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

The defendants are appealing from a conviction and sentence for gambling. The offense is defined in Article 90 of the Criminal Code. The sentence of one of the appellants, Charles Blackwell, is not enough to bring his case within the appellate jurisdiction of the court; hence his appeal must be dismissed, notwithstanding there is no motion to dismiss it. We understand though that the sentence against Blackwell is not to be carried out during the pendency of the appeal of Varnado, or unless his conviction and sentence are affirmed.

The principal complaint of the appellants was made in a motion to quash the bill of information. The motion was overruled. The contention is that the bill of information did not inform the defendants sufficiently of the nature and cause of the accusation against them, as required by Section 10 of Article I of the Constitution; that the statute itself does not define the offense or declare the manner in which it can be committed; and, specifically, that the bill of information did not inform the defendants as to which one of them was accused of conducting the alleged gambling game as a business, or as to which one of them was accused of assisting in conducting the gambling business.

The charge made in the bill of information was that the defendants "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 statute", et cetera.

Gambling is defined and proscribed in Article 90 of the Criminal Code, — thus:

"Gambling is 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.

"Whoever commits the crime of gambling shall be fined not more than five hundred dollars, or imprisoned for not more than one year, or both."

The statute makes no distinction between conducting and assisting in conducting a gambling game as a business. If two persons participate in conducting a gambling game as a business each one of them is an assistant of the other, and both of them are principals in the misdemeanor. The reason is that the law does not recognize a distinction between principal and accessory in offenses below the grade of felony. It is not essential therefore to the validity of an indictment or a bill of information charging two persons with conducting and assisting in conducting a gambling game as a business that the indictment or bill of information shall designate which one of the defendants is accused of conducting and which one is accused of assisting in conducting the gambling game. If either of the defendants wants such information in advance of the trial he should ask for a bill of particulars.

The charge in the bill of information in this case follows the wording of the statute, — stating "every fact and circumstance necessary to constitute the offense", as required by Article227 of the Code of Criminal Procedure. The statute itself is not vague in its definition of gambling. The fact that the various ways and means by which gambling can be done, and the different kinds of games and contests or contrivances with which it can be done, are innumerable, does not make the statute unconstitutional for being vague or indefinite in its definition of the offense of gambling. To require that a law against gambling shall define each and all of the ways and means by which gambling can be done, and each and all of the different games and contests or contrivances with which the offense can be committed, would make it impossible to provide a general definition in a statute against gambling.

Article 227 of the Code of Criminal Procedure, — which article is applicable as well to bills of information as to bills of indictment, — states the requirements for a valid indictment thus: "The indictment must state every fact and circumstance necessary to constitute the offense, but it 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." [The italics are ours.]

Article 235 of the Code of Criminal Procedure, which was amended by Act 147 of 1942, provides short forms of indictment for certain crimes enumerated in the statute, and declares that other forms authorized by any law of the state may be used. At the end of this article, as originally written and as amended, is the following proviso: "Provided, That the district attorney, if requested by the accused prior to arraignment, may be required by the judge to furnish a bill of particulars setting up more specifically the nature of the offense charged."

That proviso leaves it to the presiding judge to decide whether the defendant in any given case may compel the district attorney to furnish a bill of particulars; hence the proviso adds nothing to the provision in Article 288, that the judge may, in his discretion, require the district attorney to furnish such details or data as the defendant may ask for.

In Article 252 of the Code of Criminal Procedure, — which article is applicable as well to a bill of information as to an indictment, — it is declared that no indictment shall be quashed, set aside or dismissed on the ground that "any uncertainty exists therein", and that if the judge finds that there is any uncertainty in an indictment he may order it amended to cure the defect.

Articles 253 and 284 of the Code of Criminal Procedure, — which articles also are applicable as well to a bill of information as to an indictment, — provide for amending an indictment on account of any defect in form or substance.

We say that these articles, 227, 235, 252, 253 and 284, are applicable as well to bills of information as to indictments because in Article 216 of the Code of Criminal Procedure it is declared that the rules of pleading contained in this Code shall apply to affidavits charging crimes and to bills of information, as well as to indictments, except in the instances where there is a clear intent to restrict the meaning of the wordindictment to the finding by a grand jury.

These provisions in the Code of Criminal Procedure therefore make it plain that if the charge in an indictment or a bill of information is made in the words of the statute creating the offense, or in words unequivocally conveying the meaning of the statute, the indictment or bill of information is valid, and if the party accused wants further "particulars 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. It was so held very recently in State v. Dark,195 La. 139, 196 So. 47, and in State v. Dark, 195 La. 160, 196 So. 54.

