State v. Barnes, 45617

• Court: Louisiana Supreme Court
• Writing for the Court: FOURNET; HAWTHORNE
• Citation: State v. Barnes, 134 So.2d 890, 242 La. 102 (La. 1961)
• Decision Date: 06 November 1961
• Docket Number: No. 45617,45617
• Parties: STATE of Louisiana v. Billy Joe BARNES.

Page 890

134 So.2d 890

242 La. 102

STATE of Louisiana v. Billy Joe BARNES.

No. 45617.

Supreme Court of Louisiana.

Nov. 6, 1961.

Rehearing Denied Dec. 11, 1961.

Clyde W. Woody, Houston, Tex., Hayes, Harkey & Smith, Monroe, J. Carl Parkerson, Benton, for defendant-appellant.

Jack P. F. Gremillion, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., albin P. Lassiter, Dist. Atty., Gilbert T. Brown, Jr., Hillyer S. Parker, Asst. Dist. Attys., Monroe, for appellee.

FOURNET, Chief Justice.

The defendant, Billy Joe Barnes, having been charged by indictment and convicted of theft in violation of L.R.S. 14:67, ¹ prosecutes this appeal relying upon numerous errors ² allegedly committed during the trial for reversal thereof.

Contending that inasmuch as the indictment follows the short form provided for under L.R.S. 15:235 ³ in that it simply alleges that the defendant 'committed a theft of eighteen hundred dollars * * *, property of Honest John's Inc., the defendant urges that the indictment fails to state every fact and circumstance necessary to constitute the offense with which he was charged, and thus deprives him of information necessary for the proper preparation of his defense in violation of article 1, section 10 of the Constitution of 1921; ⁴ hence, prior to the date which was set for trial of the case, he moved to withdraw his plea of not guilty previously entered in order to file various preliminary pleas and motions, ⁵ including a bill of particulars in which, amongst other things, he requested that he be informed in advance of trial of the particular statute under which the indictment was found and he was to be prosecuted; if the answer by L.R.S. 14:67, whether the theft was committed with the consent of the owner or accomplished by means of fraudulent conduct, practices or misrepresentation; if accomplished without the consent of the owner, the nature and manner in which the appropriation was accomplished; and also, the name of the agent, servant or employee of the owner involved in the transaction. The trial judge refused to allow the defendant to withdraw his plea of not guilty and in overruling the motion for a bill of particulars stated that the motion was filed '* * * too late. It was filed after the arraignment and five days prior to the trial.'

In the case of State v. Holmes, 223 La. 397, 65 So.2d 890, 891 in which the defendant, charged with simple burglary by the short form, sought a bill of particulars to determine whether or not the intent of the accused was to commit a forcible felony or a theft, and if a forcible felony, the nature of it, this Court reversed the conviction and sentence of the defendant on the ground that the denial of the information sought involved the essence of the offense with which he was charged and was necessary to enable him to prepare his defense properly, holding that the trial judge had abused the discretion vested in him in not requiring the district attorney to furnish defendant's timely request of such particulars.

In reaching that conclusion this Court aptly observed, 'If the charge against this accused were laid in the regular or long form, without containing averments describing with certainty the particular crime he intended to commit * * * the bill of information, unquestionably, would be fatally defective for the reason that as a general rule an 'indictment must state every fact and circumstance necessary to constitute the offense,' LSA-R.S. 15:227, and that 'the accused shall be informed of the nature and cause of the accusation against him.' Article 1, Section 10, Louisiana Constitution of 1921.' The Court also pointed out that subsequent to the adoption of the Code of Criminal Procedure many of the short forms authorized and prescribed therein, including the one for theft, have been considered and declared to satisfy the constitutional requirement of informing the accused of the nature of the accusation lodged against him and, therefore, valid principally because of the proviso contained in article 235, now L.R.S. 15:235, 'that the district attorney, if requested by the accused prior to arraignment, may be required by the judge to furnish a bill of particulars setting up more specifically the nature of the offense charged.' ⁶

Counsel for the State concedes that if the defendant's request for the bill of particulars had been filed prior to arraignment, he would have been entitled to some, if not all, of the information sought, but inasmuch as the granting or refusing of a bill of particulars is left to the sound discretion of the trial judge, claims it cannot be said the trial judge abused his discretion in this case, as the accused was represented by counsel at his arraignment and there is nothing in the record to show that the motion could not have been filed prior to arraignment.

We cannot agree with counsel's contention, for as stated in the case of State v. Brooks, 173 La. 9, 136 So. 71, 73, 'the purpose of permitting a bill of particulars where a short form of indictment is used is to fully protect the accused, indicted under such form, in his constitutional right to be informed of the nature and cause of the accusation against him, and for this reason the provision as to a bill of particulars, where short forms of indictment are used, should be liberally interpreted.' In that case, in refusing to allow the defendant, charged with the crime of embezzlement, to withdraw his plea of not guilty on the day of the trial in order to file a motion to quash the indictment or that it be amended instanter so as to clearly show...