State v. McCall

• Court: Louisiana Supreme Court
• Writing for the Court: BRUNOT, J.
• Citation: State v. McCall, 162 La. 471, 110 So. 723 (La. 1926)
• Decision Date: 02 November 1926
• Docket Number: 28142
• Parties: STATE v. McCALL. In re McCALL

110 So. 723

162 La. 471

STATE v. McCALL.

In re McCALL

No. 28142

Supreme Court of Louisiana

November 2, 1926

Rehearing Denied November 29, 1926

Writs denied, but sentence avoided, and case remanded for proper sentence.

George W. Smith, of Rayville, and Thomas C. Newton, of Monroe, for relator.

Percy Saint, Atty. Gen., and David I. Garrett, Dist. Atty., of Monroe, for the State.

BRUNOT J. O'NIELL, C. J., and ST. PAUL, J., concur in the decree.

OPINION

BRUNOT, J.

Relator was tried, convicted, and sentenced for a violation of one of the provisions of the Hood Act (Act No. 39 of 1921 [Ex. Sess.]); viz., selling Jamaica ginger, an alcoholic liquid containing more than one-half of 1 per cent. of alcohol by volume, for beverage purposes. He applied to this court for writs of certiorari, mandamus, and prohibition. A rule nisi issued, the district judge answered the rule, and the application is submitted on the record.

Before pleading to the charge in the district court, relator filed a motion for a bill of particulars in which he prayed for the following information: The exact hour of the day on which the offense is alleged to have been committed; the exact place in the parish where the sale was made; the quantity of Jamaica ginger sold; and the name of the purchaser. The district attorney answered the motion and, in obedience to the order of court, supplied the desired particulars only as to the quantity of Jamaica ginger alleged to have been sold.

In State v. Lewis, 159 La. 109, 105 So. 243, the defendant prayed to be informed of the exact day and hour of the alleged sale, the exact place in the parish where the sale was made, the kind and quantity of liquor sold, the name of the purchaser of the liquor, and the price paid for the liquor, etc. In that case we said:

"In charging the commission of an offense, it is sufficient if the information alleges that it was committed on or about a particular day. State v. De Arman, 153 La. 345, 95 So. 803; State v. Oras Marcantel, 158 La. 674, 104 So. 612; and State v. Cryar, 158 La. 498, 104 So. 304. * * * It is not necessary for the information to designate with particularity the place in the parish where the offense was committed. R. S. 1062-1063; State v. Gomer, 6 La.Ann. 311; State v. Ackerman, 51 La.Ann. 1213, 26 So. 80; State v. Burkhalter, 118 La. 637 [657], 43 So. 268; State v. Kilshaw, 158 La. 203, 103 So. 740. The name of the purchaser of the liquor need not be given. State v. Burkhalter, 118 La. 657, 43 So. 268; State v. Moeling, 129 La. 204, 55 So. 764; State v. Selsor, 127 La. 513, 53 So. 737; State v. John, 129 La. 208, 55 So. 766; State v. Munlin, 133 La. 60, 62 So. 351; State v. Jackson, 135 La. 365, 65 So. 491; State v. Mines, 137 La. 489, 68 So. 837; State v. Coile, 137 La. 673, 69 So. 90; State v. Smith, 139 La. 442, 71 So. 734; State v. Garland, 140 La. 401, 73 So. 246; State v. Scott, 155 La. 222, 99 So. 45; State v. Cryar, 158 La. 498, 104 So. 304."

In the Lewis Case, we also quoted from Marr's Crim. Jur. (2d Ed.) vol. 1, p. 515, the following:

"A bill of particulars is not a matter of right; it rests greatly in the discretion of the trial judge, and its refusal furnishes no ground for reversal unless prejudice be clearly shown, and the refusal is proper when particulars are not necessary to enable defendant to make a proper defense."

The court declined to order the district attorney to fix the exact hour, or the exact place in the parish of the alleged sale or to give the name of the alleged purchaser. We see no error in the ruling.

Relator's first bill of exception was reserved to the overruling of his demurrer and motion to quash the information as amended by the bill of particulars filed by the district attorney. The demurrer is merely anticipatory, and it seems to be urged in an abundance of precaution. It is based upon the allegation that the defense might be prejudiced unless the exact time and place of the alleged crime is fixed in the information. The authorities cited, supra, dispose of this contention. The motion to quash attacks the constitutionality of Act 39 of 1921 (Ex. Sess.) and of Act 57 of 1924.

