State v. Hagerty

• Decision Date: 11 December 1967
• Docket Number: No. 48617,48617
• Citation: 205 So.2d 369,251 La. 477
• Parties: STATE of Louisiana v. William P. HAGERTY.
• Court: Louisiana Supreme Court

Page 369

205 So.2d 369

251 La. 477

STATE of Louisiana v. William P. HAGERTY.

No. 48617.

Supreme Court of Louisiana.

Dec. 11, 1967.

Rehearing Denied Jan. 15, 1968.

F. Irvin Dymond, George M. Leppert, New Orleans, for appellant.

Jack P. F. Gremillion, Atty. Gen., William P. Schuler, Asst. Atty. Gen., Jim Garrison, Dist. Atty., Louise Korns, Asst. Dist. Atty., for appellee.

HAMLIN, Justice:

Defendant (formerly Public Administrator in and for the Parish of Orleans) appeals from his conviction for the crime of theft (LSA-R.S. 14:67¹) and sentence to serve three years at hard labor in the Louisiana State Penitentiary.

The Public Administrator in and for the Parish of Orleans is appointed by the Governor for a term of four years. LSA-R.S. 9:1581, Act 497 of 1960. He administers vacant successions, all money or other property in the Parish of Orleans which has been abandoned or the ownership of which is unknown and all the money or other property standing in the name of persons who are absent and not represented and have not been heard from for eight years or more. LSA-R.S. 9:1583, 1584, 1585. He administers any money or other property deposited with any person, bank, trust company, or other depository in the City of New Orleans, other than in a checking or savings department, and stands in the names of persons who are absent and not represented and have not been heard from for ten years or more. LSA-R.S. 9:1587.

Defendant, William P. Hagerty, became Public Administrator in and for the Parish of Orleans during June, 1956, and terminated his position in July, 1964. At the time of his appointment, Act 14 of 1926 provided that the Governor should appoint, with the advice and consent of the Senate, a suitable person to be known as Public Administrator for the Parish of Orleans, whose term of office would be for four years. Act 200 of 1952 recited, in part:

'Sec. 1. * * *

'* * * He shall be appointed administrator of all money or other property in the Parish of Orleans which has been abandoned or the ownership of which is unknown and of all money or other property standing in the name of persons who are absent and not represented and have not been heard from for eight years or more.

'It shall be the duty of any person, firm or corporation holding such funds or property to deliver same to the Public Administrator and his receipt for same shall relieve said person, firm or corporation from all liabilities therefore. The said Public Administrator shall then proceed to administer such property in the manner provided by law for the administration of vacant successions.

'Sec. 2. * * *

'* * * He shall receive as a compensation five percent on all funds administered by him, and all necessary expenses incurred in administering and preserving property subject to his administration.'

With funds withdrawn from the Public Administrator's account in the National Bank of Commerce, New Orleans, Louisiana, defendant purchased from said National Bank of Commerce, on September 18, 1957, a six months Certificate of Deposit for $50,000.00 in the name of the Public Administrator in and for the Parish of Orleans. After this certificate matured, the $50,000.00 was continuously reinvested in a new Certificate of Deposit until September 23, 1960, when only $40,000.00 of the $50,000.00 was reinvested; $10,000.00 was allegedly restored to the Public Administrator's account maintained in the National American Bank. The foregoing $40,000.00 was reinvested in Certificates of Deposit, the last being purchased on March 26, 1962. These Certificates of Deposit bore interest in the total amount of $5,283.13 during this five year period. The State alleges that defendant committed theft of this interest.

By Bill of Information filed April 22, 1966 and amended May 10, 1966, the State charged that William P. Hagerty 'committed a theft of Five Thousand, Two Hundred and Eighty-Three Dollars and Thirteen Cents ($5,283.13) in the lawful money of the United States of America, belonging to the State of Louisiana, * * *'

The State negatived prescription by stating in the Bill of Information that four years had not elapsed since Hagerty terminated his office, employment of fiduciary relationship to the State of Louisiana as Public Administrator for the Parish of Orleans.

Defendant was arraigned on May 3, 1966, and pleaded 'Not Guilty.' He was granted to May 18, 1966 to file pleadings. He was rearraigned on June 1, 1966, when the State filed its answer to defendant's application for a Bill of Particulars. Trial commenced on June 27, 1966, during the course of which ten Bills of Exceptions were reserved and are presented for our consideration.

