State v. Clark

• Decision Date: 29 November 1909
• Docket Number: 17,765
• Citation: 50 So. 811,124 La. 965
• Court: Louisiana Supreme Court
• Parties: STATE v. CLARK

50 So. 811

124 La. 965

STATE v. CLARK

No. 17,765

Supreme Court of Louisiana

November 29, 1909

Appeal from Fifteenth Judicial District Court, Parish of Calcasieu Winston Overton, Judge.

M. L Clark was convicted of unlawfully conducting a tippling shop for the sale at retail of intoxicating liquors, and he appeals. Reversed and remanded.

Mitchell & Rosenthal (Sompayrac & Westerfield, of counsel), for appellant.

Walter Guion, Atty. Gen., and Joseph Moore, Dist. Atty. (U. A. Bell and R. G. Pleasant, of counsel), for the State.

OPINION

PROVOSTY J.

The bill of information against defendant reads that:

He "at the parish of Calcasieu on or about the 31st day of March, 1909, did unlawfully keep, carry on and conduct a grog and tippling shop and retail spirituous and intoxicating liquors."

Defendant called for a bill of particulars. As his reasons for making the request, he assigned that he was conducting the business of retailing soft or nonintoxicating drinks, and that, unless he was informed which one of the particular soft drinks sold by him in his business was claimed to be intoxicating, he could not properly make his defense. The court refused the request. On the trial it developed that the particular drink which the state had in view as being intoxicating was a drink known by the name of "Senoj."

The state should, we think, have been required to furnish this bill of particulars. It is well settled that a bill of particulars will be required to be furnished when necessary to enable the accused to prepare his defense. Clark's Criminal Procedure, c. 5, p. 161, § 62 et seq.; also, section 63, p. 163; section 151, p. 429 et seq.; Marr's Criminal Procedure, § 253, p. 433, particularly citations under "a" and "c"; City of New Orleans v. Chappuis, 105 La. 179, 29 So. 721; Bishop's Criminal Procedure, § 646, p. 392; Id. c. 29, § 4, par. 624, p. 377; State v. Maloney, 115 La. 511, 39 So. 539. The information was necessary in this case, because the defendant could not know, without it, which particular one of the soft drinks sold by him in his business the state would undertake to show was intoxicating; and hence, unless furnished with the information called for, he would have to come prepared with evidence with reference to every one of the soft drinks sold by him, instead of confining himself to the particular one with reference to which evidence was necessary.

In justification of the ruling, it is said that such a thing might be as that the state could not give any particulars; as, for instance, where nothing more was known than that the visitors to the defendant's place of business became intoxicated while there, without its being known what particular drinks they took. The answer to that suggestion is simply this: That the prosecution cannot be required to furnish a bill of particulars in a case where it has no particulars to furnish. But, because the prosecution is dispensed from furnishing particulars in a case where it has no particulars to furnish, it does not follow that it is dispensed from furnishing particulars in a case where it has them and can furnish them, especially where to furnish them would be so easy as in this case, and so conducive to the fairness of the trial. By admitting that he was carrying on the business of selling soft drinks defendant reduced the possible issues of the case to two: First, whether one or more of the so-called soft drinks sold by him in his business contained intoxicating ingredients; secondly, whether under the pretense of selling soft drinks he was selling alcoholic beverages. He was entitled to know upon which one of these issues the prosecution intended to try the case; and, if upon the former, then which of the several kinds of drinks sold by him the prosecution would contend was intoxicating.

As already stated, "Senoj" is a trade-name. The beverage is manufactured by Jones Bros. & Co. of Louisville, Ky., and is sold to the trade generally. The beverage being thus sold generally under a trade-name, we think that the presumption is that it is manufactured from a formula, and that all of it that is sold is of uniform quality, just as all the beer of a particular brand sold by a brewery can safely be assumed to be of uniform quality. Such being the case, we think that evidence of the intoxicating effects of the beverage when sold at other places than that of defendant was admissible. This is so on the same principle on which one of the bottles out of the stock which the defendant still had on hand might have been taken as a sample of that which defendant had already sold. Com. v. Kendrich, 147 Mass. 444, 18 N.E. 230.

It goes without saying that, before such evidence could be admitted a foundation for its admission would have to be laid by showing that the Senoj sold at the other places was manufactured and sold to the trade generally by the same concern, and was of the same brand as that sold by defendant, and that it was sold in the same condition in which received from the manufacturer. In the case just cited, objection was made that the sample bottle used for analysis had not been...