State v. Ackerman

• Decision Date: 15 May 1899
• Docket Number: 13,135
• Citation: 51 La.Ann. 1213,26 So. 80
• Court: Louisiana Supreme Court
• Parties: STATE OF LOUISIANA v. CARL ACKERMAN

26 So. 80

51 La.Ann. 1213

STATE OF LOUISIANA v. CARL ACKERMAN

No. 13,135

Supreme Court of Louisiana

May 15, 1899

Argued April 22, 1899

ON APPEAL from the Fifth Judicial District Court for the Parish of Ouachita. Potts, J.

M. J Cunningham, Attorney General, and J. P. Madison, District Attorney, for Plaintiff and Appellee.

Stubbs & Russell, for Defendant and Appellant.

OPINION

MONROE J.

Defendant having been prosecuted under Act No 94 of 1896, was convicted, and sentenced by the district judge, without a jury, agreeably to the provisions of Article 110 of the Constitution, and he has appealed, and asks that the judgment against him be reversed, on the following grounds, which were presented to the court a qua in motions to quash, and in arrest of judgment, respectively to-wit:

1st. That the charge against him is too vague and indefinite; that the offence is charged as having been committed on the -- day of December, 1898, and is, therefore, so indefinite as to render it impossible for him to plead thereto.

2. That the information is defective, in that the time and place at which the purchases were made, are not set forth, and, therefore, the court is without jurisdiction.

3. That no offence is legally charged against him.

4. That the statute under which the charges are brought is in conflict with Article 29 of the Constitution of 1879, in that it embraces more than one object.

The information reads as follows, to-wit:

"J. P. Madison, District Attorney of the Fifth Judicial District of the State of Louisiana, who prosecute in this behalf, in the name and by the authority of the State of Louisiana, comes in person, into the Fifth Judicial District Court, in and for the parish of Ouachita, State of Louisiana, and, with leave of the court had and obtained, on the 23rd day of the month of February, Anno Domini, eighteen hundred and ninety-nine, gives the court herein to understand and be informed, that Carl Ackerman, late of the parish aforesaid, in the Fifth Judicial District of the State of Louisiana, on or about the -- day of the month of December, in the year of our Lord, one thousand eight hundred and ninety-eight, in the parish, district and State aforesaid, did then and there, wilfully and feloniously sell, hypothecate, pledge, and otherwise dispose of, out of the usual course of business, and with the intent to cheat and defraud his vendor and seller, 17 2-3 dozen pairs of pants, of the value of one hundred and sixty-one and 50-100 dollars, said pants having been bought by said Ackerman on a credit, from B. J. Wolff & Sons, of New Orleans, La. Contrary to the form the statute of the State of Louisiana in such case made and provided, in contempt of the authority of the State of Louisiana, and against the peace and dignity of the same.

And the said Madison, in his capacity aforesaid, further presents that the said Ackerman did then and there, wilfully secrete himself and abscond from the State of Louisiana, with the wilful intent of cheating and defrauding his said vendors, B. J. Wolff & Sons, contrary to the form of the statute of the State of Louisiana in such case made and provided, in contempt of the authority of the State of Louisiana, and against the peace and dignity of the same."

The defendant was found guilty and sentenced upon the first count, and, with respect to the second count, the motion in arrest of judgment was sustained.

The title and text of Act No. 94 of 1896, read as follows, to-wit:

"An act to amend and re-enact Act 166 of 1894, approved July 13, 1894, entitled, 'An act to define and punish certain misdemeanors in trade and commerce, and to define the crime of purchasing goods, wares or merchandise, under an assumed name, with intent to cheat or defraud the vendor or seller; also, to make it a crime for anyone to purchase goods, wares, or merchandise, on credit, and sell, hypothecate or dispose of the same, out of the usual course of business, with the intent to cheat or defraud the vendor or seller; and, also, to make it a crime for anyone to purchase goods, wares, or merchandise on credit and then to abscond from the State or secrete himself, with the intent of cheating or defrauding, the vendor or seller; and, also, to make it a crime for anyone, wilfully and knowingly to purchase, in block, goods, wares, or merchandise, unpaid for, from anyone without exacting from the seller a written affidavit that said goods, wares, or merchandise has been paid for; and making the failure to exact such affidavit, and the failure of the seller to pay over the whole of such purchase price to his creditors, in proportion to the amount of their respective claims, evidence of the fraudulent attempt, within the meaning of this act, and to fix the punishment of said offence.'

