95 So. 803 | La. | 1923
Defendant' was convicted and sentenced for possessing intoxicating liquors for beverage purposes, and brings this appeal, relying upon five bills of exception.
Bill Nq. 1.
Bill No. 1 presents for review the action of the lower court in overruling in part a motion for a bill of particulars. The information requested was as follows:
“(a) What was the liquor alleged to have been possessed?
“(b) What date was it alleged to have been possessed?
“•(c) Where was it that it was alleged to have been possessed?
“(d) Was it day or night?
“(e) At about what hour was it alleged to have been possessed?”
The motion was sustained to the extent of requiring the state to show the kind of liquor possessed, or as to paragraph (a), and otherwise overruled. The district attorney answered that the state expected to show it 'was corn whisky.
We think the accused was entitled to know (c) the place where he was charged to have possessed the liquor. It is true, as stated by the lower judge, that possession isl a continuing fact', but one may possess such liquors at any number of places in the course of a day, such possession may be actual or constructive, and he should be reasonably informed of the place and circumstances upon which the state will rely, in orijer that he may be prepared to meet or rebut the proof submitted by the' state. See State v. Rollins, ante, p. 10, 95 South. 264, No. 25,633.
With reference to the time — (b), (d), and (e) — we think that was sufficiently alleged, for the trial court, we assume, would and did confine the state, in so far as the offense was concerned, to the day charged, although it might be shown, as corroborating evidence to support the conviction as of that date, that the same liquor was possessed within a reasonable time before the date charged. But we do not think the state was required to allege in detail whether it was day, night, or the particular hour.
Bill No. 2.
This bill was reserved to the overruling of a motion -to quash upon the ground that the bill of indictment, as amended by the particulars furnished under the ruling of the trial court, did not charge an offense known to the laws of the state. The grounds alleged and argument made are the same as those embraced, and passed upon in detail in the case of State v. Yokum, 97 South. —,
Bills Nos. 3 and 4.
These two bills were taken to the overruling of a motion for a continuance, and, since the matter therein presented will probably not recur upon the new trial which we have concluded should be ordered herein, we find iCunnecessary to pass thereon.
Bill No. 5.
The remaining bill presents the same matter raised by the motion to quash, and, for the reasons given in connection with our ruling on the latter, we think is without merit.
For the reasons assigned, the judgment appealed from is annulled and set aside, and this cause is remanded to the lower court, with instructions to allow the motion for a bill of 'particulars to the extent of requiring the state to show where the liquor was possessed, whether in the home, place of business, on the person, or elsewhere, and for further proceedings not inconsistent with law and the views herein expressed.
154 La. —.
