim had already made an in-court identification. Essentially, he argues that the evidence was unduly cumulative, unnecessary, and therefore prejudicial to the defendant.

This argument is totally meritless. Proper identification of the defendant is very often the crucial issue in a rape case. In light of the State’s heavy burden of proof and the risk of misidentification, we find it difficult to imagine a situation where the corroborating evidence of a positive pretrial identification, when conducted with the proper constitutional safeguards, should be excluded on the grounds of unnecessary cumulation. The evidence is of course prejudicial to the defendant; it tends to prove his guilt of the crime. Compare State v. Brown, supra; State v. Jones, 381 So.2d 416 (La.1980).

Identification was an issue in this case, and the pretrial identification corroborated the victim’s in-court identification of the defendant as the rapist. It was not unfairly prejudicial to the defendant, and the trial court correctly admitted the photographic display into evidence.

In his final assignment of error, the defendant contends that the trial court erred in allowing the State to introduce into evidence the stolen money and car keys without laying the proper foundation.

The victim testified that she had informed the deputies on the night of the crime that defendant had taken from her purse an extra set of car keys, an unmarked bottle of diet pills, and some money—a ten dollar bill, a five, four ones and some change. Immediately after his arrest, the defendant was placed in a cell in West Baton Rouge Parish Courthouse, but a search of his clothing, conducted some time later that night, revealed only the bottle of diet pills. Defendant was transferred to the East Baton Rouge Parish Prison on the morning of the 21st or the 22nd, and another man was placed in his cell for a brief period of time on the 23rd. On the morning of the 25th, after an unsuccessful search of the area where the defendant had been cornered and subsequently arrested, the deputies searched the defendant’s original holding cell and found in the drain pipe the missing car keys and the money — a ten, a five, four ones and some change — but were able to extract only the money and the key to the trunk of the car. The victim positively identified the trunk key as her own.

Defense counsel argues that because the deputies failed to find the items on the defendant after their initial search of his person, and because another man occupied the holding cell after the defendant, the State failed to establish that defendant ever had possession of the stolen items.

There are only three possible explanations how the money and the keys came to be in the drain: the defendant hid them there; the other man hid them there; or the sheriffs deputies hid them there. Since there is no evidence even remotely linking the other man to this case, and since we find preposterous any suggestion that the West Baton Rouge Parish deputies planted the evidence in the drain, either to frame the defendant or to strengthen the State’s case, the only reasonable conclusion is that the defendant hid them there after his arrest. While the deputies could have been more diligent and searched the defendant sooner than they did on the night of the arrest, the circumstances logically point to the defendant’s possession of the stolen items. The trial court therefore did not err in admitting the items into evidence. This assignment lacks merit.

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

AFFIRMED.

       "The state shall not, in the opening statement, advert in any way to a confession or inculpatory statement made by the defendant." LSA-C.Cr.P. art. 767.


author: WATKINS, Judge.

text:
    STATE of Louisiana v. Charles R. STRINGER.
    No. 83 KA 1178.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 1984.
    Lewis V. Murray, III, Asst. Dist. Atty., Franklin, for plaintiff-appellee.
    Thomas J. Ford, Jr., Public Defender’s Assoc., Covington, William J. Guste, Jr., Atty. Gen., State of La., New Orleans, for defendant-appellant.
    Before PONDER, WATKINS and CARTER, JJ.
   WATKINS, Judge.

Defendant, Charles R. Stringer, was charged by bill of information with attempted armed robbery in violation of LSA-R.S. 14:27 and LSA-R.S. 14:64. Defendant was tried by a twelve-person jury and found guilty as charged. He was sentenced to forty (40) years at hard labor without benefit of probation, parole, or suspension of sentence. Defendant now appeals his conviction and sentence urging one assignment of error.

FACTS:

On February 1, 1983, a gunman wearing a stocking on his head entered Travis’ Grocery in Bogalusa, Louisiana. The gunman placed a pistol to the head of one of the store employees, and the two went to the front of the store. The gunman was unable to open a cash register and demanded the keys. At that point, another employee who had managed to escape came back into the store armed with a shotgun and demanded that the gunman drop his weapon. The gunman did so and was unmasked by another employee and turned over to the police. At trial, three of the store employees and two police officers identified defendant as the gunman.

