The bill of information filed against the accused alleges that on the 8th day of July, 1944, he "* * * 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, * * *."
Article 90 of Act 43 of 1942, generally known as the Louisiana Criminal Code, reads as follows:
"Gambling is 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.
"Whoever commits the crime of gambling shall be fined not more than five hundred dollars, or imprisoned for not more than one year, or both."
The defendant filed a motion to quash on the ground that the information fails to legally charge him with any offense, since it does not state any facts or circumstances whatsoever and merely sets forth a conclusion of law, thereby making it impossible for him to prepare his defense, as there is no identification of any acts or conduct with the purported offense, all of which is contrary to the defendant's constitutional right to be informed of the nature and cause of the accusation against him, as provided for by Article I, Section 10 of the Constitution of Louisiana of 1921. This part of the Bill of Rights reads: "In all criminal prosecutions the accused shall be *Page 338 informed of the nature and cause of the accusation against him; * * *."
In State v. Morgan, 204 La. 499, 15 So.2d 866, 867, we sustained the defendant's motion to quash the information charging him with disturbing the peace and ordered his discharge, stating:
"The exact charge under which relator is being prosecuted is set out in the bill of information in the following words and figures, to-wit: `that S. R. Morgan at the parish of Calcasieu on or about the 12 day of May in the year of our Lord One Thousand Nine Hundred and Forty-three (1943) did unlawfully disturb the peace at 1208 Hodge Street, in Lake Charles, Calcasieu Parish, Louisiana; contrary to the form of the statute of the State of Louisiana, in such cases made and provided, in contempt of the authority of said State, and against the peace and dignity of the same.'
"Relator, in his motion to quash, alleges that the bill of information is fatally defective for the following reasons:
"`(a) That said bill of information does not set out any offense as denounced by any law of the State of Louisiana, but merely sets out a conclusion of law.
"`(b) That said bill of information does not set out the time, place and manner in which it is claimed that the said alleged offense was committed.
"`(c) That the said bill of information is too vague and indefinite to permit your mover to either prepare, or present, his defense to the alleged offense therein charged against him.' *Page 339
"The crime of disturbing the peace is defined in the recently adopted Criminal Code, Act No. 43 of 1942, as follows:
"`Art. 103. Disturbing the Peace is the doing of any of the following in such a manner as would foreseeably disturb or alarm the public:
"`(1) Engaging in a fistic encounter; or
"`(2) Using of any unnecessarily loud, offensive, or insulting language; or
"`(3) Appearing in an intoxicated condition; or
"`(4) Engaging in any act in a violent and tumultuous manner by any three or more persons; or
"`(5) Holding of an unlawful assembly; or
"`(6) Interruption of any lawful assembly of people; or
"`(7) Commission of any other act in such a manner as to unreasonably disturb or alarm the public.
"`Whoever commits the crime of disturbing the peace shall be fined not more than one hundred dollars, or imprisoned for not more than ninety days, or both.'
"It will thus appear that the offense of disturbing the peace as defined in article 103 of the Criminal Code may consist of one or more separate and distinct acts or offenses committed by the defendant.
"As shown by the comment of the framers of the Code, the article replaces the former statutory law as embodied in section 799 of the Revised Statutes referring to affrays; section 929 of the Revised Statutes *Page 340 referring to disturbing peaceable assemblies; section 1 of Act No. 31 of 1886 and section 1 of Act No. 227 of 1934 relative to public disturbances; section 1 of Act No. 11 of 1908 relative to intoxication in public places; and Act No. 7 of the Extra Session of 1872 relative to unlawful assemblies.
