The granting of a rehearing in this case became necessary when one of the four subscribers to the original opinion retired from the bench before the expiration of the time allowed by law for the defendants to apply for a rehearing. The three remaining justices who had subscribed to the opinion did not constitute a quorum, according to Section 4 of Article VII of the Constitution, and therefore did not have authority to deny the application for a rehearing. The rehearing has not affected my opinion that the bill of information — being couched in the words of the statute creating and defining the offense of gambling — which statute itself is conceded to be a valid statute — is not violative of the guaranty in the Bill of Rights that in all criminal prosecutions the accused shall be informed of the nature and cause of the accusation against him. The defendants — being accused in the very words of the statute defining the offense of gambling — did not ask for — or make known to the judge or the district attorney — any additional "data", or "particulars", concerning which they wanted to be informed before pleading to the bill of information. Hence they were not denied the right to be informed as thoroughly as they saw fit to be informed of the nature and cause of the accusation against them.
Nobody doubts the sanctity or inviolability of the provision in the Bill of Rights that in all criminal prosecutions the accused *Page 386 shall be informed of the nature and cause of the accusation against him. The defendants in this case were not denied the benefit of that safeguard in the Bill of Rights.
I cannot reconcile the conclusion of the majority of the members of the court, on rehearing, in this case, with the final paragraph in the majority opinion rendered on rehearing, — reading as follows: "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 as 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."
It is said in the prevailing opinion, rendered on rehearing, that the bill of information in this case "does not allege a single fact or circumstance upon which the offense is based." It is said that the bill of information lacks two essential requirements, namely, first, that it does not give the defendants enough information to enable them to prepare their defense, and, second, that it is not sufficiently definite to serve as a bar to a future prosecution.
The bill of information alleges every fact and circumstance necessary to constitute the offense of gambling, as defined in the statute creating the offense, — article 90 of the Criminal Code.
The bill of information therefore complies with the requirements of article 227 *Page 387 of the Code of Criminal Procedure. That article prescribes the essential allegations for a valid indictment or bill of information, thus:
"The indictment 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."
It is not contended that that article, — in declaring that an indictment need do no more than to state every fact and circumstance necessary to constitute the offense charged and that it is immaterial whether the accusation be couched in thewords of the statute or in words unequivocally conveying themeaning of the statute, — is violative of the provision in the Bill of Rights that 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, therefore, declares plainly enough that an indictment or a bill of information need do no more than to state, in the words of the statute creating the offense, or in words unequivocally conveying the meaning of the statute, every fact and circumstance necessary to constitute the offense charged, as defined in the statute. And articles 252, 253 and 288 provide that if the defendant wants any further "particulars" or "data" he must ask for such particulars or data, and must specify, in his motion for a bill of particulars, or in his demurrer or motion to quash, what particulars or data he desires to be informed of. But, according *Page 388 to article 227, it is not necessary, in order that an indictment or a bill of information shall be valid, that it shall contain any further "particulars" or "data" than the facts and circumstances necessary to constitute the offense charged, as defined in the statute creating it.
In the majority opinion on rehearing article 288 of the Code of Criminal Procedure is cited. The article reads as follows:
"Defects in indictments can be urged before verdict only by demurrer or a motion to quash, and the accused is not entitled to any bill of particulars as to the subjectmatter 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."
In the compiler's note to article 288 it is said to appear that bills of particulars, except as stated in the proviso in article 235 allowing certain short forms of indictment, have been abolished; but it is said also in the compiler's note that the decisions cited in the annotations, recognizing the right of an accused to demand a bill of particulars in cases other than those listed in article 235, "may apply to the `data' that may be asked for." All of which means that the interpretation which this court has given to article 288 is that the party accused is not entitled, as a matter of right, to a bill of particulars as to the subject-matter charged in the indictment; but, if he files a demurrer or motion to quash the indictment or bill of information on the ground that the district attorney should furnish further particulars, or *Page 389 additional data, he must, in his demurrer or motion to quash, or in his motion for a bill of particulars, make known what additional data or particulars he desires to be informed of; otherwise it would be impossible for the judge, in response to the demurrer or motion to quash, or motion for a bill of particulars, to require the district attorney to furnish such additional data as the defendant wants to be informed of before pleading to the indictment or bill of information.
