State v. Straughan

• Decision Date: 26 March 1956
• Docket Number: No. 42575,42575
• Citation: 87 So.2d 523,229 La. 1036
• Parties: STATE of Louisiana v. James STRAUGHAN.
• Court: Louisiana Supreme Court

Page 523

87 So.2d 523

229 La. 1036

STATE of Louisiana v. James STRAUGHAN.

No. 42575.

Supreme Court of Louisiana.

March 26, 1956.

Vincent Hazleton, Alexandria, for plaintiff-appellant.

Fred S. LeBlanc, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Ben F. Thompson, Dist. Atty., A. M. D'Angelo, Asst. Dist. Atty., Alexandria, for appellee.

FOURNET, Chief Justice.

The accused, James Straughan, having been convicted and sentenced ¹ on a bill of information charging that he did, within the Parish of Rapides and the jurisdiction of the Ninth Judicial District, and on or about July 22, 1954, 'wilfully maliciously and feloniously commit gambling as denounced by Louisiana Revised Statutes, Title 14, Section 90,' prosecutes this appeal, relying for the reversal thereof on numerous bills of exceptions reserved and perfected during the course of his trial. Inasmuch as we find merit in the second bill, reserved when the trial judge overruled his motion to quash the information, it will be unnecessary to consider the remaining bills. (Emphasis supplied.)

The motion to quash the information is levelled at its insufficiency to properly inform the accused of the offense with which he stands charged, as required by Sections 9 and 10 of Article I of the Louisiana Constitution of 1921-LSA, in that it states nothing more than a conclusion of law without any facts or circumstances upon which such a conclusion could be based, and more particularly so since the crime sought to be denounced by LSA-R.S. 14:90, Article 90 of the Criminal Code, ² is very sweeping, attempting, as it does, to be sufficiently broad to apply to all forms of organized gambling whatsoever not legalized by specific statute, the crime of gambling there being described in such vague and generic terms as games, contests, lotteries, and contrivances, with the result that a reference to the statute itself furnishes no aid in ascertaining just what acts of omission or commission of his are considered as having contravened its provisions. ³

The state, on the other hand, contends that the information charged gambling under Article 235 of the Code of Criminal Procedure as amended by Act 223 of 1944 ⁴ and was, therefore, valid and sufficient under the holding of this court in State v. Davis, 208 La. 954, 23 So.2d 801, which is controlling. The argument is that an indictment charging an accused by the use of the name given the crime in the Criminal Code and the number of the article in which it is there denounced must be deemed sufficient to protect his constitutional rights in view of the fact that he was fully informed of the 'nature and cause' of the accusation against him in the bill of particulars furnished by the district attorney. The theory underlying this argument is that although the constitutions of the United States and of Louisiana require that an accused 'be informed of the nature and cause of the accusation' ⁵ they do not specify any particular method for conveying this information to the accused, or require that the 'nature and cause' of the accusation be contained in the indictment or information on which it is stipulated he must be prosecuted; consequently, that these constitutional requirements have been amply satisfied since the nature, cause, and details of the offense here charged have been set out in full in the bill of particulars, and more particularly so since this procedure is not prohibited by the constitution. ⁶

This is the identical argument advanced by the state in the McQueen case, No. 42,417 on the docket of this court, which is now pending on the state's application for a rehearing of the adverse ruling handed down December 12, 1955, awaiting the decision in the instant case. This case, incidentally, appears to be the only case in our jurisprudence that squarely considered the contention that an indictment or information referring to the crime charged by name and article number only, as authorized under the 1944 amendment to Article 235, is unconstitutional, and fundamentally defective and insufficient even though a bill of particulars is furnished since our constitutional requirements are not satisfied by the inclusion of the nature and cause of the accusation in such a bill. Although the Davis case [208 La. 954, 23 So.2d 804], involved an information drawn under the 1944 amendment to Article 235, the court there, by a four to three decision, specifically refrained from determining whether such a short form is constitutional, holding that even 'if the information as originally drafted be defective in that respect, the defect was cured by the answer filed by the district attorney pursuant to defendant's motion for a bill of particulars.' ⁷ This conclusion was reached without any consideration being given to the long line of authorities in this state that, up until that time, and since, have held, as does the overwhelming majority of opinion throughout the country, that a bill of particulars forms no part of an indictment or information and can in no way aid or render sufficient one that is fundamentally bad. ⁸ Instead, reliance is placed on language in State v. Miller, 170 La. 51, 127 So. 261, and State v. Brooks, 173 La. 9, 136 So. 71, that is not only obiter, but not sustained by any cited authority. Furthermore, neither of these cases is authority for such a holding. The crime charged in the Miller case was theft and in the Brooks case embezzlement, and the forms used in both cases were those specifically set forth in Article 235 before its amendment in 1944. The court found the indictment as drawn in the Miller case contained sufficient facts to be good, while in the Brooks case the question presented for decision was whether a motion to quash an indictment, filed after arraignment, on the day of trial, came too late, the court carefully pointing out that the question of the sufficiency of the indictment was not then before the court. ⁹ (Emphasis supplied.)