In the case of State v. Pete, 206 La. 1078, 20 So.2d 368, 369, it was held that a bill of information which charged merely that the defendant had committed "the theft of an automobile, of the value of Twelve Hundred and no/100 ($1200.00) Dollars, the property of Gordons Drug Store, Inc.," was a valid bill of information, and that the defendant's motion to quash the bill on the ground that it failed to charge that the theft or taking of the automobile was with the intent to deprive the owner permanently thereof was not well founded. In the opinion rendered in that case it was declared that the defendant's constitutional guaranty that he should be fully apprised of the nature and cause of the accusation against him was amply protected by the proviso at the end of Article 235 of the Code of Criminal Procedure, that the defendant might ask for a bill of particulars. It is true that the bill of information for the crime of theft in Pete's case was drawn in the short form prescribed in Article 235 of the Code of Criminal Procedure, as amended by Act 147 of 1942; but the proviso, under Article 288 of the Code of Criminal Procedure, ought to be applied as well to an indictment or a bill of information drawn in "the language of the statute creating the offense, or words unequivocally conveying the meaning of the statute", as to an indictment or bill of information drawn in one of the short forms prescribed by Article 235 of the Code of Criminal Procedure.

The appellants cite and rely upon the following cases in which a motion to quash the indictment or bill of information was maintained: State v. Verdin, 192 La. 275, 187 So. 666; State v. Kendrick, 203 La. 63, 13 So.2d 387; State v. Morgan,204 La. 499, 15 So.2d 866; and to which may be added State v. Hebert,205 La. 110, 17 So.2d 3. In each of these cases the reason why the indictment or bill of information was held invalid for being too vague and indefinite was, first, that the indictment or bill of information did not inform the defendant specifically of the nature and cause of the accusation against him, and, second, that the district attorney did not ask for an amendment of the indictment or bill of information.

The decision in State v. Verdin et al. was rendered in 1939; that is, before the Criminal Code was adopted. The only information that was given to the defendants in the bill of indictment was that they "did unlawfully disturb the peace". The complaint made in the motion to quash the indictment was that it did not set forth the time, place or manner of the alleged disturbance of the peace. In sustaining the motion the court cited the ruling in State v. Foster, 112 La. 746, 36 So. 670, that the charge that the defendant did "keep a disorderly tavern" was invalid for being too vague and indefinite to inform the defendant of the nature or cause of the accusation against him. In State v. Verdin et al. the indictment did not even inform the defendants of the statute which they were accused of violating. This court assumed that the statute referred to was Act 31 of 1886, as amended by Act 227 of 1934, which enumerated specifically many different ways in which the offense of disturbing the peace could be committed. The statute declared that any person who should go into any public place, into or near any private house, or along any public street or highway near to a private house, or elsewhere, and who should use loud and vociferous or obscene language, or vulgar or indecent language, or swear or curse, or expose his person, or rudely display or wantonly or maliciously discharge or use any pistol or other deadly weapon in such public place, or upon such public street or highway, or near any private house, or elsewhere, or who should do any other act in any manner calculated to disturb or alarm the inhabitants thereof, should on conviction be condemned to pay a fine not exceeding $50 or to be imprisoned for a term not less than 10 nor more than 30 days, or should suffer both the fine and imprisonment, at the discretion of the judge. The ruling, therefore, that the charge that the defendants "did unlawfully disturb the peace" did not inform them of the manner in which they were accused of violating the statute, would not be at all applicable to the present case.

In State v. Kendrick et al. the indictment was intended to charge the defendants with the crime of theft, as defined in Article 67 of the Criminal Code; but the court found the wording of the accusation in the indictment so confusing and contradictory that it was not possible to determine whether the defendants were accused of committing the crime in one or another of the several ways in which it could have been committed under the statute. The indictment in that case was not drawn in the short form prescribed by Article 235 of the Code of Criminal Procedure as amended by Act 147 of 1942, nor was it couched in the words of the statute creating the offense or in words conveying the meaning of the statute.

