This case is now before us on writs in order that we might review the ruling of the trial judge maintaining the objection of the defendant Daly J. Doucet to the lumping of several distinct acts in one and the same count in the indictment charging *Page 1103 him with having embezzled the funds of the State of Louisiana, the Parish of St. Landry, and the various taxing bodies of the said parish, and ordering that the indictment be severed so that each separate and distinct offense be charged in a separate and distinct count.
The record shows that several indictments and informations were returned against the defendant for the embezzling of public funds during his term of office as the sheriff and ex-officio tax collector for the Parish of St. Landry — 1936-1940 — including the one in controversy here. There were also several other indictments returned against other officials of St. Landry Parish for the embezzling of public funds during the same period.
The learned trial judge disposed of all of the demurrers and objections levelled at the several charges against the defendant Doucet in one opinion which reflects a thorough understanding and analysis of the issues involved and the law applicable thereto. The part of the opinion that is pertinent to the issues involved here is as follows:
"* * * There are three counts in said indictment. Count number one alleges that out of various sums of money which he received in the name of and for the account of the State of Louisiana and the various taxing bodies of the Parish of St. Landry by virtue of his office and in his official capacity as sheriff and ex-officio tax collector of said Parish, between the dates of December 1, 1939 and March 31, 1940, inclusive, the sum of $3274.06, property belonging *Page 1104 to the State of Louisiana and the various taxing bodies of said Parish, Daly J. Doucet `did feloniously and wrongfully convert to his own use and otherwise embezzle,' etc. In Count number two the same allegations are made with the exception that act charged is that Defendant `did feloniously and wrongfully use in a manner other than as directed by law.' Count number three merely sets out purported facts relating to prescription. And a bill of particulars was filed by the District Attorney.
"The bill of particulars sets out that the money involved in the crime of embezzlement sought to be charged in said indictment was money in the Sheriff's Salary Fund which at this time, because of the change made in the law by Act 17, 1938, was entrusted to the Sheriff and Ex-Officio Tax Collector instead of being entrusted to the Parish Treasurer as was the case under the law which previously existed. These particulars may be considered along with the indictment in determining whether said indictment does set out the crime of embezzlement intended to be charged therein because a bill of particulars becomes a part of the indictment for that purpose. Of course, the bill of particulars could not be considered in ascertaining whether the bill of particulars contains a different crime than that purportedly shown by the indictment because you would then have a situation whereby the prosecution would be for a crime charged in the bill of particulars and not in the indictment and this would then be in contravention of the law which expressly provides that in cases of such a nature the prosecution must be based on an indictment *Page 1105 or an information, and it would result in using a bill of particulars for a purpose other than the law accords to it which is that it may be used merely to inform the accused more specifically of the facts upon which the prosecution as set out in the indictment or information is based.
"The money in the Sheriff's Salary Fund would only belong to the State of Louisiana and the other recipients of the original taxes upon which same were collected, in the proportion to the amount of the original commissions paid by each recipient under circumstances and conditions and at the time specified in the laws on that subject, which are not alleged or recited in the said indictment or bill of particulars. However, it does appear that money in the Sheriff's Salary is public money and this fact is sufficiently set out in the said indictment and bill of particulars considered together.
"Article 225 of the Code of Criminal Procedure provides that when any one by virtue of his office shall have entrusted to him any money and shall embezzle the same while so entrusted to him, he may be charged in one count with the embezzlement of the aggregate during the entire time of his holding such office, but that same statement is followed by another statement of the law separated from it by a mere comma which says that said aggregateamount shall determine the grade of the offense charged, and both of these statements of the law are followed by a further statement in the nature of a proviso separated from the foregoing by a semicolon which provides that proof of the embezzlement by defendant at any time during his term of office of any *Page 1106 part of the money withdrawn with which he shall have been trusted `shall warrant a verdict of guilty of that grade of the offense shown by value of such money or property to have been committed.' Article 914.1 of the Code of Criminal Procedure (Act 57 of 1940, par. 1) is the same as the above and also contains the further proviso reading thus, `provided that it shall not be lawful to cumulate separate and distinct acts of any two or more of the several offenses above mentioned in the same indictment.'
"The said Article 225 of the Code of Criminal Procedure, as well as Act 57 of 1940, Par. 1, applies only to prosecutions for embezzlement under statutes whereby the crime of embezzlement is made a graded offense, as for instance, Article 914 of the Code of Criminal Procedure (Section 905 of the Revised Statutes). In fact article 914.1 of the supplement of Dart's Code of Criminal Procedure is Act 57 of 1940, Par. 1.
