State v. Thomas, 51514

• Citation: 260 La. 784,257 So.2d 406
• Decision Date: 17 January 1972
• Docket Number: No. 51514,51514
• Parties: STATE of Louisiana v. John THOMAS.
• Court: Supreme Court of Louisiana

Page 406

257 So.2d 406

260 La. 784

STATE of Louisiana v. John THOMAS.

No. 51514.

Supreme Court of Louisiana.

Jan. 17, 1972.

Rehearing Denied Feb. 21, 1972.

Lawson L. Swearingen, Jr., West Monroe, for defendant-appellant.

Jack P. F. Gremillion, Atty. Gen., Harry H. Howard, Asst. Atty. Gen., Robert W. Kostelka, Dist. Atty., Gilbert T. Brown, Jr., Asst. Dist. Atty., for plaintiff-appellee.

TATE, Justice.

The defendant was convicted of forgery, La.R.S. 14:72, and sentenced to six years in the penitentiary.

The defendant perfected no bills of exceptions. On his appeal, therefore, our review is limited to error discoverable from a review of the pleadings and proceedings (i.e., a review limited to errors patent on the face of the record). La.C.Cr.P. Art. 920; State v. Ash, 257 La. 337, 242 So.2d 535 (1971).

The defendant's court-appointed counsel urges three such patent errors as cause for reversal. The most serious is the contention that the (bill of) information is fatally defective on its face, because of its failure to set forth the facts which constitute the crime charged.

The defendant is charged with the crime of forgery, as defined by La.R.S. 14:72, which provides:

'Forgery is the false making or altering, with intent to defraud, of any signature to, or any part, of, any writing purporting to have legal efficacy.

'Issuing or transferring, with intent to defraud, a forged writing, known by the offender to be a forged writing, shall also constitute forgery.'

Forgery is among those crimes for which a short-form indictment is authorized by La.C.Cr.P. Art. 465. Under this article the short-form prescribed for the crime of forgery reads: 'A.B. forged a _ _ (promissory note, or other instrument) by _ _ (state nature of defendant's act).'

In the present case, the (bill of) information attempting to use the short-form against the present defendant charged, pertinently, that he 'forged a certain instrument purporting to be a check or order for the payment of money, to-wit: Dated 4--11, 1965, No. 295, drawn on the American Bank and Trust Co. in Monroe, Monroe, Louisiana, payable to the order of John Thomas in the amount of Fifty-five and no/100 ($55.00) Dollars, and signed BILL'S AUTO & TRUCK SALES, W. A. Minor, contrary to the provisions of R.S. 14:72 * * *'.

The defendant contends that this information does not comply with the requirements of the short-form indictment for forgery, in that it fails to 'state nature of the defendant's act'. He notes that the forgery may be committed in several ways (e.g., false signing, false altering, issuing a forged writing, transferring a forged writing); and he suggests that the present information simply charges him with 'forging' a certain described instrument without describing how the crime was committed. ¹ That is, he suggests that the wording of the indictment does not state the nature of the act--false signing, issuing, etc., as required by the short form prescribed by Art. 465 above quoted.

As the defendant suggests, the more grammatically accurate interpretation of the wording of the present information is only that he forged a certain check, described by date, bank, amount, and further described as 'signed BILL'S AUTO & TRUCK SALES, W. A. Minor'.

On the other hand, although inartistically expressed, the wording of the indictment can be interpreted as averring that the defendant 'forged (a described instrument) in the amount of Fifty-five and no/100 ($55.00) Dollars, And signed BILL'S AUTO & TRUCK SALES, W. A. Minor'. That is, that the defendant Thomas 'signed' a described check with a name not his own, i.e., falsely.

In short, the defendant contends that the phrasing 'and signed BILL'S AUTO & TRUCK SALES, W. A. Minor' is merely a participial phrase describing the check; but this phrasing can also be regarded as a conjunctive clause (with the defendant Thomas as the subject of the verb 'signed') describing the nature of the act--i.e., that the defendant had forged the described instrument And signed 'Bill's Auto & Truck Sales, W. A. Minor'. On the face of the information, this charges a false making of a signature, since the defendant's name is John Thomas, not W. A. Minor.

We do not understand that, so construed, there is any contention that the information in question does not satisfy the requirement of the short from required by La.C.Cr.P. Art. 465 and of Article I, Section 10 of our Constitution. (Under this constitutional provision, 'In all criminal prosecutions, the accused shall be informed of the nature and cause of the accusations against him * * *.')