This interpretation of article 288 is verified by comparison with article 252 of the Code of Criminal Procedure, which article declares: "No indictment shall be quashed, set aside or dismissed for any one or more of the following defects: * * * (Third) That any uncertainty exists therein. * * * If the court be of the opinion that the third defect exists in any indictment, it may order that the indictment be amended to cure such defect."
And this interpretation of article 288 is further verified by comparison with article 253, which provides: "No indictment shall be quashed, set aside or dismissed * * * nor shall any conviction be set aside or reversed on account of any defect in form or substance of the indictment, unless the objection to such indictment, specifically stating the defect claimed, be made prior to the commencement of the trial or at such time thereafter as the court in its discretion [may] permit." [Italics mine].
In the decisions on the subject of furnishing bills of particulars, or additional data, rendered since the adoption of the *Page 390 Code of Criminal Procedure, article 288 has been construed, consistently, as meaning that the word "data" has been substituted for the word "particulars", or for the term "bill of particulars"; that the defendant in a criminal prosecution is not entitled as a matter of right to a bill of particulars as to the subject-matter charged; and that if he files a demurrer or motion to quash the indictment on the ground that it does not allege enough of the facts and circumstances of the offense charged, he must state specifically the defect claimed, so that the judge "may order that the indictment be amended to cure such defect", instead of ordering the indictment quashed. The defendant must state, specifically, what additional "data" he wants, in order that the judge may determine what data he shall require the district attorney to furnish, under authority of article 288.
In the decisions on this subject, since the adoption of the Code of Criminal Procedure, the court has recognized, consistently, that the right of an accused to demand a bill of particulars if he really wants one was not abolished by article 288, in cases not listed in article 235. The decisions recognize that the substitution of the word "data" for the word "particulars", or for the term "bill of particulars," was merely an instance of calling a rose by another name. "What's in a name? That which we call a rose by any other name would smell as sweet."
For example, in State v. Ezell, decided in 1938, 189 La. 151,179 So. 64, 65, this court quoted with approval from the opinion in *Page 391 State v. Gould, decided in 1924 — which was 4 years before the Code of Criminal Procedure was adopted — the following paragraphs, thus:
"* * * In the case of State v. Gould, 155 La. 639, 99 So. 490, 491, this court stated:
"`The matter of furnishing a bill of particulars rests largely in the discretion of the trial judge, and his ruling will not be disturbed unless there is manifest error, and particularly in the absence of a clear showing that the defendant was prejudiced. 1 Bishop, Crim.Proc. 643. State v. Buhler, 132 La. (1065), 1066, 62 So. 145.
"`The case as presented to the trial judge on the motion for a bill of particulars fully answered the constitutional requirement, "that the accused shall be informed of the nature and cause of the accusation against him."'
"In article 235 of the Code of Criminal Procedure where it sets out certain forms of indictments that may be used, it is provided:
"`Provided, That the District Attorney, if requested by the accused prior to arraignment may be required by the Judge to furnish a bill of particulars setting up more specifically the nature of the offense charged.'
"Article 288 reads:
"`Defects in indictments can be urged before verdict only by demurrer or a motion to quash and the accused is not entitled to any bill of particulars as to the subject matter charged in the indictment, but the trial judge may, in his discretion, *Page 392 require the district attorney to file in the case such data as, in the opinion of the judge, may be sufficient.'
"The doctrine laid down in State v. Gould, supra, has not been changed by articles 235 and 288 of the Code of Criminal Procedure for the reason that in the proviso of article 235 the district attorney `may' be required to furnish a bill of particulars, and in article 288 of the Code of Criminal Procedure the trial judge may in his discretion require the district attorney to file such data as the judge thinks might be sufficient. In articles 235 and 288 of the Code of Criminal Procedure it is left to the discretion of the trial court. There is no contention herein that there was any abuse of this discretion and no showing made that the defendant has been prejudiced by the overruling of the motion."
