State v. Kaufman
| Decision Date | 17 March 1958 |
| Docket Number | No. 43871,43871 |
| Citation | 101 So.2d 197,234 La. 673 |
| Parties | STATE of Louisiana v. Frank KAUFMAN. |
| Court | Louisiana Supreme Court |
Edward G. Koch, Jr., New Orleans, for appellant.
Jack P. F. Gremillion, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Leon D. Hubert, Jr., Dist. Atty., Milton E. Brener, Asst. Dist. Atty., Louis Fenner Claiborne, Asst. Dist. Atty., New Orleans, for appellee.
Appellant Frank Kaufman was charged with selling a narcotic drug, an offense denounced by R.S. 40:962(A), and having been tried, adjudged guilty, and sentenced to a term in the penitentiary, he has appealed. The only question presented by this appeal is the correctness of the overruling of appellant's motion in arrest of judgment, to which he reserved a bill of exception.
The bill of information under which appellant was tried and convicted contains two counts. His motion in arrest is aimed only at the second count, which reads: '* * * that the said Frank Kaufman * * * on December 27, 1956, * * * did sell, give and deliver to James Riley a narcotic drug, to-wit: Two (2) marijuana cigarettes * * *.'
In his motion in arrest appellant contends that the information is fatally defective because it does not allege the ages of the vendor and the vendee. Counsel argues that the gaes of vendor and vendee are necessary allegations of the information since R.S. 40:981 providing penalties for the violation of the Louisiana Uniform Narcotic Drug Law, R.S. 40:961 et seq., provides for different sentence depending upon the age of the person convicted of the offense and the age of the recipient of the drug.
The statute under which appellant is charged, R.S. 40:962(A), reads: 'It is unlawful for any person to * * * sell, give, deliver * * * any narcotic drug * * *.' It will thus be seen that the crime denounced by the statute is the sale of a narcotic drug, and that the ages of the parties to the transaction are not an element of the crime. As was pertinently said by this court in State v. Wagner, 229 La. 223, 85 So.2d 272, 273, 'While the statute, LSA-R.S. 40:962, provides that it is unlawful to administer narcotic drugs to any person without designating age, yet LSA-R.S. 40:982 (981) provides a greater penalty if the person who has been given the narcotic is under the age of twenty-one'. It is only after conviction and prior to sentence that the provisions of R.S. 40:981 become effective, as this section deals with the sentences to be imposed for violations not only of the provisions of R.S. 40:962 but also of any other provisions of the Uniform Narcotic Drug Law.
Article 227 of the Code of Criminal Procedure, R.S. 15:227, provides: 'The indictment must state every fact and circumstance necessary to constitute the offense but it need do no more * * *.' The ages of the vendor and the recipient are not mentioned in the statute denouncing...
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State v. Cryer
... ... We have previously held that for this offense the age of the defendant need not be alleged in the bill of information nor established by evidence before the jury. See State v. Kaufman, 234 La. 673, 101 So.2d 197 (1958); State v. Wagner, 229 La. 223, 85 So.2d 272 (1956) ... Taking note of these decisions, the defendants contend that they should be overruled. We disagree. As we observed in [262 La. 584] State v. Kaufman, the defendant's age in LSA-R.S. 40:981 is ... ...
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State v. Richard
... ... Kaufman, 234 La. 673, 101 So.2d 197; State v. Dartez, 230 La. 492, 89 So.2d 48; and State v. Beigert, 227 La. 1100, 81 So.2d 410 ... 3 LSA-R.S. 15:221; State v. Blankenship, 231 La. 993, 93 So.2d 533 ... 4 See Connally v. General Construction Company, 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322; State v ... ...