ASSIGNMENT OF ERROR NO. ONE:

In his sole assignment of error, defendant contends that because of error patent on the face of the record his conviction and sentence should be reversed.

LSA-C.Cr.P. article 920 provides:

“The following matters and no others shall be considered on appeal:
(1) An error designated in the assignment of errors; and
(2) An error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.”

We have thoroughly inspected the pleadings and proceedings in the record on appeal, and our inspection has failed to reveal any errors patent on the face of the record.

CONCLUSION:

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

AFFIRMED.


text:
    STATE of Louisiana v. Tommy ALDRIDGE.
    No. 83-KA-1199.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 1984.

      Ossie Brown, Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Loren Kleinpeter, Baton Rouge, William J. Guste, Jr., Atty. Gen., State of La., New Orleans, for defendant-appellant.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   EDWARDS, Judge.

Tommy Aldridge was charged with second degree battery, tried by judge alone, and found guilty of simple battery. He was given a suspended sentence of six months imprisonment and placed on one year unsupervised probation, subject to certain routine conditions not. pertinent here.

Aldridge appeals his conviction, alleging as his one assignment of error that the trial judge “committed error in not considering the evidence of self-defense and/or justification for the battery inasmuch as the preponderance of the evidence clearly established the same.” Our review of the record convinces us otherwise, and we accordingly affirm.

Aldridge committed the offense on November 19, 1982, the Friday before the 55-21 victory over Florida State which sent LSU to the Orange Bowl, when, after two brief encounters and a profane repartee, he sent Tommy Curry, the victim, “flying into the stereo box” with a backhand punch that hospitalized Curry for two days with a fractured skull and caused partial loss of hearing in his right ear. Needless to say, Curry missed the game.

The State’s version of the events immediately preceding the ill-fated punch -is based upon the testimony of the victim and four of his friends and understandably differs from that of the defendant’s.

Curry, a sophomore at L.S.U. at the time and member of the Kappa Sigma Fraternity, had gone with some of his fraternity brothers to Fred’s Bar & Grill, a Baton Rouge establishment catering mainly to the local college students. He was standing on the dance floor with his friends circled around him when someone from behind splashed a drink on his neck. He turned around to see who it was, exclaiming under his breath, “Who was that asshole?”

Ed Wall, one of his fraternity brothers and ostensible peacemaker during the entire episode, pointed out Aldridge, but told Curry to forget about it because Aldridge v/as “just horsing around” with a couple of girls. He had seen Aldridge throw the drink at one of the girls he was with, miss and hit Curry.

Curry glanced over at Aldridge’s group, standing about ten feet away. Aldridge apparently took this to be a confrontational stare, for he came over to Curry and said, “Do you have a problem? Why are you staring at me?” Curry replied, “Well, I got this drink spilled on me.” Wall testified Aldridge was belligerent and appeared to be drunk. Aldridge and Curry exchanged words, and then Aldridge started shoving Curry around. Wall and A1 Morris, Curry’s fraternity big brother, stepped in to separate them. Wall grabbed and held Aldridge until the bouncers came and broke them up. Wall attempted to smooth things over with Aldridge and things appeared to settle down. Everyone returned to his own group of friends.

Wall testified that one of Aldridge’s female companions came over to apologize for the trouble (an apology which the young lady denied at trial ever making). Aldridge came over again and said, “If you have anything to say to me say it to me and not to her.” Curry leaned over and whispered to Wall, ‘.‘This guy’s an asshole.” Aldridge turned to Curry and said, “What did you say?” Curry backed down, “I didn’t say anything.” Aldridge insisted, “What did you say? I know you said something. You called me an asshole.” Curry denied, “No, I didn’t, I wasn’t talking about you.” Aldridge kept insisting until Curry finally agreed. “Okay, yes, you are an asshole.” Curry turned back to the girl standing next to him, and that’s when Al-dridge sent him “flying into the stereo box.”