The fundamental requirement is that the bill of information or indictment must contain all the essential elements of the crime intended to be charged in sufficient particularity (1) to enable the defendant to prepare for trial, as well as (2) to allow the court to determine the propriety of the evidence which is submitted upon the trial and to impose the correct punishment upon a verdict of guilty, and (3) to afford protection from subsequent prosecution for the same offense. ² State v Dozier,258 La. 323, 246 So.2d 187 (1971); State v. Wright, 254 La. 521, 225 So.2d 201 (1969). State v. Straughan, 229 La. 1036, 87 So.2d 523 (1956). See also State v. Barksdale, 247 La. 198, 170 So.2d 374 (1964).

Tested by these requirements, the information (as construed by this court) is sufficient. If the defendant was in doubt that the information did not charge him with the false making of a signature to the check described, he could obtain relief by a motion for a bill of particulars. State v. Thompson, 228 La. 342, 82 So.2d 33 (1955). ³

The grammatical inadvertence ⁴ of the prosecutor's legal or secretarial staff should not be the cause for reversal after conviction, where in fact the defendant (and the court) were informed by the information of the offense with which charged, including the nature of the act by which the offense was committed--and where, if there was indeed doubt, it could have been resolved by a bill of particulars before trial.

The defendant additionally suggests as patent error that the prosecution was not timely instituted. The bill of information was filed on January 13, 1971, charging that the defendant committed the crime of forgery on April 11, 1965, five and one-half years earlier.

Under La.C.Cr.P.Art. 572(2) the prosecution for a felony not necessarily punishable by imprisonment at hard labor, such as forgery, must be brought within four years after the offense has been committed. The periods of limitation for institution of prosecution are interrupted when the defendant is, inter alia, outside the state (which the prosecution in brief suggests applies in the presence instance--as to which, however, there is no showing in the present record).

Under the 1966 Code of Criminal Procedure, 'The State shall not be required to allege facts showing that the time limitation (for institution of a prosecution) has not expired * * *'. Article 577. This overruled prior jurisprudence, under which the State was required to negative prescription. See Official Revision Comment (d)(1).

Thus, where the state does not negative prescription, by reason of Article 577 the failure to do so is not error patent on the face of the pleadings--i.e., error discoverable by a review of the pleadings and proceedings, La.C.Cr.P. Art. 920. ⁵ Jurisprudence to the contrary, such as State v. Jones, 209 La. 394, 24 So.2d 627 (1945) cited to us by the defendant, has been overruled by the 1966 codification.

The final patent error alleged is that the minutes show that, on the date of sentencing, in 'reply to interrogation by the court, defendant stated he wished to maintain his plea of guilty and was prepared to accept sentence'. He contends these minutes are grossly erroneous, since he never entered a plea of guilty.

In the record before us, the minutes before us do not contain the language complained of. ⁶ However, even if the minutes did read as defendant states they do, we cannot find that such clerical or other error resulted in any prejudice to the defendant, where such alleged erroneous statement was made on April 22, 1971, immediately prior to sentencing, and long after the conviction by the jury by verdict of April 6.

For the foregoing reasons, we affirm the conviction and sentence appealed from.

Affirmed.

BARHAM, J., dissents joining in the reasons expressed in dissent by Summers, J.

SUMMERS, Justice (dissenting).

A bill of information was filed against defendant John Thomas charging that he:

. . . on or about the 11th day of the month of April Anno Domini, 1965, in the Parish and State aforesaid, forged a certain instrument purporting to be a check or order for the payment of money, to-wit: Dated 4--11, 1965, No. 295, drawn on the American Bank and Trust Co. in Monroe, Monroe, Louisiana, payable to the order of John Thomas in the amount of Fifty-five and no/100 ($55.00) Dollars, and signed BILL'S AUTO & TRUCK SALES, W. A. Minor, contrary to the provisions of R.S. 14:72.

Defendant was tried before a jury of five and convicted as charged. He was sentenced to serve six years at hard labor in the state penitentiary.

Three errors patent on the face of the record are relied upon to sustain this appeal and set aside the conviction and sentence. I find one of the contentions to be meritorious.

It is contended that the bill of information is fatally defective on its face for it fails to set forth facts which will support a conclusion that certain essential elements of the crime charged have been violated. Specifically, the contention is that the State has failed to allege, 'that the defendant falsely made or altered a signature on the instrument, a part of the instrument or the entirety of the instrument.' Furthermore, defendant argues that, 'the State does not allege in the said bill that the defendant issued or transferred the instrument known by him to be a forged writing.' Thus, the...