State v. Mills

• Court: Louisiana Supreme Court
• Writing for the Court: HAWTHORNE; FOURNET
• Citation: State v. Mills, 229 La. 758, 86 So.2d 895 (La. 1956)
• Decision Date: 20 February 1956
• Docket Number: No. 42663,42663
• Parties: STATE of Louisiana v. Harold F. MILLS and Lena Vernacl.

Page 895

86 So.2d 895

229 La. 758

STATE of Louisiana v. Harold F. MILLS and Lena Vernacl.

No. 42663.

Supreme Court of Louisiana.

Feb. 20, 1956.

Rehearings Denied March 26, 1956.

David A. Neuhauser, Milo B. Williams, New Orleans, for Lena Vernaci, appellant.

Byrnes & Wallace, New Orleans, for Harold F. Mills, defendant-appellant.

Fred S. LeBlanc, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Leon D. Hubert, Jr., Dist. Atty., Adrian G. Duplantier, First Asst. Dist. Atty., Edward A. Haggerty, Jr., Asst. Dist. Atty., New Orleans, for appellee.

HAWTHORNE, Justice.

Harold F. Mills and Lena Vernaci were convicted of the crime of gambling denounced by Article 90 of the Criminal Code. Mills was sentenced to pay a fine of $500 and to serve one year in the parish prison, and in default of the payment of fine to serve six additional months. Lena Vernaci was sentenced to pay a fine of $305 and to serve six months in the parish prison, and in default of the payment of fine to serve three additional months.

For a proper understanding of the numerous bills of exception reserved we shall briefly summarize some of the facts in this case. In the early morning of October 22, 1954, Lena Vernaci was arrested by two police officers while she was alone in a room that she rented in a house at 1229 Simon Bolivar Street in New Orleans. At the time of the arrest the room contained a stove, table, chair, and light, but no other furniture. The arresting officers seized a large amount of lottery paraphernalia lying on the table, including two lottery lists giving the numbers drawn from the lottery wheel on Thursday, October 21, by a lottery company conducting lotteries called 'Bag of Silver' and 'Bag of Gold'; receipts to be issued to players; and record sheets showing plays or bets made by various players, some of which bore the date of October 22. During the trial a woman named Hattie Tucker who lived at 1229 Simon Bolivar Street testified without objection that Lena Vernaci had used the room at that address for 'writing lottery'. Also, testimony and exhibits were offered by the State to prove that Harold Mills was the owner and operator of Gold and Silver, a lottery company, and that Lena Vernaci was a lottery vendor for Mills on the date charged in the information.

Article 90 of the Criminal Code, R.S. 14:90, provides:

'Gambling is the intentional conducting, or directly assisting in the conducting, as a business, of any game, contest, lottery, or contrivance whereby a person risks the loss of anything of value in order to realize a profit. * * *' The pertinent part of the bill of information charging these defendants with violating this statute reads:

'Harold Mills and one Lena Vernaci * * * did commit the crime of gambling as defined by R.S. 14:90 in that each did unlawfully and intentionally conduct and directly assist in the conducting, as a business, at 1229 Simon Bolivar in the City of New Orleans, of a lottery, whereby a person risked the loss of a thing of value in order to realize a profit * * *.'

Mills and Vernaci each filed an application for a bill of particulars. When their applications were denied by the trial judge, each defendant reserved a bill of exception, and Vernaci also reserved bills to the overruling by the trial judge of her demurrer and motion to quash the information. These bills are designated as Mills Bill No. 1 and Vernaci Bills Nos. 1, 2, and 3.

In their motions for a bill of particulars these defendants asked the State to tell each defendant whether he or she was charged with conducting and operating a lottery, or only with assisting in the operation of a lottery; whether lottery operations were conducted at 1229 Simon Bolivar Street by each; what lottery operations each performed or took part in; where the lottery drawings took place; and other details with reference to the lottery operations.

The answer of the State, which the trial court deemed sufficient, informed the defendants that each was charged in the bill of information with conducting and assisting in conducting a lottery under the authority of R.S. 15:222, and that they were both charged as principals under the provisions of R.S. 14:24.

R.S. 15:222 provides that several distinct offenses, disjunctively enumerated in the same criminal statute, may be cumulated in the same count when it appears that they are connected with the same transaction and constitute but one act, but in that case they must be charged conjunctively. Under R.S. 14:24 all persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.