"Act No. 31 of 1886, as amended by Act No. 227 of 1934, which is replaced by article 103 of the Criminal Code, defines a number of different and distinct acts or offenses as constituting disturbances of the peace. In the case of State v. Verdin, 192 La. 275, 187 So. 666, this Court had occasion to consider Act No. 31 of 1886, as amended by Act No. 227 of 1934, in connection with an indictment charging a number of parties with the offense of disturbing the peace. In that case where the question was also presented on a motion to quash, we reversed the conviction of the relators on the ground that the indictment charging relators with disturbing the peace, merely set forth a conclusion of law and was not specific enough to enable the relators to prepare their defense; that as a number of acts or offenses necessarily different and distinct were embraced within the provisions of Act No. 31 of 1886, as amended by Act No. 227 of 1934, it was necessary to charge relators with the commission of one of the many offenses embraced within the statutory provisions.
"The decision in State v. Verdin is applicable to this case. In accordance with the rule announced and applied in the Verdin case, in an indictment or information framed under Article 103 of the *Page 341 Criminal Code, it is not sufficient for the pleader to merely charge that the defendant did `unlawfully disturb the peace' at a particular place. He must charge, with that degree of certainty and particularity required in all criminal prosecutions, that the defendant disturbed the peace by committing one or more of the specific acts or offenses enumerated in the article.
"There is no merit in the suggestion contained in the brief filed on behalf of the State that relator's remedy was to ask for a bill of particulars and not to file a motion to quash. We have not been referred to any law, nor do we know of any law which requires a defendant in a criminal prosecution to make valid an invalid information by demanding a bill of particulars.
"The proper procedure was for counsel for the State to apply for and obtain the court's permission to amend the information so as to bring it within the provisions of Article 103 of the Criminal Code. Code Crim.Proc. arts. 253 and 284; State v. Johnson, 181 La. 1, 158 So. 570.
"It is argued on behalf of the State that its contention that relator's remedy was to apply for a bill of particulars instead of filing a motion to quash is supported by the decision of this Court in State v. Dark, 195 La. 139, 196 So. 47. We do not find anything in the Dark case which militates against the legal proposition we are maintaining in this case.
"The rule now existing in this State as to the contents of an indictment or information is to be found in Article 227 of the Code of Criminal Procedure, reading as *Page 342 follows: `The indictment (or information) must state every fact and circumstance necessary to constitute the offense, but it need do no more, and it is immaterial whether the language of the statute creating the offense, or words unequivocally conveying the meaning of the statute, be used.' (Brackets ours.) In considering this article with the indictment under review, the Court held in the Dark case that when a statute creating an offense sets out the facts constituting the offense, 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 can not be misled as to the charge he is to answer, the test being, was defendant fully informed of the crime with which he was charged, for nothing can be taken by intendment.
"Article 103 of the Criminal Code enumerates a number of acts, the commission of which constitute the offense of disturbing the peace. None of these specific acts are referred to in the information on which relator is being prosecuted. No facts constituting the offense of disturbing the peace are set out in the information. The information merely alleges that relator was guilty of unlawfully disturbing the peace. This allegation does not set forth any act which, under the article, constitutes the offense. Nor do the words used in the information unequivocally convey the meaning of the article, so that defendant can not be misled as to the charge he is called upon to answer." *Page 343
In State v. Hebert, 205 La. 110, 17 So.2d 3, we sustained the accused's motion to quash the information charging him with indecent behavior towards a juvenile. In arriving at this conclusion, we said:
"The defendant was prosecuted under six bills of information, each bill charging that he `* * * being over the age of seventeen did unlawfully and feloniously commit indecent behavior, as defined by Article 81 of the Louisiana Criminal Code (Act 43 of 1942), with _____, a juvenile under the age of seventeen years.'
* * * * * * * "Article 81 of the Louisiana Criminal Code (Act 43 of 1942) defines indecent behavior with juveniles as the `commission by anyone over the age of seventeen of any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, with the intention of arousing or gratifying the sexual desires of either person.' The charge made against defendant in each of the cases was that he `did unlawfully and feloniously commit indecent behavior, as defined by Article 81 of the Louisiana Criminal Code'. Counsel for defendant filed in each case a motion to quash the bill of information on the ground (1) that the bill `does not set out a crime as denounced by the laws of the State of Louisiana', and (2) that the `charge attempted to be made against him in said bill of information is too vague and indefinite to permit your mover to properly prepare for, and present, his defense thereto.' * * *
"The trial judge overruled the motions to quash and the motions for a bill of particulars *Page 344 for the reason, as stated, by him in his per curiam, that the bill of information in each case `specifically sets out, and is drawn verbatim, in the language of Article 81 of the Louisiana Criminal Code.' * * *
"Counsel for defendant excepted to the ruling of the court and reserved a bill in each case.
