17 So. 2d 908 | La. | 1944
The tax assessor for the Parish of St. Landry was indicted by the grand jury for the crime of embezzlement of $9,739.71 of public funds during his tenure of office. *652 He filed a motion for a bill of particulars, asking (1st) for an itemized statement of the withdrawals composing the $9,739.71, showing the amount and date of each item alleged to have been embezzled; (2nd) the particulars showing whether he was charged with receiving directly the items making up the $9,739.71, or whether any of the items were paid to or inured to someone else; and (3rd) to be informed of the statute or of the section of the Revised Statutes which he was accused of violating.
The district attorney, answering the motion for a bill of particulars, cited sections 903 and 904 of the Revised Statutes, as the law under which the defendant was being prosecuted, and averred that the embezzlement was committed by means of a system, plan and device whereby the defendant, systematically and at regular intervals, withdrew from the assessor's salary fund by means of checks or warrants drawn against the fund for various sums amounting to the total sum of $9,739.71, represented by 53 checks or vouchers. The district attorney further averred that, in pursuance of the alleged plan, system and device, conceived by the defendant to embezzle the public funds entrusted to him, he falsely, wrongfully and feloniously charged these withdrawals to false and unsupported items of expense, which in truth and in fact were never legally incurred in the operation of his office as tax assessor. The district attorney annexed to his bill of particulars a list of the checks or vouchers for the various sums making up the $9,739.71 alleged to have been embezzled. The list shows the serial number and the date and amount of each check or voucher, *653 drawn by the parish treasurer and made payable to the defendant, Lennie Savoy. It is said in the judge's answer to the writ of certiorari that the list comprises 57 checks or vouchers, but it appears that the last 4 on the list were erased.
After the bill of particulars was filed the defendant filed a motion to quash the indictment on the ground — among other grounds — that the "lumping together" of the several separate and distinct acts — meaning withdrawals — was not permissible except in cases coming under the proviso in article
Thereafter the defendant filed in the district court a plea of prescription of one year, contending that the averment in the indictment which was intended to negative prescription was so worded that it had no effect. The indictment was filed on October *654 10, 1941, and the charge in the indictment was that the acts of embezzlement were committed between the 27th day of February 1937 and the 30th day of April 1941, both dates included. A prosecution for embezzlement is subject to the prescription of one year; hence the defendant contended that the prosecution was barred as to all of the withdrawals of the funds represented by checks or vouchers dated previous to October 10, 1940, which vouchers amounted to $8,166.88, — leaving a balance of only $1,572.86, of the total $9,739.71 stated in the indictment. The allegation which was intended, in the indictment, to negative prescription was expressed thus: "that although more than one year has elapsed since the commission of certain of the acts * * * yet more than one year has not elapsed since the commission of same were known to the judge, district attorney, grand jury, or other officer having jurisdiction thereof."
According to article
We doubt that the district attorney in this case had the right to appeal from the judgment which only partially maintained the plea of prescription, because the judgment did not put an end to the prosecution but merely reduced the grade of the crime charged in the indictment and thus reduced the penalty that might be imposed for the crime charged, so far only as the fine is concerned. But, whether the district attorney might have appealed from the judgment, or might have asked this court to exercise its supervisory jurisdiction, is a matter of no importance now, because the district attorney acquiesced in the ruling on the plea of prescription by offering to proceed with the prosecution for the embezzlement *656 of the remaining sum of $1,572.86 of public funds. In fact, on the suggestion of the judge, the district attorney amended the bill of indictment so as to charge that the defendant had embezzled $1,572.86 of public funds between the dates, October 30, 1940, and April 30, 1941, both dates included. The sum of $1,572.86 is represented by seven of the checks or vouchers described in the bill of particulars and dated subsequent to October 30, 1940, — the earliest in date being dated October 31, 1940, and the latest in date being dated April 30, 1941 — as shown on the list which had been attached to the bill of particulars. The suggestion which the judge made, and in response to which the district attorney amended the indictment, was stated thus: "that out of an abundance of caution it would be best for the district attorney to modify the original indictment with a statement in writing omitting the offenses of embezzlement that had been eliminated from the case by the decision of the court maintaining in part the plea of prescription".
After the district attorney had filed the amended indictment, and before the defendant was arraigned under the amended indictment, his attorney filed a motion to compel the district attorney "to elect on which charge he will [would] proceed". The purpose of the motion was to compel the district attorney to try the defendant separately for the embezzlement of each one of the seven items remaining on the list attached to the bill of particulars, and therefore to try him then for the embezzlement of only one of the seven items. The judge maintained the motion to compel the district attorney to elect, and thus forbade him *657
to try the defendant for embezzlement of more than one item at one time, of the items listed on the bill of particulars. The judge declared that he based his ruling upon article
The district attorney excepted to the ruling and gave notice in open court of his intention to apply to the supreme court for writs of certiorari, prohibition and mandamus.
Inasmuch as the district attorney acquiesced in the ruling of the judge maintaining in part the defendant's plea of prescription, the only question before the court now is whether the judge was right or wrong in his ruling on the defendant's motion to compel the district attorney to elect, and thus to compel him to try the defendant separately for the embezzlement of each one of the items — one at a time — as listed on the bill of particulars.
