State v. McQueen , 230 La. 55 ( 1955 )

MOISE, Justice.

E. R. McQueen appeals from a judgment of conviction and sentence—

(a) To pay a fine of $350 and cost, and in default thereof to serve six months in the parish jail;

(b) In addition thereto, to serve six months in the parish jail.

Innumerable bills of exception were perfected during the trial. In our opinion, bill of exception #2 is decisive of the issue in this case. It was taken to the trial court’s overruling the motion to quash a defective information charging—

“that Everett R. McQueen on or about the 22nd day of July A.D., 1954, in the Parish, District and State aforesaid * * * did wilfully, maliciously and feloniously commit gambling as denounced by Louisiana Revised Statutes, Title 14, Sec. 90.”

In Section 90 of Title 14 of the LSA-Revised 'Statutes, gambling is defined as 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.

The above information has not been amended by the district attorney, although he has filed an answer to a bill of particulars. The accused asserts that such answer forms no part of the information, nor does it amend the information charging the crime, and that its sole purpose is to restrict the State’s proof. Appellant urges that this bill of information is fatally defective for the cause and reason herein set forth and moves that the same be quashed, annulled and set aside for the following reasons:

“1. That the bill of information does not charge particularly whether the accused was intentionally conducting or whether he was directly assisting in the conducting of any game, contest or contrivance.

“2. That the bill of information does not name or define any particular game, contest, lottery or contrivance, as set forth in the statute, of which defendant is accused of conducting.

“3. That it does not name any person who risked the loss of anything of value in order to realize a profit.

“4. That it does not specifically name anything of value which might have been risked.

“5. That it does not name ‘what profit was sought to be realized.’

“6. That the bill of information is fatally defective in that it fails to inform the accused of the nature and cause of the accusation against him as required by Section 10 of Article I of the Constitution of Louisiana of the year 1921.

“7. That the bill of information merely states a conclusion of law, without detailing the facts and circumstances upon which the conclusion is based, contrary to the mandatory provisions of law and the constitution of Louisiana and particularly Article 227 of the Code of Criminal Procedure of Louisiana [LSA-R.S. 15:227] and Section 10, Article I of the Constitution of Louisiana for the year 1921.

“8. That said bill of information does not set out any offense as denounced by any law of the State of Louisiana but merely sets out a conclusion of law.

“9. That said bill of information does not set out the time, place and manner or device or contrivance in which it is claimed that the alleged offense was committed.

“10. That said bill of information is too vague and indefinite to permit the mover to prepare his defense to the alleged offenses therein charged against him.

“11. That the offenses charged are so vague and indefinite that it is not sufficient to inform the court of the offense charged so that the court may properly regulate evidence sought to’ be introduced.

“12. That said bill of information is so vague and indefinite it is not sufficient on its face to sustain a plea of former jeopardy in an attempt to try the defendant more than once for the same offense.

“13. That the information in the case at bar does not allege a single fact or circumstance upon which the offense is based and there is nothing in it from which the accused can tell definitely, or even guess, what acts he is charged with having done.”

In overruling the motion to quash, the trial judge stated that he was governed hy the pronouncement of this Court in the case of State v. Davis, 208 La. 954, 23 So.2d 801, 802. The information in that case reads:

• “* * * defendant, J. L. Davis, on or about the 2d day of August, 1944, in the named parish, ‘did commit the crime of gambling as defined by Article 90 of the Louisiana Criminal Code.’ ”

In the present case the State contends that the information, if defective, was cured by the answer filed by the district attorney pursuant to defendant’s motion for a bill of particulars. This, we believe, is an erroneous assumption. On November 7, 1955, Justice Simon, as organ of the Court in the case of State of Louisiana v. Dabbs, 228 La. 960, 84 So.2d 601, 602, stated:

“Irrespective of what may be contained or set forth in the bill of particulars relied on by the defendant to support his contention presented by these bills, we are not concerned therewith. * * * There can be no prosecution on a bill of particulars. Nor can the contents of a bill of particulars, whatsoever is set forth therein, alter, change, amend or affect the bill of information. A bill of particulars can neither create a defect in a bill of information nor remedy a defective one. * * *”

The 'answer to a bill of particulars cannot alter nor change a faulty information, and it is inconceivable to even think that the defendant could prepare his defense under the present information that he “did wilfully, maliciously and feloniously commit gambling as denounced by Louisiana Revised Statutes, Title 14, sec. 90.’’’

