State v. Odom

• Decision Date: 14 December 1964
• Docket Number: No. 47243,47243
• Citation: 169 So.2d 909,247 La. 62
• Parties: STATE of Louisiana v. N. J. ODOM.
• Court: Louisiana Supreme Court

Page 909

169 So.2d 909

247 La. 62

STATE of Louisiana v. N. J. ODOM.

No. 47243.

Supreme Court of Louisiana.

Dec. 14, 1964.

Paul C. Tate, Tate & Tate, Mamou, for defendant-appellant.

Jack P. F. Gremillion, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., J. Y. Fontenot, Dist. Atty., Morgan J. Goudeau III, Asst. Dist. Atty., for appellee.

McCALEB, Justice.

Appellant was charged by bill of information with violating R.S. 14:67.1, in that he did, on or about July 3, 1963, '* * * misappropriate and take one head of cattle, property of Sidney Guillory, without the consent of the said Sidney Guillory, with intent to deprive the said Sidney Guillory permanently of the said head of cattle.'

After a trial, during the course of which 28 Bills of Exceptions were taken, appellant was found guilty and sentenced to serve seven years at hard labor in the State Penitentiary. On this appeal, reliance is had on 22 ¹ of the 28 bills reserved by appellant for a reversal of the conviction.

Bill No. 7 was taken to the overruling of a motion to quash the bill of information on the ground that it is insufficient to charge any crime known to Louisiana law. This bill is to be considered with Bill No. 6, which was reserved to the overruling of appellant's objection to being forced to undergo trial, as it likewise is grounded upon the claimed invalidity of the bill of information. The predicate of appellant's argument under these bills is that the charge is too indefinite to comply with the requirements of Section 10 of Article 1 of our Constitution--that the accused in all criminal prosecutions shall be informed of the nature and cause of the accusation against him--in that it merely states that he took 'one head of cattle'. This charge, defense counsel claim, does not constitute a sufficient description of the animal taken, since even the short form provided by R.S. 15:235 for theft of cattle, horses, sheep, goats, etc., requires that the animal taken be described in the bill.

We find no merit in the contention. Appellant has been charged in the language of the statute which adequately describes the offense under which the prosecution is brought and, hence, satisfies the constitutional guarantee that the accused be informed of the nature and cause of the accusation. R.S. 14:67.1 declares, in substance, that the theft of cattle, horses, mules, sheep, hogs or goats is the misappropriation or taking of such cattle, or other named animals belonging to another '* * * either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices or representations.' And it further provides that an intent to deprive the owner of the animal or animals described therein permanently is an essential element of the crime.

Appellant, as we have stated, is charged in the language of the statute and this is wholly sufficient to comply with the law--for Article 227 of the Code of Criminal Procedure (R.S. 15:227), while declaring that the indictment must state every fact and circumstance necessary to constitute the offense, further provides '* * * but it need do no more, and it is immaterial whether the language of the statute creating the offense, or words unequivocally conveying the meaning of the statute, be-used.' The rule is well settled that an indictment charging an offense in the language of the statute defining it is sufficient. State v. Scheuering, 226 La. 660, 76 So.2d 921; State v. Kershaw, 234 La. 579, 100 So.2d 873. The exception to this rule is that, where a statute characterizes the offense in general or generic terms an information charging the offense in the words of the statute is insufficient and the specific facts on which the charge is based must be set out therein. State v. Blanchard, 226 La. 1082, 78 So.2d 181, citing State v. Varnado (on rehearing) 208 La. 319, 368, 23 So.2d 106 and other authorities.

Since R.S. 14:67.1 defines the offense of theft of animals named therein with precision, the charge couched in the language of the statute is sufficient.

We are not impressed with the argument of defense counsel that, inasmuch as the short form provided for by R.S. 15:235 for charging theft of cattle and other animals requires a description of the animal or animals stolen, the failure to give a detailed description of the animal taken, when charging in the language of the statute, is fatal to the information.

The charge of the theft of 'one head of cattle', whether under the short or long form, amply describes the thing taken, as 'cattle', in law, designates specifically that class of animal belonging to the bovine species as distinguished from the other animals named in R.S. 14:67.1. It is not essential that the gender of the animal be named or markings or other detailed description be given. Such information may be secured by the accused (as it was in this case) by a request for a bill of particulars.