Other than the Davis case, none of the authorities relied on by the state involved the short form authorized by the 1944 amendment. The Pete, Chanet, Nichols, Holmes, and Roy (from New Mexico) cases involved certain well known crimes charged in the short forms specifically set out in Article 235 before its amendment, i. e., theft, aggravated rape, manslaughter, simple burglary, and murder, respectively. Furthermore, a mere reading of the charge in the indictment or informations in these cases will disclose convincingly that they met the generally accepted test for constitutional sufficiency, i. e., (1) they were sufficient to inform the court of the exact offense being charged so that the court could properly regulate the evidence sought to be introduced, (2) they informed the accused of the nature and cause of the offense charged so that he could properly prepare his defense, and (3) they were sufficient on their face to support a plea for former jeopardy in the event of a subsequent attempt to try the defendant for the same offense. See State v. Ward, 208 La. 56, 22 So.2d 740, and the recent case of State v. Scheuering, 226 La. 660, 76 So.2d 921. For example, in the Pete case the information charged that 'Hampton Pete, at the parish of Calcasieu, on or about the 7th day of April in year of our Lord One Thousand Nine Hundred and Forty-four (1944) did unlawfully commit the theft of an automobile, of the value of Twelve Hundred and no/100 ($1200.00) Dollars, the property of Gordons Drug Store, Inc., a corporation.'

We thought our decision in the McQueen case had made the position of this court amply clear. However, in view of the three dissents therein, the state's urgent request for reconsideration of that decision, the reiteration of the identical argument in the instant case, and also in order that all interested parties may be assured of a reasonable measure of certainty as to the type of criminal charge permissible under the organic law of this state, we have held this appeal under advisement for several terms of court in order that we might make an exhaustive research into the matter of the so-called short form of criminal charge and the proper function of bills of particulars in criminal cases under our constitutional form of government, so that we may set at rest, in so far as Louisiana is concerned, the controversy that has apparently raged in this country ever since the American Law Institute released in June of 1930 its draft of a proposed model Code of Criminal Procedure-- on which code a few of the states have patterned their procedural criminal law--in the belief it would 'provide an effective administration of the criminal law with adequate protection to the substantial rights of the accused.' This exhaustive research has convinced us of the profound truth reflected in the statement of the reluctant majority in the landmark decision of People v. Bogdanoff, 254 N.Y. 16, 17, 171 N.E. 890, 895, 69 A.L.R. 1378, decided in 1930, that 'The new forms may at times prove unwise * * *. Too often the courts are called upon to point out that innovation does not necessarily imply improvement.' (Emphasis supplied.)

Needless to say, we have found that the decisions in all states turn, of necessity, upon their peculiar constitutional and statutory provisions as applied to the particular form of charge in, and the facts of, the case under consideration. In this state also these are controlling, irregardless of views expressed by other courts, and also irregardless what some think the law ought to be or wish it might be. It may well be that the legislature, unrestricted or constitutional provisions, can, as in some few states, ¹⁰ prescribe any change at will, all details connected with the prosecution of one charged with the commission or omission of acts denounced as crimes in the substantive law of the state, i. e., the entire process of levying the formal charge against the alleged offender, of notifying him of the charge, of exhibiting the charge before a...