State v. De Arman

• Decision Date: 26 February 1923
• Docket Number: 25683
• Citation: 95 So. 803,153 La. 345
• Court: Louisiana Supreme Court
• Parties: STATE v. DE ARMAN

95 So. 803

153 La. 345

STATE v. DE ARMAN

No. 25683

Supreme Court of Louisiana

February 26, 1923

Appeal from Fifteenth Judicial District Court, Parish of Beauregard Jerry Cline, Judge.

John De Arman was convicted of possessing intoxicating liquors for beverage purposes, and he appeals.

Judgment annulled and set aside, and cause remanded, with instructions.

P. L Ferguson, of Leesville, and Ped C. Kay and Sam H. Jones, both of De Ridder, for appellant.

A. V Coco, Atty. Gen., and Griffin T. Hawkins, Jr., Dist. Atty., and Mark C. Pickrel, Asst. Dist. Atty., both of Lake Charles (T. S. Walmsley, of New Orleans, of counsel), for the State.

OPINION

DAWKINS, J.

Defendant was convicted and sentenced for possessing intoxicating liquors for beverage purposes, and brings this appeal, relying upon five bills of exception.

Bill No. 1.

Bill No. 1 presents for review the action of the lower court in overruling in part a motion for a bill of particulars. The information requested was as follows:

"(a) What was the liquor alleged to have been possessed?

"(b) What date was it alleged to have been possessed?

"(c) Where was it that it was alleged to have been possessed?

"(d) Was it day or night?

"(e) At about what hour was it alleged to have been possessed?"

The motion was sustained to the extent of requiring the state to show the kind of liquor possessed, or as to paragraph (a), and otherwise overruled. The district attorney answered that the state expected to show it was corn whisky.

We think the accused was entitled to know (c)the place where he was charged to have possessed the liquor. It is true, as stated by the lower judge, that possession is a continuing fact, but one may possess such liquors at any number of places in the course of a day, such possession may be actual or constructive, and he should be reasonably informed of the place and circumstances upon which the state will rely, in order that he may be prepared to meet or rebut the proof submitted by the state. See State v. Rollins, 153 La. 10, 95 So. 264, No. 25,633.

With reference to the time -- (b), (d), and (e) -- we think that was sufficiently alleged, for the trial court, we assume, would and did confine the state, in so far as the offense was concerned, to the day charged, although it might be shown, as corroborating evidence to support the conviction as of that date, that the same liquor was possessed within a reasonable time before the date charged. But we do not think the state was required to allege in detail whether it was day, night, or the particular hour.

Bill No. 2.

This bill was reserved to the overruling of a motion to quash upon the ground that the bill of indictment, as amended by the particulars furnished under the ruling of the trial court did not charge an offense known to the laws of the state. The grounds alleged and argument made are the same as those embraced and passed upon in detail in...