State v. Gendusa , 190 La. 422 ( 1938 )

I am of the opinion that the indictment sufficiently charged the defendant with the crime denounced by Revised Statute 850 (Art. 818 of the Louisiana Code of Crim. Procedure). While it is true, in the first part of the paragraph the phrase "break and enter" is used, it will be noted that thereafter only the word "enter" is used or the phrase "breaking or entering" is employed by the legislators in expressing their intent. This being written in the disjunctive, an indictment which charges an unlawful entry with force and arms sufficiently complies with the statute and is valid. There is no doubt in this case that the accused was fully apprised of the offense with which he was charged, as shown first by the fact that he was denied bail and, second, that he filed a motion to quash the indictment on the ground that in order to charge him with a capital offense, it was necessary for the State to allege that he broke into the dwelling.

Under the majority view, if an accused armed himself with deadly weapons and went to the dwelling house of his victim about 10 o'clock at night, with the intent to rob and kill him and commit burglary, and having found one of the doors open, boldly entered and struck down the occupant and the members of his family with his weapons, leaving them for dead and burglarized the house, but his victims did not die, he could only be convicted of entering a dwelling house at night time and subject to a penalty of five years in the State Penitentiary. (R.S. § 854 — Act 20 of 1926, Art. 821 Louisiana Code of Criminal Procedure) On the other hand, if this same party entered under these same circumstances but had to open the bathroom door to find one of his victims, who had taken refuge there, he could be charged and convicted under R.S. § 850 and sentenced to death.

It is well established that in the commission of the crime of burglary that the mere opening of a screen or door which is not locked constitutes a sufficient breaking. So, in the instant case, I cannot agree that breaking is the essence of the offense denounced by R.S. § 850, first, because of the wording of the Statute itself and, second, because such an interpretation leads to an absurd result and defeats the purpose of the Statute as amended. This was the view of the learned trial judge, who supported his opinion with pertinent authorities. State v. Cole, 161 La. 827, 109 So. 505; State v. Leonard, 162 La. 357, 110 So. 557; State v. Barber,167 La. 635, 120 So. 33; State v. Anselm, 43 La.Ann. 195, 8 So. 583; State v. Kennedy, 8 Rob. 590; State v. Huntley, 25 Or. 349, 35 P. 1065; Rain v. State, 15 Ariz. 125, 137 P. 550; Pinson v. State,91 Ark. 434, 121 S.W. 751, and People v. Barry, 94 Cal. 481, 29 P. 1026. These authorities point out that under the technical rules of the common law it was sacramental to allege "breaking" in the indictment charging burglary but that the Legislatures of different states have dispensed with this requirement where the entry into a dwelling house was unlawfully effected under circumstances such as those in the case now before us.

The sole complaint in connection with the bill of exception on which the majority opinion is based in setting aside the verdict of the jury and the sentence of the trial court is that the State failed to use the word "break" in the indictment. Conceding arguendo that the provisions of R.S. § 850, as amended by Act No. 21 of 1926 (Article 818 of the Louisiana Code of Criminal Procedure) require, as one of the elements of the crime, breaking into the dwelling, a view most favorable to the defendant, let us pass to a consideration of the question of whether or not the accused was prejudiced or deprived of a substantial right by the failure of the State to insert in the indictment the word "break". It is not contended by the accused that the district attorney on the trial of the case on the merits did not offer evidence to show that the accused and his accomplice broke into the dwelling of Thomas Dupont and his sister, Miss Jennie Dupont, in the night time, armed with dangerous weapons, with intent to commit burglary and feloniously assaulted these aged persons with a machete and an automobile tire tool, hacking them so badly about the face and head, leaving them permanently disabled and disfigured, after miraculously escaping death. But the contention is that the failure of the trial judge to sustain the motion to quash the indictment, which failed to contain the word "break" was fatal to the State's case and constituted reversible error. When the testimony of Thomas Dupont, Miss Jennie Dupont and John Beecham was taken on the point tending to prove that the accused and his co-conspirator broke into the dwelling through the side door, which had a screen door in addition to a regular door, which were closed, the defendant did not object to this testimony. Neither did the accused object to the judge's charge with reference to the crime denounced by the provisions of R.S. § 850, but was content to reiterate his objection to the indictment in a motion in arrest of judgment.

