State v. Gerstenberger

• Decision Date: 13 December 1971
• Docket Number: No. 51384,51384
• Citation: 260 La. 145,255 So.2d 720
• Parties: STATE of Louisiana v. Paul GERSTENBERGER and Holly Tatsch.
• Court: Louisiana Supreme Court

Page 720

255 So.2d 720

260 La. 145

STATE of Louisiana v. Paul GERSTENBERGER and Holly Tatsch.

No. 51384.

Supreme Court of Louisiana.

Dec. 13, 1971.

Jack P. F. Gremillion, Atty. Gen., Harry H. Howard, Asst. Atty. Gen., Sargent Pitcher, Jr., Dist. Atty., Ralph L. Roy, Asst. Dist. Atty., for petitioner.

Wray, Simmons & Robinson, Bert K. Robinson, Baton Rouge, for respondents.

BARHAM, Justice.

The State filed three bills of information charging these defendants with violations of R.S. 51:194, a section of the Louisiana Sunday Closing Law. In response to defendants' motion for a bill of particulars the State filed a bill of particulars subsequently amended so as to be applicable to all bills of informatiin. A motion to quash was sustained by the district judge. The State reserved a bill of exceptions, and applied to this court for writs since no appeal lies in this misdemeanor case in which no penalty has actually been imposed. We granted certiorari.

The bills of information are so similar that a recitation of one bill will be sufficient basis for a discussion of all the issues raised here. It was charged that on January 10, 1971, the defendants 'unlawfully violated R.S. 51:194 in that they sold, offered to sell, and engaged in the business of selling and requiring employees to sell household, office and business appliances, and home and office and business furnishings on Sunday * * *'. The bill of particulars as amended states that the defendants were selling 'alarm clocks and a wicker headboard'.

The motion to quash urges three grounds: First, it is argued that the defendants were operating a 'public or private market' and were therefore exempt from the provisions of R.S. 51:194 under R.S. 51:192 and under the holding in State v. Penniman, 224 La. 95, 68 So.2d 770. Second, defendants urge that alarm clocks and a wicker headboard* are exempt from the ban on Sunday sales both under R.S. 51:192 as items 'necessary in sickness' and under R.S. 51:194(E)(2) as 'drugs, medicines, medical or surgical supplies and appliances'. Third, the defendants argue that alarm clocks and a wicker headboard are not 'home or business or office furnishings' or 'household, office or business appliances' within the contemplation of R.S. 51:194(A).

Under Code of Criminal Procedure Article 532, among the grounds upon which a motion to quash may be based are that the indictment fails to charge an offense which is punishable under a valid statute, and that a bill of particulars has shown a ground for quashing the indictment under Article 485. Article 485 provides that the court on its own motion may, or on motion of the defendant shall, order an indictment quashed if it appears from the bill of particulars together with any particular appearing in the indictment that the offense charged in the indictment was not committed or that the defendants did not commit it or that there is a ground for quashing the indictment.

Under Article 536 the court is required to limit its consideration of a motion to quash to the objections stated in writing in that motion; and under the grounds here urged the motion must be disposed of as a matter of law on the face of the information and the bill of particulars. The trial court erred in allowing evidence to be heard on this motion to quash. Evidence may be introduced in the consideration of some motions to quash, but the motion which was considered below and is now reviewed by us does not allege a ground which admits of any proof of fact. The court in considering this motion to quash must accept as true the facts set out in the bills of information and in the bill of particulars, and determine whether as a matter of law they charge a crime. The evidence which may be taken on a motion to quash is limited to procedural matters and may not include a defense on the merits. State v. Masino, 214 La. 744, 38 So.2d 622; State v. Conega, 121 La. 522, 46 So. 614; see also State v. Perkins, 248 La. 293, 178 So.2d 255; State v. Ponthieux, 254 La. 482, 224 So.2d 462. We do not consider the evidence taken here in the trial court.

The Louisiana Sunday Closing Law comprises R.S. 51:191--194. R.S. 51:191 requires the closing of all stores, shops, saloons, and all places of public business on Sunday, and forbids the proprietor of such a place to dispose of any article of merchandise kept in the establishment. R.S. 51:192 exempts from the provisions of R.S. 51:191 certain classes of businesses, including 'public and private markets', and also allows a store to be opened for the purpose of selling anything necessary in sickness or for burial.

R.S. 51:194, under which these defendants are charged, provides in Subsection (A): 'On the first day of the week, commonly designated as Sunday, it shall be unlawful for Any person, whether at retail, wholesale or by auction, to sell, attempt to sell, offer to sell or engage in the business of selling, or require any employee to sell any * * * home or business or office furnishings; any household, office or business appliances * * *.' (Emphasis here and elsewhere has been supplied.) R.S....