State v. Varnado

FOURNET, Justice

(dissenting).

While on its merits this case probably presents a relatively unimportant matter, it is my opinion that the holding of the majority opinion is in direct contravention of the constitutional guarantees contained in our Bill of Rights and the jurisprudence of our state thereunder and will have such a far-reaching effect in all future prosecutions for offenses, that I feel constrained to dissent and assign my reasons therefor.

The district attorney has here charged the defendants in a bill of information, substantially in the general words of the statute, with the crime of gambling as defined in Article 90 of the Criminal Code, in that they “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 * * *.” It is my opinion that this bill of information is fatally defective. It does no more than state the conclusion of the prosecuting attorney without the inclusion of any of the facts or circumstances from which such conclusion is drawn. The accused, consequently, have not been sufficiently apprised of the offense with which they are charged to be able to properly defend themselves; furthermore, there will be no way in which they can protect themselves by a plea of guilty or an acquittal in this instance in the event of another prosecution for this same cause.

In order to insure that the accused secures the protection guaranteed him in the Bill of Rights, the legislature, in adopting Article 227 of the Code of Criminal Procedure, provided that “The indictment must state every fact and circumstance necessary to constitute the offense, but 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.”

As was very aptly pointed out by the United States Supreme Court in the case of United States v. Cruikshank, 92 U.S. 542, 558 , 23 L.Ed. 588 , “The object of the indictment is,

first,

to furnish the accused with such a description of the charge against him as will enable him to make his defence, and avail himself of his conviction or acquittal for protection against a further prosecution for the same cause; and

second,

to inform the court of the

facts

alleged, so that it may decide whether they are sufficient in law to support a conviction, if one should be had.

For this, facts are to be stated, not conclusions of law alone.

A crime is^made up of acts and- intent; and these must be set forth in the indictment, with reasonable particularity of time, place, and circumstances.” This is .the accepted rule under federal jurisprudence. See United States v. Simmons, 96 U.S. 360 , 24 L.Ed. 819 ; United States v. Hess, 124 U.S. 483 , 8 S.Ct. 571 , 31 L.Ed. 516 ; Peters v. United States, 9 Cir., 94 F. 127 , 36 C.C.A. 105 ; Foster v. United States, 9 Cir.,

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253 F. 481 , 165 C.C.A. 193 ; Miller v. United States, 5 Cir., 288 F. 816 ; Boykin v. United States, 5 Cir., 11 F.2d 484 ; and Bishop’s New Criminal Procedure, Sections 568, 589, and 570. (Italics mine.)

This same holds true under the jurisprudence of this state, for, as was very succinctly pointed out by Marr in Vol. 1 of his work on Criminal Jurisprudence, at page 483, Section 325, “It is sufficient to follow the words of the statute,

when those zvords describe the acts constituting the offense

with such precision and certainty as to fully inform defendant as to the nature of the charge against which he is to prepare his defense, and to furnish him a complete plea of autrefois acquit or convict, in bar of another judgment.” (Italics mine.)

The statute in this case is very general in its terms and the indictment does nothing more than trek its wording. This is not enough. As was pointed out by the Supreme Court of the United States in the case of United States v. Simmons, 96 U.S. 360, 362 , 24 L.Ed. 819 , “Where the offence is purely statutory * * * it 'is, ‘as a general rule, sufficient in the indictment to charge -the defendant

with acts

coming fully within the statutory description, in the substantial words of the statute, without any further' expansion of the matter.’ 1 Bishop, Crim.Proc., Sect. 611, and authorities there cited. But to this general rule ■there is the qualification, fundamental- in the law of criminal procedure, that the accused must-be apprised by the indictment, with reasonable certainty, of the nature of the accusation against him, to the end that he may prepare his defence, and plead the judgment as a bar to any subsequent prosecution for the ‘ same offence.

An indictment not so framed is defectivaJ although it may follozv the language of the statute

(Italics mine.)

The test for determining whether or not an indictment drawn in the language of the statute comes within this exception is laid down in the case of Peters v. United States, 9 Cir., 94 F. 127, 131 , 36 C.C.A. 105 , where the court says: “The true test of the sufficiency of an indictment is not whether it might possibly have been made more certain, but whether it contains every element of the offense intended to be charged, and sufficiently apprised the defendant of what he must be prepared to meet; and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.”

Certainly the • information in the instant case cannot stand up under this test. It gives the defendants neither facts nor particulars by which they may identify the offense with which they are charged.

The -author of the- majority opinion seems to rely on the cases of State v. Dark, 195 La. 139 , 196 So. 47 ; State v. Dark, 195 La. 160 , 196 So. 54 ; and State v. Pete, 206 La. 1078 , 20 So.2d 368 ; for his conclusion that “These provisions in the Code of Criminal Procedure (Articles 227, 235, 252, and 284) therefore m.ake it plain that if the charge in an indictment or a bill of information is made in the wo'rds of- the statute creating the offense, or in words unequivocally conveying the meaning of

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the statute, the indictment or bill of information is valid, and if the party accused wants further 'particular 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.” (Brackets mine.)

