State v. Scott
| Decision Date | 07 May 1973 |
| Docket Number | No. 52827,52827 |
| Citation | 278 So.2d 121 |
| Parties | STATE of Louisiana v. George 'Scottie' SCOTT. |
| Court | Louisiana Supreme Court |
Calvin W. Eason, Jr., for defendant-appellant.
William J. Guste, Jr., Atty. Gen., LeRoy A. Hartley, Sp. Asst. Atty. Gen., Frank T. Salter, Jr., Dist. Atty., James L. Babin, Asst. Dist. Atty., for plaintiff-appellee.
Appellant George 'Scottie' Scott was charged by a bill of information in that he did 'on or about the 12th day of February in the year of our Lord, One Thousand Nine Hundred and Seventy-two (1972) . . . unlawfully distribute a certain controlled dangerous substance, viz.: heroin, in violation of LSA-R.S. 40:971(a)(1) . . ..'
The statute under which he is charged provided:
(a) Except as authorized by this subpart, it shall be unlawful for any person knowingly or intentionally:
(1) To produce, manufacture, distribute or dispense or possess with intent to produce, manufacture, distribute, or dispense, a controlled dangerous substance; . . ..
After a trial by jury, Scott was found guilty and sentenced to imprisonment for 23 years.
It has been suggested that there is error patent on the face of the record in that the bill of information does not charge that the accused did 'intentionally' distribute 'a certain controlled damagerous substance, viz.: heroin in violation of LSA 40:971(a)(1).' Although no motion to quash or bill of exceptions appears in the record advancing this contention, it is examined by the court as an alleged error patent on the face of the record.
Article 464 of the Code of Criminal Procedure defines the nature and content of the indictment in these terms:
The indictment shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged. It shall state for each count the official or customary citation of the statute which the defendant is alleged to have violated. Error in the citation or its omission shall not be ground for dismissal of the indictment or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice.
Strict construction of indictments has been decried as a blemish and inconvenience in the law which enabled more offenders to escape by the over easy ear given to exceptions in indictments, than by their own innocence. Hale, History of Pleas to the Crown (1st Ann.Ed.1847). Despite this caveat to judges, it remains a mandate in the law to draft indictments in such a manner that they satisfy the constitutional right of the accused to 'be informed of the nature and cause of the accusation against him' (La.Const. art. 1 § 10), and, at the same time, requirements for drafting the indictment should not create technical traps for district attorneys. It was not necessary under these principles or under statutory guidelines for the indictment here to charge that the accused 'intentionally' distributed heroin.
Article 10 of the Criminal Code defines criminal intent as specific and general:
(1) Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.
(2) General criminal intent is present whenever there is specific intent, and also when the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act.
A classic illustration of a statute charging a crime where specific intent is an element necessary to be charged in the indictment (where the short form is not used) is Article 30(1) of the Criminal Code. That article defines murder as 'the killing of a human being, (1) When the offender has a specific intent to kill or to inflict great bodily harm . . ..' In charging the offense of murder, therefore, the indictment, following the general rule of Article 464, must state the special mental element of the crime--that is, it is necessary for the charge to contain a reference to 'specific intent'. On the other hand, it is not necessary in offenses requiring general criminal intent to allege that the act was intentionally done. In short, the normal Means rea of general criminal intent need not be specifically stated.
This conclusion is supported by the language of Article 11 of the Criminal Code providing that 'in the absence of qualifying provisions, the terms 'intent' and 'intentional' have reference to 'general criminal intent',' and by Article 472 of the Code of Criminal Procedure which emphatically states: 'In offenses requiring only a general criminal intent, the indictment need not allege that the act was intentionally done.'
Reference to the statute defining the crime in the instant case (La.R.S. 40:971(a)(1)) makes it clear that the words 'knowingly of intentionally' are used disjunctively since 'the word 'or' indicates the disjunctive.' La.Code Crim.Proc. art. 6. It follows that the pertinent language of the statute relied upon by the prosecution ('it shall be unlawful for any person . . . intentionally: To . . . distribute . . . a controlled dangerous substance . . .') has reference to general criminal intent, as Article 11 of the Criminal Code declares. As just pointed out, in an offense requiring only 'general criminal intent,' Article 472 of the Code of Criminal Procedure provides that 'the indictment need not allege that the act was intentionally done.'
