On Application for Rehearing The motion to quash the indictment was founded upon the following grounds:
"1. That the allegations of said indictment do not set forth the crime known as the `confidence game' as it merely alleges the violation of a civil contract.
"2. That said indictment does not allege any crime whatsoever under the laws of the State of Louisiana.
"3. That defendant herein is being prosecuted for obtaining certain property by means of the `confidence game'; but the allegations of the indictment show, if true, that the defendant is guilty of the crime of embezzlement, although said allegations are not in the proper form for the charge of embezzlement.
"4. In the alternative, and only in the alternative, if the Court should find that said indictment does sufficiently allege the crime of what is known as operating a `confidence game', then, it also sufficiently alleges the crime of embezzlement, all in one count, the concluding paragraph of the indictment reading: `Contrary to the form *Page 46 of the statutes of the State of Louisiana', whereas, the concluding paragraph of the indictment should have read: `Contrary to the form of the statute of the State of Louisiana'; that is, the conclusion of the indictment must be against the statute in the singular and not against the statutes in the plural.
"5. That said indictment should be quashed further for the reason that the indictment was not returned by the Grand Jury in open Court, nor was it sealed when given to the Clerk of Court as is shown by the minutes of the Court, which are made a part hereof."
In Bill of Exception No. 5 taken when the motion to quash was overruled, it is stated that the court overruled the motion for the reason that "the indictment is properly drawn and charges a crime, hence the motion to quash was not good."
In this court, in oral argument and in his brief, counsel for the defendant contended that the allegations in the indictment merely show (1) that the defendant violated a civil contract; and (2) that there was insufficient allegations of fact in the indictment to show in what manner the defendant defrauded Mrs. Vivian E. Hancock. The authorities he cited were pertinent only to those issues. In short, those were the grounds he relied upon in contending that the indictment did not allege any crime known to the laws of this State.
The attorney for the defendant did not raise the issue that the defendant's alleged false misrepresentation relied and *Page 47 acted upon by Mrs. Hancock should have been with reference to past or present facts and that the statute did not cover false representation as to a future matter. He did not make the point that Act No. 43 of 1912 did not sufficiently define the offense of "confidence game" because of the general language of the statute, i.e., "by any other means, instrument, or device", thus leaving it to the discretion of the district attorneys and grand jurors as to whether the acts of persons charged under the statute came within its provisions and thereby rendered that part of the act unconstitutional because of an illegal delegation of legislative power. The defendant did not plead the unconstitutionality of the statute. In our original opinion we answered all of the questions presented by the respective seventeen bills of exceptions reserved by the defendant. The above-stated new issues were raised by the defendant for the first time in his application for a rehearing.
This means that the district court and this court up to this time have not had these additional questions presented to them.
This court has uniformly refused to consider new issues presented only on an application for a rehearing. The best evidence of what the defendant intended the language of his motion to quash to cover are the points and contentions he made thereunder. A re-examination of his brief shows conclusively that he did not present either to the district court or this court the questions now sought to be raised. *Page 48
It is well settled that this court cannot consider a plea of unconstitutionality of a statute of its own motion but that such a plea must be filed in the district court as a special plea wherein the pertinent provisions of the Constitution are set forth, together with the ground of alleged unconstitutionality of the statute. This was not done and it is too late for the defendant to attempt to do so at this time. The defendant is not without remedy because if there is any merit in his contention that the statute is unconstitutional, he could obtain relief in a habeas corpus proceeding.
For the above reasons, the application for rehearing is refused.