State v. Varnado

• Decision Date: 11 December 1944
• Docket Number: 37680.
• Citation: 208 La. 319,23 So.2d 106
• Court: Louisiana Supreme Court
• Parties: STATE v. VARNADO et al.

23 So.2d 106

208 La. 319

STATE v. VARNADO et al.

No. 37680.

Supreme Court of Louisiana

December 11, 1944

On Rehearing April 30, 1945.

Dissenting Opinion May 17, 1945.

Rehearing Denied June 5, 1945.

Appeal from Twenty-First Judicial District Court Parish of Tangipahoa; Robert S. Ellis, Judge.

R. S. Ellis and Ponder & Ponder, all of Amite for defendant-appellant.

Fred S. LeBlanc, Atty. Gen., M. E. Culligan, Sp. Asst. Atty. Gen Bolivar E. Kemp, Dist. Atty., of Amite, and Joseph A. Sims, Asst. Dist. Atty., of Hammond, for plaintiff-appellee.

O'NIELL Chief Justice.

The defendants are appealing from a conviction and sentence for gambling. The offense is defined in Article 90 of the Criminal Code. The sentence of one of the appellants, Charles Blackwell, is not enough to bring his case within the appellate jurisdiction of the court; hence his appeal must be dismissed, notwithstanding there is no motion to dismiss it. We understand though that the sentence against Blackwell is not to be carried out during the pendency of the appeal of Varnado, or unless his conviction and sentence are affirmed.

The principal complaint of the appellants was made in a motion to quash the bill of information. The motion was overruled. The contention is that the bill of information did not inform the defendants sufficiently of the nature and cause of the accusation against them, as required by Section 10 of Article I of the Constitution; that the statute itself does not define the offense or declare the manner in which it can be committed; and, specifically, that the bill of information did not inform the defendants as to which one of them was accused of conducting the alleged gambling game as a business, or as to which one of them was accused of assisting in conducting the gambling business.

The charge made in the bill of information was that the defendants 'did intentionally conduct and directly assist in the conducting as a business, of a game, contest and contrivance whereby a person risked money and things of value in order to realize a profit, contrary to the form of the statute', et cetera.

Gambling is defined and proscribed in Article 90 of the Criminal Code,--thus:

'Gambling is the intentional conducting, or directly assisting in the conducting, as a business, of any game, contest, lottery, or contrivance whereby a person risks the loss of anything of value in order to realize a profit.

'Whoever commits the crime of gambling shall be fined not more than five hundred dollars, or imprisoned for not more than one year, or both.'

The statute makes no distinction between conducting and assisting in conducting a gambling game as a business. If two persons participate in conducting a gambling game as a business each one of them is an assistant of the other, and both of them are principals in the misdemeanor. The reason is that the law does not recognize a distinction between principal and accessory in offenses below the grade of felony. It is not essential therefore to the validity of an indictment or a bill of information charging two persons with conducting and assisting in conducting a gambling game as a business that the indictment or bill of information shall designate which one of the defendants is accused of conducting and which one is accused of assisting in conducting the gambling game. If either of the defendants wants such information in advance of the trial he should ask for a bill of particulars.

The charge in the bill of information in this case follows the wording of the statute,--stating 'every fact and circumstance necessary to constitute the offense', as required by Article 227 of the Code of Criminal Procedure. The statute itself is not vague in its definition of gambling. The fact that the various ways and means by which gambling can be done, and the different kinds of games and contests or contrivances with which it can be done, are innumerable, does not make the statute unconstitutional for being vague or indefinite in its definition of the offense of gambling. To require that a law against gambling shall define each and all of the ways and means by which gambling can be done, and each and all of the different games and contests or contrivances with which the offense can be committed, would make it impossible to provide a general definition in a statute against gambling.

Article 227 of the Code of Criminal Procedure,--which article is applicable as well to bills of information as to bills of indictment,--states the requirements for a valid indictment thus: 'The indictment must state every fact and circumstance necessary to constitute the offense, but it need do no more, and it is immaterial whether the language of the statute creating the offense, or words unequivocally conveying the meaning of the statute, be used.' [The italics are ours.]

