On August 25, 1944, the district attorney filed an information against the accused charging that he did on or about the 2d day of August, 1944, "* * * commit the crime of gambling, as defined by Article 90 of the Louisiana Criminal Code * * *". The defendant filed a motion for a bill of particulars, which was furnished by the State, as follows: "* * * That the defendant is charged with committing the crime of gambling as defined by Article 90 of the Louisiana Criminal Code, in that he did essentially conduct and directly assist in conducting, as a business, a game, contest, lottery or contrivance, wherein money, bets and wagers on the results of horse-races were unlawfully accepted and made by the defendant herein, outside of the racetracks and enclosures, whereby persons risked the loss of something of value, namely: money, in order to realize a profit in money. * * *"
The defendant then filed a demurrer or a motion to quash, which was overruled, and, after a trial on the merits, resulting in his conviction, he filed a motion in arrest of judgment based substantially on the same grounds as his previous motion. This motion was overruled and a bill of exception was reserved, and after sentence, the defendant appealed.
The accused contends that the conviction and sentence are illegal because the bill of information was fatally defective in that it completely failed to inform him of the nature *Page 992 and cause of the accusation against him, as required by Section 10 of Article I of the Constitution of Louisiana; that the bill of particulars forms no part of nor amends the bill of information, its sole function and purpose being to furnish the defendant additional information and limit the State's proof; and that it is mandatory under Section 9 of Article I of the Constitution, that the prosecution shall be by indictment or information and not by a bill of particulars.
The pertinent part of Section 9, Article I of the Constitution, reads: "Prosecution shall be by indictment or information; * * *."
Section 10 of Article I of the Constitution of 1921 reads in part as follows: "In all criminal prosecutions, the accusedshall be informed of the nature and cause of the accusation against him; * * *." This provision is identical with the one contained in Amendment VI of the Constitution of the United States. (Italics ours.)
In Webster's New International Dictionary, 2d Ed., the noun "Cause" is defined as "A ground of action * * *."
In Volume 6, Words Phrases, Perm.Ed., at pages 322-324 and 327, we find:
"`Cause' is defined as any occasion or condition upon the occurrence of which an event takes place. * * *
"Philosophically speaking, the sum of all the antecedents of any event constitutes its `cause.' Ordinarily, however, each separate antecedent of an event is considered as a `cause' for such event, provided, however, *Page 993 that the event could not have happened except for such antecedent; in this case, that which supplies a motive, decides action, or constitutes the reason for anything done; that which produces or effects a result, or from which brings proceeds, and without which would not exist; that which produces an effect, or which brings a thing to be; that condition which determines the final result; that on which a thing under given circumstances follows. Griffin v. Anderson Motor Service Co., 227 Mo.App. 855, 59 S.W.2d 805. 808. * * *
"The constitutional provision that in all criminal prosecutions the accused has the right `to be informed of the cause and nature of the accusation' against him, means that the offense must be set out with clearness and all necessary certainty to apprise the accused of the crime with which he stands charged. United States v. Noelke, C.C., 1 F. 426, 431, citing United States v. Cruikshank, 92 U.S. 542, 568, 23 L. Ed. 588.
"Const. art. 1, § 10, providing that in all criminal prosecutions the accused hath a right to demand the nature and cause of the accusation against him, means that the facts constituting the offense must be set forth in the indictment with sufficient certainty, that the accused may know what he is called on to answer, so that he may prepare his defense accordingly. Norris v. State, 33 Miss. 373, 376.
"The word `cause' is defined to mean that which produces or effects a result; that from which anything proceeds, and without which it would not exist. It is said that the word is used in this sense in the usual *Page 994 constitutional provision that a person accused of crime is entitled to demand the nature and cause of the accusation against him, and that, inasmuch as the effect cannot exist without a cause, a good indictment cannot, as a rule, exist without a statement of the essential facts and circumstances which are the cause of the alleged crime or result. State v. Dougherty, 4 Or. 200, 203."
It will be observed that Sections 9 and 10 of Article I place the mandatory obligation on the State in instituting a prosecution to do so by indictment or information in which it is its duty to inform the accused, who is presumed to be innocent, not merely of the accusation but of the nature and cause of the accusation.
