State v. Holmes
| Decision Date | 01 June 1953 |
| Docket Number | No. 41177,41177 |
| Citation | 223 La. 397,65 So.2d 890 |
| Parties | STATE v. HOLMES. |
| Court | Louisiana Supreme Court |
Ralph L. Roy, Baton Rouge, for appellant.
Fred S. LeBlanc, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., J. St. Clair Favrot, Jr., Dist. Atty., Jimmie R. Major, Asst. Dist. Atty., Baton Rouge, for appellee.
Using the simplified form authorized by LSA-R.S. 15:235 the State, in a bill of information, charged that on the 25th or 26th of March, 1952, Edward Holmes, the defendant, 'feloniously committed simple burglary of the structure located at 5007 Government Street, Baton Rouge, Louisiana, known as Jim's Texaco Service Station.'
The defendant, prior to his arraignment, moved in writing for a bill of particulars, he requesting to be furnished the following information:
The court granted the motion as to the first item, but it refused to require the State to furnish the information required in category 'B' (the accused's intent). Whereupon, objection was urged and a bill of exceptions reserved.
A jury, after trial, found the accused guilty as charged; and the court sentenced him to confinement in the State Penitentiary at hard labor for a period of three years.
On this appeal the accused complains only that error occurred when the court refused to order the district attorney to inform him, pursuant to his motion for a bill of particulars, whether or not his intent was to commit a forcible felony or a theft, and if a forcible felony the nature of it. He contends that the particulars unsuccessfully sought were essential, being factual information which constitutes one of the very elements of the offense for which he was charged, and that he was entitled to be furnished them as a matter of right.
As set forth in LSA-R.S. 14:62, 'Simple burglary is the unauthorized entering of any vehicle, water craft, dwelling or other structure, movable or immovable, with the intent to commit any forcible felony or any theft therein, other than as set forth in Article 60.
'Whoever commits the crime of simple burglary shall be imprisoned at hard labor for not more than nine years.' Fundamental in the perpetration of the crime, it should be noticed, is that there must exist an intent to commit a forcible felony or a theft.
If the charge against this accused were laid in the regular or long form, without containing averments describing with certainty the particular crime he intended to commit when entering the structure, the bill of information, unquestionably, would be fatally defective for the reason that as a general rule an 'indictment must state every fact and circumstance necessary to constitute the offense,' LSA-R.S. 15:227, and that 'the accused shall be informed of the nature and cause of the accusation against him,' Article 1, Section 10, Louisiana Constitution of 1921. In Wharton's Criminal Law, 12th Edition, Volume 2, Section 1032, the following is stated:
In keeping with the statement just quoted is the decision of this court in State v. Celestin, 138 La. 407, 70 So. 342, 343. Therein, the defendant was charged with breaking and entering in the nighttime 'with the intent in so doing, then and there, to commit a felony', the charge having been predicated on a statute reading:
'Whoever, with intent to kill, rob, steal, commit a rape, or any other crime, shall, in the nighttime, break and enter, or having with which intent entered, shall, in the nighttime, break a dwelling house, * * * on conviction shall be imprisoned at hard labor not exceeding fourteen years.' Rev. St. § 851. In maintaining a motion in arrest of judgment, which was grounded on the contention that the indictment failed to apprise the defendant of the specific felony which it was claimed he meant to commit, the court said:
'The general rule is that every essential factor necessary to constitute the crime of burglary must be averred, in order to apprise the accused of what he must defend. The offense must be described with such certainty as would enable the accused to plead the judgment that may be given on it in bar of another prosecution for the same offense. The allegation of the intent to commit a felony need not be too specific; it is necessary only to describe with certainty a particular felony which the offender is supposed to have intended to commit.
* * *
* * *
'The rule is well established that although in burglary and statutory housebreaking the intent, as defined by the law, is simply to commit a felony, it is not sufficient in the indictment to follow these general words, but the particular felony intended must be specified. The felony intended need not be set out as fully and specifically as would be required in an indictment for the actual commission of the felony. It is ordinarily sufficient to state the intended offense generally, as by alleging an intent to steal, or commit the crime of larceny, rape, or arson.
'The word 'felony' is a generic term going to distinguish certain crimes, as murder, robbery, and larceny, from other minor offenses known as misdemeanors. The averment that the accused had broken and entered a dwelling house for the purpose of committing a felony failed wholly to apprise him of the specific offense which is claimed he intended to commit. Marr's Criminal Jurisprudence, § 106; R.C.L. §§ 19, 22, 29; 6 Cyc. 217; 2 Bishop, New Crim. Procedure, § 142.
'Burglary being a breaking, etc., 'with intent to kill, rob, commit a rape, or any other crime,' in the place, an indictment is inadequate if it lays the intent only in the general words, 'with intent to commit a crime, or felony;' it must specify the felony or crime intended.
'In this case the indictment, in charging that defendant intended to commit a felony, simply charged a conclusion of law.'
Subsequent to the Celestin decision legislation was enacted (now LSA-R.S. 15:235) which authorizes the use of and describes simplified forms of indictments for most offenses, they being brief in language and in the main fail to set out all essentials. And many of the listed and authorized forms, including the one for simple burglary, have been considered and declared valid by this court on...
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State v. Straughan
...206 La. 1078, 20 So.2d 369; State v. Chanet, 209 La. 410, 24 So.2d 670, 671; State v. Nichols, 216 La. 622, 44 So.2d 318; State v. Holmes, 223 La. 397, 65 So.2d 890; and State v. Roy, 40 N.M. 397, 60 P.2d 646, 110 A.L.R. 1 (a New Mexico case). Reference is also made to articles appearing at......
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State v. Clark, 53861
...charged. See: State v. Wright, 254 La. 521, 225 So.2d 201 (1969); State v. Barnes, 242 La. 102, 134 So.2d 890 (1961); State v. Holmes, 223 La. 397, 65 So.2d 890 (1953); State v. Nicols, 216 La. 622, 44 So.2d 318 (1950); State v. Miller, 170 La. 51, 127 So. 361 (1930). See also Comment, 6 La......
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State v. Scott
... ... If the motion for the bill of particulars filed by appellant had specifically requested this information, there is no doubt that the judge would have been obliged to order the State to furnish it, in view of our decision in State v. Holmes, 223 La. 397, 65 So.2d 890, where it was held that, in a prosecution under the short form for a crime which may be committed in several designated ways, the accused is entitled, upon his request, to be informed of the specific way or ways relied on by the State. But an examination of appellant's ... ...
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State v. Linkletter
... ... In the State's brief, it is contended that the defendants rely principally upon State v. Holmes, 223 La. 397, 65 So.2d 890 (1953) and that the trial court, in its percuriam, based its ruling that the short form indictment was sufficient on State v. Taylor, 253 La. 653, 219 So.2d 484 (1969) ... The State submits that the two decisions cannot be squared and that Taylor, being ... ...