On the subject of bills of particulars, the following decisions rendered previous to the adoption of the Code of Criminal Procedure have been cited with approval since the adoption of the Code, viz: State v. Fernandez, 157 La. 149, 102 So. 186, decided in 1924, and State v. Robertson, 158 La. 300,103 So. 821, decided in 1925. Both cases were cited with approval in State v. Lee, 173 La. 966, loc.cit. 968, 139 So. 302, in support of the following paragraph in State v. Lee:
"We do not think appellants' complaint is well-founded. The state furnished them with all the particulars to which they were entitled. It informed them that it was prosecuting them as principals and it pointed out the law on which the prosecution *Page 393 was based. Had appellants' request been granted by the trial judge, the state would have been forced to disclose its entire evidence in advance of the trial, which it was not required to do."
In State v. Emerson, decided in 1941, 197 La. 783, 2 So.2d 212, the court overruled a motion to quash the bill of information for keeping intoxicating liquor for sale, on the ground that the bill was defective because it did not state the alcoholic content of the beverage kept for sale; and, in sustaining the ruling, this court cited with approval State v. Lewis,159 La. 109, 105 So. 243, where the same question was presented by way of a motion for a bill of particulars.
In State v. Sheffield, 201 La. 1055, 10 So.2d 894, 895, decided in 1942, the court again cited article 288 of the Code of Criminal Procedure as dealing with a bill of particulars, in its reference to the judge's authority to order the district attorney to furnish additional "data" when such additional data is specified in a demurrer or motion to quash. In support of that interpretation of article 288 the court cited two cases decided before the adoption of the Code of Criminal Procedure and one case decided subsequent to the adoption of the Code, — thus: "The matter of furnishing a bill of particulars rests largely within the discretion of the trial judge, and his ruling will not be disturbed unless there is manifest error, and particularly in the absence of a clear showing that the defendant was prejudiced. Article 288, Code of Criminal Procedure; State v. Buhler, 132 La. 1065, 62 So. 145; State v. Lewis, *Page 394 159 La. 109, 105 So. 243; State v. Ezell, 189 La. 151, 179 So. 64; 1 Bishop, Crim.Proc. 643; Marr's Crim.Jur., 2nd Ed., Vol. 1, Sec. 348, Page 515."
In State v. McClellan, decided in 1923, 155 La. 37, 98 So. 748, 749, 31 A.L.R. 527, where the defendant was charged with attempting to monopolize the laundry business in New Orleans, the trial judge sustained a motion to quash the indictment, on the ground, among other grounds, that the indictment was bad for uncertainty "because it [did] not allege or set out in what manner defendant unlawfully attempted to monopolize the laundry business in the city of New Orleans, or what facts or circumstances constituted said attempts to monopolize." In affirming the ruling this court said: "It is true that neither the indictment nor the agreed statement of facts informs us of the relation which the defendant bears to the laundry business of New Orleans, and what interest he has therein, whether as owner, lessee, manager, or agent. Nor does the indictment set out in what manner the defendant attempted to bring about a monopoly of the laundry business. Section 10 of the Bill of Rights of the Constitution of 1921 plainly provides that in all criminal prosecutions the accused shall be informed of the nature and cause of the accusation against him, and prosecuting officers would do well more carefully to observe this constitutional requirement; but the rule is well settled that, in prosecuting for purely statutory offenses, it is sufficient for the indictment to follow the language of the statute or language equivalent to that used in *Page 395 the statute. State v. Bulloch, 151 La. 593, 92 So. 127. And it is another familiar rule of jurisprudence that, if the indictment does not sufficiently set forth the acts charged against the defendant particularly in matters of description, he waives the defect, if he fails to ask for a bill of particulars. State v. Cleary, 152 La. 265, 92 So. 892; and cases there cited."
In State v. Newton, 166 La. 297, 117 So. 231, decided in May 1928, before the Code of Criminal Procedure was adopted, the first paragraph of the syllabus reads as follows: "Receiving stolen goods being statutory offense, indictment couched in language of statute (Act No. 72 of 1898) is sufficient."
