State v. Copling
| Decision Date | 11 December 1961 |
| Docket Number | No. 45614,45614 |
| Citation | 135 So.2d 271,242 La. 199 |
| Parties | STATE of Louisiana v. J. W. COPLING, Jr., and Herbert Tannehill. |
| Court | Louisiana Supreme Court |
Robert T. Rester, Johnie E. Branch, Jr., Bogalusa, for defendant-appellants.
Jack P. F. Gremillion, Atty. Gen., M. e. Culligan, Asst. Atty. Gen., Woodrow W. Erwin, Dist. Atty., Franklinton, for appellee.
This is an appeal from the conviction and sentence of the defendants, Herbert 'Mott' Tannehill and J. W. Copling, Jr., on February 9, 1961, for enticing minors into prostitution as defined and prohibited by Article 86 of the Louisiana Criminal Code, LSA-R.S. 14:86. The defendants were sentenced to serve three years at hard labor in the penitentiary. The Article provides:
The defendants rely for success in this appeal upon two of the five bills of exceptions reserved to rulings of the Trial Court.
Bill of Exceptions No. 1 was reserved to the ruling denying motions for bills of particulars on behalf of each of the defendants. These motions requested (1) the exact date and/or dates the defendants allegedly did entice, persuade and encourage the female minors into the practice of prostitution, and (2) the nature of the promises or devices or schemes, either as a separate means or in combination, they allegedly used in effecting the alleged enticements.
At the hearing held upon the motions the following bill of particulars was furnished by stipulation:
'Agreement on Motion for Bill of Particulars in Open Court on February 6, 1961, Judge Richardson, Presiding.
'The District Attorney is willing to state this for the record: 'On the charge of Enticing Minors against J. W. Copling and Herbert Tannehill, 14:86, that the crime happened between he dates as set forth in the Bill of Information. that on or about December 11, 1960, the girls were picked up in Covington at Circle Tavern, St. Tammany Parish, Louisiana, brought to Washington Parish, Louisiana, and while on the way and after reaching Washington Parish, Louisiana, the two, Herbert Tannehill and J. S. Copling, did discuss with Kay Moore and Shirley Speed the question of them working out of the Pink Elephant, a place of business in Bogalusa, Louisiana, said work pertaining to them being prostitutes and receiving money and men from said place, and that in furtherance of this scheme the said Copling and Tannehill did register with the said girls in the City of Bogalusa at a hotel and did pay their living expenses, meals and lodging while they were in Bogalusa * * *''
Here the stipulation continues, but the remaining portion thereof concerns another charge not before this Court.
Following the hearing, the motions for bills of particulars were denied and defendants reserved Bill of Exceptions No. 1 to the ruling of the Court in not requiring the District Attorney to furnish the 'particular part' of the motions requesting '* * * among other things the specific dates upon which any promises, threats, schemes, (sic) devices were made by the defendants to entice the minor females into prostitution * * *.' We view this to mean that the second request contained in the motions for bills of particulars relating to the nature of the promises or devices, etc., was at that time considered by detendants to have been satisfied, and we find that request was in fact satisfied by the foregoing stipulation of the District Attorney. The trial judge also considered this to be the effect of the bill of exceptions for in the per curiam attached thereto he stated: 'Defense Bill is directed to failure of District Attorney to be more specific, name, dates and places of enticement, persuasion and encouragement, promises, devices, schemes, etc.'
Although in their briefs counsel for the defendants are urging error because of the failure of the Court to order the district attorney to furnish all the information requested in the motions for bills of particulars, we are only concerned here with the denial of that portion of the motions which requested the exact date and/or dates the defendants allegedly did entice, persuade and encourage the female minors into the practice of prostitution for that is the only question presented by the bill of exceptions.
Article 234 of the Code of Criminal Procedure, LSA-R.S. 15:234 states that it is immaterial that an indictment omits the time of an offense where time is not of the essence of the offense, nor for stating the time imperfectly, nor for stating the offense to have been committed on a day subseqent to the finding of the indictment, or of an impossible day, or on a day that never happened. From this we observe that setting forth in the bill of information that the offense occurred 'between December 11, 1960, and January 4, 1961' would perhaps have been adequate compliance with the law. However, the district attorney, in furnishing the information in the stipulation, went further and furnished a more specific date when he stated that the offense occurred 'on or about December 11, 1960'. The defendant, therefore, cannot complain of error on the part of the Trial Court in refusing to order the furnishing of information which had already been furnished in response to his motions for a more specific date.
Where time is not of the essence of the crime, and the defense is not an alibi, the time stated in the indictment is immaterial. State v. Martinez, 220 La. 899, 57 So.2d 888, cert. denied 344 U.S. 843, 73 S.Ct. 58, 97 L.Ed. 656; State v. Guillot, 200 La. 935, 9 So.2d 235; State v. Gremillion, 137 La. 291, 68 So. 615; and, also, State v. Johnson, 228 La. 317, 82 So.2d 24; State v. Roshto, 169 La. 251, 125 So. 67; State v. Anderson, 125 La. 779, 51 So. 846.
Moreover, the bills of information, together with the bill of particulars, provide a record which surely negatived the prescription of the offense 1 and thus precluded the possibility of the defendant being prosecuted for an offense which had actually prescribed. Thereby one of the sound reasons for requesting information concerning the date of the alleged commission of...
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