In State v. Morgan, decided after the Criminal Code was adopted, as in State v. Verdin decided before the Code was adopted, the charge in the bill of information was merely that the defendant "did unlawfully disturb the peace at 1208 Hodges Street, in Lake Charles," et cetera. The charge was intended to be brought under authority of Article 103 of the Criminal Code, in which article disturbing the peace is defined in seven separately numbered paragraphs, each paragraph defining a different and distinct way in which the offense can be committed. The bill of information therefore did not conform with Article 227 of the Code of Criminal Procedure, but on the contrary failed to state any fact or circumstance necessary to determine what kind of disturbance of the peace the defendant was accused of. In the course of the opinion in the Morgan case it was said that it was not incumbent upon the defendant to make valid the invalid bill of information by asking for a bill of particulars, but that it was incumbent upon the prosecuting attorney to obtain the permission of the court to amend the bill of information, according to the procedure set forth in Articles 252, 253 and 284 of the Code of Criminal Procedure. The decision in the Morgan case therefore is authority for the doctrine which we now maintain, that if an indictment or bill of information is not drawn in a short form prescribed by law, and is not couched in the wording of the statute creating the offense, or in words unequivocally conveying the meaning of the statute, and if therefore the indictment or bill of information is invalid, it is not incumbent upon the defendant to make it valid by asking for a bill of particulars, but it is incumbent upon the prosecuting attorney to make the indictment or bill of information valid by asking the court's permission to amend the indictment or bill of information according to Articles 252, 253 and 284 of the Code of Criminal Procedure.

In State v. Hebert the defendant was prosecuted for six offenses of indecent behavior with juveniles under the age of 17 years. The bill of information in each of the six cases charged merely that the defendant "being over the age of seventeen did unlawully and feloniously commit indecent behavior, as defined by Article 81 of the Louisiana Criminal Code (Act 43 of 1942), with _____ [naming a girl], a juvenile under the age of seventeen years." The crime is defined in Article 81 of the Criminal Code thus: "Indecent Behavior with Juveniles is the commission by anyone over the age of seventeen of any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, with the intention of arousing or gratifying the sexual desires of either person. Lack of knowledge of the child's age shall not be a defense."

The charge in the bill of information in Hebert's case therefore was not made in the words of the statute creating the offense, or in words unequivocally conveying the meaning of the statute. There was no statement or suggestion in the bill of information as to what act on the part of the defendant was supposed to have constituted indecent behavior with the juvenile named in the bill of information. The bill did not inform the defendant whether he was accused of committing a lewd or lascivious act upon the person or in the presence of the child. It was not possible to judge from the wording of the bill of information whether the so-called indecent behavior did in fact constitute a lewd or lascivious act, or whether it could have been committed with the intention of arousing or gratifying the sexual desires of either the defendant or the vitctim of the so-called indecent behavior. The prosecuting attorney did not move to amend the bill of information, and we held that it was not incumbent upon the defendant to make the bill of information valid by asking for a bill of particulars.

Our conclusion is that the judge was right in overruling the motion to quash the bill of information in the present case.

The other bills of exception are without merit. For example, a bill was reserved to the overruling of an objection to the introduction in evidence of a so-called dice cage, and other paraphernalia, seized by the deputy sheriff at the time of the arrest of the defendants. The defendants' objection to the offering of the articles in evidence was that the sheriff had kept them in his possession instead of delivering them to the office of the clerk of court. It is contended that it was made the duty of the sheriff by Section 1015 of the Revised Statutes, as amended by Act 45 of 1886, Section 615 of Dart's Procedural Statutes, to deliver the gambling paraphernalia to the office of the clerk of court. The statute leaves much doubt as to whether the sheriff should have kept the articles in his possession or should have delivered them to the clerk's office; but, conceding for the sake of argument that the sheriff should have delivered them to the clerk's office, his neglect to do so did not make the articles inadmissible as evidence against the defendants when the articles were identified as being the same that were taken in charge by the deputy sheriff when he made the arrest. The record shows that the articles were so identified before they were offered in evidence.

Another bill of exception was reserved to the judge's overruling an objection to a question propounded by the district attorney to a defense witness on cross examination. The question was: "Did you ever see any dice tables operated there?" The witness was the constable of the ward in which the offense is alleged to have been committed, and was employed by the defendant, Varnado, in his establishment where the gambling was said to have been done. The witness said he had been so employed for more than seven years. He testified that he arrested and disarmed two deputy sheriffs who went to serve the subpoenas on the witnesses for the trial of this case. And the witness testified that the reason why he arrested the two deputy sheriffs was that they were drunk and were disturbing the peace at the time when they were undertaking to serve the subpoenas on the witnesses. The witness, in answer to the question of the district attorney, said that he had seen dice tables operated in the establishment but that it had been more than a year since he had seen them in operation. It is argued for the appellants that the only effect of the question asked by the district attorney, and of the answer of the witness, was to prejudice the defendants before the listening public and harass and intimidate them. There is nothing in the record to convince us that the defendants were prejudiced in any way by the question or answer, especially as the case was tried not by a jury but by the judge.