In State v. Dark et al., 195 La. 139, 196 So. 47, decided in 1940, the two defendants were indicted for accepting a bribe given for the purpose of inducing and influencing them as public officers to protect and shield a certain individual from prosecution for a violation of the conservation laws. The crime is not included in the list of crimes for which a short form of indictment is provided in article 235 of the Code of Criminal Procedure. The defendants demurred and moved to quash the indictment on the ground, among other grounds, that it did not state specifically the facts and circumstances necessary to constitute the offense of bribery of a state officer under the statute upon which the prosecution was based, Act 78 of 1890. The trial judge sustained the demurrer and motion to quash, and the State appealed. In reversing the ruling appealed from, loc. cit. *Page 396 195 La. 158, 196 So. loc. cit. 53, this court announced the following doctrine:
"If an accused desires to secure additional information or other details which are necessary, and to which he is entitled in order that he might adequately prepare his defense, it is incumbent upon him to request the state to set out, in a bill ofparticulars, this information or other details. State v. Brinkley, 180 La. 679, 157 So. 388, 389. In that case, like the one before us, this court, upholding an appeal by the state from the ruling of the trial judge sustaining a demurrer to the indictment on the ground that it failed to charge a crime under the laws of Louisiana, said:
"`In our opinion, the trial court should not have sustained the demurrer in this case, as it could have required the state to furnish a bill of particulars, if it considered that any uncertainty existed in the indictment.' See, also, Articles 235 and 288 of the Code of Criminal Procedure." [The italics are mine].
In the Dark case the indictment stated all of the details that the court deemed necessary to inform the defendants of the nature and cause of the accusation against them. But that does not alter the fact that the court, in the opinion rendered in Dark's case, in 1940, recognized the doctrine which we have quoted, and which is so plainly applicable to the present case. That doctrine is that, if an indictment or a bill of information is couched in the words of the statute creating and defining the offense charged, — and if the defendant complains of some specified omission or uncertainty *Page 397 in the indictment or bill of information, — his remedy is to ask for a bill of particulars with regard to the additional information that he wants, — or to file a demurrer or motion to quash, and, in his demurrer or motion, to specify what additional data he wants in order to be fully informed of the nature and cause of the accusation against him, — and thus to avoid the useless delay and expense of quashing the indictment or bill of information, and filing a new one.
Another decision on this subject, which was rendered previous to the adoption of the Code of Criminal Procedure, State v. Mines, 137 La. 489, 68 So. 837, 839, decided in 1915, was cited with approval in one of the dissenting opinions handed down on the original hearing of the present case by one of the members of the court who has subscribed to the opinion rendered on rehearing in this case. Hence it is virtually conceded by a majority of the members of the court that bills of particulars were not abolished by article 288 of the Code of Criminal Procedure, in cases not listed in article 235. The Mines Case was governed by Sections 1062, 1063 and 1064 of the Revised Statutes, referring to indictments and bills of information. The rule was stated in the Mines Case thus:
"The law thus quoted does not require a defendant to go to trial under an indictment that charges no offense, but contemplates that no indictment shall be held to be insufficient, but may be amended, where its specification of matters not of the essence of the offense charged is imperfect or erroneous, and the defendant makes objection *Page 398 by demurrer or motion to quash. It may happen, however, that a charge, though in the terms of the statute, is too general, when applied to a particular offense, to place the defendant on his guard, and, in such case, he may properly request, and the court may properly direct (though the granting of the request is largely within the discretion of the court), that the prosecuting officer furnished him with a bill of particulars. City [of New Orleans] v. Chappuis, 105 La. 179, 29 So. 721; State v. Maloney, 115 La. 498, 39 So. 539; State v. Goodson,116 La. 388, 40 So. 771; State v. Clark, 124 La. 965, 50 So. 811. In the case of State v. Maloney, thus cited, defendant was charged with conducting a `pool room,' and the court said:
"`We do not think the generality of the term "pool room" was such as to make the statute inoperative. Board of Com'rs v. Mialegvich, 52 La.Ann. 1292, 27 So. 790. The defendant had, however, the right to have had the specific kind of "pooling" which he was charged with operating at his place of business set out in a bill of particulars, had he thought proper to claim that right; but he did not do so.'"
The first paragraph of the syllabus in the Mines case is quoted with approval in one of the dissenting opinions handed down on the original hearing in the present case, thus: "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 *Page 399 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."
This "same relief" might have been obtained by the defendants in this case by means of a demurrer or motion to quash, specifying the "particulars" or "data" which the defendants wanted, under article 288 of the Code of Criminal Procedure.
