State v. Shropulas

• Court: Louisiana Supreme Court
• Writing for the Court: THOMPSON, J.
• Citation: State v. Shropulas, 164 La. 940, 114 So. 844 (La. 1927)
• Decision Date: 31 October 1927
• Docket Number: 28879
• Parties: STATE v. SHROPULAS

114 So. 844

164 La. 940

STATE v. SHROPULAS

No. 28879

Supreme Court of Louisiana

October 31, 1927

Rehearing Denied November 28, 1927

Appeal from Fourteenth Judicial District Court, Parish of Calcasieu Thomas F. Porter, Jr., Judge.

George Shropulas was convicted for having possession of intoxicating liquors for beverage purposes for sale, and he appeals.

Affirmed.

M. R Stewart, of Lake Charles, for appellant.

Percy Saint, Atty. Gen., and John J. Robira, Dist. Atty., and S. H. Jones, Asst. Dist. Atty., both of Lake Charles (E. R. Schowalter, Asst. Atty. Gen., of counsel), for the State.

OPINION

THOMPSON, J.

The defendant appeals from a conviction and sentence for having in his possession "intoxicating liquors for beverage purposes for sale."

He was arraigned on July 7, 1927, pleaded not guilty, and the case fixed for trial on July 14th.

On the last-named date the defendant asked leave to withdraw his plea of not guilty in order to file a motion for a bill of particulars. When that request was made, the district attorney offered to furnish all information which the law would require him to furnish, whereupon the court refused the request to withdraw the plea.

The counsel for the defendant then filed his motion for a bill of particulars which would show the kind of liquor possessed, the place where it was possessed, and the quantity possessed.

The district attorney furnished all of the information called for except as to the quantity, and this he was not required to furnish, as was held in State v. Pete, 153 La. 943, 96 So. 818; State v. Cryar, 158 La. 498, 104 So. 304; State v. Jones, 160 La. 209, 106 So. 830.

An accused party has not an absolute right to withdraw a plea either of guilty or not guilty. The granting of the privilege is within the sound discretion of the trial judge. We have not found that the judge in this instance abused that discretion.

But, if that were otherwise, the defendant was permitted to file his motion for a bill of particulars, and he was supplied all of the information he called for and to which he was legally entitled. He got all the privileges he would have been entitled to had his plea been withdrawn. He therefore suffered no injury.

After the court had refused the withdrawal of the plea of not guilty, counsel for defendant asked to have the minutes of the court show his motion for bill of particulars and his exception to the ruling of the court in not permitting the withdrawal of the plea. The judge states in his per curiam that he did not intend to refuse the requested minute entry, but suggested to counsel that his rights be reserved in a bill of exception, and this was done.

The counsel for defendant made no request to have the clerk take down the facts as they occurred in order to have them brought up with his bill of exception. The judge well says there is no law which requires a bill of exception in a criminal case to be spread upon the minutes of the court or even entered therein. On the contrary, such bills of exception, when noted in the minutes, will not be considered by this court in the absence of a formal bill signed by the judge, in all matters where a bill of exception is required.

What has been said covers bills of exception 1, 2, and 3.

Bills No. 4 and 5 were taken to the admission, over defendant's objection, of certain testimony given by the witnesses Franus Daighe and P. L. Lacy. These witnesses were asked if they had ever, prior to the date of the offense charged in the information, gotten any home-brew from defendant. The objection was made that the testimony sought did not refer to the particular offense charged and was an attempt by the state to prove another and different one from that charged.

It appears that the defendant kept a cold drink stand, and in connection therewith, he provided his customers with beer of the home-brew make at the price of 15 or 20 cents per bottle. He had been engaged in selling home-brew covering a period, according to some witnesses, of six months, and, according to others, a year, prior to this prosecution.

The two witnesses whose testimony was objected to both purchased beer from defendant on more than one occasion.

The court in its per curiam states it did not consider any testimony of the two witnesses in regard to the sale, or any other offense that the defendant might have committed at that time.

All the court considered was evidence as showing possession on or about June 1st, which was relevant to the question on the date mentioned in the bill.

The ruling was proper. The defendant was charged with possessing beer for beverage purposes for sale, and any evidence going to show prior possession of beer for sale for beverage purposes was admissible to show motive and intent.

"There are exceptions to the rule that no evidence is admissible of distinct offenses committed by the defendant than that charged in the indictment, when it is material to show the intent with which the act charged was done." State v. Anderson, 45 La. Ann. 651, 12 So. 737; State v. Jones, 145 La. 339, 340, 82 So. 362.

In the case of State v. De Arman, 153 La. 345, 346, 95 So. 803, we held:

"Under an indictment charging possession of intoxicating liquors on a specified date, it might be shown, as corroborating evidence, that the same liquor was possessed within a reasonable time before the date charged."

While the court in the cited case ruled that evidence of prior possession of the same liquor might be favored as corroborating the act of possession charged, it was not the purpose of the court to hold that in all such cases the prior possession must be of the same liquor as that the defendant is placed on trial for illegally possessing. The charge here made is possession for sale, and it would be practically impossible to prove that the same liquor was in defendant's possession for sale a month prior to the date charged in the information.

The defendant was engaged in the business, as shown by the record, of selling home-brew, and that business had continued for from six to twelve months prior to the date the present charge was made against him.

We are of the opinion, therefore, that evidence of prior acts of possession of intoxicating liquors for sale for beverage purposes, of the character and kind of that with which defendant is charged, were admissible in evidence as corroborative of the charge made and of showing motive and intent.

Bill No. 6:

This bill was reserved to the overruling of a motion in arrest of judgment, which motion alleged that...