State v. Royal
| Decision Date | 23 February 1970 |
| Docket Number | No. 49990,49990 |
| Parties | STATE of Louisiana v. Wilbur Lee ROYAL. |
| Court | Louisiana Supreme Court |
John S. Pickett, Jr., Many, for appellant.
Jack P. F. Gremillion, Atty. Gen., William P. Schuler, Asst. Atty. Gen., J. Reuel Boone, Dist. Atty., Thomas A. Self, Asst. Dist. Atty., for appellee.
Defendant, Wilbur Lee Royal, prosecutes this appeal from his conviction and sentence to serve nine years in the Louisiana State Penitentiary on a charge by bill of information with simple burglary, relying upon five bills of exception timely urged and perfected during the course of the trial for the reversal thereof.
The first three bills of exception are interrelated and will be considered together. The record reflects that the defendant was charged by bill of information with violation of L.R.S. 14:62 1 'in that, on or about the 8th day of April, 1968, he committed simple burglary of the store building belonging to W. W. Jett.' After the jury had been empaneled and sworn, Mrs. Jett, who was the first witness called by the State, testified under cross examination that the owner of the building in which she and her husband, who had died since the burglary, operated their mercantile business was one Marion H. Dover, whereupon the State moved, and was permitted over defendant's objection to amend the bill of information accordingly. 2 To this ruling the first bill of exception was reserved by counsel for defendant, who then moved for a mistrial, claiming that the defect sought to be amended was a defect of substance and not one that could be amended under Code of Criminal Procedure Article 487, 3 which was also overruled by the trial judge and Bill of Exception No. 2 was reserved. Counsel for defendant, relying upon Code of Criminal Procedure Article 489, 4 sought a continuance by oral motion, claiming he was prejudiced by the amendment, and upon the trial judge's overruling this motion, the third bill of exception was reserved.
These three bills lack merit. The State obviously followed our directive in the case of State v. Champagne, 251 La. 849, 206 So.2d 518, wherein, as in the case at bar, the evidence showed that the place allegedly burglarized was owned by one other than the one named in the bill of information and the trial judge, nevertheless, permitted the evidence to be introduced over defendant's objection. In that case we pointed out the better procedure would have been to do, as done herein, i.e., that the bill of information be amended in respect to the variance as provided for in Article 488 of the Code of Criminal Procedure, 5 and if the court concluded the defendant had been prejudiced in his defense on the merits, then it should grant a continuance as provided in Article 489 of the Code of Criminal Procedure. In resolving the issue, adverse to this appellant's contention, this court observed: 'The fact that the name of the owner as stated in the information was at variance with the evidence cannot be said to prejudice the cause of the defendant, for, as was very aptly observed in State v. Simmons, 249 La. 647, 190 So.2d 83, 'The purpose of requiring an indictment or information for burglary to state the name of the person who occupied and used the building entered is to negative defendant's right to break and enter, and to protect him from a second prosecution for the same offense, and such purpose is sufficiently satisfied where it is alleged and proved that a person other than defendant occupied and used the building when it was entered.' In the course of the opinion the court further observed, 'The test, for the purpose of determining in whom the ownership of the premises should be laid in an indictment for burglary, is not the title, but the occupancy or possession at the time the offense was committed.'
Of course, the mere change of name of the owner of the building in the bill of information in this case, as pointed out hereinabove, does not necessarily prejudice the defendant in the defense of his case and, inasmuch as the defendant has failed to show in what respect his defense was prejudiced by this change, the judge properly overruled the motion for a continuance. In fact, the trial judge in his per curiam to defendant's bill of exception observed, 'This court was convinced that the defense had well in advance of trial known of this discrepancy of title,' pointing out that it was the defendant 'who was alert to the fact that the title to the store building was not vested in W. W. Jett, as originally set forth in the bill of information, and the...
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State v. Sheppard
...is incumbent upon defendant to show in what respect his defense has been prejudiced by the amendment of the indictment. State v. Royal, 255 La. 651, 232 So.2d 465 (1970). A mere allegation that his defense will be affected does not constitute such a showing of prejudice as to render the tri......
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State v. Richey, 50938
...See, Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419; State v. Thompson, 256 La. 1019, 240 So.2d 899; State v. Royal, 255 La. 651, 232 So.2d 465; State v. Pebworth, 251 La. 1063, 208 So.2d 530; State v. McQueen, 257 La. 684, 243 So.2d 798; Hill v. California, 401 U.S. 797, 9......
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