State v. Gardner

• Decision Date: 03 November 1941
• Docket Number: 36266.
• Citation: 5 So.2d 132,198 La. 861
• Court: Louisiana Supreme Court
• Parties: STATE v. GARDNER.

5 So.2d 132

198 La. 861

STATE v. GARDNER.

No. 36266.

Supreme Court of Louisiana

November 3, 1941

Rehearing Denied Dec. 1, 1941.

Cawthorn & Golsan, of Mansfield, for relator.

Eugene Stanley, Atty. Gen., Niels F. Hertz, Sp. Asst. Atty. Gen and Edwin M. Fraser, Dist. Atty., of Many, for respondent.

FOURNET Justice.

The relator R. L. Gardner, who owns and operates a drug store under the trade name of Independent Drug Store in the town of Logansport, De Soto Parish, Louisiana, and is duly licensed to sell intoxicating liquors for medicinal purposes, was indicted for and convicted of the offense of selling intoxicating liquors for beverage purposes in De Soto Parish where the sale of intoxicating liquors is prohibited by law, and sentenced to serve five months in jail. We now have the matter before us for review on writs granted the relator upon his application.

Counsel for the accused filed a motion to quash the indictment under which he was charged on the ground (1) that it does not charge that any ordinance has been adopted by the Police Jury of De Soto Parish prohibiting the sale of intoxicating liquor and (2) that Act No. 17 of the First Extra Session of 1935, which amended Act No. 15 of 1934, is unconstitutional for the reason that by the said act the legislature attempted to delegate to the various police juries of the state certain legislative authority vested in the legislature alone by the constitution. In response to this motion the district attorney announced that he was prosecuting the accused under Act No. 15 of 1934, as amended by Act No. 17 of the First Extra Session of 1935, and under an ordinance of the Police Jury of De Soto Parish. The relator then filed another motion to quash on the ground that Act No. 15 of 1934 embraces two objects, contrary to the provisions of Section 16 of Article III of the Constitution of 1921.

The constitutional question raised in the first motion is, in our opinion, without merit. While the right to regulate the traffic of liquor is an inherent police power of the state which, under the express provisions of Section 18 of Article XIX of the Constitution of 1921 can never be surrendered, it is within the province of the legislature to delegate these powers to the various political subdivisions of the state and, in so doing, the legislature does not thereby surrender its power in this respect, for it is elementary that the legislature can thereafter, at any time, either change, alter, or recall the power so delegated. See State v. City of New Orleans, 151 La. 24, 91 So. 533.

The constitutional question raised in the second motion to quash is equally without merit. A mere reading of Act No. 15 of 1934 discloses that it has, in reality, only one general object, i. e., the regulation of the sale of intoxicating liquor (Lafitte v. Police Jury of De Soto Parish, 183 La. 262, 163 So. 33) and the licensing of the traffic of liquor is one means of regulating the same. Mayor & Board of Trustees of City of New Iberia v. Erath, 118 La. 305, 42 So. 945, and State v. Morton, 182 La. 887, 162 So. 718.

After these two motions to quash had been overruled by the trial judge, the accused then filed a motion for a bill of particulars, declaring that unless he was informed as to whom he was accused of selling the liquor, where and in whose presence it was sold, and the quantity, he would be unable to prepare his defense. In response to this motion the district attorney informed the accused 'That the intoxicating liquor was purchased on the date as set forth in the indictment [February 9, 1941]. That the same was made by defendant. That one half pint of Paul Jones whiskey was purchased by Jack Horn for the price of $190, the sale taking place at Logansport, Louisiana.' (Brackets ours.)

For the conviction of the accused, the prosecution relied solely on the testimony of the party to whom the liquor was alleged to have been sold, Jack Horn, and, on his direct examination elicited from him, over the objection of the relator, testimony that referred to sales of liquor other than the one charged in the indictment.

'The general rule is against the introduction of evidence of the commission of another offense than that for which the defendant is being tried * * *.' 2 Marr's Criminal Jurisprudence 568. See, also, State v. Johnson, 38 La.Ann. 686; State v. Bates, 46 La.Ann. 849, 850, 15 So. 204; State v. Cavanaugh, 52 La.Ann. 1251, 27 So. 704; State v. Williams, 111 La. 179, 35 So. 505; State v. Smith, 156 La. 818, 101 So. 209; Rice on Evidence, vol. 3, c. 25, � 153, and especially regarding larceny, chapter 42, � 453; 16 C.J. p. 574, � 1115, p. 586, �� 1132, 1133, 1134, 22 C.J.S., Criminal Law, �� 663, 682, 683; 8 R.C.L. p. 198, No. 194. There are exceptions to this general rule, however, one, where the evidence is introduced for the purpose of rebutting the inference that the act with which the accused is charged was not committed by accident or mistake but with a guilty knowledge or evil motive; another, when the evidence shows a system of wrongdoing, as in cases of forgery, making of false entries in books, etc. State v. Williams, 111 La. 179, 35 So. 505; State v. Norphlis, 165 La. 893, 116 So. 374; and State v. Brown, 185 La. 1023, 171 So. 433.

In the instant case the question of intent or motive is not at issue and there being no connection between the previous sales of liquor and the sale with which the accused was charged in the indictment, it is our opinion therefore that the evidence of such previous sales was inadmissible.

The witness Horn had, on direct...