State v. Scheler

• Decision Date: 29 June 1962
• Docket Number: No. 45910,45910
• Citation: 243 La. 443,144 So.2d 389
• Parties: STATE of Louisiana v. George SCHELER.
• Court: Louisiana Supreme Court

Page 389

144 So.2d 389

243 La. 443

STATE of Louisiana v. George SCHELER.

No. 45910.

Supreme Court of Louisiana.

June 29, 1962.

Rehearing Denied Oct. 3, 1962.

Damico & Curet, Baton Rouge, for defendant-appellant.

Jack P. F. Gremillion, Asst. Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Sargent Pitcher, Jr., Dist. Atty., Ralph L. Roy, Asst. Dist. Atty., for appellee.

SUMMERS, Justice.

George Scheler, defendant herein, was indicted by the Grand Jury of East Baton Rouge Parish for 'Negligent homicide', in that on September 6, 1958, he 'negligently killed Vernon L. Smith.' He waived trial by jury and he was tried by the judge, convicted and sentenced to be confined in the penitentiary at hard labor for a term of two years. This appeal followed.

The crime involved is defined by Article 32 of the Louisiana Criminal Code, LSA-R.S. 14:32, as follows:

'Negligent homicide is the killing of a human being by criminal negligence.

'The violation of a statute or ordinance shall be considered only as presumptive evidence of such negligence.

'Whoever commits the crime of negligent homicide shall be imprisoned, with or without hard labor, for not more than five years.'

The defendant relies upon three bills of exceptions for reversal of his conviction and sentence.

Bill of Exceptions No. 1 was reserved to the overruling by the trial court of a motion to quash the indictment filed on behalf of defendant. The motion to quash, which is attached to the bill, is based upon three grounds:

(1) The indictment does not state every fact or circumstance necessary to constitute the offense as required by R.S. 15:227 and Article I, Section 10 of the Constitution of Louisiana.

(2) If the court believes that the indictment is valid and permissible in accordance with R.S. 15:235 (short form) and R.S. 15:248, said provisions of law are unconstitutional as being in violation of Article I, Section 10 of the Constitution of Louisiana because they do not permit the accused to be fully advised of the nature and cause of the charge against him.

(3) Since it was the State's contention, as set forth in the bill of particulars, that the accused did not Intend that the killing of the decedent would be the consequence of his Criminal negligence, the indictment should have been quashed.

The disputed indictment is endorsed 'Indictment--Negligent homicide', singed by the foreman of the grand jury and then charges in part:

'That George Scheler late of the Parish of East Baton Rouge, aforesaid, in the Nineteenth Judicial District aforesaid, on the (6th) Sixth day of September, in the year of our Lord One Thousand Nine Hundred and Fifty-eight (1958), with force of arms, in the Parish aforesaid, in the District aforesaid, negligently killed Vernon L. Smith, contrary to the form of the Statutes of the State of Louisiana, in such case made and provided, in contempt of the authority of said State, and against the peace and dignity of the same.'

Counsel for defendant points out that this court has heretofore had occasion to consider and decide upon the contentions contained in grounds (1) and (2) of the motion to quash; that is, that the indictment does not state every fact or circumstance necessary to constitute the offense, and if the indictment is valid and permissible under LSA-R.S. 15:235 and LSA-R.S. 15:248, these provisions of law are unconstitutional, for under their requirements the accused is not fully informed of the nature and cause of the accusation against him.

The case in which these contentions were adjudged is State v. Ward, 208 La. 56, 22 So.2d 740, 1945. See also State v. Heiman, 227 La. 235, 79 So.2d 78. Though acknowledging that the Ward case passed squarely on these same issues, and that the short form indictment has been held to be valid in several cases, counsel argues that the Ward case should be overruled.

In support of this contention it is asserted that the Constitutions of Louisiana, paticularly since the Constitution of 1879, were designed to promote the concept that the accused should be informed of the 'nature and cause' of the accusation against him. On this premise the argument goes that there is no doubt that the drafters of the present constitution had more in mind than informing the accused only of the Nature of the prosecution when they used the two words 'nature' and 'cause' of the accusation. However, counsel does not point out wherein the indictment is deficient when considered in connection with this constitutional requirement; that is, he does not point out in what respect the accused is not informed of the 'nature' or 'cause' of the crime sought to be charged.