"Then Article 217 of the Code of Criminal Procedure provides: "`Except as otherwise provided under this title, no indictmentshall charge more than one crime, but the same crime may be charged in different ways in several counts.' And Article 220 of the Code of Criminal Procedure reads: `Except as otherwise provided under this title, it is duplicity to include in the samecount two separate and distinct offenses.'
"For the reasons stated with reference to other indictments and informations against said Defendant it is obvious that theindictment presently under discussion is not within *Page 1107 the terms of Article 914 of the Code of Criminal Procedure (Section 905 of the Revised Statute). Said indictment does appear to be within the purview of Articles 912 and 913 of the Code of Criminal Procedure (Sections 903 and 904 of the Revised Statutes) wherein the crime of embezzlement is not made a graded offense.
"Obviously said indictment in one and the same count lumps or charges several distinct acts or offenses and there is therefore no other alternative except for the Court to be governed in this matter by article 252 of the Code of Criminal Procedure of Louisiana which authorizes the Court to `sever such indictment into separate indictments, or into separate counts as shall be proper.' And in view of the provisions of Article 226 of the Code of Criminal Procedure the Court is of the opinion that severing said indictment in separate counts, setting forth each separate and distinct act or offense, would be the appropriate and practical method to apply to this situation."
Considerable stress has been laid in the application for these writs, as well as in the majority opinion, upon the fact that the trial judge declined to specify in particular, as requested by the district attorney, in just what manner he desired that the several counts in the indictment be severed, the judge referring the district attorney to his opinion, which he felt was sufficiently clear and explicit.
Obviously, the trial judge, knowing the history of this case, as well as that of the other cases against the defendant and his political associates, felt that in making such *Page 1108 a request the district attorney was taking some levity with the court, for he knew that the facts upon which the indictments were returned against the defendant were well known to the district judge and the district attorney since they were made the basis of a compaign waged against the defendant and his political associates by an organization in the Parish of St. Landry known as the Voluntary Guardians of Good Government, chiefly organized and led by the Hon. Kenneth Boagni and the Hon. Seth Lewis, the present judge and attorney of the 27th Judicial District respectively, who defeated the defendant and his political associates, and that these same facts had also been made the basis of the civil suit instituted by the said Seth Lewis, district attorney, to recover the funds allegedly embezzled by Doucet. The trial judge was also well acquainted with the fact that in both the civil and criminal actions instituted against Doucet a strenuous effort had been made to have the cases tried before the same district judge and that it was only after a prolonged litigation, finally culminating in the recusation of the Hon. Kenneth Boagni (see State v. Doucet, 199 La. 276,5 So.2d 894; State v. Manouvrier, 199 La. 300, 5 So.2d 901; and State v. Savoy, 199 La. 305, 5 So.2d 903), that he, the Hon. C. Iris Dupont, of the 18th Judicial District, was appointed by us to try the cases in order that the defendants might have fair and impartial trials, as guaranteed by the constitutions of this state and the United States.
On this point, in his return to the rule issued by us, the trial judge so appointed had this to say: *Page 1109
"Acting by virtue of an appointment and mandate of Your Honors I have assumed my duties and responsibilities in the numerous criminal cases against Daly J. Doucet, former Sheriff of St. Landry Parish, Lennie Savoy, Assessor of said Parish, and Antoine J. Manouvrier, Treasurer of said Parish, and also in the civil case against the said Doucet involving subject matter contained in said criminal charges. Mr. Seth Lewis is the District Attorney representing the State in said criminal cases and he has also appeared before me as one of the attorneys for the Plaintiff in said civil case against Doucet.
