State v. Didier
| Decision Date | 08 November 1971 |
| Docket Number | No. 51561,51561 |
| Parties | STATE of Louisiana v. F. O. DIDIER, Jr. |
| Court | Louisiana Supreme Court |
Jeannette Theriot Knoll, Edwin L. Lafargue, Marksville, Joe J. Tritico, Lake Charles, for defendant-appellant.
Jack P. F. Gremillion, Atty. Gen., Harry H. Howard, Asst. Atty. Gen., Charles A. Riddle, Jr., Dist, Atty., John A. Boatner, Jr., Asst. Dist. Atty., for plaintiff-appellee.
F. O. Didier, Jr., Sheriff of Avoyelles Parish, was convicted of malfeasance in office and sentenced on January 19, 1971, to pay a fine of $500.00 and to serve three months in jail. Thirteen Bills of Exceptions were reserved by the defendant. Eight were briefed. They will be discussed in the order in which they were briefed.
Bill of Exceptions No. 8 was reserved to the overruling of defendant's motion to quash the bill of information. The body of the bill as amended is reproduced as follows:
'THAT F. O. DIDIER, JR. late of the Parish aforesaid on and/or between April 1, 1970 and July 6, 1970 with force and arms, in the Parish, District and State aforesaid, and within the jurisdiction of the Twelfth Judicial District Court, did wilfully, maliciously and feloniously, commit the crime of Malfeasance in Office as defined by La.R.S. 14:134 in that on and/or between the above stated dates, he, the said F. O. Didier, Jr., being then and there Sheriff of Avoyelles Parish, Louisiana, a public officer, did intentionally, unlawfully and knowingly refuse and fail to perform a duty and/or duties lawfully required of him as such officer, in that he, the said Sheriff of Avoyelles Parish, F. O. Didier, Jr., after having knowledge that certain crimes hereinafter mentioned were in the process of being committed and/or had occurred in the Parish of Avoyelles, and within the jurisdiction of this Court, namely, the crime and/or crimes of,
'(1) Clyde M. Hyde, Jr., Richard Dupont, alias Joe Johnson, Charlie Hay and Don Herbert Rhodes in having on or about May 9, 1970 violated Article No. 65 of the Louisiana Criminal Code entitled, 'Simple Robbery' in that they did rob one Louis Golden of Nineteen Thousand Eight Hundred and No/100 ($19,800.00) Dollars in United States Currency;
'(2) Clyde M. Hyde, Jr., Richard Dupont, Alias Joe Johnson, Charlie Hay and Don Herbert Rhodes in having on or about May 9, 1970 violated Article No. 67 of the Louisiana Criminal Code entitled 'Theft' in that they did commit a theft of Nineteen Thousand Eight Hundred and No/100 ($19,800.00) Dollars in United States Currency, the property of Baton Rouge Scrap Metal, Inc.;
'(3) Clyde M. Hyde, Jr., and Richard Dupont, alias Joe Johnson, in having on or about June 19, 1970 attempted to commit theft of the sum of Twenty Thousand and No/100 ($20,000.00) Dollars in United States Currency the property of T. L. Myers and Leonard Myers, a partnership doing business as George W. Myers and Son;
'(4) Clyde M. Hyde, Jr., and Richard Dupont, alias Joe Johnson, on or about June 26, 1970 attempted to commit theft of the sum of Twenty Thousand and No/100 ($20,000.00) Dollars in United States Currency, the property of one Vernon A. Capers; and
'(5) Clyde M. Hyde, Jr., and Richard Dupont, alias Joe Johnson, on or about July 3, 1970 attempted to commit theft of the sum of Twenty Thousand and No/100 ($20,000.00) Dollars in United States Currency, the property of Monroe Scrap Material, Inc.
'And after having knowledge that the crimes above stated were in the process of being committed and/or had occurred, he, the said Sheriff F. O. Didier, Jr., did intentionally and unlawfully and knowingly fail and/or refuse to apprehend, or attempt to apprehend those persons involved in the commission of said crimes hereinabove mentioned, and he, the said F. O. Didier, Jr., Sheriff, after having and/or receiving knowledge that the crimes above stated were in the process of being committed did intentionally and unlawfully and knowingly fail and refuse to halt, or attempt to halt, the commission of said crimes; that he, the said Sheriff F. O. Didier, Jr., did intentionally and unlawfully and knowingly refuse and fail to submit, offer and tender a report of the said crimes hereinabove mentioned to the District Attorney for the Parish of Avoyelles, and did intentionally and unlawfully and knowingly refuse and fail to report according to law said crimes hereinabove mentioned to the District Attorney for the Parish of Avoyelles for his consideration and determination according to law; that he, the said Sheriff F. O. Didier, Jr., did intentionally and unlawfully and knowingly refuse and fail to arrest and properly and legally charge said persons committing said crimes hereinabove mentioned;
'And that by and/or all of such conduct, he, the said F. O. Didier, Jr., did intentionally and unlawfully fail and refuse to perform a duty and/or duties lawfully required of him as Sheriff of Avoyelles Parish, Louisiana.
