State v. Brooks

• Citation: 173 La. 9,136 So. 71
• Decision Date: 22 June 1931
• Docket Number: 31237
• Court: Supreme Court of Louisiana
• Parties: STATE v. BROOKS

136 So. 71

173 La. 9

STATE v. BROOKS

No. 31237

Supreme Court of Louisiana

June 22, 1931

Appeal from Twenty-Second Judicial District Court, Parish of St Tammany; C. Ellis Ott, Judge.

John H Brooks was convicted on a charge of feloniously and wrongfully embezzling, disposing of, and converting to his own use a certain check, and he appeals.

Reversed and remanded, with directions.

Frank B. Ellis, of Covington, for appellant.

Percy Saint, Atty. Gen., E. R. Schowalter, Asst. Atty. Gen., and C Sidney Frederick, Dist. Atty., of Covington, for the State.

LAND J. ST. PAUL, J., dissents.

OPINION

LAND, J.

The indictment in this case charges that defendant did receive and take into his possession, as agent, trustee, or pastor of the First Baptist Church, Covington, La., a certain check for $ 400 payable to the First Baptist Church, and the said check and money did feloniously and wrongfully embezzle, dispose of, and convert to his own use.

Defendant was found guilty as charged by nine out of twelve jurors, and was sentenced to imprisonment in the state penitentiary at hard labor for not less than seven years nor more than fourteen years.

Defendant has appealed, and presents for our consideration seventeen bills of exceptions.

Bill of Exception No. 1.

This bill was reserved to the refusal of the trial judge to permit defendant to withdraw his plea of not guilty and to file a motion to quash the indictment.

The motion to quash alleges that the indictment does not set out with any degree of certainty that the First Baptist Church of Covington was the owner of the property which it is charged was embezzled, and that it must be clearly shown that defendant stands in a fiduciary relationship to the owner of the property that is embezzled.

Defendant prays that the motion to quash be sustained, and that the indictment be amended instanter, otherwise that it be adjudged null and void.

In the per curiam to this bill, it is stated by the trial judge that:

"The motion to quash covered in this bill was not offered for filing until the day of trial, and when the case was called for trial. As the defendant had been arraigned for some time, and no effort was made to file a motion to quash, nor request made to withdraw the plea of not guilty for that purpose, the court deemed it too late and an unnecessary cause of delay to permit the plea to be withdrawn and the motion filed. The matter was in the discretion of the court, and the defendant was not prejudiced by the action of the court. Article 284, Code Cr. Proc.

"Moreover, the indictment alleges that the money which defendant was charged with having embezzled, was in the form of a check payable to the First Baptist Church, and that defendant sustained to said church the relation of agent, trustee, or pastor. This is sufficient to charge an offense under the statute. Code Cr. Proc. arts. 235, 236, and 245."

Article 284 of the Code declares that: "Every objection to any indictment shall be taken by demurrer or by motion to quash such indictment, before the arraignment; and every court before which any such objection shall be taken for any formal defect, may, if it be thought necessary, cause the indictment to be forthwith amended in such particular, and thereupon the trial shall proceed as if no defect had appeared."

Article 265 of the Code provides that: "The defendant may at any time, with the consent of the court, withdraw his plea of not guilty and then set up some other plea or demur or move to quash the indictment."

It is clear, from the provisions of article 265, that a defendant, at any time after arraignment, may withdraw his plea of not guilty, with the consent of the court, and demur or move to quash the indictment.

As said in State v. Foster, 150 La. 971, 975, 91 So. 411, 413:

"The court refused to grant permission to withdraw the plea of not guilty, so that the motion to quash might be filed, but permitted defendant to offer his evidence, in support of that motion, to form part of the bill of exception reserved.

