185 So. 2d 19 | La. | 1966
Lead Opinion
On December- 9, 1964 defendant-appellant > Jessie Gurney was charged by hill of information with the theft of: “ * * * • clothing and household items valued at Two Thousand and no/100 ($2,000.00) Dollars, the property of Barbara Glover,- * * According to the bill of information the theft was committed on November 7, 1964.
After the accused waived a jury, the trial commenced on February 23, 1965.
At the close of the State’s case the State moved for leave to amend the information by changing the date of the alleged offense from “November 7, 1964” to “November 6, 1964;” and by adding the word “jewelry” and the words “and appliances” to the description of the articles allegedly stolen.
Over the objection of counsel for defendant these amendments were allowed, a request for additional time based on the prejudicial effect of these belated amendments was denied, and a bill of exceptions properly reserved.
Defendant was found guilty and sentenced “to be confined to the Louisiana State Penitentiary at hard labor for three years.”
Defendant’s main argument is that the amendment was improper under Article 364 of the Code of Criminal Procedure
urges us to apply the provisions of Article 253 of the Code of Criminal Procedure
The perplexing inconsistencies in these two articles,
In applying Article 364 to this case, it is our conclusion that the State’s effort to add “jewelry” to the indictment,, which previously only charged the defendant with* the theft of “clothing and household items,” does 'not come within the amendments which are • permissible to correct a variance with the proof during the course.of the trial.
Amendments permitted, by Article 364 primarily concern the description of things or the names of persons or places. But this is not a change in the description of the object alleged to have been stolen — it is the addition of an-entirely new object. And a change either by substitution or addition in the genus of the thing alleged to hp.ve been stolen is not .sanctioned, by this article. To allow the amendment was error which entitled the defendant to a new trial. State v. Dukes, 178 La. 443, 151 So. 765 (1933); State v. Sylistan, 169 La. 699, 125 So.2d
The State's attorney nevertheless `dbntends that, if this amendment was impropet, the accused did not move for a continuance and, unless she has filed a niotion for a continuance, the error in the amendment cannot serve as a basis for a new trial. However, this view overlooks the fact that Article 364 does not require a motion for a continuance; that is a requirement of Article 253 which is inapplicable to this case.
Moreover, we think that, even if the amendment were otherwise permissible, the prejudice contemplated by Article 364 occurred here, and the trial court shbuld have postponed the trial to give the defendant an opportunity to adjust to the ~hange which had been made in the information.
Changing the genus of the object of the theft during the course of the trial is not a mere matter of form. Such a change is a matter of substance which goes to the very essence of the crinie charged; and to compel the defendant to proceed forthwith with the trial, against her protest that she was surprised and not prepared to defend against the amended charge, invariably re-stilts in prejudice. State v. Williams, 173 La. 1, 136 So. 68 (1931).
But the State's attorney argues that, according to a finding of the trial judge, the element of surprise was not present here because the State's attorney made reference to "jewelry" in his opening statement, and jewelry was i~eferred to by the witnesses when they mentioned the objects which had been stolen.
Simply because of these references to jewelry the defendant was not required to present evidence to rebut that reference. Why should she rebut a reference to the theft of jewelry when she was not charged with nor did she plead to the theft of such objects? Such a reference was immaterial and irrelevant and could not• serve to sustain a charge of theft of clothing against which she was defending herself. She was compelled to defend against and rebut the allegation of theft of jewelry only after she was properly charged to that effect and the
The real and significant surprise, therefore, was not learning that she was suspected of the theft of jewelry, but, rather, consisted of being charged additionally with the theft of jewelry and having the date of the alleged theft changed in the midst of the trial. These changes undoubtedly made it necessary for the accused to realign her defense and alter the nature of the proof required in rebuttal. See State v. Leierer, 242 La. 961, 140 So.2d 375 (1962). Surely the evidence which she might have introduced to rebut the allegation that she stole clothing on one date would not serve as a defense to the amended allegation that jewelry was also stolen and the theft took place on another date. United States v. Monroe, 164 F.2d 471, 475 (2d Cir.1947), cert. denied, 333 U.S. 828, 68 S.Ct. 452, 92 L.Ed. 1113 (1947).
Although changing the date alone may not, under all circumstances, create the prejudice contemplated by Article 364 and be grounds for a new trial (See State v. Blankenship, 231 La. 993, 93 So.2d 533 (1947) and State v. Johnson, 228 La. 317, 82 So.2d 24 (1955)), the change of date in this instance, coupled with the change in the object of the theft, adds support to defendant's claim of prejudice.