BILLS OF EXCEPTIONS NOS. 1 AND 10.

Bill of Exceptions No. 1 was reserved at the opening of trial, prior to the commencement of the selection of a jury, when the trial judge denied defendant's request to withdraw his plea of 'Not Guilty' for the purpose of filing a Demurrer and Motion to Quash, asking for an immediate judgment thereon and not seeking a delay.

Bill of Exceptions No. 10 was reserved after trial and verdict, but before sentence, when the trial court overruled defendant's Motion in Arrest of Judgment.

The Demurrer and Motion to Quash averred that: (1) the matters as alleged in the Bill of Information and detailed in the Bill of Particulars were not sufficient in law to compel the defendant to answer thereto; (2) if all the matters as alleged were proven, no violation of the law would be proven; (3) neither the State of Louisiana nor any one other than the defendant ever had ownership of the interest money; (4) the actions which the State alleges were performed by the defendant would, at most, constitute an unauthorized use of money which was allegedly deposited, but there could be no finding of guilt in connection therewith for the reason that the defendant was charged with the theft of the interest money and not money which was allegedly deposited by defendant; and (5) the situation presented was no different from one in which a person might unauthorizedly lease an automobile which had been placed in his custody and then be charged with the theft of the money which he received as rental therefor.

The Motion in Arrest of Judgment contained substantially the same averments as those of the Demurrer and Motion to Quash, and additionally that: (1) although the owner of property is entitled to the fruits thereof, the failure to deliver such fruits to the owner under circumstances as those set forth in the Bill of Information and Bill of Particulars does not constitute a theft; (2) the interest money was not at the time of the alleged misappropriation or taking property which 'belonged to another' within the contemplation if LSA-R.S. 14:67; and (3) the Louisiana Legislature by Acts 7 of 1963 and 37 of 1964 directed the Treasurer of the State of Louisiana to do precisely the same thing which the defendant is charged with having done.

LSA-R.S. 15:284 (See, Art. 535, new Code of Criminal Procedure), which was in effect at the time of the instant trial, provided:

'Every objection to any indictment shall be taken by demurrer or by motion to quash such indictment, before the arraignment; and every court before which any such objection shall be taken for any formal defect, may, if it be thought necessary, cause the indictment to be forthwith amended in such particular, and thereupon the trial shall proceed as if no defect had appeared.'

LSA-R.S. 15:265 (See, Arts. 535 and 561, new Code of Criminal Procedure) provided:

'The defendant may at any time, with the consent of the court, withdraw his plea of not guilty and then set up some other plea or demur or move to quash the indictment.'

The Demurrer and Motion to Quash set forth no reason why it was filed twenty-six days after arraignment and on the day of trial; under the authority of the above statutes, its allegations were not considered by the trial court. However, as stated supra, the Motion in Arrest of Judgment contained substantially the same averments, and it was considered by the trial court and found to be without merit. Under such circumstances, we do not find that the trial judge abused his discretion in not permitting the defendant to withdraw his plea of 'Not Guilty' and file other pleadings. State v. Ward, 246 La. 766, 167 So.2d 359. We also find that defendant suffered no prejudice. All contentions advanced were substantially repeated in other Bills of Exceptions and received thorough consideration (and found to be without merit) during the course of trial.

The principal contention averred by defendant in the Motion in Arrest of Judgment and in the great number of other Bills of Exceptions is that in the Bill of Information the State charged that the defendant committed a theft of money belonging to the State of Louisiana, and that the State did not prove that the interest money belonged to the State of Louisiana or that the defendant had committed a theft of such money. In brief, it is averred, 'We submit that it is crystal clear that, if proven builty of anything Hagerty could not have been proven guilty of anything but unlawful use of movables, a lesser offense, and the jury was never even given any clear idea of this possible milder verdict.'

Defendant testified that he purchased the Certificates of Deposit and that he did not get a court order or court authority for such purchases. He gave the following pertinent testimony:

'Q. In whose name did you purchase these certificates?

'A. The Public Administrator in and for the Parish of Orleans.

'Q. Tell me whether your name, personally, appears on any one of those certificates?

'A. The only way it appears is when I endorse it on the back, but not on the front as ownership, or anything like that.'

With respect to the interest money, defendant testified:

'Q. Now, Mr. Hagerty, is it a fact that you received as interest on the certificates of deposit the sum of $5,283.13?

'A. Yes, sir.

'...