State v. Morgan

• Decision Date: 14 December 1959
• Docket Number: No. 44898,44898
• Citation: 238 La. 829,116 So.2d 682
• Parties: STATE of Louisiana v. Herbert MORGAN.
• Court: Louisiana Supreme Court

Page 682

116 So.2d 682

238 La. 829

STATE of Louisiana v. Herbert MORGAN.

No. 44898.

Supreme Court of Louisiana.

Dec. 14, 1959.

Rehearing Denied Jan. 11, 1960.

John R. Rarick, St. Francisville, for defendant-appellant.

Jack P. F. Gremillion, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Richard Kilbourne, Dist. Atty., Clinton, for appellee.

VIOSCA, Justice.

Herbert Morgan, an inmate of the Louisiana State Penitentiary, was charged in a bill of information with the violation of LSA-R.S. 14:402, 'in that he attempted to introduce a quantity of nasal inhalators into and upon the grounds of the Louisiana State Penitentiary, a penal institution under the supervision and control of the Board of Institutions of the State of Louisiana, without the authority of the Warden of said Louisiana State Penitentiary, contrary to the form of the Statutes of the State of Louisiana, in such cases made and provided against the peace and dignity of the same.' Defendant filed a motion to quash which was overruled. He was tried and found guilty by a jury. He then filed a motion for a new trial and a motion in arrest of judgment, both of which motions were denied. Thereupon the defendant was sentenced to serve three years at hard labor in the Louisiana State Penitentiary, said sentence to run consecutively with any sentence or sentences he is now serving. Defendant has appealed to this court from his conviction and sentence.

On this appeal defendant relies upon two bills of exception, one reserved to the overruling of the motion to quash, and the other to the denial of the motion for a new trial and the motion in arrest of judgment.

The defendant moved to quash the indictment for the following reasons:

'(1) There being no such crime as alleged under R.S. 15:876 on May 5, 1959, the date of this indictment.

'(2) The alleged crime as set forth, in the indictment can not legally and factually apply to your defendant.

'(3) If applicable to the accused the statute and its provisions as complained of in the indictment is unconstitutional in that, but not exclusively,

'(a) It represents an unreasonable and arbitrary exercise of the police power.

'(b) it sets forth (a crime which is) arbitrary and discriminatory as to a class of which accused is a member.

'(c) provides for cruel and inhuman punishment in that it provides a penalty of imprisonment in the Louisiana State Penitentiary without eligibility for parole or suspension of sentence, and yet the penalty is ambiguous and does not classify the crime as either a felony or misdemeanor and therefore deprives the accused of a jury trial or knowing the number of jurors by which he is entitled to be tried.

'(d) commingles as contraband items not narcotic by our statutes and with no distinction for penalty and encroaches on the executive and Judiciary.'

The motion for a new trial is based on the following grounds:

'1. The verdict is contrary to the law and the evidence; or

'2. The bills of exception reserved during the proceedings show error committed to the prejudicie of the accused;

'3. Since the verdict accused has disovered errors or defects in the proceedings to his prejudice that could not have been discovered with reasonable diligence before verdict.'

The motion in arrest of judgment, besides the grounds set out in the motion to quash, sets out the additional grounds, to wit:

'4. Statute is worded broad, general and vague and it does not specifically and accurately define the offense;

'5. It deprives the executive department of (the) state of (the) right to grant pardon and parole in a criminal offense in contravention (of) Art. 2, Section 2 of the Louisiana Constitution of 1921; '6. It deprives (the) judiciary department of (the) right to grant suspended sentence in contravention, of Article II, Section II of Constitution of 1921;

'7. It does not inform the defendant of the nature and cause of the accusation against him;

'8. Deprives the defendant of his liberty without due process of law;

'9. It commingles as contraband items not forbidden by our statutes without distinction for penalty;

'10. Does not specify whether the penalty is at hard labor or otherwise thereby failing to classify the offense as a misdemeanor or felony.'

Basically the contentions in both bills of exception are levelled at the unconstitutionality of LSA-R.S. 14:402,¹ and both bills therefore will be treated together.

