(dissenting).
Article 235 of the Code of Criminal Procedure, as amended by Act 223 of 1944, R.S. 15:235, after setting forth the short forms of indictments which may be used in certain specified offenses, declares:
“Provided 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.”
Since gambling is not included in the list of crimes for which special short forms are provided by the statute, the prosecution in this case adopted the prerogative accorded it by the above quoted provision and simply alleged in the bill of information that defendant did commit gambling as denounced by the Criminal Code. The charge as thus made is clearly sanctioned by R.S. 15:235 and has heretofore been approved by this court under identical allegations and circumstances in State v. Davis, 208 La. 954, 23 So.2d 801.
The majority opinion, denying the State its statutory right to charge the crime of gambling, Article 90, Criminal Code, in the manner set forth by the proviso of R.S. 15:235, is based partially on an elimination of gambling from the effect of the statute *73under the maxim “expressio unius est ex-clusio alterius” which is applied on the theory that gambling must be omitted because a special short form has not been enumerated for it.
It suffices to say that this deletion of gambling from the scope of R.S. 15:235 obviously ignores the fact that gambling, being an offense set forth in the Criminal Code, is necessarily included in the proviso of the statute. Accordingly, forasmuch as the proviso of Article 235, in plain and explicit terms, authorizes the charge as drawn in the instant case, the majority ruling would appear to be without substantial foundation unless it be, as also determined by the prevailing opinion, that prosecution by the procedure employed herein deprives the defendant of his constitutional right to be informed of the nature and cause of the accusation, vouchsafed by Section 10 of Article 1 of the Constitution.
In approaching a discussion of this question, it is to be borne in mind that the above quoted provision is just as much a part of Article 235 of the Code of Criminal Procedure as the special short forms therein set forth for certain designated offenses. Indeed, by the unequivocal language of the provision, an omnibus short form is supplied for all offenses included in the Criminal Code which are not otherwise covered by ’ the Article. This being so, there is plainly no basis for the conclusion that defendant is shorn of his constitutional rights by the short form employed herein as it has been' many times decided by this Court that the short forms provided by Article 235 for specific crimes are not violative of a defendant’s right to be apprised of the nature and cause of the accusation.1
The rationale of the many cases decree- ' ing the validity of the short forms is that the provision contained in Article 235, ‘ that the district attorney may be required to furnish a bill of particulars “setting up more specifically the nature of the offense charged”, safeguards the rights of the accused and affords adequate protection to him for fulfillment of the constitutional guarantee that he shall be apprised of the nature and cause of the accusation.
The majority, in overruling the Davis case, indicates that that decision is contrary to State v. Varnado, 208 La. 319, 23 So.2d 106; State v. Pettifield, 210 La. 609, 27 So.2d 424 and State v. Blanchard, 226 La. 1082, 78 So.2d 181. In thus concluding, it seems to me that the majority opinion fails to discern that the Varnado, Pettifield ' and Blanchard cases are clearly distinguishable from the Davis case and the instant *75one in which bills of information were drawn pursuant to the short forms authorized by Article 235.
The prevailing opinion on rehearing in State v. Varnado may be justified on the ground that the bill of information there considered was not brought under the short form provided by Article 235, as amended. Had it been otherwise, it is only reasonable to assume that the Court would have decided comformably with State v. Davis, which was adjudicated less than a month after the Varnado case became final.
In State v. Pettifield, supra, the defendant was charged with violating the compulsory attendance school law, Act 239 of 1944. As the offense is not one included in the Criminal Code, R.S. 14:1-14:140, the short form provided by Article 235 was not available to the prosecution and, therefore, the ruling in the Varnado case was applicable. In the same category is our recent decision in the Blanchard case wherein defendants were charged under a special statute, R.S. 56:366, making it unlawful to possess a mechanical device for the purpose of taking commercial fish.
The ruling in the case at bar produces an odd result. The defendant initially came into court requesting a bill of particulars so that he could be advised of all of the facts and circumstances on which the gambling charge was based. He was furnished the necessary information by the answer of the State. Despite this, he now claims effectively that he has been denied a constitutional right because the data that has already been furnished at his request is not stated in the bill of information. The Constitution guaranteed defendant the right to be apprised of the nature and cause of the accusation; it did not specify that the prosecution shall be abated if the necessary information is not stated in the bill of information or indictment. On the contrary, as above pointed out, all of the cases upholding the short forms provided by Article 235 are predicated upon the premise that the bill of particulars, which is available to defendant under specific provisions, sufficiently protects him in his constitutional rights.
The majority opinion cites the Varnado and Pettifield cases as authority for the proposition that a bill of particulars can-, not amend an indictment or information.2 Conceding that this is the prevailing rule in Louisiana,3 it does not follow that the in*77formation given in á bill of particulars may not be considered in determining whether the constitutional rights of an accused to be informed of the nature and cause of the accusation have been violated.
I respectfully dissent.
. See State v. Miller, 170 La. 51, 127 So. 361 (larceny); State v. White, 172 La. 1045, 136 So. 47 (murder); State v. Capaci, 179 La. 462, 154 So. 419 (murder); State v. Pete, 206 La. 1078, 20 So.2d 368 (theft); State v. Ward, 208 La. 56, 22 So.2d 740 (negligent homicide); State v. Chanet, 209 La. 410, 24 So.2d 670 (aggravated rape) and State v. Nichols, 216 La. 622, 44 So.2d 318 (manslaughter).
. Also cited and quoted from is State v. Dabbs, 228 Da. 960, 84 So.2d 601, wherein it is again observed, on authority of the Varnado and Pettifield cases, that a bill of particulars cannot amend an. indictment. It was because of this statement, which I do not believe reflects the settled- jurisprudence of this'-Court as shown by the decisions to the contrary cited by me in footnote No. 3 herein, that I did not sign the opinion in the Dabbs case and merely concurred in the decree.
. But see State v. Miller, 170 Da. 51, 127 So. 361; State v. Demoine, 178 Da. 1070, 152 So. 907; State v. Brooks, 173 Da. 9, 136 So. 71; State v. Davis, 208 Da. 954, 23 So.2d 801 and State v. Smith, 179 Da. 614, 154 So. 625.