State v. Coon, 45771

• Decision Date: 26 March 1962
• Docket Number: No. 45771,45771
• Parties: STATE of Louisiana v. John E. COON.
• Court: Louisiana Supreme Court

Page 350

141 So.2d 350

242 La. 1019

STATE of Louisiana v. John E. COON.

No. 45771.

Supreme Court of Louisiana.

March 26, 1962.

Dissenting Opinion March 30, 1962.

Rehearing Denied June 4, 1962.

D'Amico & Curet, Baton Rouge, for defendant-relator.

Jack P. F. Gremillion, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Sargent Pitcher, Jr., Dist. Atty., for plaintiff-respondent.

HAMLIN, Justice.

The defendant, John E. Coon, was indicted by the Grand Jury for the Parish of East Baton Rouge for a violation of LSA-R.S. 14:138, Public Pay Roll Fraud, 'in that he, a public official, in his capacity as State Fire Marshal in charge of the State Fire Marshal's Office, carried or permitted to be carried directly upon the employment list or payroll of said Office the name of Gibson O. Kimberlin as an employee of his office, specifically as a Deputy Fire Marshal I, and paid said employee for services rendered as a Deputy Fire Marshal I, with knowledge that such employee was receiving payment or compensation for services not actually rendered by said employee or for services grossly inadequate for such payment or compensation, * * *'

In the exercise of our supervisory jurisdiction (Art. VII, Sec. 10, La.Const.1921, LSA) we issued a Writ of Certiorari, 'limited to a consideration of the question of venue or jurisdiction,' to review a judgment of the trial court which overruled a motion to quash for lack of jurisdiction filed by the defendant. The motion recites in part:

'That if the name of Gibson O. Kimberlin was 'carried' or 'permitted to be carried' on any payroll or employment list of the State Fire Marshall's office, same was done in the Parish of Orleans.

'The said Gibson O. Kimberlin was paid by the State Fire Marshal by means of checks made in New Orleans, drawn on a bank in New Orleans, in which were deposited the funds of the State Fire Marshal, payable to Gibson O. Kimberlin, which checks were sent from New Orleans to Gibson O. Kimberlin at Baton Rouge, Louisiana, where Gibson O. Kimberlin deposited said checks in a Baton Rouge bank or banks and were honored and paid by the New Orleans bank on which they were drawn, except one check which was made in New Orleans, drawn on a bank in Ouachita Parish in which were deposited the funds of the State Fire Marshal, payable to the order of Gibson O. Kimberlin and was sent from New Orleans to Gibson O. Kimberlin at Baton Rouge and was subsequently honored and paid in Ouachita Parish.

'That if the accused had knowledge that Gibson O. Kimberlin was receiving payment or compensation, said knowledge was acquired in the Parish of Orleans.

'Should the State contend that a substantial element of the crime was committed in the Parish of East Baton Rouge (which is denied by the accused) and that jurisdiction is vested in this Parish by virtue of R.S. 15:13, defendant alleges that R.S. 15:13 is unconstitutional null and void, wherein same provides that an accused may be tried in any Parish where a substantial element of the crime has been committed, because it violates Art. 1, Sections 2 and 9 of the Constitution of Louisiana, in permitting an accused to be tried in a Parish other than where the crime was committed and violates the 'due process' clause of the 14th Amendment of the U.S. Constitution in that the accused may be deprived of his liberty without due process of law.'

The motion to quash for lack of jurisdiction was tried on a stipulation of facts entered into between the District Attorney and counsel for the defendant, the pertinent parts of which set forth:

1. That the accused was the State Fire Marshal.

2. The accused was domiciled in the Parish of Ouachita.

3. The main office of the State Fire Marshal is located in Orleans Parish.

4. The employment records of his office are kept in Orleans Parish.

5. That for the purposes of the performance of his duties as State Fire Marshal the accused resided in Orleans Parish.

6. The names of the employees of the Fire Marshal were carried on the payroll and employment roster of said office in Orleans Parish.

7. That the name of Gibson O. Kimberlin was carried on the employment roster or payroll list of the Fire Marshal's office in Orleans Parish.

8. A copy of the classified (civil service) employees of the Marshal's office was kept in East Baton Rouge Parish on which appeared the name of Gibson O. Kimberlin as a Deputy Fire Marshal I.

9. That Gibson O. Kimberlin was paid by the issuance of checks by the Fire Marshal payable to the order of Gibson O. Kimberlin.

10. All of said checks were drawn on the Bank of New Orleans & Trust Co. located in Orleans Parish, except one check dated January 23, 1961, which was drawn on the Ouachita National Bank in Ouachita Parish.

