State v. JonesState v. Jones
The Statе charged Charles E. Jones with the theft of thirteen hogs valued at $150.00, in violation of
He appeals his conviction and sentence, relying upon two assignments of error.
ASSIGNMENT OF ERROR NO. 1
In Assignment of Error No. 1, defendant complains that the sentence imposed, six years at hard labor, is not responsive to the crime charged. He submits that the trial court erred in holding that he was charged with the offense of theft of hogs, when in actuality he was charged by a valid bill of information with the offense of theft. He asserts, therefore, that because he was charged with theft of property valued at approximately $150.00, the six year sentence imposed by the court is in excess of the maximum sentence in
The bill of information charged that defendant:
“committed the offense of theft in that On or about the 24th day of August, 1976, while in LaSalle Parish, Louisiana, he did commit the theft of approximately 13 hogs belonging to Joe V. Corley, and being valued at approximately $150.00 in violation of
LRS 14:67.1 ;” (Emphasis added.)
LSA-R.S. 14:67.1 provides:“Theft of cattle, horses, mules, sheep, hogs, or goats is the misappropriation or taking of one or more of such cattle, horses, mules, sheep, hogs, or goats belonging to another, either without thе consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices or representаtions. An intent to deprive the other permanently of the cattle, horses, mules, sheep, hogs, or goats is essential.
“It shall not be necessary to prove defendant killed an animal; the mere taking of meat from an animal shall constitute theft hereunder. In cases of slaughtering of an animal, removal from оwner‘s property is not essential for conviction of theft hereunder.
“Whoever commits the crime of theft of cattle, horses, mules, sheep, hogs, or goats shall be imprisoned at hard labor for not less than one nor more than ten years. At least one year of the sentence imposed shall be without benefit of probation, parole, or suspension of sеntence.” (Emphasis added.)
Under the provisions of
Louisiana Code of Criminal Procedure Article 465 sets forth the shоrt form indictment for theft of hogs as “A.B. committed the theft of____(describe animal or animals stolen).” Because the sentencing structure of
The precise question presented is whether the initial use of the term “theft,” rather than “theft of hogs” in the bill of infоrmation coupled with the allegation of value makes the charge one for theft under
Louisiana Code of Criminal Procedure Article 486 provides:
“An indictment that charges an offense in accordance with the provisions of this Title shall not be invalid or insufficient because it contains repugnant allegations. Unnecessary allegаtions may be disregarded as surplusage.”
The defense pleadings demonstrate that the defendant was not misled by the phrasing of the charge and that he fully understood that he was charged with the theft of hogs in violation of
In pressing his argument that the offense charged here is Article 67 theft, rather than theft of hogs, defendant relies strongly on our decision in State v. Orr, 253 La. 752, 219 So.2d 775 (1969). There the charge recited: “a theft of property, to-wit, a bull calf, of a value of ($18.00) Eighteen and no/100 Dollars, contrary tо and in violation of
We conclude that the crime charged here is theft of hogs in violation of
Assignment of Error No. 1 is without merit.
ASSIGNMENT OF ERROR NO. 2
In Assignment of Error No. 2, defendant complains that thе trial court erred in denying his motion to quash. In support of his allegation he urges that the statute under which he is charged is unconstitutional in that it violatеs the due process clause and the equal protection clause of the
On October 26, 1976, prior to the beginning of defendant‘s trial, defеnse counsel made an oral motion to withdraw his motion to quash the bill of information, wherein he attacked the constitutionality of
In oral argument, defense counsel urged that the unconstitutionality of a statute on which a conviction is based is an error discoverable by mere inspection of the рleadings and proceedings and without inspection of the evidence, which this Court is entitled to review. In State v. Stewart, La., 325 So.2d 828 (1976), we held that this Court could properly review the constitutionality of a statute though the defendant had not complied with the assignment of error procedure, including the making of a timеly objection.
In the instant case, however, defendant did more than fail to object and preserve his right to a judicial review of the alleged unconstitutionality of the statute. He specifically raised the issue in his motion to quаsh the bill of information. Quite intentionally,
Moreover, in State v. Williams, supra, we held that a contention that the sentence inflicts cruel and unusual punishment because of its severity in the circumstаnces of the particular case, if reviewable on appeal, does not present an error that is discoverable by mere inspection of the pleadings and proceedings and without inspection of the evidence.
The contentions of unconstitutionality in Assignmеnt of Error No. 2 are not properly before us for review.
For the reasons assigned, the conviction and sentence are affirmed.