Article 557 of the Louisiana Code of Criminal Procedure reads:

"No judgment shall be set aside, or a new trial granted by any appellate court of this State in any criminal case, on the grounds of misdirection of the jury or the improper admission or rejection of evidence, or as to error of any matter of pleading or procedure, unless in the opinion of the court to which application is made, after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, is prejudicial to the substantial rights of the accused, or constitutes a substantial violation of a constitutional or statutory right."

In Dart's Annotation of the Code of Criminal Procedure, in connection with this Article, we find:

"Appeals in criminal cases are not granted merely to test the correctness of the trial judge's rulings but only to rectify any injury caused thereby. State v. Pearson, 161 La. 332,108 So. 661; State v. Cullens, 168 La. 976, 123 So. 645.

"The error must be so flagrant as to create a belief in the judicial mind that, but for its commission, a different and more favorable result to the accused would have been reached. State v. Gage, 161 La. 945, 109 So. 771. * * *

"`It is not every error in the rulings of a judge during the progress of the trial that will justify the setting aside of the verdict. To warrant such action on the part of the court it must be so grave an error as to induce the belief that but for its commission a verdict favorable to the accused might have been returned.' State v. Hill, 39 La.Ann. 927, 3 So. 117, quoted in State v. Cole, 161 La. 827, 109 So. 505. * * *

"The trial court is better able to judge as to the relevancy and competency of evidence than the appellate court, and in order to warrant reversal on such ground it must be shown not only that the ruling was erroneous but that its admission was manifestly prejudicial to the accused. State v. Fletcher, 127 La. 602, 53 So. 877; State v. Campbell, 134 La. 828, 64 So. 765; State v. Morgan, 147 La. 205, 84 So. 589; State v. Pierfax, 158 La. 927,105 So. 16; State v. Pearson, 161 La. 332, 108 So. 661; State v. Louviere, 165 La. 718, 115 So. 914; State v. Murphy, 166 La. 21,116 So. 579; State v. Wilson, 168 La. 903, 123 So. 614; State v. Jones, 169 La. 291, 125 So. 127; State v. Colombo, 171 La. 475,131 So. 464."

In Volume 1 of Marr's Criminal Jurisprudence of Louisiana (Second Edition) at page 481, it is stated:

"(g) The tendency of modern jurisprudence is to relax the strict technical rules of the common law and to look rather to substance than to form, to ideas rather than to words (h); but the rule is that a party charged with crime is entitled to be fairly informed of the nature and cause of the accusation against him * * *."

In the instant case, the accused knew that the State was holding him on a capital charge, first, because he was denied bail on that ground and (2) the motion to quash the indictment was predicated on the fact that the State was asking for a death penalty, and the record otherwise indicates that fact. Under the law, the indictment is a mere accusation, raises no presumption of guilt and has no probative value. The jurors were so instructed by the trial judge. Therefore, the word "break" in the indictment in the event the State did not offer evidence to prove the breaking would not make out the State's case. But where the State offered evidence by three witnesses, tending to show that the accused and his accomplice broke into the dwelling and no objection was offered to this testimony, we fail to see where the rights of the accused were prejudiced or where he was denied a substantial right.

It is said that Article 557 of the Code of Criminal Procedure only applies to errors committed by the trial judge in misdirecting the jury or improperly admitting or rejecting evidence. This is not true, because the article expressly states that it applies to an "error of any matter of pleading or procedure." Where the judge improperly instructs the jury or improperly admits or rejects evidence, this Court has refused to set aside the verdict and sentence and grant a new trial unless the substantial rights of the accused were prejudiced. Of course, there is no way to accurately determine exactly what effect the misdirection of the jury by the trial judge or the admission or rejection of evidence might have had upon the minds of the jurors, yet in those instances we have undertaken to say whether or not the accused suffered the loss or prejudice of a substantial right in either granting or refusing to grant a new trial. In the instant case, it can be truthfully and accurately stated that the omission of the word "break" from the indictment did not have the slightest effect upon the minds of the jurors in arriving at their unanimous verdict, because the indictment was never offered in evidence and the trial judge instructed the jurors that the indictment had no probative value as evidence.

Regardless of the point of view from which you consider the majority opinion, the final result is that the accused charged with a heinous and brutal crime, and who was unanimously found guilty by the jurors and a new trial denied him by the trial judge, is now granted a new trial on appeal solely and only on the ground that the State failed to use one word in the indictment, i.e., "break".

It is clear to my mind that this is the kind of technicality the legislators intended to cover when they wrote Article 557 of the Code of Criminal Procedure.

I respectfully dissent.