In my opinion these cases are neither in point nor controlling here.

In both of the Dark cases the defendants were charged in indictments with bribery and all of the

facts

and

circumstances

upon which the charge was based were recited in the indictment at great length. In the first Dark case ( 195 La. 139 , 196 So. 47, 48 ) the indictment charged that the defendants, as conservation agents, were state officers and that as such they did “feloniously receive from one George D. Pipes, a sum of money, to-wit: One 'Thousand and no/100 Dollars' ($1,000.00) lawful money of the United States of America, as a bribe, present or reward for the purpose of inducing and influencing them, the said W. D. Dark and L. J. Melton, as such State Officers, to protect and shield the said George D. Pipes and one' Barlow Inabnet from prosecution for 'violations of the conservation láws of the State of Louisiana, and the rules, regulations and orders of the Commissioner of Conservation * * * and to then and there be induced and influenced to exercise a power in them invested as such officers, and to perform a duty- of t-hem re-, quired with partiality and favor.” • ,

In disposing of the motion filed by the defendants to have this indictment quashed, the court said: “From a mere reading of Section l of Act 78 of 1890 (the act under which the defendants were charged) it is obvious that the gravamen of the offense is the offering or giving of a bribe by any person to an officer, as well as the agreement to accept or the receiving of the same by. the officer’ * * * to appoint any person to office, to vote or exercise any power in him vested, or to perform any duty of him required with partiality or favor * * *.’ In the' case at bar the defendants (Conservation Agents) arc charged with accepting a bribe of $1,000 for favoring the bribe-givers (Pipes and Inabnet) in their (defendants’) enforcement of the conservation laws by 'shielding and protecting them (the bribe-givers) from prosecution,” and concluded that “the facts and circumstances as stated in the indictment substantially set forth the crime of bribery denounced by Section 1 of Act 78 of 1890. The indictment is couched in the words of the statute

and the facts and circumstances upon which it is based are sufficient to inform the defendants of the nature of the charge against them

* * (Italics mine.)

The second Dark case ( 195 La. 160 , 196 So. 54 ) is substantially identical, the only difference being that these same defendants were accused in the indictment involved in this case with accepting a bribe for the “issuance of an order or permit to' acidize four (4) gas wells, designated as Peek Numbers One (1), Two (2), Three (3) and Four (4)” ■

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In the Pete case [ 206 La. 1078 , 20 So.2d 369 ] the defendant was charged with “the theft of an automobile, of the value of ■Twelve Plundred and no/100 ($1200.00) Dollars, the property of Gordons Drug Store, Inc.,” so this was obviously a case where the facts upon which the charge' was based were given in the indictment and we held that it was good, having been thus precisely drawn in the short form prescribed in Article 235 of the Code of Criminal Procedure, as amended.

Certainly none of the defendants in these three cases could have failed to appreciate the import of the charges thus brought against them and, if they were acquitted or convicted on such charges, they would be able to identify the offense under the facts and circumstances given in the indictments in the event of an attempt to prosecute them for these same offenses a second time.

In the instant case there is not one single fact or circumstance contained in the information by which the specific crime with which these defendants are charged can be identified. In other words, if the defendants had pleaded guilty to this charge as it is written, and a similar charge had been brought against them, the second charge also being in the identical words of the statute and so identical with the first charge, they could not avail themselves of their plea of guilty to the first charge as a protection against the second prosecution. To illustrate: Suppose the defendants have a number of enterprises or businesses, some of which are gambling within the meaning and contemplation of Article 90 of the Criminal Code — such as the operation of dice tables or roulette wheels where people bet money with an operator who is banking the game — the others not the gambling sought to be denounced in this article although they might not have the approval of certain of the citizens in the community- — such as the operation of a club room or social organization where poker is played among the members for money, or the operation of bingo games at fairs and benefits. The defendants are charged as in the bill of information in the instant case, and, believing they are being accused of running the dice tables and roulette wheels, plead guilty, only to find, when they are subsequently charged in an indictment returned by the grand jury in the identical language used in the bill of information and endeavor to plead their conviction or acquittal under the former charge as a bar, that the district attorney had brought his charge upon the complaint of a number of the citizens of the community who objected to their operation of bingo games at fairs and benefits while the grand jury had indicted them for running the dice tables and roulette wheels. They could not point to one single fact or circumstance in the bill of information to substantiate their claim that they thought they were pleading guilty to the offense charged in the indictment when they pleaded guilty to the offense charged in the bill of information, and there would thus be no way in which they could protect themselves against this second prosecution under their plea of guilty to the offense charged in the bill of information.