* * * * * * * "The defendant was convicted in each case and was sentenced to serve terms in the parish jail aggregating two and one-half years. * * * The defendant appealed each case.
* * * * * * * "The bill of information in each case is fatally defective and should have been quashed.
"The principal reason is that, according to the language of the article, a person over the age of 17 years may commit the crime of `indecent behavior' in more than one way. One way is by committing `any lewd or lascivious act upon the person' of the juvenile, which means that a violation of this particular provision of the article would necessarily involve an act by which the offender brought his or her body or person, or some part of it, into physical contact with the body or person of the juvenile. If the act committed is `lewd or lascivious' and is committed with the intention of `arousing or gratifying the sexual desires of either person', the law is violated. This is one way of violating the law against indecent behavior with juveniles.
"But there is another and entirely distinct and different way of violating that law. *Page 345 The article of the Code also covers and denounces indecent sexual displays in the presence of children under 17 years of age. It says that `indecent behavior with juveniles' is the commission of any lewd or lascivious act upon the person `or in the presence of any child under the age of seventeen'. Thus the commission of any lewd or lascivious act in the presence of a juvenile is a violation of the law, even though the offender does not touch the body or person of the juvenile.
"Now, since the law denouncing indecent behavior with juveniles may be violated in either one or the other of the two ways above mentioned and described, it follows that an indictment or information which goes no further into detail than merely to charge that the defendant did `commit indecent behavior, as defined by Article 81 of the Louisiana Criminal Code,' conveys to the defendant no information at all concerning the kind or nature of the acts, by the commission of which he is alleged to have violated the law. The way or manner in which defendant violated the law, if he did violate it, is not suggested by the bill.
"As we have stated, the crime denounced by Article 81 of the Louisiana Criminal Code may be committed in more than one way, by committing lewd or lascivious acts either on the person or in the presence of the child, and, because that is true, the provisions of Article 227 of the Code of Criminal Procedure are peculiarly applicable to a case of this kind. That article provides that: `The indictment must state every fact and circumstance necessary to constitute *Page 346 the offense, but it need do no more.' The `offense' here charged is `indecent behavior with juveniles'. But the bill of information in this case stated no fact or circumstance relating to the commission of the offense, and referred to no act committed by the defendant which was necessary to constitute the offense. The bill conveyed to the defendant no intimation as to what facts the State expected to prove in order to make out its case.
"The bill as worded did convey to the defendant knowledge that he was accused of committing lewd or lascivious acts of some kind, either upon the person or in the presence of a child. But, in a case of this kind, in order that a defendant may be able to prepare a defense, the bill should be so drawn as to inform him whether the alleged lewd or lascivious acts were committed upon the person or in the presence of the child; and further, in either case, he is entitled to specific information as to the kind and character of the acts he is alleged to have committed. Otherwise he is in no position to defend himself at the trial. He would go into court without any knowledge whatever, in so far as the disclosures in the bill are concerned, of the particular acts which the State expects to prove that he committed, and without any knowledge of the kind or nature of the acts intended to be relied on as constituting the offense charged or sought to be charged. A charge in an indictment or bill of information that a person committed indecent behavior, as defined by Article 81 of the Louisiana Criminal Code, is no more than a conclusion of law. *Page 347
"The ruling in the case of State v. Morgan, 204 La. 499,15 So.2d 866, is applicable here.
