State v. Capaci

• Court: Louisiana Supreme Court
• Writing for the Court: LAND, Justice.
• Citation: State v. Capaci, 179 La. 462, 154 So. 419 (La. 1934)
• Decision Date: 26 February 1934
• Docket Number: 32592
• Parties: STATE v. CAPACI

154 So. 419

179 La. 462

STATE v. CAPACI

No. 32592

Supreme Court of Louisiana

February 26, 1934

Rehearing Denied March 26, 1934 [Copyrighted Material Omitted]

Appeal from Twenty-fourth Judicial District Court, Parish of Jefferson; L. Robert Rivarde, Judge.

John Capaci was convicted of murder, and he appeals.

Affirmed.

Leo W. McCune, of Gretna, and G. Wray Gill and Warren M. Simon, both of New Orleans, for appellant.

Gaston L. Porterie, Atty. Gen., James O'Connor, Asst. Atty. Gen., and John E. Fleury, Dist. Atty., and Ernest M. Conzelmann, Asst. Dist. Atty., both of Gretna (Hugh M. Wilkinson, of New Orleans, and James O'Niell, Sp. Asst. to Atty. Gen., of counsel), for the State.

LAND, Justice. ST. PAUL, J., absent. O'NIELL, Chief Justice, (concurring).

OPINION

LAND, Justice.

John Capaci and George Daleo were indicted on January 16, 1933, for the murder of Charles Rabito in the parish of Jefferson. Both defendants made confessions, in which each charged the other with the actual murder of Charles Rabito, and both applied for and obtained a severance on the ground of antagonistic defenses. Each defendant was tried separately and found guilty of murder as charged. From a judgment condemning to death the defendant, John Capaci, an appeal has been taken to this court.

(1) Bill of Exceptions Nos. 1, 2, and 3.

Bill No. 1 was reserved to the overruling of a motion to quash the indictment.

The indictment charges that: "John Capaci and one George Daleo * * * wilfully, unlawfully and feloniously murdered one Charles Rabito. * * *"

The indictment is drawn under the short form authorized by article 235 of the Code of Criminal Procedure, which declares that it shall be sufficient in case of murder to charge that "A. B. murdered C. D."

Before considering the grounds of the motion to quash, we deem it proper to state that Act No. 262 of 1926 is a joint resolution, "Proposing an amendment to the Constitution of the State of Louisiana authorizing the Governor to appoint a commission to prepare a draft of a Code of Criminal Procedure for the State of Louisiana; the manner of submitting said draft of a Code of Criminal Procedure to the Legislature of Louisiana; prescribing the method of amending said draft and the promulgation of said Code when adopted; the composition of the Code Commission; the compensation of the commissioners and the payment of expenses incident to the preparation of said Code."

This proposed amendment was adopted November 2, 1926.

The Legislature by Act No. 2 of 1928 adopted the Code of Criminal Procedure; this act being identical with Senate Bill No. 56, presented and adopted in compliance with Act No. 262 of 1926.

The motion to quash the indictment is based upon the following grounds:

(a) That "malice aforethought" is an essential ingredient of the crime of murder, and, as there can be no murder without malice aforethought, the short form of indictment for murder has changed the substantive law, in that it omits to charge that the homicide was committed with "malice aforethought."

(b) That articles 227, 229, 234, 235, and 248 of Act No. 2 of 1928, Code of Criminal Procedure, are unconstitutional per se, in that they seek to change substantive law, and thus divest defendant of his constitutional guaranty, both under the state and Federal Constitutions (Const. La. 1921, art. 1, §§ 2, 6, 10; Const. U.S. Amend. 14), of equal protection of the law, due process of law, and of the right to be informed of the nature and cause of the accusation against him.

(c) That the Code of Criminal Procedure is unconstitutional in its entirety, as the legal requirements for its adoption have not been complied with.

In bill of exception No. 2, reserved to the overruling of a plea to the jurisdiction, and in bill of exception No. 3, reserved to the overruling of a motion for continuance, article 333 of the Code of Criminal Procedure is added to the above articles as unconstitutional per se, and the attack upon the constitutionality of the Code of Criminal Procedure as a whole is reiterated.

We find it convenient, therefore, to discuss and dispose of all of these bills under the heading of Bills of Exceptions Nos. 1, 2, and 3, as far as the issue raised as to the unconstitutionality per se of these articles of the Code of Criminal Procedure is concerned.