Bill of Exceptions No. 3 was reserved when the judge overruled a written plea styled 'Plea of Constitutionality' which was filed in limine by defense counsel. This plea assails the validity of two sections of the Code of Criminal Procedure, R.S. 15:432 and R.S. 15:13. It is professed that R.S. 15:432, providing certain enumerated legal presumptions existing in criminal cases which may be destroyed by rebutting evidence and includes the presumption that 'the person in the unexplained possession of property recently stolen is the thief', violates the State and Federal Constitutions in that it deprives the accused of due process and a fair trial by establishing such a presumption of guilt for the crime of theft and further because it is vague, indefinite and ambiguous.

The answer to this plea is that it was premature. Appellant was without interest to question the constitutionality of any legal presumption set forth in the procedural statute (R.S. 15:432) unless and until the prosecution attempted to employ the provision against him.

According to the judge's per curiam to this bill, the State did not rely upon the legal presumption of which counsel makes complaint and, therefore, he suffered no injury. In any case, the attack is patently without merit. It is well settled that statutes providing for legal rebuttable presumptions do not violate any constitutional guarantees of an accused. See State v. Nix, 211 La. 865, 31 So.2d 1, which contains a full discussion of the authorities on this subject.

Insofar as appellant's plea assails the constitutionality of R.S. 15:13, it is difficult to perceive the basis on which it is founded. R.S. 15:13 merely tracks in part those provisions of Section 9 of Article 1 of our Constitution declaring 'All trials shall take place in the parish in which the offense was committed, unless the venue be changed; * * *'. Thus, the question of venue in a criminal case is one of fact.

The theory of defense counsel seems to be that, if the judge should hold that the evidence established venue in St. Landry Parish because appellant possessed the cow there, this would render R.S. 15:13 invalid. For our part, we fail to discern how or why such a finding would affect the Constitutionality of the statute.

Bills Nos. 2, 15--B and 25 have been grouped by defense counsel as relating to each other and we shall endeavor to thus consider them.

Bill No. 2 was reserved to the overruling of appellant's exception of venue and it is his counsel's contention that the evidence taken on the hearing of the exception does not show that the theft was committed in St. Landry Parish.

The contention is not well founded. The owner of the cow, Sidney Guillory, a resident of Acadia Parish, testified that he brought the animal with 18 or 20 other head to a pasture in St. Landry Parish in March or April, 1963, and that, sometime in June of 1963, he noticed that the subject cow was missing, together with six other head belonging to him. This evidence, which was not rebutted, is sufficient to establish that the cow was taken or misappropriated in St. Landry Parish.

When the State's witness, Otis Boudreau, took the stand for the purpose of showing that appellant sold the cow, which he was accused of stealing, at the stockyard in Opelousas, defense counsel objected to the production of the records on the ground that the State had not yet proven the corpus delicti, i.e., that the animal had been stolen. The objection was overruled and counsel reserved Bill No. 15--B.

The bill is not meritorious. R.S. 15:368, while recognizing the general rule that no party can be controlled in the order in which he shall introduce his proof, provides that an exception exists whenever the evidence sought to be elicited requires the laying of a foundation for its admission. The evidence tendered did not require a foundation (proof of corpus delicti) for its admission. On the contrary, it is well settled that it is not essential for the State to prove the corpus delicti as a condition precedent to the introduction of other evidence to connect the accused with the crime charged, the time and order of receiving testimony being controlled to a large extent by the discretion of the trial judge. See State v. Gebbia, 121 La. 1083, 47 So. 32; State v. Hill, 135 La. 625, 65 So. 763; State v. Gani, 157 La. 235, 102 So. 319 and State v. Courtney, 170 La. 314, 127 So. 735.

Bill No. 25 was reserved to the denial of appellant's motion for a new trial and his supplemental motion for a new trial. The motion for a new trial was based on four grounds--(1) that the verdict was contrary to the law and the evidence, which presents nothing for review; (2) that the bills of exceptions reserved showed commissions of prejudicial error, which is a repetition of the arguments made separately on the several bills of exceptions; (3) that the State waived reliance on the legal presumption of guilt set forth in R.S. 15:432 and, subsequently, altered its position by arguing the legal presumption to the jury, and (4) that...