Pandemonium broke loose. According to A1 Morris, “I watched Tommy fall and then I jumped on.Tommy Aldridge. And then everybody else jumped on and bouncers tried to break it up and it was just a big pile of people in the middle of the bar.”

According to Aldridge, however, Curry and his buddies were the aggressors, not he. He testified that he unintentionally hit Curry with an empty cup after missing an over-the-shoulder hook shot into a nearby trash can. The music was loud, so he hollered out an apology, which Curry either didn’t hear or ignored, for he kept staring at him. Aldridge went over to apologize, but the Kappa Sigs were belligerent and threatening. Several of them cursed him, so he left. He denied shoving anybody during the first encounter.

He returned a few minutes later to apologize again. Somebody shoved him, and somebody else said, “You’d better leave before we kick your ass.” A crowd started forming. Outnumbered and nervous, he started to back away when out of the corner of his eye he saw two guys start to lunge for him. He claims that out of self-defense he struck out blindly, knocking Curry into the stereo box. Then everybody was on him.

None of the other witnesses who testified on his behalf actually saw the punch thrown. Jay Fraioli, the disc jockey on duty in the stereo booth about five feet away, testified that he saw Aldridge pushed in the second encounter but didn’t hear any of the verbal exchanges.

LSA-R.S. 14:19 provides in part,

The use of force or violence upon the person of another is justifiable, when committed for the purpose of preventing a forcible offense against the person ...; provided that the force or violence used must be reasonable and apparently necessary to prevent such offense, and that this article shall not apply where the force or violence results in a homicide.

Defendant argues that his version clearly proves that the punch was both reasonable and apparently necessary to protect himself from the advancing crowd. He further argues that because the trial judge did not discuss or review any factors of self-defense in rendering his verdict of simple battery, he did not properly consider the issue of self-defense, and that such omission is reversible error.

As to the latter argument, a judge in a bench trial is not required to give reasons in support of his verdict, nor is he even required to charge himself on the applicable law, since he is presumed to know it, unless one of the parties timely requests that he do so and provides him with the requested written charges. See LSA-C. Cr.P. art. 781. As the trier of fact, the trial judge is simply bound to apply the law to the facts as established by the evidence and find the defendant not guilty if not convinced of his guilt beyond a reasonable doubt.

By finding the defendant guilty of simple battery in this case, the trial judge implicitly considered and rejected defendant’s self-defense claim. Presented with conflicting testimony about the events preceding the punch, the trial judge obviously chose to believe the testimony of the State’s witnesses rather than that of the defendant’s. Such credibility evaluations do not present legal questions reviewable on appeal in this court. See LSA-C. Cr.P. art. 802(3); State v. Jacobs, 435 So.2d 1014 (La.App. 1st Cir.1983); State v. Coleman, 432 So.2d 323 (La.App. 1st Cir.1983).

We note that defendant’s argument assumes that the defendant rather than the State in a non-homicide case has the burden of proving self-defense.

Technically, this issue has not been decided in Louisiana, although dicta in State v. Freeman, 427 So.2d 1161, 1163 (La.1983), indicates that the burden does indeed rest on the defendant. As in Freeman, however, we need not decide this issue. Regardless of who has the burden of persuasion, and even assuming that the State must disprove self-defense beyond a reasonable doubt, it is quite clear that the defendant in this case did not act in self-defense. Rather than reasonable or apparently necessary, the punch was, as the trial judge described it, a “cheap shot to say the least.”

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

AFFIRMED.

      . For the curious, those conditions are that he not be convicted of any criminal offense during probation, that he not harm, harass, intimidate or confront the victim in any way, and that he pay court costs and deposit 1500.00 into the criminal court fund under the authority of LSA-C.Cr.P. art. 895.1.

      . L.S.U.’s dramatic victory was played before a crowd of 76,637 delirious fans who littered the field with oranges after L.S.U.’s first scoring drive. That delirium turned to depression after the 31-28 loss to Tulane on November 27, 1982.


author: PONDER, Judge.

text:
    STATE of Louisiana v. Herbert Joseph THIBODEAUX.
    No. 83 KA 1328.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 1984.

