I concur in the conclusion reached in the majority opinion that gambling as defined in Article 90 of the Louisiana Criminal Code is neither vague nor unconstitutional for the reasons urged in the several motions and pleas filed by the defendant, all of which have been previously adjudicated upon by this court in the cases of State v. Pete, 206 La. 1078, 20 So. 2d 368, and State v. Varnado, La.Sup., 23 So. 2d 106, 123, *Page 1002 both of which decisions I had the privilege of writing, but I cannot subscribe to the conclusion reached in the majority opinion that an indictment or information charging the defendant with committing "the crime of gambling as defined by Article 90 of the Louisiana Criminal Code," as authorized in Act 223 of 1944, is sufficient to inform the accused of the nature and cause of the accusation against him, as required by Section 10 of Article I of the Constitution of the State of Louisiana, or that such an indictment or information is cured by a bill of particulars.
As pointed out in the Varnado case, "Historically, the right of an accused to be informed in writing of the nature and cause of the accusation against him by the return of an indictment is the result of the assertion of the rights of oppressed peoples against the abuses of the sovereign, and this right has been regarded for centuries as one of the most important securities to the innocent against hasty, malicious, and oppressive prosecutions, as well as one of the immunities and bulwarks of personal liberty. So imbued were our forefathers with the innate justice of this prerogative and so jealously did they guard the security of the citizen against vindictive prosecutions, either by the government, political partisans, or by private enemies, that once they had freed themselves from the shackles of their tyrannical mother country, the original thirteen states were cautiously slow to adopt any form of centralized government without positive assurance that the Bill of Rights would be adopted, and it was adopted *Page 1003 at the very first session of Congress, in 1789, guaranteeing, among other rights, that an accused shall be informed of the nature and cause of the accusation.
"In keeping with these basic and fundamental principles, the drafters of our constitution of 1921 included therein the provision that `prosecutions shall be by indictment or information' (Section 9 of Article I) and that `In all criminal prosecutions, the accused shall be informed of the nature and cause of the accusation against him * * *.' Section 10 of Article I.
"It was, therefore, no idle gesture on the part of the commission appointed to draft a Code of Criminal Procedure when it included in this code the provision that all prosecutions must be by indictment or information (Article 2 and Article 216; also, see Article 686 of Dart's Code of Criminal Procedure * * *), and that `The indictment must state every fact andcircumstance necessary to constitute the offense * * *.' Article 227. The commission in including these provisions was but codifying the basic law of this state and the jurisprudence thereunder as it existed at the time the code was adopted. * * *
"As was very aptly stated in Peters v. United States, 94 F. 127, 131, 36 C.C.A. 105 (certiorari denied by the United States Supreme Court, 176 U.S. 684, 20 S. Ct. 1026, 44 L. Ed. 638), `The true test of the sufficiency of an indictment is not whether it might possibly have been made more certain, but whether it contains every element of the offense intended to be charged, and sufficiently apprises the defendant of what *Page 1004 he must be prepared to meet; and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy as to what extent he may plead a former acquittal or conviction.'" (Italics mine.)
While this court has on numerous occasions passed upon the short form of indictment provided for in Article 235 of the Code of Criminal Procedure as amended prior to its final amendment by Act 223 in 1944, and has maintained the indictment, in each instance it is to be found that in each case the indictment was found to be sufficient to apprise the accused of the nature and cause of the accusation and to give him an adequate foundation or basis for a plea of autrefois acquit or convict in the event of a second trial for the same offense. The information in the instant case does not allege a single fact or circumstance upon which the offense is based. There is nothing in it from which the accused can tell or even guess what act or acts he is being charged with having done. At most it is a mere statement or conclusion of the district attorney. It is barren of any statement which informs the accused or the court of the acts allegedly committed by the accused upon which the prosecuting attorney has based his conclusions. It certainly cannot be said that it contains enough information to enable the accused to prepare his defense and it is in no sense of the word sufficiently definite to be of any value as a bar to further prosecution for the same offense. *Page 1005
It is my opinion, therefore, that that part of Act 223 of 1944 providing "that in all cases of crimes included in the Criminal Code but not covered by the short forms hereinbefore set forth, it shall be sufficient to charge the defendant by using the name and article number of the offense committed" is violative of Section 10 of Article I of the Constitution of 1921 and of the Sixth Amendment to the Constitution of the United States.
