State v. Nejin

• Decision Date: 15 January 1917
• Docket Number: 22288
• Citation: 140 La. 793,74 So. 103
• Court: Louisiana Supreme Court
• Parties: STATE v. NEJIN

74 So. 103

140 La. 793

STATE v. NEJIN

No. 22288

Supreme Court of Louisiana

January 15, 1917

SYLLABUS

(Syllabus by the Court.)

Act No 8 of 1915 (Ex. Sess.), in defining and prohibiting the keeping of a blind tiger, and providing for the search for, and seizure of, intoxicating liquors, does not contravene article 31 of the state Constitution, which declares that every law shall embrace but one object, and that shall be expressed in the title. The search for and seizure of the liquor is a means provided for the accomplishment of the one object of the act; i. e., to prohibit the keeping of blind tigers.

The act does not contravene article 7 of the state Constitution, which guarantees the people against unreasonable searches and seizures, and declares that no search warrant shall issue except upon probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons or things to be seized. The Fourth and Fourteenth Amendments to the Constitution of the United States are inapplicable in this case.

It contravenes no constitutional provision prohibiting the taking or destruction of private property, without due process of law, or without compensation to the owner.

It contravenes no constitutional provision by reason of its application exclusively to 'dry' or 'prohibition' territory.

It applies in every community in the state where, in the exercise of the right of local option, the people have prohibited the sale of intoxicating liquor, and is applicable in every other community, in the sense that, should any other exercise the same right, it will come immediately under its dominion. It is not, therefore, a local or special law within the meaning of articles 48 and 50 of the Constitution.

It does not violate article 49 of the Constitution by partially repealing a general law, in the sense of that article. The general law (relating to grog and tippling shops) became moperative in territory which became dry, not by reason of the act in question, but by the vote of the electors.

Section 974 of the Revised Statutes, which provides that additional penalties may be imposed for second, third, and fourth offenses, has not been repealed by article 159 of the Constitution, which requires the General Assembly to fix the maximum and minimum penalties for misdemeanors and minor offenses against the state. The section in question, and statutes fixing maximum and minimum penalties in particular cases, are laws in pari materia, and are to be construed together, and, so construed, the minimum penalties may be found in the statutes and the extreme maximum penalties in the section.

The Constitution declares that cases in which the penalty is not necessarily at hard labor (meaning imprisonment at hard labor in the penitentiary), or death, shall be tried by the courts, without juries; that the General Assembly may provide for the prosecution of misdemeanors on affidavits, and shall have power to create, in cities of a certain population, courts with criminal jurisdiction which shall not extend beyond the trial of offenses not punishable by imprisonment at hard labor, under the laws of the state; and the General Assembly, in the proper exercise of that power, created the city court of the city of Shreveport, and vested it with that jurisdiction, and other jurisdiction which it was competent to confer. The judge of that court is therefore vested with jurisdiction of offenses against the state, and is within the terms and intendment of section 974 of the Revised Statutes.

Where, in the prosecution, upon affidavit, of an offense required to be prosecuted in that way, the affidavit fails to charge that the offense is the second or third of the kind committed by the defendant, evidence of such fact, offered upon the basis of an unsworn statement to that effect, filed after the affidavit, in order that the penalty may be increased, as provided by Rev. St. 974, is inadmissible.

The defendant in such case is entitled to be fully informed, in the manner prescribed by law, concerning the charge that he is to meet, and such information carries with it the knowledge of the penalty that may be imposed upon him. And when the trial takes place before the judge without a jury, and the evidence mentioned has been admitted, and the increased penalty has been imposed, the conviction, as well as the sentence, will be set aside.

It is elementary that in order, legally, to convict a person charged with a criminal offense, the trial judge must be convinced, beyond a reasonable doubt of his guilt, and it is error for him to refuse to be guided by a 'proposition of law' to that effect, submitted in accordance with the provisions of Act No. 93 of 1916.

