State v. Ledoux

• Citation: 157 La. 821,103 So. 177
• Decision Date: 05 January 1925
• Docket Number: 26903
• Court: Supreme Court of Louisiana
• Parties: STATE v. LEDOUX

103 So. 177

157 La. 821

STATE v. LEDOUX

No. 26903

Supreme Court of Louisiana

January 5, 1925

Rehearing Denied February 2, 1925

Appeal from Judicial District Court, Parish of Calcasieu; Jerry Cline, Judge.

Ned Ledoux was convicted of selling and disposing of intoxicating liquor for beverage purposes, and he appeals.

Affirmed.

M. R Stewart, of Lake Charles, for appellant.

Percy Saint, Atty. Gen., Griffin T. Hawkins, Dist. Atty., of Lake Charles, and Percy T. Ogden, Asst. Atty. Gen. (J. Bernard Cocke, of New Orleans, of counsel), for the State.

OVERTON J. O'NIELL, C. J.

OPINION

OVERTON, J.

Defendant was indicted for having sold and disposed of intoxicating liquor for beverage purposes. He was tried, found guilty, and sentenced to 60 days in jail, to pay a fine of $ 500, and in default of paying the fine to 4 months additional imprisonment.

Defendant has appealed from the sentence pronounced against him, and has assigned in this court, as error patent on the face of the record that, by a general verdict of guilty, he was convicted of selling and disposing of intoxicating liquor for beverage purposes, with which offense he was charged, when, as a matter of fact, as appears from the minutes of the trial court, he was tried for only selling intoxicating liquor for beverage purposes, and hence was convicted of disposing of it for such purposes without trial.

The offense for which defendant was indicted is denounced by Act 39 of 1921, the first section of which, in so far as pertinent, reads as follows:

"* * * No person shall manufacture, sell, or in any manner dispose of * * * intoxicating liquors within this state * * * for beverage purposes. * * *"

The purpose which the Legislature had in inserting the phrase, "or in any manner dispose," after the word "sell" was to include a disposal of intoxicating liquor for beverage purposes, which is not a sale, as, for instance, when it is an exchange of the liquor for some commodity, and this is the conception of the statute that the defendant has in mind when he says that he was charged with selling and disposing of intoxicating liquor for beverage purposes, tried only for selling it, but convicted of selling and disposing of it.

Defendant refers us to the bill of indictment and to the minute entry of the trial to substantiate his position that he was tried for only selling intoxicating liquor, but was convicted of both selling and disposing of it. The minutes of court show, among other things, the return of the indictment, the arraignment, the trial, and conviction, and show in connection with each one of these entries the title and number of the case, and then show thefollowing, to wit: "Charge: Selling intoxicating liquor for beverage purposes, without showing the rest of the charge as preferred by the grand jury. Then follows the entry showing the proceedings had in the case for the day on which the entry was made.

Unless the minutes affirmatively show the contrary, the presumption is that the accused, on his trial, was tried on the entire charge as preferred against him. In this instance, the minutes do not affirmatively show that he was not so tried. In fact, it is manifest from a mere reading of the minutes that the sole purpose that the clerk had in making the partial entry, made by him at the beginning of each minute entry, was to better identify the entry with the case, and not to show in full what charge the grand jury, in returning the bill of indictment, returned against the accused, or to show the charge in full upon which he was arraigned or tried.

Let us assume, however, that we are in error in so holding, and that we should hold instead that defendant was tried for only selling intoxicating liquor for beverage purposes, still the assignment of error under consideration would be groundless. This would be so, because, if the partial minute entry of the charge, at the beginning of the entry, showing the trial, is sufficient to show that the accused was tried only for selling intoxicating liquor for beverage purposes, then, by the same reasoning, it ought to be held that he was convicted of that offense only, for the verdict is shown in the same entry as the trial, and therefore under the same heading showing the charge, and especially should it be so held when it is remembered that...