State v. Fitzgerald
| Decision Date | 08 November 1965 |
| Docket Number | No. 47745,47745 |
| Citation | 248 La. 487,179 So.2d 906 |
| Parties | STATE of Louisiana v. John G. 'Jack' FITZGERALD. |
| Court | Louisiana Supreme Court |
Jack P. F. Gremillion, Atty. Gen., William P. Schuler, Asst. Atty. Gen., Frank H. Langridge, Dist. Atty., Waverly A. Henning, Asst. Dist. Atty., Gordon L. Bynum, Asst. Dist. Atty., for relator.
Robert I. Broussard, Gretna, for defendant-respondent.
This is a criminal prosecution. The Grand Jury of Jefferson Parish indicted the defendant for malfeasance in office as denounced by LSA-R.S. 14:134. After rejecting the District Attorney's motion to amend the indictment, the district court quashed the indictment and discharged the defendant. We granted certiorari under our supervisory jurisdiction to review the judgment.
LSA-R.S. 14:134 provides:
'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 * * *.'
The Grand Jury indictment charged the defendant as follows:
'(He) committed the crime of Malfeasance in Office as defined by La.R.S. 14:134 in that during the above stated period of time, he the said John G. 'Jack' Fitzgerald, being then and there Sheriff of Jefferson Parish, Louisiana, a public officer, did intentionally, unlawfully and knowingly refuse and fail to perform a duty lawfully required of him as such officer, in that he, the said Sheriff of Jefferson Parish, John G, 'Jack' Fitzgerald, after having received knowledge that the crimes of Gambling, as defined by La.R.S. 14:90, had occurred throughout the Parish of Jefferson, at the following times and places, to-wit: On January 11, 1964, at New Garden Club, 209 Monroe St., Gretna, La., and Old Southport Club, 102 River Road, Jefferson Parish, La.; on January 22, 1964, at Old Southport Club, 102 River Road, Jefferson Parish, La.; on January 24, 1964 at Hawaiian Room, 11 Fifth St. and Club 300, 306 Huey P. Long Ave., Gretna, La.; on January 24, 25, 26, 27, 1964 at Long Sam's 3729 Airline Highway, Jefferson Parish, La. and Lady Lounge, Airline Highway, Jefferson Parish, La.; on January 26 and 27, 1964 at Sports Palace, 1125 Jefferson Highway, Jefferson Parish, La., Old Southport Club, 102 River Road, Jefferson Parish, La., Clover Club, 714 First St., Gretna, La., and after having received-knowledge that crimes of Gambling were thereafter continuing to occur daily at the above stated places, all within the Parish of Jefferson and within the jurisdiction of said Sheriff, he, the said John G. 'Jack' Fitzgerald, after receipt of the knowledge of the continuing commissions of the crimes of gambling at the places aforesaid, did intentionally and unlawfully and knowingly fail and refuse to apprehend, or attempt to apprehend, those persons continuing to violate the gambling laws at the above stated places, and he, the said John G. 'Jack' Fitzgerald, after receipt of the knowledge of the continuing commissions of the crimes of gambling at the places aforesaid, did intentionally and unlawfully and knowingly fail and refuse to halt, or attempt to halt, the crimes of gambling being committed continuously thereafter at the above stated places, and in that he, the said Sheriff of Jefferson Parish, John G. 'Jack' Fitzgerald, after having received knowledge on September 17, 1962 that slot machines and other gambling devices and machines as defined by La.R.S. 15:26.1 were situated in public places designated as Gennaro's, 3206 Metairie Road, Jefferson Parish, La., Pat Gillen's, 2024 Metairie Road, Jefferson Parish, La., all within the Parish of Jefferson, Louisiana, and, after having received knowledge on September 27, 1962 that slot machines and other gambling devices and machines as defined by La.R.S. 15:26.1 were situated in Public places designated as Southern Tavern, 1605 Airline Highway, Pat Gillen's, 2024 Metairie Road, Larry's Restaurant, 201 Aris Ave., all within the Parish of Jefferson, Louisiana, and after having received knowledge on July 11, 1963, that slot machines and other gambling devices and machines as defined by La.R.S. 15:26.1 were situated in public places within the Parish of Jefferson, designated as Chateau Loung, 132 Huey P. Long Ave., Gretna, La., Billionaire Club, 223 Huey P. Long Ave., Gretna, La., Hourglass Lounge, 51 West Bank Expressway, Gretna, La., Rock's Restaurant and Bar, 24 Franklin St., Gretna, La., Tropical Lounge, 726 Monroe St., Gretna, La., Golden Room, 1630 Monroe St., Gretna, La., Turf Club, 722 First St., Gretna, La. and Favalora's Bar, 500 Lafayette St., Gretna, La., he did, after receiving knowledge of the existence of the aforesaid machines in the aforesaid places, intentionally and unlawfully and knowingly fail and refuse to confiscate and destroy the aforesaid slot machines, gambling devices and machines, or any of them, as required by La.R.S. 15:26.1, and by such conduct he did intentionally and unlawfully fail and refuse to perform a duty lawfully required of him as Sheriff of Jefferson Parish * * *.'
