State v. Pete

• Court: Louisiana Supreme Court
• Citation: State v. Pete, 206 La. 1078, 20 So.2d 368 (La. 1944)
• Decision Date: 06 November 1944
• Docket Number: 37608.
• Parties: STATE v. PETE.

20 So.2d 368

206 La. 1078

STATE v. PETE.

No. 37608.

Supreme Court of Louisiana

November 6, 1944

Rehearing Denied Dec. 11, 1944.

Thos Arthur Edwards, of Lake Charles, for appellant.

Fred S. LeBlanc, Atty.Gen., M.E. Culligan, Sp. Asst. Atty. Gen Griffin T. Hawkins, Dist. Atty., and Preston L. Savoy and Alan H. McLane, Asst. Dist. Attys., all of Lake Charles, for appellee.

FOURNET Justice.

Hampton Pete having been charged in a bill of information with "the theft of an automobile, of the value of Twelve Hundred and no/100 ($1200.00) Dollars, the property of Gordons Drug Store, Inc.," is here seeking to have his conviction thereunder and sentence to serve 2 years and 6 months at hard labor in the State Penitentiary reversed because of certain errors allegedly committed during the course of his trial, to which timely objections were made and bills of exceptions reserved.

The first bill was reserved when the trial judge overruled the defendant's motion--filed after the jury had been accepted and sworn and the first witness for the state had testified--seeking to have the bill of information quashed on the ground that the information failed to charge the defendant with any crime known to the Louisiana law and does not contain the essential averment required by Article 67 of the Criminal Code defining the crime of "theft" that the taking of the property was with the intent to deprive the owner thereof permanently and that having thus been placed in jeopardy, he is entitled to be discharged.

By its enactment of Act No. 43 of 1942 the Legislature of Louisiana adopted the Criminal Code wherein, in Article 67, theft is defined as " * * * the misappropriation or taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices or representations." In the same article, it is declared that "An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential." But the decisions of this court in the cases of State v. Morgan, 204 La. 499, 15 So.2d 866, and State v. Hebert, 205 La. 110, 17 So.2d 3, are not controlling here for the same Legislature (of 1942), in view of its adoption of the Criminal Code, amended and re-enacted in its At No. 147 certain articles of the Code of Criminal Procedure (others being repealed), among them Article 235, dealing with the forms of accusations to be used in certain cases, no forms being provided in such act for the crimes involved in the Morgan and Hebert cases. In Article 235, as thus amended and re-enacted, we do find that a person may be charged with theft by the simple method of describing the property, the subject of the theft, and stating its value.

A mere reference to the bill of information shows that the defendant in this case was charged in the precise language of the Code of Criminal Procedure, as amended by Act No. 147 of 1942. There was, therefore, no necessity for including in such charge the averment that the taking of the automobile by the defendant was with the intention of depriving the owner thereof permanently to make it valid or to distinguish it from the crime of "Unauthorized use of movables" defined in Article 68 of the Criminal Code. State v. Miller, 170 La. 51, 127 So. 361; State v. White, 172 La. 1045, 136 So. 47; State v. Ducre, 173 La. 438, 137 so. 745; and State v. Digilormo, 200 La. 895, 9 So.2d 221. Furthermore, the defendant's constitutional guarantee that he shall be fully apprised in the accusation of the charge against him is amply protected by the provision in this same article "That the District Attorney, if requested by the accused prior to arraignment may be required by the Judge to furnish a bill of particulars setting up more specifically the nature of the offense charged." State v. Brooks, 173 La. 9, 136 So. 71; State v. Dark, 195 La. 139, 196 So. 47.

Of course that part of defendant's motion seeking to be discharge because of former jeopardy is based on the supposition that his motion to quash was good and must, necessarily, fall with it.

The defendant objected to the admission of a confession on his part to a deputy sheriff, Jerry L. Carruthers, on the ground that it had not been freely and voluntarily made, and reserved his second bill of exceptions when the judge permitted such confession to be admitted over his objection. In his per curiam to this bill the trial judge states that "The evidence taken showed that the admission made by the defendant was free and voluntary; that he admitted taking the automobile and indicated that he was ready to plead guilty to the charge. Clearly, the confession was admissible in every way." We have read this evidence, which is attached to the bill, and we fully concur in the findings and conclusions of the trial judge in this respect.

Bill of exceptions No. 3 was reserved to the overruling of the defendant's motion for a new trial and No. 4 was reserved when his motion in arrest of judgment was overruled. In both of these motions, in addition to the issues just disposed of, the constitutionality of the Louisiana Criminal Code in its entirety is attacked, particularly Article 67 thereof. The constitutional issues thus raised are involved and confusing, but, we think, may be simmered down to the following five-pronged attack: That both Act No. 7 of 1940 instructing the Louisiana State Law Institute to prepare a draft or projet of a Criminal Code for the State of Louisiana and Act No. 43 of 1942 adopting the Code are unconstitutional because (1) they violate Section 2 of Article I of the Constitution of 1921, as amended, and the XIV Amendment to the Constitution of the United States by depriving the defendant of his liberty without due process of law, for he has not been charged with any specific crime; (2) they violate the provisions of Section 16 of Article III of the constitution of 1921 by embracing more than one object and by being broader than their respective titles; (3) they violate Sections 17 and 18 of Article III of the Constitution, particularly Article 67 of the Criminal Code, by seeking to revive, amend, and enact certain articles of the code merely by reference and by seeking to adopt a system or code of laws merely by reference without reciting at length the several provisions of the law it seeks to re-enact; (4) the Legislature in these acts is endeavoring to delegate to the Louisiana Law Institute, by having it compile the Criminal Code, the duties imposed upon the Legislature by the Constitution, in contravention of the provisions of Section 1 of Article III of the Constitution of 1921; and (5) the Legislature was without authority, without the aid of a constitutional amendment, to so drastically change the criminal laws that have been in effect in this state since its admission into the Union.

In his caustic attack on the constitutionality of the Criminal Code, defendant's counsel has failed to point out any article of the constitution that prohibits the Legislature from adopting such a code. It is elementary that state Constitutions are not grants of power to their respective legislative bodies but, rather, limitations of their general powers. Consequently, our Legislature may enact any law that is not expressly or inferentially prohibited by the Constitution of this state or of the United States.

The two limitations placed on the power of the Legislature to adopt a code are found in Section 18 f Article III, where the Legislature is prohibited from adopting any system or code of laws by general reference only to such system or code of laws without the several...