The primary function of a bill of particulars is to fully inform the accused of the nature and cause of the accusation against him so that he can adequately prepare his defense. However, a defendant in a criminal case is not entitled to particulars as a matter of right. The granting or refusal of such a bill is within the sound discretion of the trial judge, and his ruling will not be disturbed unless it is manifestly erroneous. Arts. 235 and 288, La.Code Cr.Proc., R.S. 15:235, 288; State v. Labat, 226 La. 201, 75 So.2d 333; State v. Simpson, 216 La. 212, 43 So.2d 585; State v. Poe, 214 La. 606, 38 So.2d 359; State v. Sheffield, 201 La. 1055, 10 So.2d 894; State v. Ezell, 189 La. 151, 179 So. 64.

In criticizing the denial by the trial judge of her motion for a bill of particulars, appellant Vernaci in brief in this court for the first time urges that she was entitled to know before trial the kind of lottery involved in the charge against her. We note, however, that she did not seek this information in her motion for a bill of particulars, and even if she had, it would be without merit. The word 'lottery' as used in Article 90 of the Criminal Code and in the bill of information in this case is neither vague nor indefinite. It is found in our state Constitution, Article 19, Section 8, which provides that 'Lotteries and the sale of lottery tickets are prohibited in this State'. Also, it is a commonplace word, and every layman knows exactly what is meant by the term 'lottery'.

The other information sought by these defendants in their application for particulars was an effort on their part to obtain through this bill the evidence which the State expected to offer on the trial of the case. It goes without saying that such a motion cannot be used for this purpose. The State is not required to reveal in advance of the trial the facts on which it will rely in seeking a conviction.

We think that by the bill of information these defendants had been sufficiently informed of the nature and cause of the accusation against them to be able adequately to prepare their defense, and that therefore the trial judge did not commit error in denying their motion for particulars. Likewise there is no merit in Vernaci's demurrer and motion to quash. In these motions she erroneously contends that the bill of information filed against her is vague and indefinite and does not inform her of the nature and cause of the accusation against her. The information in the instant case charges the precise gambling operation in which these defendants were allegedly involved, that is--a lottery; it gives the exact date of the offense and the house number of the place where the offense took place; and in addition it tracks the language of Article 90 of the Criminal Code. Thus it fully meets the test which this court has laid down for determining the sufficiency of an information, that is: It fully informs the court of the offense charged so that it might properly regulate the evidence sought to be introduced; it informs the accused of the nature and cause of the offense with which he is being charged; and it is sufficient on its face to support a plea of former jeopardy. State v. Scheuering, 226 La. 660, 76 So.2d 921, and authorities therein cited.

Mills Bills Nos. 2, 3, 5, 8, and 12 were submitted to this court without oral argument or discussion in brief, and without citation of authorities. Under this state of facts we would be justified in considering these bills abandoned, and probably will do so under similar circumstances in the future. In the instant case, however, we have examined each of these bills and find no merit in any of them.

Mills Bill No. 4 is not mentioned or discussed in brief filed by him in this court, and apparently this bill has been abandoned. It was reserved in connection with certain questions propounded to a witness the State was seeking to qualify as an expert on lottery operations, and to the ruling of the judge permitting this witness to testify as an expert. It is well settled that the trial judge determines whether witnesses offered as experts are entitled to be heard in that capacity, and his ruling will not be disturbed on appeal where no error appears. Art. 466, La.Code Cr.Proc., R.S. 15:466; State v. Carter, 217 La. 547, 46 So.2d 897; State v. Nicolosi, 228 La. 65, 81 So.2d 771.

Mills Bills 6, 9, 10, 11, 14, 15, and 16 were reserved to the trial judge's permitting the State to file in evidence over the defendant's objection State Exhibits 8 through 14.

Exhibits 8 and 9 are quarterly reports made to the Louisiana Department of Labor, Division of Employment Security, pursuant to the provisions of the Louisiana Unemployment Compensation Law, R.S. 23:1471- 1713. Exhibit 8 is for the third quarter of the year 1954, and Exhibit 9 is for the fourth quarter of that calendar year. These reports are made on printed forms and show the employer's name and business, and give the names, social security numbers, and wages of employees. Both of these documents are quarterly reports for Harold F. Mills, owner of 'Gold and Silver', and list Lena Vernaci as one of his employees. According to the testimony in this case, these reports...