The defendant filed a motion to quash the indictment, principally on the following grounds:
1. That the indictment set forth no offense denounced by law.
2. That the indictment failed to inform the defendant of the nature and cause of the accusation against him as required by Article I, Section 10, of the Louisiana Constitution.
3. That the indictment was too vague and indefinite to serve as a basis for former jeopardy or permit the defendant to prepare his defense.
On April 20, 1964, before the defendant's arraignment, the court heard the motion to quash. At that time, the state moved to amend the indictment by adding certain details.1 The defendant objected to the motion to amend. After hearing both the motion to quash and motion to amend, the court took them under advisement.
On March 29, 1965, the court rejected the motion to amend on the ground that the District Attorney had no authority to institute an amendment to an indictment presented by the Grand Jury.
On the same date, the court sustained the motion to quash and discharged the defendant.
We conclude the district court erred in both rulings.
As we have emphasized in previous decisions, the Code of Criminal Procedure is liberal regarding amendment of an indictment upon motion of the District Attorney. LSA-R.S. 15:252, 253, 284; State v. Scheuering, 226 La. 660, 76 So.2d 921; State v. Marcotte, 229 La. 539, 86 So.2d 186; State v. Morgan, 204 La. 499, 15 So.2d 866. The state's proposed amendment charged no new crime. Rather, it supplied additional details of the crime already charged. We must order the amendment. Consequently, our decision sustains the indictment as amended.
A long-form indictment, such as that used here, must allege 'every fact and circumstance necessary to constitute the offense, but it need do no more, and it is immaterial whether the language of the statute creating the offense, or words unequivocally conveying the meaning of the statute, be used.' LSA-R.S. 15:227; State v. Bertrand, 247 La. 232, 170 So.2d 386.
As a general rule, an indictment is sufficient when it charges an offense in the language of the statute defining it. If, however, the statute only defines the offense in general terms, then the indictment must also state the specific conduct of the defendant upon which the charge is based. State v. Scheuering, 226 La. 660, 76 So.2d 921; State v. Hebert, 205 La. 110, 17 So.2d 3; State v. Varnado, 208 La. 319, 23 So.2d 106.
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State v. Sheppard
...attorney may make substantive amendments to a grand jury indictment. State v. Bluain, 315 So.2d 749 (La.1975); State v. Fitzgerald, 248 La. 487, 179 So.2d 906 (1965).2 The sanity hearing in this case was conducted on December 17, 1974, prior to the amendment of La.Code Crim.P. art. 644.3 Se......
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State v. Anderson, 49643
...crime. We find no error in the ruling of the trial judge allowing the amendment. See former LSA-R.S. 15:252, 253, 284; State v. Fitzgerald, 248 La. 487, 179 So.2d 906; State v. Scheuering, 226 La. 660, 76 So.2d 921; State v. Marcotte, 229 La. 539, 86 So.2d 186. Compare Art. 487, C.Cr.P. Def......
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State v. Jacobs
...332 So.2d 789 (La.1976); State v. Bluain, 315 So.2d 749, 752 (La.1975); State v. Hubbard, 279 So.2d 177 (La.1973); State v. Fitzgerald, 248 La. 487, 179 So.2d 906 (1965). As noted in the Error Patent review, this is not a defect that affects the substantial rights of the accused and, thus, ......
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State v. Lovett
... ... It is well settled that a prosecutor may make substantive amendments to a grand jury indictment. State v. Sheppard, 350 So.2d 615 (La.1977); State v. Gilmore, 332 So.2d 789 (La.1976); State v. Bluain,315 So.2d 749 (La.1975); State v. Fitzgerald, 248 La. 487, 179 So.2d 906 (1965). An amendment to an indictment which relates to a defect of substance is properly allowed before trial begins. La.Code Crim.P. art. 487; State v. Bluain, supra; State v. Hubbard, 279 So.2d 177 (La.1973). A jury trial commences when the first prospective juror ... ...