The ruling in this case is declared by the judge to be founded upon his interpretation of article
"The right to compel the district attorney to elect on which charge of an indictment he will proceed, whether the charge be contained in the same count or in separate counts, is confined to cases where the indictment contains charges which are entirely distinct and grow out of different transactions; and the motion to compel such election can be made only before the trial begins."
That article is not applicable to this prosecution because of the proviso in article
"And in view of the provisions of article
The theory on which the judge based his former ruling — which we reversed — was that the total sum of the misappropriations charged in the indictment constituted as many "distinct acts or offenses" as there were items on the list of withdrawals making up the aggregate amount alleged to have been embezzled during the defendant's tenure of office. It is on that theory — that there are as many separate and distinct crimes charged in the indictment in this case as there are items on the list of misappropriations — that the judge now orders the district attorney to elect to try the defendant for the embezzlement of only one of the items on the list. Since we have rejected the theory already, in the case of State v. Doucet,
The only appropriate decision cited by either side on the subject, in the reported Doucet case, was State v. Dudenhefer,
"We will say in passing that offenses may be charged cumulatively in one count. The rule that a defendant must not be charged with having committed two or more offenses in one count of the indictment does not apply to cumulative offenses denounced in the same statute."
The district judge, in his answer to the rule issued by this court, to show cause why his ruling that the "defendant is entitled to receive a separate trial for each of the seven offenses mentioned" should not be reversed, cites the following decisions to sustain the ruling: State v. Batson,
The judge's holding that the "defendant is entitled to receive a separate trial for each of the seven offenses mentioned" means that the judge insists — notwithstanding the proviso in article
Adverting now to the cases cited by the district judge to sustain his ruling in this case, we find that they were all cases in which the defendants were prosecuted for crimes of violence, — such as murder or manslaughter, or robbery, or cutting with intent to murder, — but not for the crime of embezzlement, to which alone the proviso in article
For example, in the earliest case cited by the judge, — State v. Batson, decided in 1902, — the defendant was charged in one count in the indictment with the murder of six members of a family; and he moved to quash the indictment on the ground that it charged six crimes in one count. The motion was overruled and Batson was tried and convicted and was sentenced to be hanged. On appeal, this court (before the adoption of the Code of Criminal Procedure) affirmed the ruling overruling the motion to quash the indictment because the murdering of the six persons was done in one continuous act. From the opinion rendered in that case (108 La. loc. cit. 482, 32 So. loc. cit. 479) the judge, in his answer to the rule which we granted in the present case, quotes the following expression — which is not appropriate to a case governed by the proviso in article
"If, however, the testimony shows that the killing of two [or more] persons was not done by one act, the defendant has the right to compel the state to elect upon which charge it will proceed." *664
In State v. Roberts, decided in 1930, the defendant was charged in two separate indictments with the murder of a woman and her son. He was tried first for the murder of the woman and was convicted, but without capital punishment. After he was sentenced to life imprisonment for murdering the woman, he was tried for murdering the son and was convicted and sentenced to suffer the penalty of death. When called for trial for the second murder he invoked, without avail in the trial court, article
In State v. Cormier et al., decided in 1931, the defendants were indicted in two separate indictments, charging, respectively, the *665
crime of cutting Gabriel Thibodeaux with a dangerous weapon with intent to murder, and the crime of killing Leonce Thibodeaux. The defendants were tried only under the indictment for cutting Gabriel Thibodeaux with a dangerous weapon with intent to murder, and were convicted of the less serious crime of cutting with a dangerous weapon with intent to kill, and were sentenced accordingly. After the conviction and sentence were affirmed by this court (
In State v. McGowan et al., decided in November 1932, the defendants were charged jointly in one bill of information, but in six separate counts, with six crimes of robbery, it being alleged in the indictment that the six crimes resulted from one continuous unlawful transaction; and it was held that, under article
In State v. Morrison et al., decided in 1935, the defendants were indicted in one count in an indictment for the murder of a mother and her child, and were convicted and sentenced to be hanged. On appeal the only question presented was in the complaint that the defendants were tried at one time for two crimes. They contended in a motion for a new trial that the evidence showed that the two killings did not result from a single act or from one continuous unlawful transaction, and hence that they should have been indicted — if indicted at all — for each homicide separately. This court concluded from the facts stated in the bill of exception, as amplified by the statement of the judge, that the murdering of the mother and child constituted one continuous felonious transaction and hence that the defendants were charged rightfully in only one indictment.
In State v. Cannon, decided in 1936, where the defendant shot and killed two women, it was held that the two killings constituted one continuous unlawful transaction, and hence that there should have been only one indictment.
The error made in this case is a simple one. It is in the attempt of the defendant to apply the general provisions of article
"When there has been misappropriation or taking by a number of distinct acts of the offender, the aggregate of the amount of the misappropriations or takings shall determine the grade of the offense."
The term the offense implies that the several misappropriations under the circumstances heretofore enumerated in article
Our conclusion is that as there is only one crime charged in the indictment in this case the defendant has no right to compel the district attorney to elect on which charge of the indictment he will proceed.
The ruling complained of by the district attorney, ordering him to elect on which charge of the indictment he will proceed, is annulled; the motion of the defendant to compel the district attorney so to elect *669 is overruled; and the case is ordered remanded to the district court for further proceedings.
HIGGINS, J., concurs in part and dissents in part for reasons assigned by him in case of State v. Doucet,
FOURNET, J., dissents, see dissenting opinion
PONDER, J., dissents.