In State v. Augusta, 199 La. 896, 7 So.2d 177, in 1942, the court recognized again that the right of a defendant to obtain additional "data" under article 288 of the Code of Criminal Procedure, before pleading to the indictment or bill of information, was equivalent to the right of a defendant to obtain a bill of particulars under article 235. That decision was cited with approval in State v. Iseringhausen, 204 La. 593 at page 606, 16 So.2d 65, in 1943. In the Augusta case it was said [199 La. 896, 7 So.2d 180]: "The granting or refusing of a bill of particulars is a matter which addresses itself to the sound discretion of the trial judge. Articles 235 and 288, Code of Criminal Procedure."
The decision in State v. Bienvenu, La.Sup., 22 So.2d 196, cited in the prevailing opinion on rehearing in the instant case, is authority only for the proposition — as far as this discussion is concerned — that a bill of particulars cannot serve the purpose of changing a bill of information which charges the defendant with the violation of a statute which has been repealed (Act 70 of 1908), into an accusation of violating *Page 400 an entirely different statute (article 90 of the Criminal Code).
In the prevailing opinion rendered on rehearing in this case, a paragraph is quoted from the opinion in Peters v. United States, 9 Cir., 94 F. 127, 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], thus: "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," etc.
I see no objection to that test for determining the validity of an indictment. It is the same test that is provided in article227 of the Louisiana Code of Criminal Procedure.
From the same page (94 F. 127 at page 131) of the opinion in Peters v. United States, I quote the following paragraph: "Every indictment should charge the crime, which is alleged to have been committed, with precision and certainty, and every ingredient thereof should be accurately and clearly stated; but where the offense is purely statutory, and the words of the statute fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offense intended to be punished, it is sufficient tocharge the defendant in the indictment with the acts coming fully within the statutory description, in the substantial wordsof the statute. Ledbetter v. United States, 170 U.S. 606, 610, 18 S.Ct. 774 [42 L.Ed. 1162] and authorities there cited; 10 Enc. Pl. Prac. 483, and authorities there cited." [Italics mine]. *Page 401
I quote now the third paragraph of the syllabus in the case cited in the Peters case, namely, Ledbetter v. United States,170 U.S. 606, 610, 18 S.Ct. 774, 42 L.Ed. 1162, thus: "Where the statute sets forth every ingredient of the offense, an indictment in its very words is sufficient, though that offense be more fully defined in another section."
And, from the same case, page 610 of 170 U.S., page 775 of 18 S.Ct., page 1163 of 42 L.Ed., I quote the following: "But we are of opinion that the statute in this case (Section 16) does define the offense with the requisite precision, and that the pleader has chosen the safer course in charging it in the language of this section."
In a note on the subject of Criminal Procedure, in La.Law Review, Vol. III No. 1, November 1940, p. 241, it is said:
"Several safeguards against surprise are available to the defendant in a criminal trial. The elaborate requirements to which the indictment must conform guarantee a full understanding of the prosecution's charge in advance of trial. Also, a bill of particulars is available in appropriate cases". Here the author cites State v. Ezell, 1938, 189 La. 151, 179 So. 64, thus:
"Arts. 235, 288, La. Code of Crim.Proc. of 1928. It has been held that the bill of particulars should be granted where the short form of indictment is used. State v. White, 1931,172 La. 1045, 136 So. 47. But it would seem that, in any case, the granting of a request for a bill of particulars lies within the discretion of the trial judge, and is not a matter of right. State v. Ezell, 1938, 189 La. 151, 179 So. 64. *Page 402
In La.Law Review, Vol. V, No. 4, May 1944, p. 566, under the title Criminal Law and Procedure, and the subtitle Indictment — Bill of Particulars — appears the following comment on State v. Sheffield, 1942, 201 La. 1055, 10 So.2d 894, viz.: "State v. Sheffield applied the rule of Article 288 of the Code of Criminal Procedure that the accused is not entitled to a bill of particulars as a matter of right and that the trial judge has a very wide discretion in ruling on a motion to require the district attorney to furnish additional data regarding the particulars of the offense charged. In that case defendant was indicted for obtaining money upon a promise to improperly influence the official action of a municipal officer. The trial judge had refused to require the district attorney to furnish a bill of particulars setting out the name and title of the municipal officer sought to be influenced. In upholding the lower court's ruling, Justice Ponder relied on Article 288 and prior Louisiana jurisprudence for the well settled proposition that `the matter of furnishing a bill of particulars rests largely within the discretion of the trial judge, and his ruling will not be disturbed unless there is manifest error, and particularly in the absence of a clear showing that the defendants were prejudiced."