Be it enacted by the General Assembly of the State of Louisiana, that Act No. 166, of the session of 1894, be amended and re-enacted so as to read as follows:

Section 1. That whoever shall purchase goods, wares, or merchandise under an assumed or fictitious name, and with the intent to cheat or defraud the seller or vendor, shall be guilty of misdemeanor, and, on conviction thereof, shall suffer fine in the discretion of the court, and be imprisoned not less than six, nor more than twelve months.

Sec. 2. Be it further enacted, etc. That whoever shall purchase goods, wares, or merchandise on credit, and shall hypothecate, pledge, or otherwise dispose of same, out of the usual course of business, and with the intent to cheat or defraud the seller or vendor, shall be guilty of a misdemeanor, and, on conviction thereof, shall suffer fine in the discretion of the court and imprisonment, not less than six nor more than twelve months.

Sec. 3. Be it further enacted, etc. That whosoever shall purchase goods, wares, or merchandise on credit, and shall secrete himself or abscond from the State for the purpose, and with the intent of defrauding the seller or vendor, shall be decreed guilty of a misdemeanor and, on conviction thereof, shall suffer fine in the discretion of the court and imprisonment for not less than six nor more than twelve months.

Sec. 4. Be it further enacted, etc. That whosoever shall wilfully and knowingly purchase in block, goods, wares, or merchandise, unpaid for by the seller, without exacting from said seller a written statement, sworn to, showing that said goods, wares, or merchandise have been paid for, shall be guilty of a misdemeanor, and, on conviction, shall be fined an amount in the discretion of the court, and suffer imprisonment for not less than six nor more than twelve months.

Sec. 5. Be it further enacted, etc. That the failure of the vendor, under Sections 1, 2, and 3, to pay over to his vendor or vendors, the price of such goods, wares, or merchandise, in proportion to their claims, or to return the same; and the failure of the purchaser, under Section 4, to exact a signed or sworn statement from the seller required in said section, shall be such prima facie evidence of fraudulent intent within the meaning of this act, as to warrant both criminal and civil proceedings."

I.

As to the failure to set forth the time at which the offence is said to have been committed.

It is well settled that, unless time is of the essence of the offence, the proof need not correspond with the charge. Nevertheless, the general rule is, that:

"The day and year of the offence should be stated, except in those states whose statutes have made the allegation of time unnecessary, or permitted it to be less specific." Bishop's New Crim. Pr., Vol. 1, § 386-7.

Louisiana is within the exception. Section 1063, Revised Statutes, reads:

"No indictment for any offence shall be held insufficient * * * for omitting to state the time at which the offence was committed, in any case, where time is not of the essence of the offence, nor for stating the time imperfectly, nor for stating the offence to have been committed on a day subsequent to the finding of the indictment, or on an impossible day, or on a day that never happened," etc.

II.

As to the failure to set forth the time and place at which the purchase was made.

The most that can be claimed as to the purchase is, that the offence under the second section of the statute, consists in disposing of goods, bought on credit, and hence, that it is necessary to charge that the goods sold or hypothecated, etc., with intent, etc., were bought on credit. But it is clear that no greater exactness as to time is required with respect to the purchase than with respect to the sale or other disposition.

As to the place of purchase, it would be immaterial, as a matter of proof, and is so made, by statute, as a matter of averment. Revised Statutes 1062, reads:

It shall not be necessary to state any venue in the body of any indictment, but the State, parish, or other jurisdiction named in the margin thereof, shall be taken as the venue for all the facts stated in the body of such indictment, etc.

"Sec. 1063. No indictment for any offence shall be held insufficient for want of the averment of any matter unnecessary to be proved * * * nor for want of a proper or perfect venue."

III.

As to the suggestion that no offence was legally charged.

The charge in the first count -- upon which alone the defendant was sentenced -- follows the language of the statute and is sufficient.

IV.

It is said that the act, under which the State prosecutes, embraces more than one object, and is, therefore, repugnant to Article 29 of the Constitution of 1879, which reads as follows, to-wit:

"Art. 29. Every law enacted by the General Assembly shall embrace but one object and that shall be expressed in the title."

No complaint is made that the title fails to express...