      Alexander L. Doyle, Asst. Dist. Atty., Houma, for plaintiff-appellee.
    Warren J. Daigle, Houma, William J. Guste, Jr., Atty. Gen., State of La., New Orleans, for defendant-appellant.
    Before PONDER, WATKINS and CARTER, JJ.
   PONDER, Judge.

Defendant, found guilty of simple battery, a violation of La.R.S. 14:35, was sentenced to pay a fine of $500.00 plus costs and to serve six months in the Parish jail; the sentence was suspended and defendant was placed on supervised probation for eighteen months, conditioned upon his serving 20 days in the Parish jail, paying $400.00 of the fine plus costs and making full restitution to the victim for any medical expenses incurred as a result of the battery. Defendant appealed, asserting eight assignments of error. Three of these were not briefed and are considered abandoned. Rule 2-12.4, Uniform Rules, Courts of Appeal.

We affirm.

ASSIGNMENTS OF ERROR NOS. 1 AND 4:

Assignments 1 and 4 were taken when the court overruled defense counsel’s objections to the testimony of two State’s witnesses that when one attempted to telephone the police after defendant’s attack, defendant grabbed the phone from her and wrapped the cord around her neck. Defendant claims that evidence of the phone incident did not contribute to proving the crime with which he was charged.

Evidence of the defendant pointing a gun at a person trying to prevent him from leaving the scene of the crime was held admissible as part of the res gestae of the crime charged. State v. Belgard, 410 So.2d 720 (La.1982). Defendant’s attack during an attempt to summon help was clearly part of the res gestae of the charged offense and testimony concerning the incident was properly admitted.

Defendant makes no complaint of the lapsed time between the battery and the grabbing of the telephone. Two witnesses testified the incident happened immediately after the battery and the judge ruled the testimony admissible. Later, a third witness said that the incident happened ten minutes after the battery and the judge ruled the testimony inadmissible because of the time lapse. We agree with the first ruling, believing that the incident was part of a continuous transaction, even if ten minutes did elapse.

At any rate, the error, if any, is harmless since the trial was before the judge alone. State v. Crothers, 278 So.2d 12 (La.1973), cert. den. 414 U.S. 1096, 94 S.Ct. 731, 38 L.Ed.2d 555 (1973).

ASSIGNMENT OF ERROR NO. 6:

The defendant contends that the trial judge committed reversible error by disallowing a question as to whether investigating officers had obtained a statement from a witness who did not testify. Defendant claims he was unaware of the witness’s existence until after trial had begun and that he was prejudiced because he was prevented from asserting the presumption that since the State did not produce the witness, her testimony would have been adverse.

La.R.S. 15:432 provides that “evidence under the control of a party and not produced by him” is legally presumed to have been adverse to his case. Assuming that the State had “control” of the absent witness and that the defendant did not have equal access, it neither logically nor legally follows that the ruling complained of prevented defendant from raising this presumption. Defendant counsel was certainly free to assert this presumption at any point in the proceedings. See State v. Simms, 381 So.2d 472 (La.1980).

This assignment of error has no merit.

ASSIGNMENT OF ERROR NO. 7:

The defendant contends that the verdict rendered by the trial judge is contrary to the law and evidence. No motion for new trial or motion in arrest of judgment was filed by defendant, but we will consider the issue of the sufficiency of the evidence. State v. Washington, 421 So.2d 887 (La.1982); State v. Coleman, 432 So.2d 323 (La.App. 1st Cir.1983).

The scope of appellate review for the sufficiency of evidence is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

The evidence consisted of the testimony of the victim and four eyewitnesses, all of whom stated that the defendant struck the victim, a bartender, because she would not serve him with another drink after “last call” had been announced. Their testimony differed on that point only as to whether the defendant struck her once or twice and whether she was struck in the head or abdomen. The defendant offered no evidence to contradict that testimony. Defendant’s witnesses testified on the issue of the severity of the victim’s injuries only.

In brief, defense counsel for the very first time argued as justification that the defendant acted in self-defense. Although we need not consider this claim because it was not raised at trial, we determine it is without merit. Defendant and the victim had a harsh verbal exchange over the latter’s refusal to serve him; at that point the victim was behind the bar and defendant was on the other side; the victim may have thrown the contents of a drink at defendant; the victim began to walk from behind the bar and was struck by defendant as she emerged from behind it.