11. All checks were signed by the accused as State Fire Marshal.

12. All checks were sent from the Fire Marshal's office in Orleans Parish to Gibson O. Kimberlin at Baton Rouge where he received them.

13. That the funds from which all of the above mentioned checks were paid by the Bank of New Orleans and Trust Company at its business house in New Orleans, Louisiana, Orleans Parish, Louisiana, were derived in the following manner: The Fire Marshal, John E. Coon, on July 5, 1960, on August 24, 1960 and on December 29, 1960, drew three warrants addressed to the Auditor of the State of Louisiana, requesting him to direct the State Treasurer to pay to the order of the Fire Marshal, State of Louisiana, various sums of money; that these warrants were drawn for the State Fire Marshal in New Orleans, deposited to the State Fire Marshal's Account and were honored out of funds on deposit in the City National Bank in the Parish of East Baton Rouge, State of Louisiana, to the account of the State Treasurer.

14. All checks were endorsed by Gibson O. Kimberlin and deposited by him in the American Bank and Trust Company at Baton Rouge, Louisiana, except two which were endorsed by him and cashed by his wife in the City of Baton Rouge.

15. All checks drawn on the Bank of New Orleans & Trust Co. were honored at its banking house in Orleans Parish and the check drawn on the Ouachita National Bank was honored by it in Ouachita Parish.

The State contends that the trial judge was correct in his ruling that the Nineteenth Judicial District Court for the Parish of East Baton Rouge had jurisdiction of the trial of the alleged offense and asserts that venue for this prosecution for the violation of LSA-R.S. 14:138 ¹ lies in the Parish of East Baton Rouge, where Gibson O. Kimberlin was paid by defendant, who sent the checks to him while he was in said Parish, with knowledge that said Kimberlin was receiving payment or compensation for services not actually rendered by said Kimberlin, or for services grossly inadequate for such payment or compensation, after defendant had, as State Fire Marshal, knowingly carried or permitted said Kimberlin to be carried directly upon the employment list or pay roll of the State Fire Marshal's Office as an employee of said office, for services not actually rendered or for services grossly inadequate for such payment or compensation.

The defendant contends:

1. The venue for the prosecution of the State Fire Marshal for the violation of LSA-R.S. 14:138 (Public Pay Roll Fraud) cannot be had in the Parish of East Baton Rouge where he has committed no overt acts toward the accomplishment of the alleged crime.

2. The carrying or permitting one to be carried upon the employment list or pay roll of the State Fire Marshal's Office and the payment of anyone for services not actually rendered or for services grossly inadequate for such payment or compensation, if committed by the State Fire Marshal would be so done by him in the Parish of Orleans and therefore the Parish of East Baton Rouge would not have venue of the alleged offense, particularly where the checks issued for the payment of said services were issued by the State Fire Marshal outside of the Parish of East Baton Rouge to the alleged purported employee drawn on a bank outside of the Parish of East Baton Rouge and which checks were honored by said bank outside the Parish of East Baton Rouge.

The contentions advanced by the State and the defendant place the question of the constitutionality vel non of LSA-R.S. 15:13 at the threshold of the case, and we direct our immediate attention to a consideration of it.

LSA-R.S. 15:13 provides:

'All trials shall take place in the parish in which the offense shall have been committed, unless the venue be changed; provided that where the several acts constituting a crime shall have been committed in more than one parish, the offender may be tried in any parish where a Substantial element of the crime has been committed.' (Emphasis ours.)

The above statute came into existence in its entirety by the passage of Act 147 of 1942, ² which in part amended and reenacted Article 13 of the Louisiana Code of Criminal Procedure of 1928. At the time the statute was passed, Article I, Section 9, of the Louisiana Constitution of 1921 provided, 'that all trials shall take place in the parish in which the offense was committed, unless the venue be changed.'

Act 63 of 1940 (the 'Deadhead' statute), in great part similar to LSA-R.S. 14:138, provided in Section 4:

'That the District Court of the parish wherein any draft or check for the payment of any pretended services, prohibited under this Act, is drawn, or the District Court of the parish wherein the employment list or payroll records of the employment are ordinarily kept, or the District Court of the parish wherein any draft, check or payment for pretended services was received or cashed or deposited, shall have jurisdiction to try offenses under this Act.'

Article 138 of the Louisiana Criminal Code (Act 43 of 1942), Public Pay Roll Fraud, now LSA-R.S. 14:138, omitted Section 4 of Act 63 of 1940, supra. However, the comment following Article 138 of the Louisiana Criminal Code, published by authority of the State in 1942,...