State v. Wilson , 150 La. 873 ( 1922 )

By the WHOLE CO-URT.

DAWKINS, J.

The first two of these cases involve appeals by the state from judg ments quashing indictments for obtaining money by false pretenses; while the thirc is an appeal from the quashing of an indictment for embezzlement.

The first two indictments charge in identical language (except as to the amount) that—

Accused “did willfully, knowingly and maliciously and feloniously, designedly, fraudulently, unlawfully and falsely pretend to the Texas & Pacific Railway Company, a corporation organized and chartered under the laws of the United States, and of which ,T. U. Lancaster is receiver, that the hands and employes of said railway company employed and working on extra gang No. 18 of said railway company, were indebted unto him, said W. W. Wilson in the sum of $175 as board of said hands and employes covering a period of two weeks, when in truth and in fact the said hands and employes on said extra gang were not indebted unto him in any sum whatever for board which he,.the said Wilson, then and there well knew, and by means of which he, the said W. W. Wilson did then and there unlawfully, knowingly, designedly apd fraudulently obtain from the Texas & Pacific Railway Company the sum of - dollars, all of which was done with the willful and felonious intent, then and there to cheat, wrong and defraud the said Texas & Pacific Railway Company of the same, etc.”

The motions to quash were upon the ground that the indictments charge no offense against accused. After the motions were argued and submitted, but before decision, counsel for the state offered to amend by setting out the amounts of money obtained; but, on objection, the same was refused by the trial judge and the indictments were quashed.

The first question we are to decide is the correctness of the ruling denying the amendment. Section 1063 of the Revised Statutes provides:

“No indictment for any offense shall be held insufficient for want of the averment of any matter unnecessary to be proved, nor for the omission of the words ‘as appears by the record,’ or of the words ‘with force and arms,’ nor for the insertion of the words ‘against the form of the statute,’ instead of ‘against the form of the statutes,’ or vice versa; nor for that any person mentioned in the indictment is designated by a name of office or other descriptive. appellation, instead of his proper name, nor for omitting to state the time at which the offense was committed in any case where time is not of the essence of the offense, nor for stating the time imperfectly, nor for stating the offense to have been committed on a day subsequent to the finding of the indictment, or on an impossible day, or on a day that never happened, nor for want of a proper or perfect venue; nor for want of or imperfection in the addition of any defendant, nor for want of the statement of the value or price of any matter or thing, or the amount of damages, injury or spoil in any case where the value or price or the amount of damage, injury or spoil is not of the essence of the offense.”

Section 1064 also reads:

“Every objection to any indictment for any formal defect apparent on the face thereof, shall be taken by demurrer or motion to quash such indictment, before the jury shall be sworn, and not afterwards; and every court before which any such objection shall be taken for-any formal defect, may, if it be thought necessary, cause the indictment to be forthwith amended in such particular, and thereupon the trial shall proceed as if no such defect had appeared.”

LI, 2] As the indictment stood the accused was not charged with having received, by false pretenses, any sum whatever; yet it was necessary that he be charged with obtaining some amount, or something of value, otherwise a motion in arrest of judgment would have had to be sustained for the-reason that it charged no crime. The bill attempted to say that the accused had obtained by false pretenses certain money, but, in fact, it did not charge him with obtaining one penny. Being an indictment returned by a grand jury, the district attorney could not amend it, for the reason that the amendment was material. He could not say what amount the grand jury intended to charge. The amount was important because the punishment was greater or less, depending upon the sum obtained. The offense of obtaining by false pretenses is graded by statute, so that if the amount were less than $20, it was a misdemeanor triable by the judge with certain punishment not to exceed imprisonment in the parish jail,. awl carried a still smaller penalty if less Oían $5; while if more than $20 was obtained the offense was a possible felony, entitling the accused to trial by a jury of five, with punishment either at hard labor or otherwise. Act No. 107 of 1902.

Eor these reasons we think the situation is .not saved' by the provisions of the Revised Statute above quoted, and that the indictments in the first two eases, Nos. 25079 and 25080, were bad and could not be amended and were properly quashed by the lower court.

Embezzlement.

[3,4] The reasons given above why the indictments for obtaining by false pretenses were insufficient are equally applicable to the charge of embezzlement. Act 165 of 1918, p. 317, grades embezzlement also. Section 1056 of the Revised Statutes authorizes a conviction of larceny under an indictment for embezzlement, where the evidence justifies it; and inasmuch as larceny is also graded in the same act and in the same manner above pointed out for obtaining money or property by false pretenses, it was necessary to fix the amount to determine the degree of the crime, which was to be tried, just as if the charge had been larceny alone. In other words, every essential ingredient of the offense must be charged. Wharton’s Grim. Law (11th Ed.) vol. 2, p. 1653, § I486.

Eor the reasons assigned the judgments appealed from are affirmed.

O’NIELL, X, concurs in the result and hands down a separate opinion.