State v. Cucullu
| Decision Date | 26 June 1903 |
| Docket Number | 14,693 |
| Court | Louisiana Supreme Court |
| Parties | STATE v. CUCULLU |
Appeal from Second City Criminal Court, Parish of Orleans; Auguste M. Aucoin, Judge.
Gaston Cucullu was charged with deserting his wife and child. Demurrer to an affidavit sustained, and accused discharged and the state appeals. Reversed.
Walter Guion, Atty. Gen., J. Ward Gurley, Dist. Atty., and J. H Ferguson, Asst. Dist. Atty. (Lewis Guion, of counsel), for the State.
Hamilton Numa Gautier, Paul Louis Fourchy, and John Joseph Reilley for appellee.
Statement of the Case.
An affidavit was filed in the Second city criminal court of the parish of Orleans, charging the defendant with having on the 15th of November, 1902, willfully and unlawfully violated Act No. 34, p. 42, of 1902, relative to deserting and not providing for his wife, Mrs. Gaston Cucullu, and her children, Edward and Mathilde Cucullu, who were then, and were still, in destitute and necessitous circumstances, contrary to the form of the statute of the state of Louisiana in such cases made and provided, and against the peace and dignity of the same.
It appears from a transcript of the proceedings in the city court that, the defendant having appeared, the affidavit was read to him; that he pleaded "Not guilty," reserving the right to withdraw his plea of not guilty, and filing such exceptions or demurrers as he might deem proper; that he was then placed under an appearance bond to appear before the court for preliminary examination on December 5, 1902, which continued till December 13th.
Counsel for defendant withdrew the plea of not guilty, and filed a demurrer to the complaint, to the effect that the matters therein contained, alleged, and set forth were not sufficient in law to compel him to answer the same, and he was not bound by the law of the land to do so, for this: that it was not charged that he had deserted or willfully neglected to provide for the support of his wife and children, and without just cause; and for the further reason that the pretended statute of the state of Louisiana known as "Act No. 34 of the Session of 1902," which defendant was charged with violating, was obnoxious and violative of the provisions of the state Constitution, and was therefore unconstitutional, because:
(1) It violated article 22 of the Constitution of 1898, which commanded and required that the style of the laws of this state shall be, "Be it enacted by the General Assembly of the state of Louisiana."
(2) It violated article 155 of the Constitution of 1898, in that it did not fix the maximum and minimum penalties for acts denounced and punished as misdemeanors.
(3) That the penalty provided for the violation of the provisions of said Act 34, p. 42, of 1902 is uncertain, indefinite, and not susceptible of execution.
(4) The subject-matter and provisions in said act of 1902 sought to be punished as a misdemeanor are essentially of a civil character, at most a quasi offense, which can be judicially inquired into, determined, and executed by civil process, and in a court of civil jurisdiction, and the Legislature is prohibited by the provisions of the Constitution from vesting such inquiry and execution in criminal courts, and the Second criminal court of New Orleans was vested exclusively with criminal jurisdiction.
The defendant prayed judgment, and that he be discharged in the premises.
Upon the argument of this demurrer, the district attorney was allowed to insert in the affidavit the words "without just cause," and the transcript declares that the court, as to the other grounds, took same under advisement. The transcript declares that on the 17th of December "the court sustained the demurrer, dismissed the affidavit, and discharged the accused without date," whereupon "the court granted the state an appeal to the Supreme Court."
Opinion.The appeal has been brought to this court under that clause of article 85 of the Constitution of 1898 which declares that the Supreme Court has appellate jurisdiction in all cases wherein a law of the state has been declared unconstitutional, and in such cases the appeal on the law and the facts is directly from the court in which the case originated to the Supreme Court. Act No. 34, p. 42, of 1902, with whose violation the defendant stood charged, was approved on June 19, 1902. The act denounced by the act was therein declared to be a misdemeanor, which should be punished by "a fine not exceeding one hundred dollars or by imprisonment in the parish prison not exceeding one year or both in the discretion of the court."
By article 140 of the Constitution, there were created in the city of New Orleans two inferior criminal courts, to be known especially as the "First City Criminal Court" and the "Second City Criminal Court," each of which should be presided over by one judge and which should have jurisdiction within the territory prescribed for the trial and punishment, without juries, and subject to the appeal to the criminal district court, of all offenses against the state, where the penalty does not exceed six months' imprisonment in the parish jail, or a fine of $ 300, or both. "In all other cases the judges of said courts shall have jurisdiction as committing magistrates, with authority to bail or discharge."
Article 139 declares that the criminal district court for the parish of Orleans shall have exclusive original jurisdiction for the trial and punishment of all offenses when the penalty of death, or imprisonment at hard labor, or imprisonment without hard labor, for any time exceeding six months, may be imposed, and appellate jurisdiction in all cases tried before the city criminal courts or recorders' courts of New Orleans, which cases shall be appealable on the law and the facts, and shall be tried on the record and the evidence as made and offered in the lower court, provided that, until the General Assembly shall enact a law grading offenses, said court shall have general criminal jurisdiction extending to all cases arising in the parish of Orleans which is not vested by law or by the Constitution in some other court.
"Said court shall have general and supervisory jurisdiction over all inferior state and municipal courts in the parish of Orleans, and shall have authority to issue writs of habeas corpus in criminal and quasi criminal cases, and such other writs and orders as may be necessary or proper in aid of the jurisdiction conferred upon it."
It will be seen from an examination of the articles of the Constitution cited that, if the city criminal court did not have jurisdiction for the trial of this case, the judge thereof, as a committing magistrate, did have jurisdiction over the complaint made, and that, if the city court did not have...
To continue reading
Request your trial