The proviso relied on by the State reads: “* * * that in all cases of crimes included in the Criminal Code but not covered by the short forms hereinbefore set forth, it shall be sufficient to charge the defendant by using the ' name and article number of the offense committed.” LSA-R.S. 15:235.

The crime of gambling has been omitted in the enumerations made in the statute, and this omission constitutes a presumption in law. The old legal maxim, “Ex-pressio unius est exclusio alterius — the express mention of one thing implies the exclusion of another”, is applicable here.

The Constitution ordains, in Article 19, § 8, LSA, that gambling is a vice and that the Legislature shall pass laws to suppress-it. That article is not self-operative. It takes an enabling act to bring about the suppression of gambling. The Legislature passed laws suppressing various forms of gambling, and the enumerations are so numerous that we tire in the repetition thereof.

In this case the information is based on conclusions of law, which are legal abstractions affording no protection. The United States Supreme Court has spoken and provided a test in such instances. It stated that the test is not whether it (the information) could have been more definite or certain, but whether the information contains the elements of the offense intended to be charged and sufficiently apprises 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. See, Cochran and Sayre v. United States, 157 U.S. 286, 290, 15 S.Ct. 628, 630, 39 L.Ed. 704; Rosen v. United States, 161 U.S. 29, 34, 16 S.Ct. 434, 435, 480, 40 L.Ed. 606. Hagner v. United States, 285 U.S. 427, 431, 52 S.Ct. 417, 419, 76 L.Ed. 861.

Then again, in Bartell v. United States, 227 U.S. 427, 33 S.Ct. 383, 384, 57 L.Ed. 583, the Supreme Court said:

“It is elementary that an indictment, in order to be good under the Federal Constitution and laws, shall advise the accused of the nature and cause of the accusation against him, in order that he may meet the accusation and prepare for his trial, and that, after judgment, he may be able to plead the record and judgment in bar of further prosecution for the same offense.”

See, United States v. Debrow (United States v. Wilkinson, United States v. Brashier, United States v. Rogers, United States v. Jackson), 346 U.S. 374, 74 S.Ct. 113, 98 L.Ed. 92.

Fundamentally, courts should be for the man, his life, his liberty and his property. The only sure and safe guard for the courts is a strict adherence to the constitutional provisions of law. The habit of mind which consents to the perpetuation of a mistake when some temporary good in a prosecution may be accomplished should be avoided. It is against such inadvertent mistakes that our courts and the people should indulge all of their jealousies and exhaust all of their precautions.

In State v. Varnado, 208 La. 319, 23 So. 2d 106, 124, our own Court expressed a contrary view to that expressed in the Davis case, supra. The information in that case was—

“That Varnado and Blackwell, on July 8, 1944, 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 statutes of the State of Louisiana, in such cases made and provided * * *»

In setting aside a conviction and sentence and sustaining a motion to quash in that case, this Court stated:

“The information in the case at bar does not allege a single fact or circumstance upon which the offense is based. There is nothing in it from, which the accused can tell definitely, or even guess, what acts they are charged with having done. All that appears from the information is that, in the opinion of the district attorney, the accused were guilty of intentionally conducting and directly assisting 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. There is certainly nothing in this information that informs the accused or the court on just what acts allegedly committed by the accused the prosecuting attorney bases his conclusion that they have been guilty of the offense sought to be charged. This information, therefore, lacks the two essential requirements that give it life. It does not give the accused enough information to enable them to prepare their defense and it is, in no sense of the word, sufficiently definite to be of any value as a bar to further prosecution.

