State v. Scheuering
| Decision Date | 08 November 1954 |
| Docket Number | No. 41827,41827 |
| Citation | 226 La. 660,76 So.2d 921 |
| Parties | STATE of Louisiana v. Joseph L. SCHEUERING. |
| Court | Louisiana Supreme Court |
Fred S. LeBlanc, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Leon D. Hubert, Jr., Dist. Atty., New Orleans, for relator.
Hugh M. Wilkinson, Hugh M. Wilkinson, Jr., New Orleans, Wilkinson & Wilkinson, New Orleans, of counsel, for respondent.
This case is before this court under its supervisory jurisdiction to review a judgment of Appellate Division No. 1 of the Criminal District Court for the Parish of Orleans 1 affirming a judgment of Section E of the Criminal District Court for the Parish of Orleans which sustained a demurrer and a motion to quash an indictment against Joseph L. Scheuering, superintendent of police, charging him with malfeasance in office as denounced by Article 134 of the Louisiana Criminal Code, R.S. 14:134.
The provisions of Article 134 of the Criminal Code which the defendant is charged with having violated read in pertinent part as follows:
'Malfeasance in office is committed when any public officer or public employee shall:
'(1) Intentionally refuse or fail to perform any duty lawfully required of him, as such officer or employee * * *.'
The indictment charges the offense in the following language:
'* * * That one Joseph L. Scheuering, * * * between January 19, 1952 and the 23rd day of November in the year of our Lord, one thousand, nine hundred fifty-three * * * being then and there Superintendent of Police of the City of New Orleans, a public office and employee of said City, did intentionally, unlawfully, and knowingly refuse and fail to perform a duty lawfully required of him, as such officer and employee, in that on January 19, 1952, a simple burglary involving complicity of two employees of the New Orleans Police Department, to-wit: one Sergeant Oren Hobren and one Patrolman Louis Reichert, was committed of a building and structure, No. 3100 Gentilly Boulevard, known as Katz and Besthoff, Incorporated, Store No. 14, in the Parish of Orleans, and within the jurisdiction of this Court, which alleged crime had come to the knowledge of him, the said Superintendent of Police, Joseph L. Scheuering, and in that he, that said Superintendent of Police, Joseph L. Scheuering, did intentionally and unlawfully and knowingly refused and fail to submit, offer and tender a police report of the said burglary to the District Attorney for the Parish of Orleans, and did intentionally and unlawfully and knowingly refuse and fail to report according to law said burglary to the District Attorney for the Parish of Orleans for his consideration and determination according to law, and in that he, the said Superintendent of Police, Joseph L. Scheuering, did intentionally and unlawfully and knowingly refuse and fail to detect, arrest and properly and legally charge the said police officers with the crime of simple burglary of the said building and structure, 3100 Gentilly Boulevard, known as Katz and Besthoff, Incorporated, Store No. 14, contrary to the form of the Statute * * *.'
To this indictment the defendant through counsel demurred and filed a motion to quash. Before the trial judge's decision on these motions the State sought to amend the indictment for purpose of clarification only by inserting after the words 'which alleged crime' the words 'of burglary and complicity and participation in guilt of the said officers Sergeant Oren Hobren and Patrolman Louis Reichert in said burglary'. Thus that part of the indictment as amended would have read:
'* * * which alleged crime of burglary and complicity and participation in guilt of the said officers Sergeant Oren Hobren and Patroman Louis Reichert in said burglary had come to the knowledge of him, the said Superintendent of Police, Joseph L. Scheuering * * *.'
The trial judge, however, refused to permit the amendment and sustained the demurrer and the motion to quash.
In quashing the indictment the trial judge apparently was of the opinion that it was defective in three principal respects:
(1) The indictment did not charge the superintendent of police, the defendant, with knowledge that Hobren and Reichert had participated in or committed the burglary of the Katz and Besthoff store or that he had reasonable cause to believe that they had committed the crime;
(2) The indictment did not allege or state facts from which the court might have concluded that the defendant had reasonable cause to believe that Hobren and Reichert were implicated in or had committed the crime so that it became his lawful duty to cause or effect their arrest, which he failed, neglected, and refused to do; and
(3) The indictment charged no offense in alleging that defendant had failed to report the crime to the district attorney because there is no written rule, regulation, or statute which requires the New Orleans superintendent of police to report a crime to the district attorney.
Generally an indictment which charges an offense in the language of the statute defining it is sufficient. However, if the statute is one which defines an offense in general terms, use of the language of the statute is not sufficient, and the indictment must also state the specific acts of the defendant on which the charge is based. State v. Hebert, 205 La. 110, 17 So.2d 3; State v. Ward, 208 La. 56, 22 So.2d 740; State v. Varnado, 208 La. 319, 23 So.2d 106, and authorities therein cited. The indictment in the instant case is sufficient when tested by these principles of law. It tracks the general language of the malfeasance statute which the defendant is charged with violating. In addition it spells out in detail how and in what manner the statute was violated by stating the specific facts on which the charge of malfeasance was based.
Moreover, the indictment in the instant case fully meets the tests which this court has set up to determine the sufficiency of an indictment or information, that is:
'(1) Is the indictment or information sufficient to inform the court of the offense being charged in order that the court might properly regulate the evidence sought to be introduced?
'(2) Does the indictment or information inform the accused of the nature and cause of the offense with which he is being charged?
'(3) Is the indictment or information sufficient on its face to support a plea of former jeopardy in the event there is an attempt to try the defendant more than once for the same offense?' State v. Ward, supra; State v. Pizzolotto, 209 La. 644, 25 So.2d 292; State v. Pullin, 210 La. 918, 28 So.2d 609; State v. Murff, 215 La. 40, 39 So.2d 817; State v. Richardson, 220 La. 338, 56 So.2d 568.
We cannot agree with the trial judge in his conclusion that the indictment did not charge knowledge on the part of the defendant that the two police officers had participated in or committed the burglary. The indictment must be read and considered as a whole. It avers the complicity of these two police officers in the burglary; that is to say, it avers that they were accomplices or participants in the crime. According to Webster's New International Dictionary (2d Ed.), 'complicity' means 'State of being an accomplice; participation in guilt', and this is the sense and meaning of this word as used in the indictment. The indictment then states: '* * * which alleged crime had come to the knowledge of him, the said Superintendent of Police * * *'. The 'alleged crime' which the indictment avers had come to the knowledge of the defendant was the alleged crime of the two police officers--that is, their participation in the burglary.
We also cannot agree with the trial judge that the indictment was defective because it did not allege or state facts from which the court might have concluded that the defendant had reasonable cause to believe that Hobren and Rechert were implicated in or had committed the crime.
The indictment alleges that the defendant is a public officer and charges that he intentionally, unlawfully, and knowingly refused and failed to perform a duty lawfully required of him as such public officer. It states as a fact that the defendant is a superintendent of police, and that he had knowledge that two named police officers participated in and were guilty of a burglary of a named and located store on a named date. It states as a fact that notwithstanding this knowledge the defendant did not cause or effect the arrest of these officers from January 19, 1952, to November 23, 1953. It further states as a fact that by his failure to cause their arrest he failed and refused to perform a duty lawfully required of him as such public officer. It will thus be...
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