"In that case the defendant was charged in a bill of information with `unlawfully disturbing the peace', under Article 103 of the Louisiana Criminal Code, which provides that `Whoever commits the crime of disturbing the peace shall be fined not more than one hundred dollars, or imprisoned for not more than ninety days, or both'. The article provides that `Disturbing the Peace is the doing of any of the following in such a manner as would foreseeably disturb or alarm the public'. Then follows a list of the acts which, if committed, would `disturb or alarm the public'.
"In that case, as in the one at bar, the defendant filed a motion to quash the indictment on the ground that the bill of information `does not set out any offense as denounced by any law of the State of Louisiana, but merely sets out a conclusion of law.'
"The trial judge overruled the motion to quash, and defendant reserved a bill of exception to the ruling. The case was brought before this court on certiorari. We held that the motion to quash should have been sustained. In the course of our opinion, after setting out in detail the acts which constitute a disturbance of the peace, we said:
"`It will thus appear that the offense of disturbing the peace as defined in Article 103 of the Criminal Code may consist of one or more separate and distinct acts or offenses committed by the defendant.' *Page 348
"That is the case here. As we have stated, one may be guilty, under Article 81 of the Louisiana Criminal Code, of indecent behavior with juveniles by committing lewd or lascivious acts either upon the person or in the presence of the child involved.
"In the Morgan case it was pointed out that article 103 of the Louisiana Criminal Code replaced Act 31 of 1886, as amended by Act 227 of 1934, and `defines a number of different and distinct acts or offenses as constituting disturbances of the peace'. We referred to the case of State v. Verdin, 192 La. 275,187 So. 666, which was a prosecution for disturbance of the peace under Act 31 of 1886, as amended by Act 227 of 1934. In the Verdin case the indictment was couched in the language of the statute — that is, defendant was charged with `unlawfully disturbing the peace'. In the Morgan case we said, referring to the Verdin case:
"`In that case where the question was also presented on a motion to quash, we reversed the conviction of the relators on the ground that the indictment charging relators with disturbing the peace, merely set forth a conclusion of law and was not specific enough to enable the relators to prepare their defense; that as a number of acts or offenses necessarily different and distinct were embraced within the provisions of Act No. 31 of 1886 as amended by Act No. 227 of 1934, it was necessary to charge relators with the commission of one of the many offenses embraced within the statutory provisions.' *Page 349
"The general rule announced by the court in the case of State v. Mines, 137 La. 489, 68 So. 837, is applicable here. It was there held according to Paragraph 1 of the syllabus written by the court, that:
"`Where the charge contained in an indictment, even though in the language of the statute, is so general as not to disclose the particular acts and things thought to have been committed and done by the defendant and intended to be relied on as constituting the offense charged or sought to be charged, the defendant may require further information by means of a bill of particulars, though the same relief may, ordinarily as well, and perhaps better, be obtained by demurrer or motion to quash.'"
In State v. Larocca, 156 La. 567, 100 So. 720, the accused was charged in an information with carnal knowledge of an unmarried female under the age of consent. He applied for but was denied a bill of particulars and reserved a bill of exception. In annulling the verdict of guilty and the sentence of the lower court and remanding the case, we said: "Ordinarily it is sufficient to charge the offense in the language of the statute, but where the nature of the crime is such, as in cases like the present, the selling and possessing intoxicating liquors, etc., where generally the dealings of the parties are in secret and may take place at one or several places, and as often as may be desired, without creating a status which would make the corpus delicti easy of proof and the fact of the crime known, as would be true in crimes like murder, robbery, etc., the uniform trend of opinion seems to be that the *Page 350 accused, asking it, is entitled to sufficient information to put him on his guard and to prevent the faking of a case against him. Then, too, he is concerned in having the charge definitely established, as to time, place, and circumstances, in order that if, as was claimed in argument in this case, the proof should tend to show that he had committed the offense more than once, he might know which occasion the state relied upon, to be able to plead acquittal or conviction at any subsequent prosecution. State v. Rollins, 153 La. 10, 95 So. 264; Marr's Crim. Juris. (2d Ed.) vol. 1, p. 515."