"Several trips to Opelousas have been made by me in connection with the above. In the criminal cases against Doucet, Savoy and Manouvrier there were applications for bills of particulars and, in certain cases, objections to the particulars furnished by the District Attorney, which were disposed of by agreement. * * *"
In his return are also found the following pertinent observations:
"An examination of the original and supplemental bills of particulars filed by the District Attorney with reference to Indictment No. 13572 (the indictment in controversy here) * * * shows that said bills of particulars contain allegations to the effect that the said lump sum of $3274.06 is alleged to have been embezzled at various times during the month of December 1939, January 1940, February 1940 and March 1940, in separate transactions with different firms, businesses and individuals and said alleged crime was *Page 1110 perpetrated by means of checks drawn against the Sheriff's Salary Fund and made payable to said firms, businesses and individuals. And even though the District Attorney asserted in said supplemental bill of particulars that the purported illegal accounts `were paid from the fund known and designated as Sheriff's Salary Fund as described in the indictment' the truthis that the District Attorney did not allege in said indictment or even intimate therein that the public funds mentioned belonged to the Sheriff's Salary Fund. In the said supplemental and amended bill of particulars, as stated above, the District Attorney asserted that the public funds were embezzled `as set forth in the separate counts of the indictments here involved, etc.,' but the truth is that the alleged embezzlement is charged as one lump sum in one and the same count and not in separate counts in said indictment and information. I have made these comments concerning the original bill of particulars and supplemental bill of particulars to point out that the record reveals that the said sum of $3274.06 alleged to have been embezzled consists of the lumping together of various amounts of money purportedly embezzled in separate and distinct transactions on different dates during the period stated, that the District Attorney informed Defendant Doucet that the funds alleged to have been embezzled belonged to the Sheriff's Salary Fund of St. Landry Parish only after Defendant's attorneys filed two applications for bills of particulars in the District Court, and that the District Attorney obviously realized that the lumping of the various sums alleged to have been embezzled was not in *Page 1111 accordance with law because said District Attorney actually states in said supplemental bill of particulars that the public funds were embezzled as set forth in the separate counts of the indictment, etc.
"In the original bill of particulars the District Attorney declared that this prosecution under said indictment and information is based on Articles 912 and 913 of the Code of Criminal Procedure (Sections 903 and 904 of the Revised Statutes). * * *
"Now, the District Attorney has prepared numerous indictments against the defendant Daly J. Doucet in which the embezzlement charged or sought to be charged related to a single transaction. And he has never explained to the District Court nor has he attempted to explain to your Honors why he saw fit to include in one count in Indictment No. 13572 * * * an alleged embezzlement of a lump sum amount which embraces many separate and distinct transactions. Certainly if the District Attorney has evidence to support the said charge of embezzling the total amount of $3274.06, which, the record shows, relates to numerous separate and distinct transactions, it is self-evident that the District Attorney is able or should be able to sever said indictment and information so as to charge each transaction as a distinct offense in separate counts of the indictment. In issuing this order I merely followed the law cited in my written opinion and the ruling made by this Honorable Court (Supreme Court) in the following case: *Page 1112
"State v. Jones, 176 La. 723, 146 So. 682, Ext. Page 683: `* * * Aside from these considerations, article 252 of the Code of Criminal Procedure declares that a misjoinder of two or moreoffenses charged in an indictment shall not be a cause for quashing or setting aside the indictment, but that, if the judge be of the opinion that there is such a defect in the indictment, he may sever the indictment into separate indictments, or into separate counts, as he shall deem proper. The judge, therefore,in this case, had authority to sever the bill of information intotwo counts, instead of quashing it.'
"* * * Article 395 of the Code of Criminal Procedure provides: `In reaching a verdict the jurors must rely upon their memories, and they shall not be allowed, when they retire from the court room, access to any written evidence or to any notes of thetestimony of any witness,' etc. And under articles 912 and 913 of the Code of Criminal Procedure (Sections 903 and 904 of the Revised Statutes) the penalty upon conviction is that Defendant`pay a fine equal to the amount of money embezzled, besides restoring the same; and shall be imprisoned at hard labor, not less than six months, nor more than five years.' Therefore, it is obvious that in rendering a guilty verdict the jury mustdetermine also the amount of money embezzled so that a fine may be imposed by the Court equal to the amount embezzled in addition to the other punishment provided under said criminal statutes. The question that naturally presents itself is, is it practical or possible for the jury to hear the evidence *Page 1113 on the numerous separate and distinct transactions which make up the total amount of $3274.06 alleged to have been embezzled and charged in one and the same count in said indictment and then without access to any written evidence or notes of the testimony of any witness as the law so provides, retire to their room to deliberate and determine the amount that was actually embezzled, if any? I do not think that it can honestly and fairly be done. And apparently the District Attorney felt that it could not be done when he made the said incorrect statement in his supplemental bill of particulars that the public funds were embezzled `as set forth in the separate counts of the indictment here involved, etc.'"
Being of the opinion that the trial judge did not err in his ruling ordering that the indictment No. 13572 be severed so that each separate and distinct offense be *Page 1114 charged in a separate and distinct count, I respectfully dissent.