Relator alleges that the body of Act 39 of 1921 (Ex. Sess.) is broader than its title and is therefore repugnant to section 16 of article 3 of the Constitution; that the act is contrary to section 18 of article 3 of the Constitution because it attempts to adopt a system or code of laws by reference only; that the body of Act 57 of 1924 is broader than its title in that the title does not state in what particulars section 8 of Act 39 of 1921 (Ex. Sess.) is amended; that the act defines intoxicating liquor, liquor, person, and vehicle, although no such purpose is disclosed in the title; that the act attempts to amend and re-enact an unconstitutional law and to incorporate therein matter not mentioned in the title; and, that both acts are in contravention of the rights granted by the federal Constitution and laws and the rules and regulations promulgated thereunder by the federal administrative bureaus.

All of the contentions here made by relator have been passed upon by this court. The contention that the body of Act 39 of 1921 (Ex. Sess.) is broader than its title, in that it attempts to define liquor and intoxicating liquor, is disposed of by the following cases: State v. Coco, 152 La. 241, 92 So. 883; State v. Archinard, 152 La. 786, 94 So. 395.

Section 8 of Act 39 of 1921 (Ex. Sess.) is amended by Act 57 of 1924 so as to read as follows:

"That the word 'liquor' or the phrase 'intoxicating liquors' wherever used in this act shall be construed to include alcohol, whisky, brandy, rum, gin, beer, ale, porter, wine, and any spirituous, vinous, malt, or fermented liquor, liquids and compounds by whatever name called, and all alcoholic liquids either medicated, proprietary or patented, containing one-half of 1 per centum or more of alcohol by volume, which are fit for use as a beverage or for intoxicating beverage purposes.

"The word 'person' shall mean natural persons, associations, copartnerships, corporations, and their clerks, officers, agents, and servants.

"The word 'vehicle' shall include all such means of transportation as a buggy, wagon, automobile, truck, water or air craft," etc.

Act 57 of 1924 has been held by this court to be a valid enactment. In State v. Scallan, 160 La. 162, 106 So. 731, we had occasion to pass upon a plea identical, in several respects, with the one now before us. In that case we said:

"The plea that the act is unconstitutional refers only to that class of intoxicating liquors which are described in the amending act as: 'all alcoholic liquids, either medicated, proprietary or patented, containing one-half of one per centum, or more of alcohol by volume, which are fit for use as a beverage or for intoxicating beverage purposes.' That class of intoxicating liquors was described originally, in the eighth section of the Act of 1921 [Ex. Sess.] as, 'all alcoholic liquids, either medicated, proprietary, or patented, which are fit for use as a beverage or for intoxicating beverage purposes, all as defined by federal legislation.' The change that was made by the amendment, in the definition of that kind of intoxicating liquors, was merely to substitute for the qualifying phrase, 'all as defined by federal legislation,' the phrase, 'containing one-half of 1 per centum or more of alcohol by volume.' It is argued by the learned counsel for appellant that this amendment gives the statute a broader scope than its title indicates, because it outlaws all medicated, proprietary, or patented liquids containing one-half of 1 per cent., or more of alcohol by volume and fit for use as a beverage or for intoxicating beverage purposes, whether they be or be not so 'defined by federal legislation.' If federal legislation forbids -- as we believe it does forbid [162 La. 478] -- the sale for beverage purposes, of any or all medicated, proprietary, or patented liquids containing one-half of 1 per cent. or more of alcohol by volume and fit for use as a beverage or for intoxicating beverage purposes, the eighth section of the statute is not broader in its scope now than it was originally, when it used the phrase, 'as defined by federal legislation,' instead of stating the minimum alcoholic content of these outlawed liquids.

"It is contended, also, that the title of the amending act should indicate the change that is made in the provisions of the act. The title of the amending act merely declares that it is 'An act to amend and re-enact section 8 of Act No. 39, of 1921 [Ex. Sess.], entitled, "An act to prohibit the manufacture,"' etc. [reproducing verbatim the title of the original act]. * * * The title of the original act is as appropriate for the amended act as it was for the original act. The title of the act did not originally and does not now refer to the phrase, 'as defined by federal legislation,' or refer to the minimum alcoholic content of the outlawed liquids, whether medicated, proprietary, or patented. Therefore the substitution of the phrase 'containing one-half of 1 per cent., or more of alcohol by volume,' for the phrase, 'as defined by federal legislation,' did not make the title of the act less indicative of its object than it was originally."

The Scallan, Coco, and Archinard Cases, cited supra, and State v. Whitlock, 159 La. 888, 106 So. 369, dispose of relator's attack upon Act 39 of 1921 (Ex. Sess.) and Act 57 of 1924. The constitutionality of these acts has been questioned in a number of other cases that have been before us, but our decisions are uniform and in accord with the views expressed in the cases we have cited in this connection. The validity of section 8 of Act 39 of 1921 (Ex....