On Rehearing L. F. Varnado and Charles Blackwell were charged jointly in a bill of information with the offense of gambling under Article 90 of the Louisiana Criminal Code (Act 43 of 1942) and Varnado's conviction thereunder was affirmed when this case was originally before us, Blackwell's appeal being dismissed for lack of jurisdiction. We now have the case before us for consideration on Varnado's application for a rehearing.
The principal complaint of the accused was, as pointed out in the majority opinion on the original hearing, the court's overruling of their motion to quash the bill of *Page 369 information, their contention being "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."
It was the seriousness of the issues raised in this motion and the far-reaching effect of the holding in this majority opinion with respect thereto that prompted the granting of this rehearing.
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 *Page 370 any form of centralized government without positive assurance that the Bill of Rights would be adopted, and it was adopted 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 "prosecution 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, R.S. § 1066), and that "The indictment must state every fact and circumstance 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. The concluding paragraph of the report whereby the commission submitted the proposed Code of Criminal Procedure to the legislature speaks eloquently of the commission's object and its efforts toward the attainment thereof: "We have endeavored conscientiously to present a draft of a Code of Criminal Procedure that will expedite and simplify the trial of *Page 371 criminal cases. Not only have we studied methods to protect society against offenders, but we have also attempted in everyway to safeguard all of the just and proper rights of thedefendant." (Italics ours.)
In the instant case the accused were charged with the offense sought to be denounced in Article 90 of the Louisiana Criminal Code, which article, in general terms, defines gambling as "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," in the following words: That Varnado and Blackwell, on July 8, 1944, "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 statutes of the State of Louisiana, in such cases made and provided * * *." (Italics ours.)
Thus it may be seen that the district attorney, in drawing up this bill of information, has used the general words of the statute, the only difference being the use of the conjunctive "and" where the disjunctive "or" is used in the statute itself, but does not state a single act upon which the charge is based or any of the facts or circumstances upon which his conclusions are based, thus failing to follow our basic requirements for a valid indictment.
"It is the modern rule, universally applied by the courts, that in charging a statutory offense it is not necessary to use *Page 372 the exact words of the statute. An indictment or information for such an offense is sufficient if it follows the language of the statute substantially or charges the offense in equivalent words or others of the same import, if the defendant is therebyfully informed of the particular offense charged, and the court is enabled to see therefrom on what statute the charge is founded * * *." 27 Am.Jur. 660, Section 101.
"The general rule * * * is without application where thestatutory words do not in themselves fully, directly, andexpressly, without uncertainty or ambiguity, set forth all theelements and ingredients necessary to constitute the offenseintended to be punished. As the courts have pointed out, the words of the statute may be sufficient to describe or legally characterize the offense denounced, and yet be wholly insufficient to inform the accused of the specific offense of which he is accused, so as to enable him to prepare his defense or plead his conviction or acquittal as a bar to further prosecution for the same offense, as where the statutecharacterizes the offense in mere general or generic terms * * *.An information charging an offense in the words of a statutewhich defines an offense generally is insufficient where italleges the offense in the language of the statute, but does notstate the specific acts on which the charge is based, and is notsufficiently definite to be of any value as a bar to furtherprosecution. In order to particularize the offense it is necessary in some instances, in addition to the statutory words of general description, to set forth the things or means used or other statement *Page 373 of facts and circumstances, as with respect to time, place, person, or other circumstances to identify the particular transaction; and where the offense has relation to a certain place, and the statute adds a descriptive phrase, it must be covered by allegation." 27 Am.Jur. 662, Section 103. (Italics ours.)
As was very aptly stated in Peters v. United States, 9 Cir., 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 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."
The information in the case at bar 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 definitely, or even guess, what acts they are charged with having done. All that appears from the information is that, in the opinion of the district attorney, the accused were guilty of intentionally conducting and directly assisting 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. There is certainly nothing in this information that informs the accused or the court *Page 374 on just what acts allegedly committed by the accused the prosecuting attorney bases his conclusion that they have been guilty of the offense sought to be charged. This information, therefore, lacks the two essential requirements that give it life. It does not give the accused enough information to enable them to prepare their defense and it is, in no sense of the word, sufficiently definite to be of any value as a bar to further prosecution.