The crime charged here is distribution of a controlled dangerous substance without regard to the intent of the wrongdoer. In the context of this case it is the 'distribution' or the act of 'delivery' (La.R.S. 40:961(13)), of the dangerous substance which constitutes the crime. And in the ordinary course of human experience the circumstances indicate the offender must have adverted to the prescribed criminal consequences as reasonably certain to result from his act. In such a case the intent with which the act is done is of no consequence. State v. Standard Petroleum Products Co., 176 La. 647, 146 So. 321 (1933); State v. Quinn, 131 La. 490, 59 So. 913 (1912); State v. Dowdell, 106 La. 645, 31 So. 151 (1902); State v. Southern Ry. Co., 122 N.C. 1052, 30 S.E. 133 (1898); 1 Wharton's Crim. Law § 88.
Like most offenses, the distribution of heroin requires a general, as distinguished from a specific, criminal intent. In State v. Hardy, 232 La. 920, 95 So.2d 499 (1957), the defendant was charged with contributing to the delinquency of a juvenile. The bill of information made no reference to intent, notwithstanding that the statute (La.R.S. 14:92) read: 'Contributing to the delinquency of juveniles is the Intentional enticing, aiding or permitting . . .' (emphasis added). In holding that the charge was legally sufficient the court decided that the manner in which the word 'intentional' is used in the statute denotes general criminal intent, and under the law general criminal intent does not have to be alleged in the bill of information. The similarity between the Hardy Case and the case at bar is striking, making that unanimous holding authoritative and persuasive here. There is, therefore, no error patent on the face of the record insofar as the validity of the bill of information is concerned.
Six bills of exceptions were reserved during the course of the trial. They are considered seriatim hereafter.
Because the judge found that prospective juror Mose Thomas was unable to read and write the English language with sufficient facility he was excused from service. La.Code Crim.Proc. art. 401. Defense counsel objected, the objection was overruled and this bill was reserved.
In State v. Comeaux, 252 La. 481, 211 So.2d 620 (1968), we upheld the requirement, that a person be able to read and write the English language to be qualified for jury service, against an attack that the requirement was discriminatory and prejudicial, depriving the accused of a jury representing a fair cross section of the local population.
The trial judge's examination of this prospective juror elicited the response that he could not read and write. Closer questioning disclosed that he was a laboring man, with a fourth grade education, who rarely reads. Often he needed the assistance of his children to read simple letters from members of his family. The codal requirement that he be able to read and write the English language, in the judge's opinion, contemplates that his proficiency be at a higher level than that which he demonstrated. The judge felt that Thomas would have trouble serving as a juror. Accordingly, the prospective juror was excused.
There is no error in this ruling. The question of a juror's qualifications is addressed to the sound discretion of the trial judge within the bounds prescribed by law. And, although the trial judge's ruling in these matters is undoubtedly subject to review, it will not be disturbed in the absence of clear abuse. La.Code Crim.Proc. art. 401, 787; State v. Brazile, 229 La. 600, 86 So.2d 208 (1956).
The State's attorney was questioning Jack Hebert, a deputy sheriff in charge of the narcotics division of the Calcasieu Parish Sheriff's Office. The testimony being given concerned the reputation and reliability of the State's undercover agent, Elray Fontenot, who worked under his supervision. Hebert's testimony also touched upon the operations of his division affecting narcotics investigations. When Hebert testified that he had not worked on the instant case, defense counsel objected to his testimony, arguing that it was improper to permit Hebert to testify concerning a case he did not work on. This bill was reserved to the overruling of this objection. Principally, as the bill is understood, defense counsel is complaining of the refusal of the trial judge to strike the testimony already given by the witness.
There is no error in the ruling. The...
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