State v. Daniels

• Decision Date: 16 November 1908
• Docket Number: 17,297
• Citation: 122 La. 261,47 So. 599
• Court: Louisiana Supreme Court
• Parties: STATE v. DANIELS et al

47 So. 599

122 La. 261

STATE v. DANIELS et al

No. 17,297

Supreme Court of Louisiana

November 16, 1908

Appeal from Twenty-First Judicial District Court, Parish of West Baton Rouge; Calvin Kendrick Schwing, Judge.

James Daniels and others were convicted of burglary, and Will Daniels and Lee Hudson appeal. Affirmed as to Daniels, and reversed as to Hudson.

John Howell Pugh, for appellants.

Walter Guion, Atty. Gen., and Albin Provosty, Dist. Atty. (Ruffin Golson Pleasant, of counsel), for the State.

OPINION

LAND J.

James Daniels, Will Daniels, and Lee Hudson were tried, convicted, and sentenced to imprisonment in the state penitentiary for 10 years for breaking and entering a box car with intent to steal. Will Daniels and Lee Hudson have appealed.

1. Lee Hudson moved for a continuance on the ground that he had not been served with a true copy of the information, as required by section 992 of the Revised Statutes of the state. According to the copy served, the accused was charged with breaking and entering a "box" belonging to the Texas & Pacific Railway. The indorsement on the back of the copy served read "box car." This indorsement formed no part of the information. State v. De Hart, 109 La. 577, 33 So. 605.

The accused was entitled to have a true copy of the information served on him two entire days before going to trial. State v. Finn, 43 La.Ann. 895, 9 So. 498, and authorities there cited. In that case the variance was in the name of the person alleged to have been murdered. In this case the variance is in the nature of the offense charged. Article 10 of our Constitution reads:

"In all criminal prosecutions, the accused shall be informed of the nature and cause of the accusation against him."

In the graver felonies the Legislature has provided that this notice shall be given by service of a copy of the indictment or information. Rev. St. 1870, § 992. Notice from any other source will not suffice. The continuance should have been granted as prayed for.

2. The motion for a severance, made by Lee Hudson, need not be considered.

3. The denial of defendants' motion for a separation of the witnesses is not assignable as error, as the granting or refusing of an order for the sequestration of witnesses is within the sound discretion of the trial judge. There is nothing in the bill to show an abuse of such discretion.

4. The information charged that the offense was committed "on or about the 24th day of August, 1908." Evidence was properly admitted to prove that the crime was committed on August 20, 1908. The exact date of the offense was not material; time not being of the essence of the offense charged.

5. The motion for a new trial is based on the bills already considered and on the further ground that the verdict was contrary to the law and the evidence. The motion...