I am of the further opinion that the holding in the majority opinion that the bill of particulars furnished by the district attorney in the instant case cured the information is contrary to the universal rule of law that "A bill of particulars cannotcreate or cure a defect in the indictment or information. * * *A bill of particulars is not an amendment of the indictment orinformation, and cannot change the offense charged in theindictment or in any way aid an indictment fundamentally bad." 27 Am.Jur. 672, Section 112. See, also, State v. Bienvenu,207 La. 859, 22 So. 2d 196, 198. (Italics mine.)
In the Bienvenu case, a very recent decision of this court, the issue was squarely presented thusly: "* * * it is contended on behalf of the State that the bill of particulars filed in each case must be read into the bills of information and that as thus amended the bills of information definitely charge defendant with the crime of gambling as denounced by article 90 of the Criminal Code, which is Act 43 of 1942." To this the court replied: "We do not agree with this contention," stating further: *Page 1006 "Conceding, for the sake of argument, that the bill of particulars filed in each of these cases does set forth and describe at great length the gambling business defendant was conducting so as to bring his offense within the provisions of article 90 of the Criminal Code, nevertheless the fact remainsthat defendant is not being prosecuted on the bills ofparticulars, but solely on the informations. * * * The sole office of a bill of particulars is to give the adverse party information which the pleadings by reason of their generality do not give and to compel the State to observe certain limitations in offering evidence. A bill of particulars can not * * * in anyway aid an indictment or information fundamentally bad. Corpus Juris Vol. 31, Indictments and Informations, sec. 310, pp. 752, 753; American Jurisprudence, Vol. 27, Indictments and Informations, sec. 112, pp. 672 and 673. The rule in this Stateis in accord with this general rule. * * *" (Italics mine.)
The holding in the majority opinion, contrary to this universal rule of law, is based solely on obiter dictum to be found in the decision of this court in the case of State v. Miller,170 La. 51, 127 So. 361, 362, wherein the author of the opinion after concluding the ruling of the lower court sustaining the motion to quash the indictment, "based * * * on the ground that the indictment did not give the name of the owner of the money charged to have been stolen, which omission, in the opinion of the court, was an essential allegation in an indictment for larceny, and was not a *Page 1007 mere matter of defect or form which could be cured by amendment," was erroneous because "ownership of a particular person was not an essential ingredient of the crime of larceny, which is simply the felonious taking and carrying away of the personal goods of another," cited State v. Hanks, 39 La.Ann. 234, 237, 1 So. 458; State v. Harris, 42 La.Ann. 980, 981, 8 So. 530; and State v. Acebal, 110 La. 129, 130, 34 So. 303, as authority for this statement with reference to the essential ingredient of the crime of larceny. Consequently that portion of the opinion in the Miller case relied upon in the majority opinion was not necessary to the decision, hence obiter dictum. Moreover, it was not only not supported by any authority, but as just above demonstrated, was contrary to the law as universally applied in all criminal cases as well as to the constitution of this state. And if not obiter, the Bienvenu case in effect overrules it.
Under the express mandate of our constitution one can only be prosecuted by information or indictment, in which the accused shall be informed of the nature and cause of the accusation against him (Sections 9 and 10 of Article I) and he (the accused) cannot be prosecuted by a bill of particulars. Nor can he be made to request that a bad indictment be made good in this manner. The legislature is powerless to adopt any law to the contrary and this court, in thus judicially legislating on the matter, is violating the mandates of the constitution of this state. *Page 1008