The information in the instant case informed the accused of the accusation, and it may be stated that it also, in a general way, informed him of the nature of the accusation because it apprised him of the fact that he was charged with gambling, as defined by Article 90 of the Louisiana Criminal Code. Surely, it cannot be said that the information informed the defendant of the "cause of the accusation" or the "ground of the accusation" because it leaves the accused and the court absolutely and totally uninformed as to the cause of the accusation. There is nothing stated in the information which would identify it with any offense whatsoever. The allegation is strictly a conclusion of law only. The language of the information is so general it could be applied to any conduct that the district attorney might have had in the secret recesses of his mind and which conduct *Page 995 might not in any way be a violation of the law. When the Constitution, in the clearest and plainest language, makes it the mandatory duty of the State in instituting a prosecution against an accused by an information or an indictment to inform him of the cause of the accusation and the bill of information or bill of indictment fails to do so, it certainly does not set forth a legal charge against the defendant and he is entitled to have the information and indictment annulled on a motion to quash or a demurrer, or to have a conviction secured thereunder set aside by a motion in arrest of judgment. The State or Legislature or the District Attorney or district judge cannot substitute a different method or way of informing the accused of the cause of the accusation, because the Constitution makes it mandatory to inform him in a particular way. The authors of the Code of Criminal Procedure recognized this fact in providing that the accused would have the right to have an information and indictment which was fatally defective, annulled by a demurrer or a motion to quash or to have the conviction obtained thereunder set aside by a motion in arrest of judgment. These authors, in providing for a bill of particulars, did so only in instances where the indictment or information was legal and informed the accused of the nature and cause of the accusation against him, but the accused desired additional information to make the charge more certain, to better prepare his defense and to limit the State's evidence. In such cases, the framers of the Code of Criminal Procedure left it to the discretion of the trial judge as to *Page 996 whether or not he would grant the accused the additional information sought through a bill of particulars. If the trial judge refused to grant the defendant such relief, the only question on appeal before this Court would be whether or not the trial judge had acted capriciously or arbitrarily in exercising his discretion. Obviously, a bill of particulars is not a remedy in any way comparable to a demurrer, motion to quash, or motion in arrest of judgment, all of which give the accused the right to have the legal issues presented to the trial and appellate courts as a matter of right and not as a matter of sufferance at the hands of the district judge. An accused is presumed to be innocent. He is under no obligation or duty whatsoever to assist the State, by a bill of particulars, to make valid an invalid charge against him. This responsibility is placed directly and solely upon the State and the accused has the right to insist that the State make the charge in accordance with the Constitution and the laws of this State.
It is the overwhelming weight of authority throughout the United States that a bill of particulars does not form any part of nor amend the indictment but simply furnishes the defendant with additional information so as to better prepare his defense and limit the State's proof. State v. Bienvenu, 207 La. 859,22 So. 2d 196, and 27 Am.Jur. 672, Sec. 112.
The State contends that Article 90 of the Criminal Code is a special and not a general statute. It reads as follows:
"Gambling is the intentional conducting, or directly assisting in the conducting, as *Page 997 a business, of any game, contest, lottery, or contrivance whereby a person risks the loss of any thing 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."
It will be noted that the Article merely gives a general definition of what constitutes the crime of gambling. The State concedes that Article 90 of the Criminal Code superceded all laws against gambling previously in effect because Section 2 of Act 43 of 1942 generally referred to as the Louisiana Criminal Code repealed a number of specific statutes with reference to gambling. Consequently, it cannot be successfully urged that Article 90 is a special and not a general statute. A mere reading of the provisions of the Article shows that its definition of what is gambling is so general that the statute can be violated in multiple ways. Therefore, when the information was filed against the accused and he was referred to Article 90 of the Criminal Code, all he was informed upon was that the Legislature had passed a general statute prohibiting gambling. There was no cause of the accusation even referred to — that is, the ground or basis upon which the prosecution rested.
As the bill of particulars, under the overwhelming weight of authority, does not form any part of nor amend the information, obviously, under the express provisions of the Constitution above quoted, the State could not institute a prosecution *Page 998 upon a bill of particulars and secure a valid conviction thereunder.