We fail to appreciate what solace counsel for the state can derive from the holdings of this court in the cases of State v. Dark, 195 La. 139, 196 So. 47; State v. Dark, 195 La. 160,196 So. 54; and State v. Pete, 206 La. 1078, 20 So.2d 368, for they are neither in point nor controlling here.
It is our opinion that the quotation from the first Dark case [195 La. 139, 196 So. 52], to the effect that "When a statute creating an offense sets out the facts constituting it, it suffices to charge the offense in the language of the statute" does not support their contention, but if anyone should entertain any doubt from this bare quotation that the Dark case is authority for such contention, a mere reading of the case will dispel this doubt. It will disclose that the indictment in that case detailed all of the facts and circumstances upon which the charge was based in the following words: That the defendants, as conservation agents, were "State Officers, and as such State Officers did * * * feloniously receive from one George D. Pipes, a sum of money, to-wit: One Thousand and no/100 Dollars ($1,000.00) lawful money of the United States of America, as a bribe, present or *Page 375 reward for the purpose of inducing and influencing them, the said W. D. Dark and L. J. Melton, as such State Officers, to protect and shield the said George D. Pipes and one Barlow Inabnet from prosecution for violations of the conservation laws of the State of Louisiana, and the rules, regulations and orders of the Commissioner of Conservation * * * and to then and there be induced and influenced to exercise a power in them invested as such officers, and to perform a duty to them required with partiality and favor." In disposing of the motion to quash this indictment we said, quoting from Section 325 of Marr's Criminal Jurisprudence, "`It is sufficient to follow the words of thestatute, when those words describe the acts constituting theoffense with such precision and certainty as to fully informdefendant as to the nature of the charge against which he is toprepare his defense, and to furnish him a complete plea ofautrefois acquit or convict, in bar of another indictment. When a statute creating an offense sets out the facts constituting it, it suffices to charge the offense in the language of the statute, but the use of the identical words is not sacramental, but sufficient, since any words may be used that will unequivocally convey the meaning of the statute, so that defendant cannot be misled as to the charge he is to answer * * *'," and concluded "that the facts and circumstances as statedin the indictment substantially set forth the crime of briberydenounced by Section 1 of Act 78 of 1890. The indictment iscouched in the words of the statute and the facts andcircumstances upon which it is based are sufficient to inform *Page 376 the defendants of the nature of the charge against them * * *." (Italics ours.)
The indictment in the second Dark case relied on by the state was equally full and complete in its recitation of the facts and circumstances upon which it was based and was likewise held to be sufficient.
In the Pete case [206 La. 1078, 20 So.2d 369] the defendant was charged with "the theft of an automobile, of the value of Twelve Hundred and no/100 ($1200.00) Dollars, the property of Gordons Drug Store, Inc.," in conformity with the short form of indictment to be used in cases of "theft" as authorized by Article 235 of the Code of Criminal Procedure, as amended. Obviously, the facts upon which this charge was based and given in the indictment were sufficient to apprise the defendant of the nature and cause of the accusation against him.
Certainly none of the defendants in these three cases could have failed to appreciate the full import of the charges thus brought against them, and, if they were convicted or acquitted thereunder, they would undoubtedly be able to identify the particular offense with which they were charged under the facts and circumstances given in these indictments in the event it was ever again sought to prosecute them for it.
The illustration, without repeating it here, given by the author of this opinion in his dissent from the majority opinion when the case was originally before us for consideration, conclusively demonstrates the total lack of facts or circumstances which could *Page 377 serve to identify the act or offense sought to be charged in the indictment in this case as a bar to further prosecution.