A rational trier of fact could find defendant guilty beyond a reasonable doubt, accepting the evidence in the light most favorable to the prosecution.

ASSIGNMENT OF ERROR NO. 8:

Defendant’s final contention is that the sentence imposed is excessive. The defendant was tried on the charge of second degree battery. The trial judge found the defendant guilty of simple battery, a responsive verdict, and imposed the statutory maximum sentence. However, he suspended the sentence, provided defendant comply with certain conditions.

Defendant argues that the sentence is excessive because his poor physical condition would make imprisonment hazardous. The trial judge ordered a physical examination conducted by the coroner, and the report forwarded to him, to which procedure defense counsel raised no objection. That physician found “no contraindications ... to short term imprisonment.”

The trial judge expressly took into account the fact that the battery was committed on a weaker, female victim; the victim did not provoke or threaten the defendant; defendant had a history of criminal activity; and defendant was in need of a custodial environment. Under these circumstances, we do not find the sentence to be excessive.

For the above and foregoing reasons, the conviction and sentence are affirmed.

AFFIRMED.


text:
    STATE of Louisiana v. Carl COLEMAN.
    No. 83 KA 1349.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 1984.
    Writ Denied Sept. 14, 1984.
    Ossie Brown, Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Kathleen Stewart Richey, Baton Rouge, William J. Guste, Jr., Atty. Gen., New Orleans, for defendant-appellant.
    Before COVINGTON, COLE, and SA-VOIE, JJ.
   SAVOIE, Judge.

Defendant, Carl W. Coleman, was charged by bill of information with aggravated burglary, a violation of La.R.S. 14:60. A jury convicted defendant as charged. He was subsequently sentenced to serve twenty-five years at hard labor to run concurrently with time he is presently serving for another offense. He appeals his conviction and sentence, alleging three assignments of error.

About 1:00 A.M. on July 18, 1982, two young sisters were home watching television when they heard a noise. They called a friend who lived nearby. This man came over, checked the house and stayed to watch television with the sisters. When one of the sisters got up to go to the bathroom, the friend walked with her through the house. As they passed the sisters’ bedroom, they saw standing therein a black male holding a knife. The overhead light was on in the bedroom and the sister stated she could tell the man was defendant whom she had known before and who, as a friend of her brother, had been in the home previously. The friend picked up a stool for protection. The intruder escaped through a bedroom window before any other protective measures could be taken. They later discovered that the window had been pried open and broken.

The friend testified that, although defendant and the intruder had the same body size and hair, he could not say defendant was the man he saw since the intruder was partially masked. The sisters’ brother testified that he and defendant were friends, and defendant had previously been inside their home. The brother also stated he told defendant’s brother that he was going out of town and would not be at home.

ASSIGNMENTS OF ERROR

The defendant alleges that the trial court erred when it:

(1) overruled defense objection to hearsay;
(2) accepted a verdict contrary to law and/or evidence; and
(3) imposed an excessive sentence.

Assignment of error number 1 was not briefed by defendant and is considered abandoned. Uniform Rules of the Courts of Appeal, Rule 2-12.4.

ASSIGNMENT OF ERROR NO. 2

Defendant contends that the trial court committed error when it accepted a verdict contrary to the law and evidence. He argues that the evidence presented was insufficient to sustain his conviction for aggravated burglary. The basis of his argument is the insufficiency of positive identification by only one person and the use of circumstantial evidence to prove the essential element of “intent to commit a felony or any theft, therein.”

“The trial judge is not empowered to accept or reject the verdict of a jury that is correct as to form and meets procedural requirements.” La. Const. Art. 1, Sec. 17; La.C.Cr.P., art. 809-820; State v. Parker, 431 So.2d 114 (La.App. 1st Cir.1983), cert. denied 435 So.2d 433 (La.1983). This court, in State v. Korman, 439 So.2d 1099 (La.App. 1st Cir.1983), held that the proper procedural mechanism to raise the issue of the sufficiency of evidence is by a motion for a post verdict judgment of acquittal under La.C.Cr.P. art. 821. A motion for new trial is the other mechanism for raising this issue. State v. Allen, 440 So.2d 1330 (La.1983). No motion for post verdict judgment of acquittal or for new trial was filed in this case.

