State v. McCrory

• Decision Date: 01 June 1959
• Docket Number: No. 44412,44412
• Parties: STATE of Louisiana v. Melvin J. McCRORY.
• Court: Louisiana Supreme Court

Page 432

112 So.2d 432

237 La. 747

STATE of Louisiana v. Melvin J. McCRORY.

No. 44412.

Supreme Court of Louisiana.

June 1, 1959.

Sargent Pitcher, Jr., Baton Rouge, for defendant-appellant.

Jack P. F. Gremillion, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., J. St. Clair Favrot, Dist. Atty., Thomas B. Pugh, Ralph L. Roy, Asst. Dist. Attys., Baton Rouge, for appellee.

McCALEB, Justice.

Melvin J. McCrory, having been convicted of simple burglary and sentenced to three years at hard labor in the State penitentiary, has prosecuted this appeal relying on four of the six bills of exceptions reserved by him during the proceedings as grounds for a new trial. In addition, he claims the nullity of his conviction by reason of an alleged defective bill of information, which he challenged by a motion in arrest of judgment. The overruling of this motion is specified here as an error patent on the face of the record (see Article 503 of the Code of Criminal Procedure--R.S. 15:503) and we address our immediate attention to its consideration.

The information charges that appellant '* * * did violate R.S. 14:62 in that you entered without authority a structure known as Put's Place, the property of Adam Walker, with the intent to commit a theft therein, * * *'.

R.S. 14:62 defines simple burglary as '* * * the unauthorized entering of any * * * dwelling or other structure, * * * with the intent to commit any forcible felony or any theft therein, * * *'. The contention of defense counsel is that, since the short form for simple burglary prescribed by Article 235 of the Code of Criminal Procedure (R.S. 15:235) was not employed, the indictment is fatally defective because the State has not strictly adhered to the statutory provisions in pleading the charge.

There is no merit in this proposition. Comparison of the recitals of the information with the statute discloses that each and every element of the crime of simple burglary is set forth in the bill, that is, the unauthorized entry of a structure of another with the intent to commit a theft therein. Article 227, Code of Criminal Procedure (R.S. 15:227) declares that 'The indictment must state every fact and circumstance necessary to constitute the offense, but it need do no more, and it is immaterial whether the language of the statute creating the offense, or words unequivocally conveying the meaning of the statute, be used.' The bill in this case fully informs the accused of the nature and cause of the accusation which is all that is necessary under the well-established jurisprudence.¹

The object of the burglary was allegedly the theft of whiskey and, when Deputy Sheriff Johnson was being cross-examined, he was asked what had been done with the whiskey he had secured as evidence. He replied that he had turned it over to the assistant district attorney and that, thereafter, he had no knowledge as to its disposition. Thereupon, counsel for appellant requested the judge to order the prosecution to produce in evidence the bottles of whiskey about which the witness had testified. Before the court ruled, the assistant district attorney stated that he would produce the whiskey when he thought it was appropriate and not until then. Defense counsel, nevertheless, insisted on its production at that time, stating that the witness had testified at length on direct examination about the serial numbers appearing on the whiskey bottles and that these bottles constituted the best evidence. When the court refused to accede to counsel's request, Bill of Exceptions No. 2 was reserved.

In contending that it was prejudicial error for the judge to deny his request for the production of the whiskey, defense counsel relies mainly on Article 436 of the Code of Criminal Procedure (R.S. 15:436), which states:

'The best evidence which from the nature of the case must be supposed to exist, and which is within a party's control, must be produced.'

The district attorney apparently does not take issue with counsel's position that the best evidence rule required that the State offer the bottles of whiskey. But it is proclaimed that the demand of defense counsel was merely an attempt by him to regulate the order of the prosecution's proof, a matter over which the judge had no right of control. R.S. 15:318.

The fallacy we find in this argument is that the record does not show that the State produced the bottles of whiskey at any stage of the trial. We note in this connection the failure of the judge to append per curiams to any of the bills of exceptions and that he has violated the provisions of Article 504 of the Code of Criminal Procedure (R.S. 15:504)² by not certifying at the foot of each bill the reason why a per curiam has not been furnished. See State v. Alexander, 216 La. 932, 45 So.2d 83.

In the absence of a per curiam, we must accept the statements contained in the bills as correct. Hence, we have before us only the refusal of the judge to require the prosecution to produce the best evidence which was concededly in its possession and which, according to the record, has not been shown to have been offered at the trial. The language of R.S. 15:436 is mandatory; the rejection of counsel's request denied appellant a substantive statutory right.

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