Thus, when, by the State's action, defendant was ordered to proceed with the trial without the postponement contemplated by Article 364 to permit her to prepare for a change in the indictment, when the change could reasonably be expected to require either modifications in the nature of the proof or additional proof, there was a violation of standards of fairness which are implicit in our concept of due process.
The conviction and sentence are annulled, reversed and set aside. Th~ accused is granted a new trial.
. Article 364 — “Whenever, on or before the trial of any indictment, there shall appear to be any variance between the statement in the indictment and the evidence offered in proof thereof, in the name of any parish, city or place men
. Article 253 — “No indictment quashed, set aside or dismissed or motion to quash bo sustained or any motion for delay of sentence for the purpose of review bo granted, nor shall any conviction be set aside or reversed on account of any defect in form or substance of tbo indictment, unless the objection to such indictment, specifically stating the defect claimed, be made prior to the commencement of tlie trial or at such time thereafter as the court in its discretion permit. The court may at any time before, during or after the tidal amend the indictment in respect to any defect, imperfection or omission in form or substance or of any variance with the evidence. If any amendment bo made to the substance of the indictment or to cure a variance between the indictment and the proof, the accused shall on his motion be entitled to a discharge of the jury, if a jury has boon impaneled and to a reasonable continuance of the cause unless it shall clearly appear from the whole proceedings that ho has not been misled or prejudiced by tlic defect or variance in respect to which the amendment is made or that Ms rights will be fully protected by proceeding with the trial or by a postponement thereof to a later day with the same or another jury. In case a jury shall be
. Slovenko, The Accusation in Louisiana Criminal Law, .32" Tul.L.Rev. ,47; '81,:'. (1957)-; Bennett, Louisiana Criminal Procedure — A Critical Appraisal, 14, La.L. Rev. 11, 20 (1953). .
. It is to be noted from the record that defense counsel did not recall any reference to jewelry in the opening statement of the State's attorney. The trial judge, however, did recall the reference according to an observation made by him in a~n interchange with counsel which is in the record.
Dissenting Opinion
(dissentii~g).
The essence of the majority holding herein is that the accused was taken by surprise when the state amended the information so as to add thereto an allegation respecting the theft of jewelry, and that he did not have sufficient opportunity to defend against such amendment.
Initially, it should be noted that, according to the record, not only did the district attorney refer in his opening statement to the taking of jewelry but also he introduced much evidence of such fact (without any defense objection whatsoever) during the presentation of the state's case. Therefore, it is difficult to .understan~l how the
Be that as it may, any prejudice which might have resulted by the action of the state in amending the information at the conclusion of its case could have been overcome by the accused’s formally requesting a continuance. But at no time did he seek that relief in accordance with the provisions of LRS IS :321 (this requires the tendering of a written motion therefor).
Seemingly, the majority opinion maintains that the law does not support the proposition that this defendant should have asked for a continuance. I find neither statutory enactment nor any judicial pronouncements which compel a judge, under circumstances similar to those existing here, to order a postponement on his own motion. To the contrary are the observations found in State v. Hebert, 160 La. 316, 107 So. 123 and State v. Jones, 195 La. 611, 197 So. 249.
In the latter case, which involved a conviction for murder and a sentence of death, the defendant sought a continuance by formal written motion following the amending of the indictment, he alleging therein that his rights had been prejudiced by the amendment. ' The motion was overruled. On appeal we maintained the ruling of the trial court, holding that it was necessary for the accused to allege facts tending to show “prejudice and to establish them at a hearing on his written motion. That case, obviously, is much stronger than the one presently being considered in which no formal motion for a continuance was tendered at all.
I respectfully dissent.
Dissenting Opinion
(dissenting).
I respectfully dissent from the ruling herein as the record clearly indicates that appellant was not prejudiced by the amendment to the Bill of Information. Since the alleged theft resulted from one act the date was immaterial as prescription is not involved. Likewise, the proof that “jewelry” and “appliances” were taken at the same time the clothing and household articles were removed, warranted allowance of the amendment which was obviously an insubstantial change in the charge as the per curiam of the judge shows that the clothing and household items taken had a value far in excess of $100.
Nor do I think that a showing of surprise was made by defense counsel so as to entitle appellant to a continuance of the case. The judge points out in his per curiam that the district attorney, in his opening statement, referred to the theft of “jewelry” and “appliances”, as well as the articles described in the Bill of Information, and the evidence of the theft of these items was admitted without objection from appellant’s counsel. Under such conditions, it is error to conclude that a continuance should have been granted.