Although the issue has not been properly raised, we will consider the merits of defendant’s claim. After reviewing the record, we have determined that the evidence, viewed in the light most favorable to the prosecution is sufficient evidence to support the jury’s verdict. La.C.Cr.P. art. 821.

Positive identification by only one witness is sufficient evidence to support the jury’s conviction of defendant. Where there is conflicting testimony as to factual matters, credibility of witnesses is within the sound discretion of the trier of fact. State v. Kent, 434 So.2d 1258 (La.App. 1st Cir.1983). In this case, the testimony is not in conflict, rather one of the witnesses simply could not positively identify defendant as the intruder.

Specific intent to commit a felony or any theft is an essential element of aggravated burglary. La.R.S. 14:60. “Although the question of intent is a fact question, it need not be proved as a fact; it may be inferred from the circumstances of the transactions surrounding the commission of the crime. Consequently, the State may rely on circumstantial evidence to prove this element.” La.R.S. 15:445; State v. Johnson, 442 So.2d 719 (La.App. 1st Cir.1983). However, where an essential element of the crime is not proven by direct evidence, the rule of La.R.S. 15:438 applies and the State must prove this essential element of the crime to the exclusion of every reasonable hypothesis of innocence. State v. Shapiro, 431 So.2d 372 (La.1983) on rehearing; rehearing denied, June 3, 1983.

We find sufficient circumstantial evidence to exclude every reasonable hypothesis of innocence. The prosecution contended that defendant entered the home with the intent to commit a rape. Defendant entered the home through a bedroom window armed with a knife. When discovered, he approached the 15-year-old female victim in a threatening manner until a male friend intervened. The evidence indicates that defendant was familiar with the house and had reason to believe the two girls would be alone that night. These facts lead us to conclude that the defendant intended harm to the two young girls. We can find no other reasonable hypothesis for defendant’s actions. Had the friend not intervened, very probably serious harm would have befallen one or both of the girls. This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 3

Defendant further alleges that the trial court erred in imposing an excessive sentence. He was sentenced to serve twenty-five years at hard labor to run concurrently with time he is presently serving for another offense.

The trial court has wide discretion in the imposition of sentence within the statutory limits, and a sentence imposed should not be set aside as excessive in the absence of manifest abuse of discretion. State v. Johnson, supra. At the sentencing hearing, the trial judge noted that, although defendant was technically classified as a first offender, this conviction was his second. Defendant previously pled guilty to the charge of receiving stolen things. This offense was committed after the present offense. Furthermore, defendant has a history (as a juvenile and as an adult) of numerous charges for crimes of a violent and dangerous nature. The defendant’s prior criminal activity not resulting in convictions may be considered in determining the sentence. See State v. Flowers, 441 So.2d 1288 (La.App. 1st Cir.1983). Considering the reasons for defendant’s sentence, especially his lengthy criminal record, we do not find the sentence imposed to be an abuse of discretion. This assignment of error lacks merit.

The conviction and sentence are affirmed.

AFFIRMED.


text:
    STATE of Louisiana v. Walter GRISBY.
    No. KA 83 1350.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 1984.

      Ossie Brown, Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Kathleen Stewart Richey, Baton Rouge, William J. Guste, Jr., Atty. Gen., State of La., New Orleans, for defendant-appellant.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COLE, Judge.

The issue before this Court is whether the evidence presented is legally sufficient to support defendant’s conviction.

Defendant, Walter Grisby, was indicted for second degree murder as a result of the stabbing death of Frank West. After waiver of his right to a jury trial, defendant was found guilty as charged by the trial court. He was sentenced to life imprisonment, at hard labor, without the benefit of probation, parole or suspension of sentence. Defendant has appealed, arguing one assignment of error.