“It is elementary that an indictment or information lacking the averments necessary to apprise the accused of the nature and cause of the offense with which he is sought to be charged constitutes no indictment at all and that such a defective indictment or information cannot form the basis of a prosecution, and while the- legislature may authorize changes in the form of indictments or informations * * * as it did more recently when it adopted the Code of Criminal Procedure, wherein the forms of indictments and informations in certain cases have been further simplified by eliminating the unnecessary and complicated verbosity of those common law forms,— we do not find anywhere in the Code of Criminal Procedure provision that an accused charged in an indictment or information that totally fails to apprise him of the acts on which the offense with which he is sought to be charged is based must probe the innermost recesses of the prosecuting attorney’s mind in an effort to ascertain just what acts of his the attorney thinks constitute a crime.”

In the recent case of State of Louisiana Blanchard, 226 La. 1082, 78 So.2d 181, we stated:

“As a general rule where an .indictment follows the language of the statute it is sufficient, but this rule is. without application where the words of the statute do not sufficiently describe or legally characterize the offense denounced. Where a statute characterizes the offense in general or generic terms, an information charging an offense in the words of the statute is insufficient and the specific facts on which the charge is based must be set out in the information. State v. Varnado, on rehearing, 208 La. 319, 368, 23 So.2d 106. See also State v. Holmes, 223 La. 397, 65 So.2d 890; United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588.”

Again we quote from the Varnado case, supra:

“In any event, we find no provision in the Code of Criminal Procedure requiring that an accused ask for a bill of particulars except when the form of the indictment or information used is as prescribed in Article 235 (the short form of indictments and informations) in certain cases, gambling not being one of these. In this article it is made discretionary with the trial judge to require the district attorney to furnish a bill of particulars if it has been requested by the accused prior to arraignment. On the contrary, the code specifically declares that ‘Defects in indictments can be urged before verdict only by demurrer ór a motion to quash, and the accused is not entitled to any bill of particulars as to the subject-matter charged in the indictment, but the trial judge may, in his discretion, require the district attorney to file in the case such data as, in the opinion of the judge, may be sufficient.’ Article 288. Articles 284 and 286' are to the same effect'. Title XX of the Code of Criminal Procedure deals with the ‘Pleadings' and Proceedings After Indictment and Before Trial,’ and articles 284-288 are to be found in Chapter 6 of this title under the heading ‘Demurrers and Motions to Quash,’ wherein the remedies of an accused who feels the indictment is not sufficient to properly apprise him of the nature and cause of the offense are specifically set out.”

In State v. Pettifield, 210 La. 609, 27 So.2d 424, 427, we stated:

“The information voluntarily furnished by the district attorney in response to the bill of particulars previously filed by counsel for the relator merely giving the name and age of the child and the dates on which he failed to attend school cannot cure a fatally defective indictment for, ‘A bill of particulars cannot * * * in any way aid an indictment or information fundamentally bad.’ State v. Bienvenu, 207 La. 859, 22 So.2d 196, 198. The author of the opinion in that case very aptly pointed out that ‘The sole office of a bill of particulars is to give the adverse party information which the pleadings by reason of their generality do not give and to compel the State to observe certain limitations in offering evidence.’ See, also, 31 C.J. 752, Section 310; 42 C.J.S., Indictments and Informations § 156; and 27 Am.Jur. 672, Section 112. And the observation by the court in the Bienvenu case that the ‘defendant is not being prosecuted on the bills of particulars, but solely on the informations,’ is also applicable here.” See also, State v. Espinosa, 223 La. 520, 66 So.2d 323.

It is easier to find fault with remedies proposed (as in the Davis case, supra) than to propose remedies that are faultless; nevertheless, the view now taken crystallizes the jurisprudence in conformity with the mandate of the Constitution, and we hold that the information in the instant case does not meet the requirements of the law.

For the reasons assigned, the conviction and sentence-are set aside, and the motion to quash is sustained.