State v. Truby , 211 La. 178 ( 1947 )

The guaranty in the Bill of Rights, in Section 10 of Article 1 of the Constitution, that in all criminal prosecutions the accused shall be informed of the nature and cause of the accusation against him, is directed to the prosecuting officers rather than to the Legislature. The same guaranty is in the 6th Amendment of the Constitution of the United States, thus:

"In all criminal prosecutions, the accused shall enjoy the right * * * to be informed of the nature and cause of the accusation."

In nearly all — if not quite all — of the decisions of the federal courts on the subject the 6th Amendment is regarded as the test of the sufficiency of the indictment or bill of information, and not as a test of sufficiency of the definition of the crime as given in the statute. United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588 (1875); Rosen v. United States, 1893, 161 U.S. 29, 16 S.Ct. 434, 40 L.Ed. 606; Bartell v. United States, 1913, 227 U.S. 427, 33 S.Ct. 383,57 L.Ed. 583; Fontana v. United States, 8 Cir., 1919, 262 F. 283; Da Roza v. United States, 9 Cir., 1931, 48 F.2d 1025; White v. United States, 10 Cir., 1933, 67 F.2d 71; Rees v. United States, 4 Cir., 1938, 95 F.2d 784; Hale v. United States, 5 Cir., 1945,149 F.2d 401; Beauchamp v. United States, 6 Cir., 1946,154 F.2d 413. See also Cooley, Constitutional Law (4th ed. 1931) 366.

The same interpretation has been given by this court to Section10 of Article I of the Constitution of Louisiana. State v. Schwartz, 1915, 137 La. 277, 68 So. 608; State v. Stringer, 1927, 162 La. 925, 111 So. 330; State v. Ritchie, 1931,172 La. 942, 136 So. 11; State v. Wilson, 1931, 173 La. 347,137 So. 57; State v. Pete, 1944, 206 La. 1078, 20 So.2d 368; State v. Varnado, 1945, 208 La. 319, 23 So.2d 106. See also 1 Marr, Criminal Jurisprudence in Louisiana, 81, 300, 481.

From a practical standpoint it would be impossible for the Legislature in defining such a crime as keeping a disorderly place to enumerate the multitudinous and various methods by which such an offense could be committed. All that should be necessary in that respect is for the statute to define the crime in general but unmistakable terms. In this instance the term "immoral purpose," especially when used in the context, "to be used habitually for any illegal or immoral purpose," is as understandable as any of the words that might be employed in an attempt to define the word immoral. The offense consists in the intentional maintaining of a place to be used habitually for any illegal or immoral purpose. The constitutional guaranty is preserved if the prosecuting attorney, in the indictment or bill of information, or in a bill of particulars, sets forth specifically the immoral purpose for which the place is alleged to have been habitually used. There is no more reason why the statute should undertake to set forth specifically the immoral purpose which shall be essential to constitute the offense than there is for the statute to state how often the place shall be used for the immoral purpose in order to make such use habitual.

The word habitual appears in at least six articles of the Criminal Code, without being defined. For example, I refer to Article 76, defining the crime Bigamy, Article 79, defining Miscegenation, Article 84, defining Pandering, Article 92, defining Contributing to the Delinquency of Juveniles, Article 104, with which we are now dealing, and Article 107, defining Vagrancy, and using the term habitual drunkards. The wordhabitual is not less vague or indefinite in its meaning than the word immoral. We know of course that the word habitual means according to habit, and that its most appropriate synonym is the word customary. It would be impossible to define the wordimmoral in words more easily understood than the wordimmoral. That is demonstrated by the definition given by all of the lexicographers, that is, "not moral, inconsistent with rectitude, contrary to conscience or moral law, wicked, vicious, licentious." But none of these words is more commonplace than the word immoral. The rule of interpretation most applicable is stated in Article 3 of the Criminal Code, — in quoting which article I italicize the provisions which are particularly pertinent, thus:

"The articles of this Code cannot be extended by analogy so as to create crimes not provided for herein; however, in order to promote justice and to effect the objects of the law, all of its provisions shall be given a genuine construction, according tothe fair import of their words, taken in their usual sense, inconnection with the context, and with reference to the purposeof the provision."

Taking the word immoral as used in Article 104, and in itsusual sense, in connection with the context, and particularly in connection with the word habitually, it appears to me that the statute embraces clearly in its meaning a rendezvous for prostitutes and men desirous of their company. That the draftsmen of the Criminal Code thought so is shown by their comment on Article 105, giving us an example of a disorderly house, thus:

"The habitual assembling there of lewd women, and men desirous of their company, is repulsive to the public, and tends to scandalize the neighborhood. It is the corruption of the morals, honesty and good habits of the people that constitutes the nuisance."

I cannot imagine a better precedent for a ruling in this case than the decision in State v. Rose, 1920, 147 La. 243,84 So. 643, where it was held that a statute, Act No. 199 of 1912, which made it a misdemeanor to keep a disorderly house, and which gave as one of the definitions of a disorderly house "any place in which lewd dancing is permitted," was a valid statute notwithstanding there was no statutory definition of the term lewd dancing.

I recognize of course that a criminal statute which gives no definition whatever of the offense intended to be denounced as such is not a valid statute. In State v. Gaster, 1893, 45 La.Ann. 636, 12 So. 739, it was held that Section 869 of the Revised Statutes, which undertook to punish any civil officer who should be guilty of "any misdemeanor in the execution of [his] office" should upon conviction suffer fine and imprisonment, etc., was not a valid statute because of the failure to define the offense referred to as "any misdemeanor" committed in the execution of the office of any civil officer. But, even in that case, where the law gave no definition whatever of the so-called "misdemeanor in office," the court in its refusal to grant a rehearing took occasion to say:

"In conclusion, we may say that we have not laid down any technical rules of precision in the definition of the acts constituting penal offenses. When the language used in criminal statutes has any clear and definite meaning, indicating the particular kind of acts which are made punishable, we should give liberal effect to the legislative intent. But when, as in this case, the language employed is of such vague and indefinite import that it might embrace many acts which could not possibly have any criminal character, and leaves the discrimination between these and others to arbitrary judicial discretion, we are bound to hold the statute to be violative of constitutional rules referred to in our original opinion."

My apprehension is that the majority opinion rendered in this case will be deemed by the profession to be not less applicable to many other articles of the Criminal Code than it is to Article 104, and will be invoked for the destruction of these many other articles of the Criminal Code.