State v. Varnado , 208 La. 319 ( 1944 )

I concur in the majority opinion for the reason that the bill of information in this case, charging these defendants with the crime of gambling as denounced by Article 90 of the Louisiana Criminal Code, does not sufficiently inform the accused of the nature and cause of the accusation against them, within the meaning of Section 10 of Article I of the Louisiana Constitution, and that the information in the general language of the statute in question is not sufficient to furnish these defendants with a complete plea of autrefois acquit or convict in bar of another information or indictment for the same offense.

I cannot, however, subscribe to the view expressed in the majority opinion to the effect that a bill of particulars cannot create or cure a defect in the indictment or information in any case.

In State of Louisiana v. Larry Bienvenu, Jr., La.Sup.,22 So.2d 196, this court found that the prosecutions were instituted under Section 1 of Act 70 of 1908, and that this act was expressly repealed by Section 2 of Article 142 of Act 43 of 1942, the Criminal Code. We held that the bills of particulars filed therein could not be read into the bills of information so as to charge the defendants with the crime of gambling as denounced by Article 90 of the Criminal Code — or, as I understand the holding, that a bill of particulars could never take a criminal prosecution out of the statute on which the indictment or information is based and place it under some other statute; or, still further, that a bill of particulars could not breathe life into an indictment or information based on a statute which has been repealed, so as to place it under some other legal and existing criminal statute.

For these reasons I subscribed to the majority opinion in the Bienvenu case. I do not consider the holding therein to be inconsistent with the view herein expressed.