In Tulane Law Review, Vol. XIX, No. 1, October 1944, p. 145, appears a comment on another case entitled State v. Dark,195 La. 160, 196 So. 54. The comment is in a note on State v. Hebert, 205 La. 110, 17 So.2d 3. The author of the note, in a comment on this Dark Case, observes the distinction between offenses *Page 403 which are defined in the Criminal Code in two or more separate and distinct ways, as in article 81, defining indecent behavior, dealt with in the Hebert Case, and article 103, defining disturbing the peace, referred to in the Morgan Case (204 La. 499, 15 So.2d 866), as distinguished from offenses which are defined in only one way, as gambling is defined in article 90 of the Criminal Code. In cases where the Code provides, alternatively, two or more separate and distinct ways in which the offense may be committed, such as indecent behavior is defined in article 81 of the Code, dealt with in State v. Hebert, and as disturbing the peace is defined in article 103, dealt with in State v. Morgan, the indictment or bill of information should state which one of the alternative offenses, as defined in the statute, was committed, otherwise the indictment or bill of information is not couched in the words of the statute defining the particular offense. But, where the offense is defined in only one way in the Criminal Code, as gambling is defined in article 90, it is sufficient to charge the offense in the words of the statute. In the comment on the Dark case, 195 La. 160, 196 So. 54, in the Tulane Law Review, Vol. XIX, No. 1, loc. cit. 145, it is said: "In State v. Dark, supra, the indictments followed the language of the statute under which the defendants were prosecuted and were for that reason held sufficient, it being remarked by Justice Higgins, who rendered the opinion, that in such a situation, the rights of a defendant can be adequately protected by his moving for a bill *Page 404 of particulars. See State v. Dark, 1940, 195 La. 160, 167,196 So. 54, 56."
I approve of the doctrine of the Hebert case and of the Morgan case, that where the offense is defined in two or more separate and distinct ways, in the Criminal Code, the indictment or bill of information should state which one of the ways defined in the Code is the way in which the defendant committed the offense. Otherwise, the indictment or bill of information does not charge the crime in the words of the statute creating the offense or in words unequivocally conveying the meaning of the statute, as required by article 227 of the Code of Criminal Procedure.
A remarkable feature of the majority opinion rendered on rehearing in the present case is that the opinion does not indicate what allegation is omitted from the bill of information, the omission of which renders the bill null on its face. If the bill of information is null because of the omission of some essential allegation, the nullity must be apparent on the face of the bill. If that is true the defendants might have gone to trial without filing a demurrer or motion to quash the bill of information, — might have taken a chance on an acquittal on the merits of the case, — and after conviction might have annulled and set aside the whole proceeding by filing a motion in arrest of judgment. For it is too well settled to admit of dispute that a conviction had on an indictment or information that is invalid on its face is absolutely null and may be — and should be — set aside on a motion in arrest *Page 405 of judgment. In fact such a conviction may be — and should be — set aside on a mere assignment of errors — on appeal.
On the other hand, if the alleged defect in the bill of information consists of an omission of additional facts and circumstances besides those required by article 227 — such additional data or particulars as might have been deemed necessary by the accused to enable them to prepare their defense and to protect them against a future prosecution for the same offense — they were at liberty to specify and request whatever additional information they wanted before pleading to the bill of information. If the judge had denied such a request — and had abused his discretion in so doing — this court would have annulled the conviction — as the court did in the case of State v. Mines, 137 La. 489, 68 So. 837, — cited in one of the dissenting opinions handed down on the original hearing of this case. The defendants, therefore, were not denied their constitutional right to be informed of the nature and cause of the accusation against them.
Since it is admitted in the majority opinion rendered on rehearing in this case that article 90 of the Criminal Code — under authority of which article the defendants are being prosecuted — is not unconstitutional — and since the bill of information is couched in the very words of the article — as provided in article 227 of the Code of Criminal Procedure — and since that article also is conceded to be not unconstitutional — it seems illogical to say now that the bill of information — which is a replica of article 90 of the Criminal Code — is *Page 406 violative of the provision in the Bill of Rights that in all criminal prosecutions the accused shall be informed of the nature and cause of the accusation against him.