The practical effect of the majority opinion is to give preferential effect to a misconstruction of a legislative act instead of the clear and unambiguous provisions of the Constitution which are paramount and should prevail. Since the State concedes that it should furnish the defendant with the cause of the accusation against him in a bill of particulars because he is entitled to that right under this Constitution, it becomes obvious that the State should have furnished that information in the bill of information as it is required to do by the above-quoted mandatory provisions of the Constitution. If the majority ruling in the instant case could be confined to its facts, probably little harm would result, but when it is contemplated that this ruling will be general and apply to all criminal prosecutions, it becomes apparent that the holding will have a farreaching and harmful effect in the orderly and just administration of our criminal law. These safeguards placed in our Constitution to protect innocent persons against arbitrary prosecutions are now being practically eliminated. Uninformed and unrepresented accused will be pleading guilty to bills of information and indictments without being informed as to the cause of the accusation against them and might well be pleading guilty to a charge when they are absolutely innocent, simply because the district attorney, even though in good faith but erroneously, believes that there has been in his opinion a violation of the law. The framers of the Bill of Rights of the *Page 999 United States and State Constitutions did not so lightly regard a person's freedom and liberty.
Under the majority ruling, every accused represented will ask for a bill of particulars and the State will be compelled to furnish the information which the Constitution in the clearest language stated should be given to him in the indictment or information and not by a bill of particulars. Since it was a simple matter for the State to furnish the information or the cause of the accusation against the accused contained in the bill of particulars, it was equally easy to have inserted the cause of the accusation in the information. Finally, it may be pointed out that the Constitution unquestionably and unmistakably grants an accused the right to be informed of the nature and cause of the accusation against him in the indictment or information and this language certainly does not contemplate a charge which is conjectural and so general as to be meaningless. The confusion created by this type of information which totally fails to inform the accused of the cause of the accusation against him certainly leaves him in a position where he is uninformed and has to guess what is contained in the secret recesses of the district attorney's or grand jurors' minds. Under the prevailing view the only other alternative the defendant has is to assist the State in making valid its invalid charge by asking for a bill of particulars, the granting of which is left to the trial judge's discretion.
Reliance is placed on the case of State v. Miller, 170 La. 51, 54, 127 So. 361, 362. *Page 1000 The case is not in point or controlling here, first, because it makes no reference to Section 9 of Article I of the Constitution, making it the mandatory duty of the State to institute the prosecution by indictment or information and not by a bill of particulars; second, the author of the opinion clearly states that both before and after the adoption of the Code of Criminal Procedure, it was not necessary, in charging larceny, to allege ownership in a particular person; and, third, without citing any authority to support the statement, it was stated that the indictment as amplified by the bill of particulars complied with the constitutional requirement that the accused shall be informed of the nature and cause of the accusation against him, when the overwhelming weight of authority is that a bill of particulars neither amends nor forms a part of a bill of indictment or information.
The point is made that since Article 90 of the Louisiana Criminal Code is sufficiently certain to meet the constitutional requirement of informing the public what conduct or acts would constitute a violation of its provisions that an information or an indictment drawn in the identical words of the statute would necessarily sufficiently inform the accused of the nature and cause of the accusation, thereby making the charge a valid one. This contention overlooks the fact that we are dealing with two different constitutional requirements; (1) That the legislative act must be sufficiently clear so as to inform the public what conduct or acts would constitute a violation of the statute. This, of *Page 1001 course, is a restriction on legislative power and is for the protection of the members of the public from being held responsible for acts which were considered lawful because the provisions of the statute did not clearly cover them. (2) The second one is entirely different because the hereinabove quoted provisions of the Constitution make it mandatory for the State to institute a prosecution by a bill of indictment or information in which the accused must be informed of the nature and cause of the accusation against him. Briefly, the ground upon which the accusation is founded. It is clear that the two requirements are different — the first one permits a general definition, which if sufficiently clear meets the constitutional test, but the latter requires something additional — specifically, the cause or ground of the accusation.
For these reasons and those assigned in the dissenting opinions which become the majority view on rehearing, in the case of State v. Varnado, La.Sup., 23 So. 2d 106, I respectfully dissent.