Another bill of exception was reserved to the overruling of an objection to the district attorney's asking the defense witness, just referred to, about his having been arrested on several occasions. The objection was that the questioning should be confined to arrests on charges on which the witness had been convicted. The witness acknowledged that he was arrested on five or six different occasions on criminal charges, and that he had been indicted once. The judge declared in the statement per curiam that he was not influenced by the acknowledgments of the witness that he had been arrested several times. And the judge directs our attention to the fact that the witness had the opportunity in answering each question propounded by the district attorney to say whether any of the arrests had resulted in a conviction. In fact the witness said in his acknowledgment of the arrests that none of them had resulted in a conviction and that he was indicted on only one of the charges for which he was arrested. Our opinion is that no harm was done to the defendants by the cross examination complained of.

The only remaining bill of exceptions is the one which was reserved to the judge's overruling a motion in arrest of judgment, or, in the alternative, for a new trial. A motion in arrest of judgment is appropriate only to an error appearing on the face of the record. The only complaints in that respect in the motion in arrest of judgment are the complaints which were made originally in the defendants' motion to quash the bill of information. Those complaints were disposed of by our ruling on the motion to quash the bill of information. The alternative motion for a new trial is founded upon the appellants' contention that there was no evidence at all that either of the defendants was guilty of conducting or of assisting in conducting a gambling game on the date charged or on the occasion referred to in the bill of information. It is true that the witnesses for the state admitted that they did not see either of the defendants conducting or assisting in conducting the gambling game on the occasion referred to in the bill of information; but there was circumstantial evidence that one of them was conducting the gambling game as a business and that the other was assisting in conducting it at the time, or up to the very moment, when they were arrested. The arrest was made by four deputy sheriffs who raided the night club and barroom of which the defendant Varnado was proprietor, and in which the defendant Blackwell was employed by Varnado, about midnight on the date stated in the bill of information. The testimony of the deputies discloses these facts: When they arrived at the front door of the establishment Varnado was standing in front of the building and as soon as he saw the deputies he turned and went inside; the deputies rushed in after him and saw Blackwell grabbing up the gambling paraphernalia; one of the deputies called out to Blackwell to stop, but he hastened into a rear room with the articles, and the deputies followed him into the room and immediately took possession of the articles. They consisted of a cage containing two large dice, a sheet of oil cloth with numbers painted on it, spread upon a table in front of the dice cage, and a lot of poker chips. The deputies saw Blackwell gather up the articles from a table in front of the bar, and saw a large crowd of men gathered about the table. Immediately after the arrest was made the deputies took Varnado and Blackwell and the gambling paraphernalia in the deputy's car to the parish seat where Varnado and Blackwell gave bonds and were released. Thereafter one of the deputies, at the request of Varnado and Blackwell, returned them in the deputy's car to Varnado's establishment. One of the deputies testified that Varnado, while returning to his place of business in the deputy's car, told the deputy that he, Varnado, on the occasion of the raid of his establishment, saw the deputies approaching in the automobile and called out to Blackwell to "move the damned thing" — referring to the gambling device — but that he, Varnado, "couldn't get there quick enough for him [Blackwell] to get away". One of the deputies testified that Varnado, either while under arrest or while returning to his place of business, said that Blackwell was operating the gambling device for his own account. But the important fact is that there was testimony which, if believed by the judge, was sufficient to justify his conclusion that the two men were engaged in conducting the gambling game as a business. It is not important whether the judge considered Varnado, who owned and furnished the gambling paraphernalia, as being the one who conducted the business or as being an assistant of Blackwell in his conducting of the business. If either one of them conducted the gambling game as a business and the other assisted him in conducting it they were both guilty as participants in the misdemeanor defined in Article 90 of the Criminal Code as gambling. Inasmuch as there was some evidence which, if believed by the judge, was sufficient to justify his conclusion that the defendants were guilty of the offense charged, it is not within the jurisdiction of this court to decide whether the evidence was sufficient.

The appeal of Charles Blackwell is dismissed and the conviction and sentence of L. F. Varnado are affirmed.

ROGERS, J., concurs.

PONDER, J., takes no part.