State v. Prejean
| Decision Date | 13 February 1950 |
| Docket Number | No. 39606,39606 |
| Citation | 45 So.2d 627,216 La. 1072 |
| Parties | STATE v. PREJEAN. |
| Court | Louisiana Supreme Court |
Rufus D. Hayes, Baton Rouge, for appellant.
Bolivar E. Kemp, Jr., Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Fred S. LeBlanc, Dist. Atty., Wilbur D. Atkins, Asst. Dist. Atty., Baton Rouge, for appellee.
Defendant, Luke D. Prejean, charged in a bill of information with the crime of indecent behavior with a juvenile, was convicted and sentenced to serve seven months in the parish jail. From this conviction and sentence he has appealed to this court, relying for reversal on two bills of exception. The first bill of exception was reserved to the overruling by the court of a motion to quash the information, and the other to the refusal of the trial judge to grant a continuance on motion of the defendant.
The trial judge in overruling defendant's motion to quash granted him the right to file a motion for a bill of particulars within five days in order that he could require the State to furnish additional information. Reserving his rights under his motion to quash, defendant then filed a motion for a bill of particulars in which he requested the State to set out the particular acts or particular conduct claimed to have been committed upon the person of the juvenile, and the State furnished the information requested. On the day the case was fixed for trial, defendant filed a motion for a continuance on the ground that he had not had sufficient time in which to prepare a defense against the charge contained in the bill of information and the acts alleged in the State's answer to the motion for a bill of particulars. This motion for a continuance was overruled.
It is the contention of the defendant under his first bill of exception that the bill of information, in which the act done is described merely as a 'lewd and lascivious' one, is not sufficient to inform him of the nature of the crime which he is charged as having committed. He contends that the very nature of the crime is such that an accused in order to be guilty must have committed some act upon the person or in the presence of a child under the age of 17 years; that therefore the act necessary to constitute the crime is of necessity the very essence of the crime, and that, if the bill of information does not specify the act which the accused has committed, it is fatally defective.
The crime of which defendant stands convicted is denounced in Article 81 of the Louisiana Criminal Code thus:
The bill of information charges the offense as follows: '* * * That Luke D. Prejean * * * then and there being, a person over the age of seventeen years, did feloniously and unlawfully commit a lewd and lascivious act upon the person of (a named juvenile), she being a child under the age of seventeen years, with the intention of arousing and gratifying the sexual desires of the said Luke D. Prejean * * *.'
In support of his contention under this bill, defendant relies principally on Article 1, Section 10, of our Constitution, which provides: 'In all criminal prosecutions, the accused shall be informed of the nature and cause of the accusation against him * * *.' The same guaranty is contained in the Sixth Amendment of the Federal Constitution. The question, then, is: Does the bill of information meet this mandatory requirement of the Constitution?
The crime denounced in Article 81 may be committed in two ways, (1) by the commission of a lewd or lascivious act upon the person, or (2) by the commission of a lewd or lascivious act in the presence, of any child under the age of 17, etc. See State v. Hebert, 205 La. 110, 17 So.2d 3. The bill of information in the instant case charges the offense as having been committed upon the person of the juvenile and is in the language of the statute. As a general rule, an indictment or information in the language of the statute is sufficient, but an exception is made where the statute defines the crime in such general terms that the accused is not apprised in an indictment couched in its language of the nature and cause of the accusation against him, to the end that he may prepare his defense and plead the judgment as a bar to any subsequent prosecution for the same offense. This principle of law is so well established that no citation of authority is necessary.
The crime denounced by the statute is indecent behavior with juveniles, and the statute sets forth with clarity and certainty all elements necessary to constitute the crime: (1) The commission of a lewd or lascivious act (2) upon the person or in the presence (3) of any child under 17(4) by any person over the age of 17(5) with the intention of arousing or gratifying the sexual desires of either person.
The words 'lewd' and 'lascivious' found in the statute are not vague and indefinite. On the contrary, they have a well defined, well understood, and generally accepted meaning, and by their use an accused is informed of the nature of the act he is alleged to have committed. The word 'lewd' means lustful, indecent, lascivious, and signifies that form of immorality which has relation to sexual impurity or incontinence carried on in a wanton manner. The word 'lascivious' means tending to excite lust, lewd, indecent, obscene, relating to sexual impurity, tending to deprave the morals in respect to sexual relations. See Black's Law Dictionary (DeLuxe Ed.). Moreover, we are entitled to study these words in their context, and, when we do this, there can be no possible doubt as to their import here. These words are used in the statute to describe an act done 'with the intention of arousing or gratifying the sexual desires', so that, by the bill of information as worded, the accused is fully informed of the nature and cause of the offense charged, that is, that he is charged with having done an act upon the person of a juvenile which is lustful, obscene, indecent, tending to deprave the morals in respect to sexual relations, and relating to sexual impurity or incontinence carried on in a wanton manner.
Upon analysis it is obvious that defendant's real complaint is that the bill of information in the instant case does not set forth the nature of the evidence by which the State expects to prove the charge.
Such crimes as murder, manslaughter, and negligent homicide, for instance, may be committed in many different ways and by many different acts. In an indictment charging any of these offenses it is not necessary to set forth the particular acts constituting the elements of the crime, and there is no sound reason why an information couched in the language of Article 81 of the Criminal Code should not be similarly regarded.
The Constitution of the State of Illinois contains the same guaranty in its bill of rights as does ours (Ill. Const. of 1870, Art. II, sec. 9.), and that state has a statute very similar to the one we have here under consideration, which reads: '* * * any person of the age of seventeen years and upwards who shall take, or attempt to take, any immoral, improper or indecent liberties with any child of either sex, under the age of fifteen years, with the intent of arousing, appealing to or gratifying the lust or passions or sexual desires, either of such person or of such child, or of both such person and such child, or who shall commit, or attempt to commit, any lewd or lascivious act upon or with the body, or any part or member, thereof, of such child, with the intent of arousing, appealing to or gratifying the lust or passions or sexual desires, either of such person or of such child, or of both such person and such child * * * shall be imprisoned * * *.' Act of May 17, 1907, p. 266, 38 Smith-Hurd Ann. St. Ch. 38, sec. 109.
In People v. Sims, 393 Ill. 238, 66 N.E.2d 86, 87, defendant, charged under that statute, contended in a motion to quash that the indictment was insufficient to charge him with any crime whatever, in that it failed to allege or set forth any facts sufficient to show that he had actually taken immoral, improper, or indecent liberties with a child. The indictment in that case charged that '* * * the defendant, Charles C. Sims, being a male person of the age of seventeen years and upwards, unlawfully and feloniously did then and there take certain immoral, improper and indecent liberties with a certain female child under the age of fifteen years and of, towit: the age of fourteen years, with intent then and there of arousing,...
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