Where, in a prosecution, under Act No. 8 of 1915 (Ex. Sess.) for keeping a 'blind tiger,' the trial judge refuses to be guided by the proposition (submitted agreeably to the provisions of Act No. 93 of 1916) that 'the law does not denounce the possession of whisky or other intoxicating liquors; a man may keep on hand any quantity of such liquors without violating any law, and the mere possession of such liquors does not even make out a prima facie case under the charges preferred,' this court will not review his ruling, since it has no jurisdiction, in a criminal case, to determine the effect that should be given to admissible evidence.

The state, in fairness to the accused, should present its case at the opening, but we know of no rule which requires that in so doing it must call to the stand any other witness than those whom the prosecuting officer considers necessary, or which justifies the presumption that those whom he does not call would testify unfavorably to the prosecution.

Charles F. Crane and Foster, Looney & Wilkinson, all of Shreveport, for appellant.

A. V. Coco, Atty. Gen., W. A. Mabry, Dist. Atty., and S. I. Foster, Asst. Dist. Atty., both of Shreveport (Vernon A. Coco, of Marksville, of counsel), for the State.

OPINION

MONROE, C. J.

Defendant was charged with keeping a blind tiger and, some days later, the assistant district attorney filed an unsworn statement in the case to the effect that he (defendant) had previously been twice convicted of the same offense. Defendant moved to quash the charge, which motion was overruled, and, having been put on trial, he reserved several bills of exception, and, after conviction, filed motions in arrest of judgment and for new trial, which we also overruled. He was sentenced to pay a fine of $ 1,000, and to serve 12 months on the public works of the city of Shreveport, and, in default of payment of the fine, to so serve 12 months more. The motions to quash and in arrest are predicated upon the averments that the charge against defendant is based upon Act No. 8 of 1915 (Extra Session), and that the act contravenes certain articles of the state and federal Constitutions, to wit:

First. That the title expresses two objects which are also embraced in the text, in contravention of article 31 of the state Constitution, to wit: To define and prohibit the keeping of a blind tiger, and to provide for the search for and seizure of intoxicating liquors.

The search for and seizure of the liquors is a means provided for the accomplishment of the one object of the act, i. e., to prohibit the keeping of blind tigers, and, being germane to that object, it was unnecessary that it should have been mentioned in the title. It was so held in State v. Doremus, 137 La. 266, 68 So. 605. See, also, City of Shreveport v. F. A. Nejin, No. 22,287, 73 So. 996, and Louisiana State Board, etc., v. Tanzmann, No. 22,087, 73 So. 854, this day decided.

Second. That the act provides for unreasonable search and seizure, without requiring an oath particularly describing the persons or things to be seized, in contravention of article 7 of the state Constitution, and the Fourth Amendment to the Federal Constitution. Article 7 of the state Constitution is in the language of the Fourth Amendment to the Constitution of the United States, and both read: 'The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated and no warrant shall issue except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.'

Act No. 8 of 1915 (Extra Session) reads, in part:

'That any place suspected of being a 'blind tiger' shall be searched by an officer designated in a search warrant and any spirituous, malt or intoxicating liquor above described, found therein shall by such officer, be seized and brought before the court issuing such warrant. The warrant may be issued by any court having power of a committing magistrate upon the filing in said court of an affidavit reciting the fact that affiant believes a certain designated place to be a 'blind tiger,' together with such additional evidence as the court may require, in order to make out a prima facie case. The officer to whom the search warrant is directed shall make his return thereon within twenty-four hours after it is issued and shall bring into court any spirituous, malt or intoxicating liquor hereinabove described, he may have found, together with all persons found in the place where said liquors may have been found.'

In a number of the states distinct statutes, known as 'search and seizure' laws, have been enacted, to aid in the suppression of the unlawful traffic in liquors, by authorizing proceedings in rem against the illicit property itself.

'These statutes,' say the authorities, 'are not unconstitutional if they do not authorize unreasonable searches, and if they make due provision for hearing the claims of pa...