State v. Cavanaugh
| Decision Date | 01 April 1900 |
| Docket Number | 13,472 |
| Citation | 52 La.Ann. 1251,27 So. 704 |
| Court | Louisiana Supreme Court |
| Parties | STATE OF LOUISIANA v. BASS CAVANAUGH |
APPEAL from the Twelfth Judicial District, Parish of Vernon --Read, J.
Milton J. Cunningham, Attorney General, (Charles M. Cunningham, of Counsel), for Plaintiff, Appellee.
Egan & Pegues, for Defendant, Appellant.
Upon February 27, 1899, the appellant waived arraignment, and pleaded not guilty to the charge, set out in a bill of information, that he "did, with a dangerous weapon, to-wit: a pistol, wilfully and feloniously, assault one Cole Young, by wilfully and feloniously shooting at him the said Cole Young, with intent, him, the said Cole Young then and there, to kill, contrary to the form of the statute," etc. The case was fixed for trial upon the following day, when the District Attorney moved to amend the bill by striking out the words "with intent him, the said Cole Young, to kill." Counsel for the accused, thereupon, objected to the proposed amendment, upon the ground, that it "would change the crime charged, from a misdemeanor to a felony; and that said amendment was a matter of substance, and should not be allowed". The objection having been overruled, the District Attorney requested that the accused should be arraigned under the information as amended, and the counsel for the accused objected, on the ground that the accused "could not legally be required to plead under an information thus illegally amended and changed." This objection having, also, been overruled, the District Attorney asked that the case be fixed for trial, to which counsel for the accused objected, upon the same grounds, and the objection was overruled, and a bill of exceptions taken to all of said rulings. The accused was, thereupon, tried, convicted, and sentenced to the penitentiary for twelve months, and he has appealed to this court.
The most serious charge contained in the language originally used in the information, is that of assault with intent to kill, since the words, "by wilfully and feloniously shooting at", are merely descriptive of the manner of the assault; whilst the words "with intent to kill", limit the charge with respect to the purpose of the assault, and the utmost penalty which could have been imposed would have been fine and imprisonment, but not at hard labor.
As amended by the omission of the words "with intent to kill", the charge falls under Act 59 of 1896, and is equivalent, so far as the penalty is concerned, to a charge of assault with intent to commit murder, rape, or robbery, the penalty for which is imprisonment at hard labor, for not more than twenty years.
The character of the amendments which may be allowed to indictments, and informations, within the meaning of Sections 1047 and 1066 R. S., was considered in the case of State vs. Morgan, 35th Ann., 1139, where it was said, in regard to Section 1047, that, it "did not contemplate radical and material changes as to persons or things pertaining to the substance of the indictment, and by which the defendant might be prejudiced." And in State vs Jessie, 30th Ann., 1172, the court, holding that an amendment, changing a charge of...
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