It is to be noted that Article 248 of the Code of Criminal Procedure, LSA-R.S. 15:248 provides:

'In all indictments for murder, manslaughter, and negligent homicide it shall not be necessary to set forth the manner in which nor the means by which the death of the decedent was caused. It shall be sufficient to use the short forms set out in Article 235 of the Code of Criminal Procedure.'

Article 235 of the above code provides in part 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:

'Negligent Homicide--A.B. negligently killed C.D.'

Clearly, in light of the foregoing statutory provisions ground (1) is not well urged. With respect to ground (2) the Louisiana Constitution in Article I, Section 10, requires that 'In all criminal prosecutions, the accused shall be informed of the nature and cause of the accusation against him.' The indictment in the instant case charges 'Negligent Homicide' and, after naming the accused, sets forth that he 'negligently killed Vernon L. Smith contrary to the form of the Statutes of the State of Louisiana in such case made and provided in contempt of the authority of said State, and against the peace and dignity of the same.' In other words, the indictment informs him of the Nature of the accusation against him for he is informed of the specific, particular crime (negligent homicide) for which he is being prosecuted and against which prosecution he must defend himself. Moreover, the indictment sets forth why he is accused--the Cause of the accusation against him: that is, he is informed that he is being prosecuted because his negligence brought about the death of Vernon L. Smith contrary to the laws of the State of Louisiana and 'against the peace and dignity of the same.' Cf. State v. James, 241 La. 233, 128 So.2d 21; Norris v. State, 33 Miss. 373.

In addition, the indictment sets forth the date of the alleged offense with certainty, i.e., September 6, 1958; it informs the accused that the offense was committed in the Parish of East Baton Rouge; it identifies the victim, Vernon L. Smith, and the name of the accused is given therein.

The purposes of the constitutional provision requiring that a person be informed of the nature and cause of the accusation against him are threefold: First, the statement of the accusation should inform the accused of the charges that will be brought against him at the trial in order that he may properly defend himself. Second, the trial judge should be informed by the indictment of what the case involves, so that, as he presides and is called upon to make rulings, he may do so intelligently. Third, the indictment should form a record from which it can be clearly determined whether or not a subsequent proceeding is barred by the former adjudication.

When the indictment fulfills these purposes, it satisfies the constitutional mandate that the accused must be informed of the nature and cause of the accusation. State v. James, supra; State v. Scheuering, 226 La. 660, 76 So.2d 921; State v. Richardson, 220 La. 338, 56 So.2d 568; State v. Murff, 215 La. 40, 39 So.2d 817; State v. Pullin, 210 La. 918, 28 So.2d 609; State v. Pizzolotto, 209 La. 644, 25 So.2d 292; State v. Ward, 208 La. 56, 22 So.2d 740; 32 Tul.L.Rev. 37.

But counsel for the accused urges still another objection. It is that the indictment in this case did not charge that the accused 'criminally, negligently killed', it simply charged that he 'negligently killed' the victim. Hence, he continues, a serious handicap to a proper defense is thereby presented, for when a jury is informed that the accused 'negligently' killed someone, it becomes most difficult to explain the meaning of criminal negligence. That alleged difficulty is provided a vehicle by which it can be clarified and which is embodied in the definition which the law supplies for criminal negligence. That definition, contained in Article 12 of Louisiana Criminal Code, LSA-R.S. 14:12 is as follows:

'Criminal negligence exists when, although neither specific nor general criminal intent is present, there is such disregard of the interest of others that the offender's conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances.'

This definition is available for instructions to the jury, and is to be read in connection with Article 32 of the Louisiana Criminal Code, LSA-R.S. 14:32, which defines the crime, and makes criminal negligence an essential element thereof. It is difficult to perceive that a handicap to the defense exists under these circumstances. Nevertheless both the Ward case and Heiman case, already referred to, have decided adversely to this contention, and those cases are controlling here.

Sufficient informations is contained within the indictment, therefore, to enable the accused to properly defend himself; to enable the trial judge to regulate the trial; and to serve as a basis for a plea of former jeopardy.

We have not been convinced of any error in our decisions in State v. Ward, 208 La. 56, 22 So.2d 740 and State v. Heiman, 227 La. 235, 79 So.2d 78. The conclusion follows, therefore, that the requirements of Article I,...