State v. Milford

• Decision Date: 31 May 1954
• Docket Number: No. 41766,41766
• Citation: 225 La. 611,73 So.2d 778
• Parties: STATE v. MILFORD.
• Court: Louisiana Supreme Court

Page 778

73 So.2d 778

225 La. 611

STATE v. MILFORD.

No. 41766.

Supreme Court of Louisiana.

May 31, 1954.

Warren Hunt, Rayville, for appellant.

Fred S. LeBlanc, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Fred Fudickar, Jr., Dist. Atty., Gilbert Brown, Jr., Asst. Dist. Atty., Monroe, for appellee.

HAMITER, Justice.

An indictment returned by the Ouachita Parish Grand Jury charged that on or about June 23, 1953 the defendant, then over seventeen years of age, did commit a lewd and lascivious act upon the person of a child under the age of seventeen years (a named boy who was six years old at that time) with the intention of arousing or gratifying his sexual desires.

By the Fourth District Court of the named parish, holding session as a juvenile court, the defendant was tried, adjudged guilty as charged, and sentenced to a term of one year in jail. This appeal followed and it presents for our consideration three bills of exceptions.

The first bill was taken to the overruling of a motion to quash the indictment. The motion assailed the constitutionality of Article 81 of the Louisiana Criminal Code, LSA-R.S. 14:81, on which the indictment was predicated, it reading as follows: 'Indecent behavior with juveniles is the commission by anyone over the age of seventeen of any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, with the intention of arousing or gratifying the sexual desires of the either person. Lack of knowledge of the child's age shall not be a defense.

'Whoever commits the crime of indecent behavior with juveniles shall be fined not more than five hundred dollars, or imprisoned for not more than one year, or both.'

According to the brief of defense counsel bill No. 1 poses the question of '* * * whether or not the act upon which this prosecution is based, is sufficient in its terms to notify all who may fall under its provisions as to what acts constitute a violation of this law, or is the language of the act itself too general to inform one of the specific acts which are intended to be reprobated.'

The identical question was determined in State v. Saibold, 213 La. 415, 34 So.2d 909 and in State v. Prejean, 216 La. 1072, 45 So.2d 627. There we held that the quoted provisions are sufficiently definite and certain and are invulnerable to attack on the ground of unconstitutionality.

During the course of the trial which took place February 5, 1954 the state offered as a witness the child upon whom the alleged lewd and lascivious act was committed and who on such date was seven years and some three months of age (his birthday is October 15). For the purpose of ascertaining his competency numerous questions were propounded by both the district attorney and defense counsel. Then the latter, at the conclusion of the examination, announced: '* * * we object to the witness being sworn or giving testimony in this case for the reason that because of his extreme youth he would be unable to observe, recollect and narrate any given state of facts.'

Thereupon, the judge observed and ruled as follows: 'This witness has been examined by both counsel and states he knows what it is when they swear him to tell the truth; that if he don't tell the truth that he will be punished and God would punish him and his mother would spank him. This child is of tender years and in the second grade at school and seems to the Court to be perfectly composed in the Court Room and can understand nearly all the questions propounded to him by the two attorneys. The Court feels that he qualified as a witness and should be allowed to testify in this case; taking into consideration this is a Juvenile Court and of necessity a number of the witnesses are of tender age.'

As a result of the ruling bill of exceptions No. 2 was reserved and perfected, attached to which is a per curiam reading: 'This boy's testimony speaks for itself. This boy is the juvenile named in the indictment. The Court thought from his answers * * * to questions by the Dist. Atty. and the attorney for the defense that he qualified as a witness. The Court feels that his testimony shows he was well qualified.'

Applicable to this bill is Article 469 of the Louisiana Code of Criminal Procedure, LSA-R.S. 15:469. It recites: 'Understanding, and not age, must determine whether any person tendered as a witness shall be sworn; but no child less than twelve years of age shall, over the objection either of the district attorney or of the defendant, be sworn as a witness, until the court is satisfied, after...