In State v. Kendrick, 203 La. 63, 13 So.2d 387, 389, the State appealed from a judgment sustaining the accused's motion to quash the indictment, which was brought under Art. 67, Theft, of Chapter 3 of the Louisiana Criminal Code, Act 43 of 1942. The motion to quash was predicated on the ground that the indictment failed to set forth sufficient facts and circumstances to constitute the offense of theft and, therefore, did not charge a crime under our law. After pointing out that Art. 235 of the Code of Criminal Procedure, as amended by Act 147 of 1942, authorized the use of the short form of indictment in the case of theft, but that this form had not been used, we said:
"From the language used in the indictment, we are unable to determine whether the defendant is charged with obtaining money under false pretenses or operating a confidence game or some other offense. In fact, from the very wording of the indictment, we are unable to determine, in the light of the previous separate statutes, *Page 351 just what offense the defendant is charged with.
"The State seems to rely on the prior jurisprudence of this State to the effect that it is sufficient for the indictment to follow the language of the statute or contain words unequivocally conveying the meaning of the statute and as authorized by Article 227 of the Code of Criminal Procedure.
"It is to be noted that Article 227 of the Code of Criminal Procedure was enacted prior to the adoption of the Louisiana Criminal Code, and it undoubtedly contemplated forms of indictment to be used when various crimes incorporated in this article of the Louisiana Criminal Code, Article 67, were covered by separate and specific statutes. In such instances, the accused would be informed of the nature and cause of the accusation against him as required in Article I, Section 10, of the Constitution of 1921. This section of the Constitution provides:
"`In all criminal prosecutions, the accused shall be informed of the nature and cause of the accusation against him; * * *.'
"Article 227 of the Code of Criminal Procedure applies only to a crime covered by special or specific statute in which instance the defendant would be informed of the nature and cause of the accusation. Where the statute is general and covers many offenses, the rule provided for in this article of the Code of Criminal Procedure could not be applied for the reason that in such case it would be violative of *Page 352 the article and section of the Constitution aforementioned. The paramount law, the Constitution, must control."
It may be well to observe that Article 235 of the Code of Criminal Procedure, as amended by Act 147 of 1942, does not authorize the short form of indictment for the crime of gambling.
In State v. Verdin, 192 La. 275, 187 So. 666, 667, we stated: "But the charge laid in the indictment should be sufficiently specific to enable the defendant to prepare his defense, and if the mere following of the words of the statute does not give this information, then to charge in the words of the statute is to do no more than to charge a conclusion of law. State v. Mines, 137 La. 489, 68 So. 837. Thus the charge that defendant did `keep a disorderly tavern' is not sufficient. The indictment should specify in what the disorder consisted. State [ex rel. Etie] v. Foster, 112 La. 746, 36 So. 670."
In the instant case, the statute under which the district attorney attempted to charge the accused is general, and unlike the disturbance of the peace and the indecent behavior towards a juvenile statutes, does not set forth the facts and circumstances which would constitute the crime. The accused, in the cases of State v. Morgan and State v. Hebert, supra, by consulting the statutes under which they were charged would have been able to determine that the State was relying upon one of the sets of facts and circumstances specified therein which would constitute the offense. Consequently, he would have been informed to some extent in a general *Page 353 way as to the facts, yet, this Court concluded that the general allegations of the informations were insufficient to legally charge an offense. Since the general gambling statute does not in any way designate any facts or circumstances which would define the crime of gambling but merely gives a general definition of what constitutes the offense, obviously, even after the defendant's counsel consulted the statute he would have been at a complete loss to know what the district attorney had in mind when he concluded that the defendant had violated the law. Multiple numbers of ways and means can be used to operate a gambling business, hence, it was impossible for the defendant to know what the State was relying on here. There was no identification of any facts or circumstances whatsoever in the information with the general allegations therein which merely set forth a conclusion of law. If the defendant had pleaded guilty to this charge and immediately after the district attorney had filed another information identically worded and the accused had pleaded autrefois convict and the district attorney stated that he had some other act of the defendant in mind that he considered a violation of the law when he filed the first information, the accused might well be convicted twice of the same offense, because it would be impossible for him to identify the charge to which he pleaded guilty with any of his acts. For instance, if the defendant operated a gambling establishment as a business where gambling with dice, cards, a roulette wheel, etc., was conducted and also operated a baseball park where he held baseball *Page 354 games and allowed the public to bet on them — not as a business but as a matter of individual sport — and he were charged in an information such as the one in question, with gambling, and pleaded guilty, he would necessarily believe that the State was prosecuting him for operating the gambling business or house. However, the district attorney might well say on the first information he had in mind that the operation of the baseball park was a violation of the law because bets were made there. Therefore, the accused would have pleaded guilty when the information was intended by the district attorney to cover facts and circumstances which did not constitute a crime.
