State v. Truby

• Decision Date: 10 February 1947
• Docket Number: 38372.
• Citation: 211 La. 178,29 So.2d 758
• Court: Louisiana Supreme Court
• Parties: STATE v. TRUBY et al.

29 So.2d 758

211 La. 178

STATE v. TRUBY et al.

No. 38372.

Supreme Court of Louisiana

February 10, 1947

Dissenting Opinion March 5, 1947.

John R. Hunter & Son, of Alexandria, for relators.

Fred S. LeBlanc, Atty. Gen., M. E. Culligan, Sp. Asst. Atty. Gen Ben F. Thompson, Dist. Atty., and Walter M. Hunter, Asst Dist. Atty., both of Alexandria, for respondents.

HAWTHORNE Justice.

Relators, F L. Truby and Mrs. Amelia Truby, husband and wife, who were engaged in operating a cafe in the City of Alexandria, were charged with the crime of keeping a disorderly place, and were tried and convicted. Each was sentenced to serve six months in jail and to pay a fine of $300 and costs, and, in default of the payment of the fine and costs, to serve six additional months in the parish jail. They applied to this court for writs, which were granted with a stay order, and the matter is now before us under our supervisory jurisdiction.

The bill of indictment under which defendants were convicted charged that they '* * * from on or about the 1st day of January, 1946, to on or about September 22, 1946 with force and arms in the Parish, District and State aforesaid, and within the jurisdiction of the Ninth Judicial District Court, did willfully, maliciously and feloniously Intentionally maintain a place, to-wit: the premises at 721 Second Street in the City of Alexandria, Louisiana, to be used habitually as a meeting place for prostitutes and men desirous of their company and as a meeting place for criminals to plan and prepare for the commission of sundry crimes, contrary to the form of the Statute in such case made and provided, and against the peace and dignity of the State.'

In the court below, defendants filed a motion for a bill of particulars, in which they requested the State to inform them of the statute or law of the State of Louisiana under which they were being prosecuted and also to furnish certain other information. The State answered the motion for a bill of particulars, setting forth that the prosecution was being had and conducted under Article 104 of the Louisiana Criminal Code, Act No. 43 of 1942, but did not furnish the other information sought.

The defendants then filed a motion to quash the indictment, alleging that it did not charge any offense or violation of any criminal laws or statutes of the State of Louisiana, and, further, that the indictment as drawn did not set forth with legal certainty any identification of the offense so as to enable them to understand with what they were being charged and enable them to prepare a defense, in violation of the Constitution of the State of Louisiana. This motion was overruled.

Defendants were then tried and convicted. Before sentence defendants, through counsel, filed a motion for a new trial and a motion in arrest of judgment, both of which were overruled.

In the motion in arrest of judgment, defendants attack the constitutionality of Article 104 of the Criminal Code on the ground that it is violative of Article I, Section 10, of the Constitution, which provides that in all criminal cases the accused is entitled to be informed of the nature and cause of the accusation against him, and also on the ground that Article 104, in defining the crime of keeping a disorderly place, is vague and indefinite and leaves to the court the determination of the definition of the crime and is therefore null and void for the reason that the Legislature alone can define what constitutes a crime in this state.

Defendants also attack the bill of indictment and the article of the Criminal Code on other grounds, but, due to the view which we have taken, as hereinafter expressed, it is not necessary for us to consider these attacks.

Article 104 of the Louisiana Criminal Code reads as follows:

'Keeping a Disorderly Place is the intentional maintaining of a place to be used habitually for any illegal or immoral purpose.

'Whoever commits the crime of keeping a disorderly place shall be fined not more than three hundred dollars, or imprisoned for not more than six months, or both.'

Defendants contend that this article does not supply any definition of the crime of 'keeping a disorderly place' in that it does not define 'illegal or immoral purpose,' thus making it incumbent upon the court to supply the definition of these terms.

It is so well settled that citation of authority is unnecessary that in Louisiana there are no common-law crimes, and that nothing is a crime which is not made so by statute. The Criminal Code itself states this rule in Article 7, as follows:

'A Crime is that conduct which is defined as criminal in this Code, or in other acts of the legislature, or in the constitution of this state.'