The contention of counsel for the state that defendant's remedy was to ask for a bill of particulars since it was the legislative intendment in adopting the Code of Criminal Procedure that all pertinent articles therein should be considered together to form a whole and therefore that Article 227 should be read together with Articles 228-253, 284-288, 421, and 517-520, particularly since in a plea of former jeopardy "The modern rule does not demand that the identity of the offense must be established from allegations of the indictment alone, it being sufficient if such identity can be established by competent extrinsic proof," (citing as authority Bartell v. United States, 27 U.S. 427, 33 S.Ct. 383, 57 L.Ed. 583,) is untenable.
It is elementary that an indictment or information lacking in the averments necessary to apprise the accused of the nature and cause of the offense with which he is sought to be charged constitutes no indictment at all and that such a defective indictment or information cannot form the basis of a prosecution, and while the legislature may authorize changes in the form of indictments or informations — as it did in adopting the Crimes Act of 1805 when it provided, no doubt because of the dissatisfaction that had sprung up over technicalities in common law forms of indictments wherein phrasing was more notable for its anthesis and tautology than for its substance, that the indictment be according to the forms of the common law, "divested, *Page 378 however, of all unnecessary prolixity," and as it did more recently when it adopted the Code of Criminal Procedure, wherein the forms of indictments and informations in certain cases have been further simplified by eliminating the unnecessary and complicated verbosity of those common law forms, — we do not find anywhere in the Code of Criminal Procedure provision that an accused charged in an indictment or information that totally fails to apprise him of the acts on which the offense with which he is sought to be charged is based must probe the innermost recesses of the prosecuting attorney's mind in an effort to ascertain just what acts of his the attorney thinks constitute a crime.
In any event, we find no provision in the Code of Criminal Procedure requiring that an accused ask for a bill of particulars except when the form of the indictment or information used is as prescribed in Article 235 (the short form of indictments and informations) in certain cases, gambling not being one of these. In this article it is made discretionary with the trial judge to require the district attorney to furnish a bill of particulars if it has been requested by the accused prior to arraignment. On the contrary, the code specifically declares that "Defects in indictments can be urged before verdict only by demurrer or a motion to quash, and the accusedis not entitled to any bill of particulars as to thesubject-matter charged in the indictment, but the trial judge may, in his discretion, require the district attorney to file in the case such data as, in the opinion of the judge, may be sufficient." Article 288. Articles 284 and 286 *Page 379 are to the same effect. Title XX of the Code of Criminal Procedure deals with the "Pleadings and Proceedings After Indictment and Before Trial," and articles 284-288 are to be found in Chapter 6 of this title under the heading "Demurrers and Motions to Quash," wherein the remedies of an accused who feels the indictment is not sufficient to properly apprise him of the nature and cause of the offense are specifically set out. (Italics ours.)
This conclusion does not in any way conflict with the provisions to be found in Articles 252 and 253 of the Code of Criminal Procedure, in Chapter 3 of Title XIX of the code under the heading "Recitals Requisite in Indictments for Certain Crimes" (those provided for in the short forms given in Article 235), for, as reflected by the heading to Article 252, these provisions deal with "Defects in indictment — When not fatal." (Italics ours.)
Article 421 is equally without application for it provides for the methods of setting aside verdicts by stipulating that "When the error in the proceedings complained of is discoverable only by the taking of evidence, the method of setting aside the verdict is by means of a new trial; when the error is patent upon the face of the papers, the method is by an arrest of judgment or by an assignment of errors."
The same may be said of Articles 517-520, found in Title XXVI of the code under the heading "Motion in Arrest of Judgment," which lies "only for a substantial defect, patent upon the face of the record", Article 517, and does not apply to *Page 380 merely formal defects, those that are cured by verdict, or those that cannot be ascertained without an examination of the record. Article 518. This motion must be disposed of before sentence is passed and can only be filed after verdict. Article 519.
The compiler of Dart's Code of Criminal Procedure, in a note under Article 288, has interposed the observation that "Bills of particulars, except as recited in the proviso of Art. 235, have been abolished * * *," and under Article 235 is to be found the observation that "In view of Art. 288, it seems that the right to demand a bill of particulars is limited to cases in which the indictment is for one of the crimes recited in Art. 235."