'And that on and/or between the said dates of April 1, 1970 and July 6, 1970, the said F. O. Didier, Jr., as Sheriff of Avoyelles Parish, Louisiana, did intentionally, unlawfully and knowingly perform illegal and unlawful acts contrary to and in violation of his duty as Sheriff of Avoyelles Parish, Louisiana, in that he did conspire to commit with and did in fact, aid and abet Clyde M. Hyde, Jr., and Richard Dupont, alias Joe Johnson, in the commission of the following crimes, to-wit:
'(a) Attempt to commit theft of Twenty Thousand and No/100 ($20,000.00) Dollars in United States Currency, the property of T. L. Myers and Leonard Myers, a partnership doing business as George W. Myers and Son, referred to in No. 3 hereinabove;
'(b) Attempt to commit theft of Twenty Thousand and No/100 ($20,000.00) Dollars in United States Currency, the property of one Vernon A. Capers, referred to in No. 4 hereinabove;
'(c) Attempt to commit theft of Twenty Thousand and No/100 ($20,000.00) Dollars in United States Currency, the property of Monroe Scrap Material, Inc.
'And that by any and/or all of such conduct, he, the said F. O. Didier, Jr., did intentionally and did unlawfully perform the said aforementioned illegal and unlawful acts, contrary to and in violation of his duty as Sheriff of Avoyelles Parish, Louisiana.'
The defendant seems to argue that the bill of information does not 'adequately or properly perform' the function of informing the judge of the scope and nature of the alleged offense so he might properly control the trial and form a record that would bar subsequent prosecution for the same offense.
An examination of the bill disposes of the argument.
Defendant further argues that the bill is duplicitous, and violates article 49s of the Code of Criminal Procedure.
Article 491 of the Code of Criminal Procedure defines duplicity as 'the inclusion of two offenses in the same count, except as otherwise provided in this Title.' Article 492 disposes of defendant's argument. It states:
'A count in an indictment is not duplicitous because, in stating the elements of the offense charged or describing how it was committed, it alleges criminal acts which would separately constitute another offense or other offenses.'
In the bill before us, in which the defendant is accused of malfeasance in office (R.S. 14:134), the sheriff is charged with failing to perform his duty in various ways. First, he is charged with having knowledge of the commission of certain crimes by persons named in the bill in his parish, both during and after the commission. He is charged with the failure and refusal to apprehend the persons involved in the commission of the specified crimes, with failing to attempt to halt the commission of the crimes, with failing to report the crimes to the district attorney and with failing to arrest and charge the perpetrators of the crimes. The defendant is further charged in the bill with conspiracy and aiding and abetting certain persons in the commission of three attempted thefts, detailed in the bill.
The defendant is accused of only one crime. The way he is accused of having committed the crime of malfeasance in office is detailed in the bill. Malfeasance in office is described as follows:
'Malfeasance in office is committed when any public officer or public employee shall:
'(1) Intentionally refuse or fail to perform any duty lawfully required of him, as such officer or employee; or
'(2) Intentionally perform any such duty in an unlawful manner; or
'(3) Knowingly permit any other public officer or public employee, under his authority, to intentionally refuse or fail to perform any duty lawfully required of him, or to perform any such duty in an unlawful manner.
'Whoever commits the crime of malfeasance in office shall be fined not more than five hundred dollars, or imprisoned for not more than six months, or both.' (R.S. 14:134).
Defendant argues that the bill charges two distinct kinds of offenses. The first portion of the bill, without question, describes the failure of the sheriff to act when he had knowledge of the perpetration of certain offenses. The defendant argues that the last portion of the bill charges the sheriff with a different kind of crime, conspiracy, and, in addition 'did in fact aid and abet' the perpetrators in the commission of three attempted thefts. The attempted thefts involved the same sums, the property of the same persons, the same dates and the same perpetrators as those occurrences described in the first part of the bill. The last paragraph of the bill of information charges that the conspiracy or the 'aiding and abetting' were illegal and unlawful acts performed by the sheriff in violation of his duty as sheriff. This is merely descriptive of another way in which the sheriff was accused of violating R.S. 14:134, and does not charge the sheriff with the crimes of conspiracy or theft. The inclusion of such charge is not duplicitous, and it is specifically permitted by Code of Criminal Procedure article 492 to allege criminal...
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State v. Didier
...La.R.S. 14:134. We affirmed his conviction and his sentence, three months in the parish jail and a fine of $500. State v. Didier, 259 La. 967, 254 So.2d 262 (1971). The present is a subsequent prosecution for simple robbery, La.R.S.14:65, and theft, La.R.S.14:67. The trial judge sustained t......
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State v. Himel
...in a non-jury case was answered in the negative by this court in a unanimous opinion handed down on November 8, 1971, State v. Didier, 259 La. 967, 254 So.2d 262, so that citation of the Code articles relied upon and of that case would ordinarily be dispositive of the precise question arisi......
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State v. Charles Ferguson. State
...and that he discharge his duties in a faithful and impartial manner. Coker,625 So.2d at 197. The court stated that:In State v. Didier,259 La. 967, 254 So.2d 262 (1971), a sheriff was charged with malfeasance for failing to halt the commission of crimes about which he had knowledge. The stat......
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State v. Coker
...trial as the source of the alleged duty "not to batter prisoners." Such specific pleading is unnecessary. In State v. Didier, 259 La. 967, 254 So.2d 262 (1971), a sheriff was charged with malfeasance for failing to halt the commission of crimes about which he had knowledge. The state did no......