State v. Roshto
| Decision Date | 10 November 1952 |
| Docket Number | No. 40859,40859 |
| Citation | 222 La. 185,62 So.2d 268 |
| Parties | STATE v. ROSHTO et al. |
| Court | Louisiana Supreme Court |
Blanchard & Blanchard, Donaldsonville, for appellants.
Fred S. LeBlanc, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., F. C. Claiborne, Dist. Atty., New Roads, and Charles H. Dameron, Asst. Dist. Atty., Port Allen, for appellee.
Alfred Roshto, alias Buddy Roshto, Carlysle Roshto and E. R. Roshto, alias Alex Roshto, are appealing from a verdict of a jury under which they were convicted and sentenced in the district court on an indictment which charged them with theft of 'a certain animal, to-wit, one heifer.' They were sentenced to be confined in the State Penitentiary for a period of three years. A fourth party named Eugene Persilver, Sr., had been jointly indicted with them but on their own motion they obtained a severance and were tried separately from him. We understand from brief of counsel for the State that Persilver was also convicted and that he is now serving the sentence that was imposed on him by the district judge.
The present defendants rely on five bills of exception reserved during the trial to obtain a reversal of the verdict under which they were convicted. The first of these was taken upon the refusal of the trial judge to sustain a motion to quash the indictment.
The motion is based on the proposition that the indictment is lacking in certain essential allegations as regards the ownership of the stolen property or the manner or method of the theft and in those respects it is violative of Sec. 10 of art. 1 of the Constitution which provides that 'In all criminal prosecutions, the accused shall be informed of the nature and cause of the accusation against him; * * *.' Further it is contended under the motion that the indictment did not charge the defendants with the theft of either 'cattle, horses, mules, sheep, hogs, or goats', as denounced by Act 173 of 1950, now LSA-R.S. 14:67.1; that the therein named quadrupeds being exclusive there can be no theft of a heifer, such being the charge against them.
The statute under which defendants were prosecuted reads as follows:
The indictment in this case was drawn in conformity with LSA-R.S. 15:235 which provides as follows:
'The following forms of indictments may be used in the cases in which they are applicable, but any other forms authorized by this or any other law of this state may also be used'.
Then follows the forms to be used for the various offenses and when we come to the one relating to theft of cattle, horses, etc., we find that it reads as follows:
In the section it is also stated:
'Provided further 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.'
The indictment in this case seems to track the law and cannot be held deficient for lack of sufficient information to the defendants of the nature and cause of the accusation against them. The validity of information and indictments in what is called the 'short forms' prescribed in R.S. 15:235 has been frequently upheld by this court in each instance 'where they were found to be sufficient to properly inform the accused of the nature of the accusation lodged against him within the meaning and contemplation of Section 10 of Article I of Constitution of 1921 and Article 227 of the Code of Criminal Procedure'. See State v. Wright, 215 La. 529, 41 So.2d 76, 77, and cases therein cited.
In State v. Pete, 206 La. 1078, 20 So.2d 368, 370, this court upheld an information which was attacked on the ground that it did not contain the essential averment required by art. 14:67 of the LSA-Criminal Code defining the crime of 'theft'. The information charged 'theft of an automobile of the value of Twelve Hundred and no/100 (1200.00) Dollars, the property of Gordans Drug Store, Inc.' In passing on the question of lack of sufficient averments, the court stated:
It is significant to note that in this case a bill of particulars was requested and, without being required by the judge to do so, the district attorney complied with the request by furnishing all the information desired to the apparent satisfaction of counsel for the accused.
The next contention made under this bill is also without merit. It is urged that in specifying 'one heifer' as the object of the theft, the indictment is fatally defective as the statute merely denounces the theft of certain enumerated quadrupeds to the exclusion of all others. Therefore, it is argued, there is no crime such as the one the accused stands charged with.
The argument overlooks the fact that all of the quadrupeds enumerated in the statute belong to the general class denominated as animals. They each represent a different group; cattle, for instance, representing the bovine group; horses, the equine; hogs, the porcine; and so forth, and it is but natural that in having to refer to any particular species of any of these groups, it be referred to as an animal. It is common knowledge, we believe, that a heifer belongs to the bovine group of cattle and is therefore an animal belonging to that group. The point we here make is strongly emphasized by the statute which permits the use of the short form indictment and which, with reference to the crime involved in this case, prescribes that it set forth that 'A. B. committed the theft of a certain animal, to-wit' nd this to be followed by a description of the animal. (Emphasis added.)
Bill No. 2 was reserved to the court's overruling defendants' objection to the use of certain exculpatory statements (later admitted to be 'yarns') made by the defendants to the sheriff of the Parish of Iberville. The objection was made when the District Attorney advised the court and attorneys for the accused in the presence of the jury that he intended to use these statements. The objection was that these declarations were made at a date subsequent to the date of the crime and therefore were not part of the res gestae. The court, stating that the statements were not confessions and contained no criminal intent, felt that there was really nothing for the court to rule upon at the time because, as relates to confessions, the court can only pass on the question as to whether they were voluntarily made or not. The court ruled that the District Attorney could proceed with the evidence and reserved the right to defendants to object to its admissibility.
Counsel for defendants take the position that these statements were not admissions were not part of the res gestae, and were used merely to later show they were untrue and cast guilt on the defendants, thereby prejudicing them before the jury. They argue that had the statements not been admitted, they would not have had to put defendants on the stand to attempt to overcome the guilt cast upon them. The court in its per curiam to this Bill of Exception states that it did not fully understand counsel for defendant's objection and that its only rulings were...
To continue reading
Request your trial
-
State v. Andrus
...in the short form charging theft of cattle informs the accused of the nature and cause of the accusation against him. In State v. Roshto, 222 La. 185, 62 So.2d 268, an indictment in the short form which charged the defendant with the theft of 'a certain animal, to-wit, one heifer', and whic......
-
State v. Anderson, 49643
...against him. Such statements are not subject to exclusion as hearsay. State v. Faciane, 233 La. 1028, 99 So.2d 333; State v. Roshto, 222 La. 185, 62 So.2d 268; State v. Lyons, 113 La. 959, 37 So. Article 768 of the Louisiana Code of Criminal Procedure provides: 'If the state intends to intr......
-
State v. Faciane
...Johnson, 47 La.Ann. 1225, 17 So. 789; State v. Sims, 106 La. 453, 31 So. 71; State v. Livsey, 190 La. 474, 182 So. 576; and State v. Roshto, 222 La. 185, 62 So.2d 263. Bill of Exceptions No. 11 reserved on behalf of Faciane is levelled at the trial judge's refusal to order a mistrial by rea......
-
State v. Barksdale
...243 La. 971, 149 So.2d 409 (1963) (armed robbery); State v. Durbin, 235 La. 989, 106 So.2d 443 (1958) (simple robbery); State v. Roshto, 222 La. 185, 62 So.2d 268 (1952) (theft of animal: heifer). In State v. Clark, 242 La. 914, 140 So.2d 1 (1962), we approved the short form of indictment a......