So, assuming a bill of particulars is ordered by the trial judge, either in response to the demand of the accused when charged in a short form of indictment under Article 235 or in the instances provided for in Article 288, such pleading forms no part of the indictment and cannot cure it if it is defective for "The office of a bill of particulars is to supply the accused and the court additional information concerning an accusation that the defendant has committed an act or acts constituting a criminal offense. In so far as its purpose is concerned a bill of particulars is in the nature of a pleading, and, when furnished, operates to limit the prosecution in its proof to the specifications therein contained * * *" but "A billof particulars cannot create or cure a defect in the indictmentor information. It cannot be furnished the accused to enable him to demur *Page 381 to the indictment; nor, if the indictment is not demurrable on its face, can the furnishing of a bill of particulars make it so. A bill of particulars is not an amendment of the indictmentor information, and cannot change the offense charged in theindictment or in any way aid an indictment fundamentally bad. Furthermore, it is not a remedy or cure for an indictment so defective that it charges no offense." 27 Am.Jur. 672, Section 112. See, also, State v. Bienvenu, La.Sup., 22 So.2d 196. (Italics ours.)
Moreover, the legislature is unauthorized to adopt any law, procedural or substantive, that would infringe upon any of the rights of the accused as guaranteed to him by the constitution of this state.
The Bartell case does not sustain the contention for which it is cited. While it is true the court used the language attributed to it by counsel for the state in disposing of the defendant's contention that the charge against him was too indefinite to serve as a plea in bar to another prosecution, we find the court qualified this statement by pointing out that extrinsic evidence might be introduced for this purpose only when the description of the act with which the accused is charged brings the offense "`clearly within the scope of the statute creating the offense, and at the same time soidentifies it as to enable the defendant to fully prepare hisdefense,'" [227 U.S. 427, 33 S.Ct. 385], quoting from the rule laid down in Dunbar v. United States, 156 U.S. 185, 15 S.Ct. 325, 39 L.Ed. 390. Furthermore, the indictment in the Bartell case was most full as to the facts and circumstances *Page 382 under which the accused sent an obscene letter through the mails, omitting, only, the contents of such letter because of its unprintable character. (Italics ours.)
Counsel has cited several cases holding that where the charge is in the language of the statute it is sufficient. An examination of these cases will show that while the words of the statute were followed in each instance in the accusation, those words in themselves fully described the specific and well-known mischief sought to be suppressed, thereby apprising the defendant of the nature and cause of the charge against him with certainty and precision.
In the motion to quash the constitutionality of the Louisiana Criminal Code was also attacked on the ground that (1) it embraces more than one object and (2) particularly Article 90 thereof because it neither clearly nor unambiguously sets forth the games, contests, or contrivances against which it is levelled.
In the case of State v. Pete, 206 La. 1078, 20 So.2d 368, 372, we held the act does not embrace more than one object, pointing out that "As indicated in the title of Act No. 43 of 1942, its primary object is to adopt a Criminal Code for the State of Louisiana. Necessarily the definition of crimes and the fixing of the penalties for the violation thereof are germane and may be included therein without a duplicity of objects. * * * Clearly the Legislature could define such crimes as were intended to be covered by the Criminal Code and, in so defining them, could group all offenses *Page 383 of the same character in a single article * * *."
And we agree with the conclusion reached in the majority opinion when the case was considered originally, that "The statute itself is not vague in its definition of gambling." We know of no inhibition to the legislature's authority to pass such a general statute so long as the offense sought to be denounced is clearly defined so that the one accused thereunder cannot complain if the particular acts with which he is charged fall within this definition.
For the reasons assigned, the conviction and sentence of L. F. Varnado is set aside, the motion to quash the bill of information is sustained in so far as he is concerned, and, accordingly, he will be discharged. The right of the State to apply for a rehearing is reserved.
ROGERS, J., dissents.
HAMITER, J., concurs in decree.
PONDER, J., recused. On Rehearing