State v. Howard

• Court: Louisiana Supreme Court
• Writing for the Court: McCALEB; FOURNET; HAWTHORNE
• Citation: State v. Howard, 149 So.2d 409, 243 La. 971 (La. 1963)
• Decision Date: 14 January 1963
• Docket Number: No. 46267,46267
• Parties: STATE of Louisiana v. George D. HOWARD.

Page 409

149 So.2d 409

243 La. 971

STATE of Louisiana v. George D. HOWARD.

No. 46267.

Supreme Court of Louisiana.

Jan. 14, 1963.

Rehearing Denied Feb. 18, 1963.

Earl J. Amedee, A. M. Trudeau, Jr., New Orleans, for defendant-appellant.

Jack P. F. Gremillion, Atty, Gen., M. E. Culligan, Asst. Atty. Gen., Jim Garrison, Dist. Atty., Louise Korns, Asst. Dist. Atty., for appellee.

McCALEB, Justice.

Appellant was convicted of armed robbery and sentenced to serve thirty years at hard labor in the State Penitentiary. During the trial, he reserved four bills of exceptions, on which he depends on this appeal, for annulment of the conviction and sentence.

Bill No. 1 was taken to the overruling of appellant's motion to quash the charge against him. The bill of information was drawn under the short forms provided by Article 235 of the Code of Criminal Procedure (R.S. 15:235) which may be used for charging the specific offenses therein named. The short form for armed robbery reads 'AB., while armed with a dangerous weapon, robbed CD.' The bill of information alleges that appellant, on September 15, 1961, with force and arms in the Parish of Orleans '* * * while armed with a dangerous weapon, to wit: a pistol, robbed one Thomas A. James, Jr. of One Hundred and Twenty One Dollars and Forty Seven cents ($121.47) * * * contrary to the form of the statute * * *'

Appellant initially contends that the bill of information is fatally defective because it fails to recite that the taking of the money was from the person of another or from the immediate control of another and further fails to specifically state that the taking was by force or intimidation. State v. England, 148 La. 178, 86 So. 728 is cited in support of this position.

There is no merit in the point. This court has held time and time again (see State v. Eyer, 237 La. 45, 110 So.2d 521 and authorities there cited) that the short forms for charging specific crimes provided by Article 235 of the Code of Criminal Procedure satisfy the requirement (see Section 10 of Article 1 of the Constitution) that the accused shall be informed of the nature and cause of the accusation against him. However, when the short form is employed, the accused may require the State to furnish him with a bill of particulars, if he needs more detailed information in order to prepare his defense, and he is entitled to this remedy as a matter of right. State v. Chanet, 209 La. 410, 24 So.2d 670; State v. Coleman, 236 La. 629, 108 So.2d 534.

That the short form for charging armed robbery fulfils the constitutional guarantee that the accused shall be informed of the nature and cause of the accusation, we have not the slightest doubt. Indeed, we have heretofore upheld the short form for charging the crime of simple robbery in State v. Durbin, 235 La. 989, 106 S0.2d 443. Armed robbery, as defined by R.S. 14:64, contains the same elements as simple robbery, plus the element that the robber was armed with a dangerous weapon. The bill of information in the instant case, as shown above, complies with the short form for armed robbery and, even though it states more than the form requires,--i.e., the type of weapon with which appellant was armed and the amount of money taken from the victim--it is nonetheless valid. It is not essential for the pleader to literally track the language of the short form; it is enough that the words used 'unmistakably convey the same meaning as those contained in the short form.' State v. Durbin, supra.

The case of State v. England was decided in 1920 and, for that reason alone, does not control here as the use of short forms, in charging certain offenses, was not authorized until the enactiment of the Code of Criminal Procedure in 1928.

The second ground of the motion to quash is that the bill of information is too vague and indefinite and is not sufficiently specific to enable appellant to prepare his defense.

This contention is not substantial for the reason (among others) that the minutes of the court show that, on the day of the trial, counsel for appellant entered into a stipulation with the State to the effect that, if a motion for a bill of particulars had been filed, the State had furnished appellant with all the information to which he was entitled under the law, to wit--the approximate hour of the crime and exact place where it was committed.

The third specification of the motion is that the bill of information is so defective that it is violative of the due process and equal protection clauses of the Fourteenth Amendment to the Constitution of the United States.

This claim is without force as it is based on the unsound premise that the bill of information is defective.

While the victim of the robbery was testifying, he was asked by the prosecution whether appellant had said anything at the time he was identified in the lineup at the police station, where he was required to appear with four other colored males during the police investigations of the case. Defense counsel immediately objected to anything that might have been said by appellant on that occasion, evidently anticipating that the prosecution was attempting to introduce an oral confession or an inculpatory statement without laying the proper foundation for its admission. Upon assurances from the Assistant District Attorney that he was not attempting to elicit evidence of any inculpatory statement and that his question pertained merely to the identification routine used by the police department, the judge overruled the objection and permitted the witness to answer the question. Bill of Exceptions No. 2 was then reserved by defense counsel.

In this Court, counsel has declared in oral argument and in brief that, although the testimony pertaining to this bill, which was taken down by the court stenographer, was not made part of the bill and is not contained in the transcript, the testimony of the witness revealed that appellant was required to state, while standing in the police lineup at the time of his identification, 'This is a hold-up'. Counsel contends that this utterance was made under compulsion as appellant was under arrest and, construing it to be a confession or, at least, an inculpatory statement not shown to be free and voluntary, he maintains that its introduction was violative of R.S. 15:451 and R.S. 15:452 and Section 11 of Article 1 of the Constitution, providing that no person shall be compelled to give evidence against himself in any proceeding which may subject him to criminal prosecution.

We find no...