Article 3 of the Code on the subject of 'Interpretation' provides: 'The articles of this Code cannot be extended by analogy so as to create crimes not provided for herein; however, in order to promote justice and to effect the objects of the law, all of its provisions shall be given a genuine construction, according to the fair import of their words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision.'

In our efforts to construe the meaning, intent, and purpose of any article of the Code, we have full authority to consider the comments found thereunder, as pointed out in the case of State v. Davis, 208 La. 954, 23 So.2d 801. Article 104 of the Criminal Code in defining a disorderly place is broad in its scope, and that this is clearly recognized by the compilers of the Code is shown by the following statement under 'Comments' to this article and to Article 105, which deals with letting a disorderly place:

'In defining the crime a departure has been made from the usual definitions. A general definition seeks to include all types of disorderly houses and places known as such, or which might become known as such in the future. This eliminates the necessity of enumeration which is found in most statutes.'

Defendants contend that the words 'illegal' and 'immoral' as used in the statute have no fixed and well defined meanings, and that the article leaves it to the court to determine what is an illegal or an immoral purpose, or what illegal or immoral purposes the Legislature had in mind, and that the word 'immoral' might mean anything and might have different meanings in the minds of different people. They point out that an individual might be considered by some people to be immoral when he does not attend church regularly; when he does not contribute his share to charity; when he abuses his wife; when he is mean to his children; when he is wicked or vicious; when his principles are not so high as his heighbors'.

As to the word 'illegal,' we do not think that there is any merit in defendants' contention. To us the word as used in the statute clearly means 'contrary to some criminal statute of this state' or 'violative of some criminal statute.' When the word 'illegal' is given this meaning, the phrase 'for any illegal * * * purpose' in the statute is clear and definite, leaves nothing for the court to determine, and definitely fixes the crime of keeping a disorderly place as the intentional maintaining of a place to be used habitually for any purpose contrary to the criminal laws or statutes of this state.

In so construing the meaning of the word 'illegal,' we are giving the statute a construction according to the fair import of its words, taken in their usual sense, in connection with the context, and with reference to the purposes of the provision, as set forth in Article 3 of the Criminal Code, quoted hereinabove.

This court has had occasion to define the word 'unlawful,' which is synonymous with 'illegal.' In State v. Bulot et al., 1932, 175 La. 21, 142 So. 787, 788, relators were charged with the violation of Act No. 7 of the Extra Session of 1872, Section 1 of which provided that 'if any three or more persons, being armed with clubs or any other dangerous weapon or weapons, or if any ten or more persons shall unlawfully assemble * * * for any unlawful purpose, or with intent to disturb the public peace, or to cause public disturbance, the persons so assembled shall be deemed guilty of a misdemeanor,' etc. (All italics ours.)

The relators in that case contended that the act was too vague and indefinite, in that the terms 'unlawfully assemble' and 'unlawful purpose' were not defined with any degree of legal certainty. In the course of the opinion this court said:

'* * * The word 'unlawful' means that which is not lawful or that which is contrary to some express provision of the law. The terms 'unlawfully assemble' and and 'unlawful purpose,' as here used, mean to assemble for the purpose of doing some act or thing which the law prohibits. So that, in order to determine whether a number of persons assemble for an unlawful purpose, it would be necessary to determine, first, what the purpose of the assembly was; and, second, whether the act intended to be done is prohibited by law. A reference to the statutes of the state would enable the court to determine whether the purpose of the assembly was lawful or unlawful. We think the statute is not amenable to this particular objection.'

Although the court in that case found the terms 'unlawfully assemble' and 'unlawful purpose' to have a definite and fixed meaning, the statute there under consideration was declared unconstitutional on other grounds.

In the earlier case of State v. Holland, 1907, 120 La. 429, 45 So. 380, 381, 14 Ann.Cas. 692, defendants were charged and convicted under Section 805 of the Revised Statutes of 1870, which read as follows:

'Whoever shall forcibly seize and carry out of this state, or from one part of this state to...