Act 269 of 1958 (incorporated in the Revised Statutes as LSA-R.S. 14:402) reads as follows:

'An Act

'To amend Title 15 of the Louisiana Revised Statutes of 1950 by adding thereto a new section to be designated as R.S. 15:876; to prohibit the introduction or the attempt to introduce into or upon the grounds of any correctional or penal institution under the direction and supervision of the Board of Institutions of the State of Louisiana and to prohibit the taking or removing or the attempt to take or remove or send from such institutions of any articles or anything whatsoever declared to be contraband under the provisions of this act, when so introduced into or upon the grounds of such institutions or taken, removed, or sent thereform without authorization of the officer in charge of each such institution; to prescribe penalties for violations of the provisions of this Act.

'Be it enacted by the Legislature of Louisiana:

'Section 1. Section 876 of Title 15 of the Louisiana Revised Statutes of 1950 is hereby enacted to read as follows:

' § 876.

'A. It shall be unlawful to introduce or attempt to introduce into or upon the grounds of any correctional or penal institution under the supervision or control of the Board of Institutions of the State of Louisiana or to take or attempt to take or send therefrom any of the following articles which are hereby declared to be contraband for the purposes of this act, to wit: Any communication or any currency or coin given or transmitted or intended to be given or transmitted to any inmate of any correctional or penal institution under the supervision and direction of the Louisiana State Board of Institutions; any article of food or clothing; any intoxicating beverage or beverage which causes or may cause an intoxicating effect; any narcotic or hypnotic or excitive drug or any drug of whatever kind or nature including nasal inhalators of any variety, sleeping pills or barbiturates of any variety that create or may create a hypnotic effect if taken internally; and any firearm or any instrumentality customarily used as a dangerous weapon, except through regular channels as authorized by the officer in charge of each correctional or penal institution.

'B. Whoever violates any provision of this section shall upon conviction be imprisoned in the state penitentiary for not more than three years without being eligible for a suspended sentence or for a parole.

'Section 2. All laws or parts of laws in conflict herewith are hereby repealed.'

The first contention listed in the motion to quash, that there was no such crime as alleged on May 5, 1959, has apparently been abandoned as counsel for defendant does not argue it in his brief in this Court. Suffice it to say, the act in question was approved by the Governor on July 6, 1958.

The next contention is that the alleged crime cannot legally and factually apply to the defendant. It is arued that since defendant was an inmate of the penitentiary he could not be charged with introducing contraband 'into and upon' the grounds of the Louisiana State Penitentiary. This attack is one that addresses itself to the sufficiency of the evidence. That is a question to be determined by the jury and not by this Court. Furthermore one inside the penitentiary might well be guilty as a principal if he acted in concert with one who carried the contraband in from the outside.

Defendant also argues in his brief that the information is defective because the charge reads 'into And upon' while the statute is worded 'into Or upon'. Even assuming that the statute in the use of the words 'into Or upon' refers to different offenses, there is no merit to this contention. Where a section of an act enumerates several offenses linked to the same act, they may be charged cumulatively in one count. State v. Amiss, 230 La. 1003, 89 So.2d 877.

The contentions of the defendant that the act is unconstitutional for the reasons that it is an unreasonable exercise of the police power, and that it is arbitrary and discriminatory to a class of which defendant is a member, is without merit. In the exercise of its police power, the state has the undoubted right to adopt laws for the safety of the inmates of the Penitentiary and to guard against the smuggling into the institution of contraband, some of which may be used to facilitate escape and others of which may affect the safety, health or morals of the inmates. There is nothing discriminatory about the act. It applies equally to all persons, whether they be in or out of the penitentiary.

The contention that the act is unconstitutional because it provides for cruel and inhuman punishment in that it imposes a penalty of imprisonment without eligibility for parole or suspension of sentence, is without foundation. The state may in its discretion exclude such classes of persons from participation in the benefit of parole or suspended sentences as long as the provision is applicable to all persons who have been convicted of the same offense. State v. Thomas, 224 La. 431, 69 So.2d 738; Ughbanks v. Armstrong, 208 U.S. 481, 28 S.Ct. 372, 52 L.Ed. 582. In State v. Thomas, supra, we said: 'The Uniform Narcotic Act, a law dealing with a special subject, applies to all persons convicted of this particular crime, without exception, subjecting them all, as a class, to the same loss of parole privileges. The Legislature obviously concluded that the interests of society are best served by withholding from this class of persons the privilege enjoyed by certain others, and its wisdom in that respect cannot be...