In State v. White, 172 La. 1045, 136 So. 47, this court said in part: "The motion to quash was overruled by the trial judge for the reason that the indictment conforms to the provisions of the Code of Criminal Procedure of the state. It is provided in article 235 of the Code of Criminal Procedure that: 'The following forms of indictments may be used in the cases in which they are applicable, but any other forms authorized by this or any other law of this State may also be used: * * * Murder -- A. B. murdered C. D.'

"The present indictment complies with the form prescribed by article 235 of the Code. The word 'murder,' as used in that article, was deemed by the compilers of the Code, and by the lawmakers in adopting the Code, to be sufficient to include in its legal significance the unlawful killing of a human being with malice aforethought. The short form of indictment for larceny and perjury allowed by article 235 of the Code has been approved by this court, and as 'murder' is a word of universal and common meaning, no citizen of average intelligence could fail to understand the significance of a charge of murder preferred against him. State v. Abeny, 168 La. 1135, 123 So. 807; State v. Miller, 170 La. 51, 127 So. 361.

"The indictment, as confected, does not, in our opinion, deprive defendant of due process of law, nor deny to him his constitutional right to be informed of the nature and cause of the accusation against him."

Defendant in this case is apprised by the indictment with all necessary certainty that the crime with which he is charged is murder, and this satisfies the requirement of Amendment 6 to the Federal Constitution, that the accused be informed as to the nature and cause of the accusation. U.S. v. Mills, 32 U.S. 138, 7 Peters 142, 8 L.Ed. 636; U.S. v. Cook, 84 U.S. 168, 17 Wall. 168, 21 L.Ed. 538; State v. Bartley, 34 La.Ann. 140; State v. Granville, 34 La.Ann. 1088.

The indictment in the White Case, above cited, merely charged that defendant "murdered" the deceased.

In the case now before us, the indictment charges that defendants "wilfully and feloniously murdered" the deceased.

Since the word "murdered" used in the indictment in this case is "sufficient to include in its legal significance the unlawful killing of a human being with malice aforethought," as held in the White Case, the addition of the words "wilfully and feloniously" is an unnecessary allegation, and must be rejected as surplusage, under article 240 of the Code of Criminal Procedure. See, also, State v. Leonard, 162 La. 357, 110 So. 557.

Articles 227, 229, and 234 of the Code of Criminal Procedure relate to recitals requisite in indictments in general, and articles 235 and 248 of the Code relate to recitals in indictments for certain crimes.

Article 235 provides for the short form of indictment in certain cases, cited in that article, and gives the form: "Murder -- A. B. murdered C. D."

This article also states that any other forms "authorized by this or any other law of this State may also be used."

Article 248 declares that: "In all indictments for murder and manslaughter it shall not be necessary to set forth the manner in which nor the means by which the death of the deceased was caused; but it shall be sufficient in any indictment for murder to charge that the defendant did murder the deceased; and it shall be sufficient in manslaughter to charge that the defendant did kill the deceased."

The above articles, in our opinion, deal exclusively with the confection of indictments, a matter of pleading, and do not change the substantive law as to the essential elements of the crime charged.

In State v. Bussa, 176 La. 87, 145 So. 276, 282, it is said: "In State v. Rodosta, 173 La. 623, 138 So. 124, 127, this court said: 'There is a vast difference between substantive law and procedural law. As relates to crimes, substantive law is that which declares what acts are crimes and prescribes the punishment for committing them. Procedural law is that which provides or regulates the steps by which one who violates a criminal statute is punished. "Criminal Procedure" refers to pleading, evidence, and practice.'

"The change in the law, to which defendant refers, is clearly a change in the pleading, that is, in the procedure, required in criminal prosecutions. If this were not so, the mere allegation negativing prescription could not as provided in article 9 of the Code of Criminal Procedure shift the burden of proving the accrual of prescription on the person alleging it."

As neither article 235 of the Code of Criminal Procedure nor any of the articles referred to by defendant deals with substantive law, but relates solely to the confection of indictments, Act No. 2 of 1928, Code of Criminal Procedure, cannot be declared unconstitutional as to these articles, under the contention of defendant that they relate to substantive law, and not to pleading, or procedural law.

(2) Bills Nos. 2 and 3.

Bill of exception No. 2 was reserved to the overruling by the trial judge of defendant's plea to the jurisdiction, and bill of exception No. 3 was reserved to the overruling by the trial judge of defendant's motion for a continuance.

Both of these bills are based upon the alleged failure of the Legislature, and of the House of Representatives, particularly, to properly enact a Code of Criminal Procedure.

The facts are that the Senate finally passed ...