Article 235 of the Code of Criminal Procedure, which was amended by Act 147 of 1942, provides short forms of indictment for certain crimes enumerated in the statute, and declares that other forms authorized by any law of the state may be used. At the end of this article, as originally written and as amended, is the following proviso: 'Provided, That the district attorney, if requested by the accused prior to arraignment, may be required by the judge to furnish a bill of particulars setting up more specifically the nature of the offense charged.'

That proviso leaves it to the presiding judge to decide whether the defendant in any given case may compel the district attorney to furnish a bill of particulars; hence the proviso adds nothing to the provision in Article 288, that the judge may, in his discretion, require the district attorney to furnish such details or data as the defendant may ask for.

In Article 252 of the Code of Criminal Procedure,--which article is applicable as well to a bill of information as to an indictment, [208 La. 325] --it is declared that no indictment shall be quashed, set aside or dismissed on the ground that 'any uncertainty exists therein', and that if the judge finds that there is any uncertainty in an indictment he may order it amended to cure the defect.

Articles 253 and 284 of the Code of Criminal Procedure,--which articles also are applicable as well to a bill of information as to an indictment,--provide for amending an indictment on account of any defect in form or substance.

We say that these articles, 227, 235, 252, 253 and 284, are applicable as well to bills of information as to indictments because in Article 216 of the Code of Criminal Procedure it is declared that the rules of pleading contained in this Code shall apply to affidavits charging crimes and to bills of information, as well as to indictments, except in the instances where there is a clear intent to restrict the meaning of the word indictment to the finding by a grand jury.

These provisions in the Code of Criminal Procedure therefore make it plain that if the charge in an indictment or a bill of information is made in the words of the statute creating the offense, or in words unequivocally conveying the meaning of the statute, the indictment or bill of information is valid, and if the party accused wants further 'particulars setting up more specifically the nature of the offense charged' he may ask for a bill of particulars, but has no right to have the indictment or bill of information quashed for want of such additional information. It was so held very recently in State v. Dark, 195 La. 139, 196 So. 47, and in State v. Dark, 195 La. 160, 196 So. 54.

In the case of State v. Pete, 206 La. 1078, 20 So.2d 368, 369, it was held that a bill of information which charged merely that the defendant had committed 'the theft of an automobile, of the value of Twelve Hundred and no/100 ($1200.00) Dollars, the property of Gordons Drug Store, Inc.,' was a valid bill of information, and that the defendant's motion to quash the bill on the ground that it failed to charge that the theft or taking of the automobile was with the intent to deprive the owner permanently thereof was not well founded. In the opinion rendered in that case it was declared that the defendant's constitutional guaranty that he should be fully apprised of the nature and cause of the accusation against him was amply protected by the proviso at the end of Article 235 of the Code of Criminal Procedure, that the defendant might ask for a bill of particulars. It is true that the bill of information for the crime of theft in Pete's case was drawn in the short form prescribed in Article 235 of the Code of Criminal Procedure, as amended by Act 147 of 1942; but the proviso, under Article 288 of the Code of Criminal Procedure, ought to be applied as well to an indictment or a bill of information drawn in 'the language of the statute creating the offense, or words unequivocally conveying the meaning of the statute', as to an indictment or bill of information drawn in one of the short forms prescribed by Article 235 of the Code of Criminal Procedure.

The appellants cite and rely upon the following cases in which a motion to quash the indictment or bill of information was maintained: State v. Verdin, 192 La. 275, 187 So. 666; State v. Kendrick, 203 La. 63, 13 So.2d 387; State v. Morgan, 204 La. 499, 15 So.2d 866; and to which may be added State v. Hebert, 205 La. 110, 17 So.2d 3. In each of these cases the reason why the indictment or bill of information was held invalid for being too vague and indefinite was, first, that the indictment or bill of information did not inform the defendant specifically of the nature and cause of the accusation against him, and, second, that the district attorney did not ask for an amendment of the indictment or bill of information.

The decision in State v. Verdin et al....