The framers of the Constitution wisely required that if the State charge a person with a criminal offense that the indictment, information or affidavit should inform him of the nature and cause of the accusation against him. The purpose of this constitutional requirement was to afford the defendant an opportunity to properly defend himself and to prevent persons from pleading guilty or being found guilty and punished when their acts did not constitute a violation of the law; and also, to avoid a person from being tried or convicted twice for the same offense.
The contention that a bill of particulars was the defendant's remedy is unsound, first, because the accused, under the Constitution, is presumed to be innocent until his guilt has been proved beyond a reasonable doubt and he has been convicted on a legal charge; second, it is well-settled that an indictment or an information *Page 355 has no probative effect whatsoever; and third, he is not required to compel the State through a bill of particulars to allege a legal charge against him when the information or indictment is so defective as not to set forth a crime. The law places the duty and responsibility on the prosecution to file a legal charge.
The right to require the State to allege the nature and cause of the accusation against the defendant is a constitutional right which he can assert through a demurrer or a motion to quash. The question of whether or not the indictment or information is valid is not a matter left to the discretion of the district judge but fixed definitely by the law. With reference to the bill of particulars, the trial judge has a discretion in deciding whether he shall grant it or not. If a bill of exception is reserved to his adverse ruling by the accused, on appeal, the sole question is whether or not the trial judge arbitrarily abused his discretion. Therefore, it is obvious that a bill of particulars is not a remedy comparable to a motion to quash and cannot take its place.
The instant case in itself is unimportant relatively speaking, but, since the majority opinion establishes a rule which will apply to all prosecutions for offenses under general statutes, the holding therein will have a serious and confusing effect, because it is not in accord with the Constitution and the former jurisprudence of this Court.
Reference is made to the cases of State v. Dark, et al.,195 La. 139, 196 So. 47 and 195 La. 160, 196 So. 54. In both of those *Page 356 cases, the indictments set out facts and circumstances which the State relied upon to show that the offense of bribery had been committed. The complaint was that the State should have alleged additional facts to make the charges more specific. This Court concluded that the charges were legal because they sufficiently informed the accused of the nature and cause of the accusations against them and stated that if they wanted any specific information their remedy to obtain those facts was through a bill of particulars.
The recent case of State v. Pete, 206 La. 1078, 20 So.2d 368, is also cited. This authority is not apposite here for the following reasons: (1) "Theft" is one of the crimes where the State may use the short form of information under the express provisions of Article 235 of the Code of Criminal Procedure, as amended by Act 147 of 1942; (2) The offense of theft is a definite crime under a specific statute and has such a well-recognized meaning that mere reference to the statute would inform the accused of the nature and cause of the accusation against him, in addition to the facts and circumstances set forth in the information; and (3) The Legislature, in authorizing the short form of information did so only with reference to well-defined and specific crimes under particular statutes, but does not authorize the use of such a form with reference to offenses created by the provisions of a statute containing a general definition of a crime. The distinction was made by the Legislature itself in recognition of the *Page 357 constitutional mandate that the accused is entitled to be informed of the nature and cause of the accusation against him.
I am unable to reconcile the majority opinion with the authorities hereinabove cited and, therefore, respectfully dissent.