"While we are not impressed that the evidence thus offered shows that the indictment should be quashed, yet the matter properly comes before us on the refusal of the trial judge to permit the withdrawal of the plea of not guilty so as to afford defendant an opportunity to file the motion to quash. The withdrawal of the plea for such a purpose rests within the discretion of the trial judge, and the exercise of that discretion will not be interfered with save where it has been clearly abused. State v. Gregg, 123 La. 610, 49 So. 211; State v. Boudreaux, 137 La. 227, 68 So. 422; State v. Sandiford, 149 La. 933, 90 So. 261. There is no abuse of discretion in refusing to permit the withdrawal of the plea of not guilty where defendant has waited over a year, and until the day of trial, to move to withdraw it."

No such delay occurred in the case at bar, as only two months elapsed between the date of arraignment of defendant and the day of trial.

That no further delay was intended by the defendant appears from the prayer of his motion that the indictment "be amended instanter," so as to clearly show the ownership of the check and defendant's fiduciary relationship to the owner.

Whether the indictment be sufficient in these respects is not now a matter before this court for decision, as defendant was not permitted to withdraw his plea of not guilty and file his motion to quash.

Be that as it may, defendant was unquestionably entitled to the amendments sought, as a bill of particulars, if nothing more, since this information was necessary to enable defendant to defend himself intelligently.

The short form of indictment for embezzlement is as follows in the Code of Criminal Procedure: "AB. embezzled (describe property embezzlement and state value of property.)" Article 235, p. 64.

Immediately following the short forms of indictment allowed in the above article is the following provision:

"Provided, 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."

It is clear that this form of indictment does not state either the ownership of the property embezzled nor the fiduciary relation of the party charged to the owner.

Nor does the short form of indictment used in this case sufficiently do so.

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.

Bill of Exception No. 2.

The district attorney, on direct examination, propounded the following question to a state witness:

"Q. Did Mr. Alexius make any demand on your church for the payment of this $ 400.00 for lumber?" (Being $ 400.00, which it is charged was embezzled, borrowed by the church from the Baptist Ass'n.)

"A. He did."

Defendant, through counsel, objected to this question "as incompetent, irrelevant, and immaterial for the reason that the indictment does not show any fiduciary relationship between this defendant and Mr. Alexius, and even if the duly constituted authorities of the church had previously promised to pay this money to Mr. Alexius, this did not vest him with any ownership of these funds. Further, the title to the property embezzled by an agent or other person occupying a fiduciary relationship must be in principal or employer, and having no principal or employer, then the charge of embezzlement falls."

The court ruled that, as the evidence then showed that the $ 400 was loaned to the church for the purpose of paying its debts, or to be used by the church in such manner as it saw fit, any question relating to the payment of the debts of the church will be relevant, as well as testimony as to any acts of the trustees, until it is further shown that there were minutes or written acts of the church.

Besides, the defendant claimed that he had a right to the funds charged to have been embezzled, by virtue of the action of the church in reimbursing him for money due and back salary.

The above testimony was also admissible as showing a counterclaim to this fund and tending to establish a felonious intent upon the part of defendant in appropriating it.

Bill of Exception No. 3.

The district attorney, on direct examination, propounded to John Elliott, a witness testifying in chief for the state, the following question:

"Q. Will you please state for what purpose the church borrowed this money from the Association?

"A. To pay Mr. Alexius."

To this question, defendant, through counsel, objected for the following reasons, to wit:

"That the minutes of a regular meeting of the congregation of said church, held in the church house on the 22nd day of November 1929, and as transcribed in the handwriting of Velma Elliott, acting as secretary, and identified by a previous witness for the state, namely Estel Cole, vice-president of the Board of Trustees of said church, are the best evidence as to the purpose and reasons for which this money was borrowed from the Association.

"Any other evidence is merely secondary and inadmissible, particularly in view of the fact that this regular meeting of the congregation of the First Colored Baptist Church of Covington, Louisiana was held at a time when there was no dissension among the members of the church and all members were acting unanimously in furtherance of their business, and the written minutes of said church as aforesaid are...