This homicide occurred in a boarding house managed by the decedent. Defendant was the only tenant living in the boarding house at the time. The decedent was stabbed six times, including once in the heart, with a sharp instrument. The heart wound caused massive bleeding leading to his death. However, the decedent also sustained other wounds which were potentially fatal in themselves, including two or three stab wounds to the liver.

The State’s chief witness was Tejuana Perkins, a slight acquaintance of the decedent, who testified she overheard an argument between him and defendant over past-due rent. She also witnessed a violent fight in the hallway of the boarding house, after which defendant calmly stepped over the dying victim, went to his room and removed his blood-stained clothing. The decedent’s sister was summoned and testified defendant threatened her when she tried to prevent him from leaving the scene, telling her, “... don’t you touch me, I’ll give you some of the same thing.”

Defendant denied arguing or fighting with the decedent. He claims to have overheard a fight between the decedent and several unknown assailants, after which he attempted to render assistance to the decedent. The trial court rejected defendant’s account and found him guilty as charged.

On appeal defendant contends the trial court erred in failing, in response to his motion for a post-verdict judgment of acquittal, to reduce the verdict to guilty of manslaughter, as authorized by La.Code Crim.P. art. 821(C). Defendant argues the evidence is insufficient to support a verdict of second degree murder because it shows defendant acted in the heat of blood or sudden passion, without specific intent to kill or inflict great bodily harm.

La.Code of Crim.P. art. 821 provides, in pertinent part:

“B. A post verdict judgment of acquittal shall be granted only if the court finds that the evidence, viewed in a light most favorable to the state, does not reasonably permit a finding of guilty.
“C. If the court finds that the evidence, viewed in a light most favorable to the state, supports only a conviction of a lesser included responsive offense, the court, in lieu of granting a post verdict judgment of acquittal, may modify the verdict and render a judgment of conviction on the lesser included responsive offense.”

After viewing the record in accordance with the codal standard expressed above, we find no error in the denial of the motion by the trial court. The record amply supports the verdict of second degree murder, rather than the lesser offense of manslaughter. The trial court chose to believe the testimony of Ms. Perkins, a disinterested observer, rather than the defendant’s far-fetched tale of an attack upon decedent by unknown assailants. Where there is conflicting testimony as to factual matters, determinations of credibility are within the sound discretion of the trier of fact. State v. Kent, 434 So.2d 1258 (La.App. 1st Cir.1983), writ denied, 440 So.2d 727 (La.1983). It is not the appellate court’s function to second guess the trial court’s evaluations of credibility. See, State v. Richardson, 425 So.2d 1228, 1232 (La.1983); State v. Kent, supra.

Specific intent is a legal conclusion to be resolved ultimately by the trier of fact. State v. Graham, 420 So.2d 1126 (La.1982). .Specific intent need not be proven as a fact, but may be inferred from the circumstances of a transaction and the defendant’s actions. Id. The trial court having found defendant guilty of second degree murder, it necessarily found specific intent to be present. We find no abuse of discretion in this conclusion. The defendant stabbed the decedent six times, primarily in the upper body region. Several of these wounds were potentially fatal. The decedent was unarmed. We find these actions and the inferences arising therefrom sufficient to support a conclusion that defendant possessed the specific intent to kill or inflict great bodily harm required for second degree murder.

However, defendant also argues the verdict against him should have been reduced to manslaughter because he acted “in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection.” La.R.S. 14:31(1). There is absolutely no evidence of any provocation by the decedent for the violent attack upon him. Indeed, throughout his trial, defendant maintained he had no problems with the decedent. There is not one shred of evidence to support defendant’s claim that he stabbed the decedent in sudden passion or heat of blood. Accordingly, we find this argument to be totally without merit.

For the above reasons, we affirm defendant’s conviction and sentence.

AFFIRMED.

      . Defendant originally made two assignments of error. However, assignment of error number one was not briefed and is thereby considered abandoned on appeal. Uniform Rules — Courts of Appeal, Rule 2-12.4.

      . Having found sufficient proof of specific intent as required for second degree murder, we pretermit defendant’s argument that this homicide was manslaughter under La.R.S. 14:31(2), rather than second degree murder, since it was committed without specific intent during the course of an aggravated battery.