197 So. 420 | La. | 1940
This case and the case No. 35821,
"Sec. 856. If any person having knowledge of the commission of any crime punishable with death, or imprisonment at hard labor, shall conceal and not disclose it to some committing magistrate or district attorney, on conviction he shall be fined not exceeding three hundred dollars, and imprisoned at hard labor or otherwise *760 not exceeding twelve months, at the discretion of the court."
In the first count in the bill of information the defendant was accused of having knowledge of and concealing and not disclosing the commission of a felony in Grant Parish, in which this defendant is being prosecuted. In the second and third count he was accused of having knowledge of and concealing and not disclosing the commission of a felony in Caddo Parish.
The defendant in this case filed a motion to quash the bill of information on the ground that it was not alleged that the commission of the felonies referred to was not known by any committing magistrate or by the district attorney, or by any officer having authority to institute a prosecution. And the defendant moved to quash the second and third count in the bill of information on the further ground that the venue for this prosecution was in Caddo Parish, where the felonies which were alleged to have been concealed were alleged to have been committed. The judge overruled the motion to quash the first count and quashed the two other counts. The State is appealing from the ruling quashing the two counts. The question whether the judge was right or wrong in refusing to quash the first count in the bill of information is not before us now, because the defendant has not yet been tried.
The ruling complained of by the district attorney is supported by the decision rendered in State v. Graham,
"Referring now to the bill of information in which the defendant is accused of misprision of felony, our opinion is that Section 856 of the Revised Statutes, which defines and denounces misprision of felony, — and on which this bill of information is founded, — has reference only to a concealment and failure to disclose the commission of a felony that was committed in Louisiana. The question whether a prosecution for misprision of felony may be instituted in a State other than the State in which the felony itself was committed *762
never has been decided by this court, or by any other State court, as far as our research shows. The reason for the scarcity of judicial decisions on the subject of misprision of felony is that prosecutions for the offense have become almost obsolete. In Wharton's Criminal Law, 12th Edition, Vol. 1, p. 376, Sec. 289, it is said: `Misprision, as a substantive offense, however, is practically obsolete.' The reason for that is that, in the modern acceptation of the term, misprision of felony is almost if not identically the same offense as that of an accessory after the fact. The federal statute on the subject is Section 146 of the Criminal Code, 18 U.S.C.A. § 251, which was originally enacted April 30, 1790 (1 Stat. 113, § 6), R.S.U.S. § 5390, and is very similar to Section 856 of the Revised Statutes of Louisiana. In the case of Bratton v. United States,
"`As far as the failure to disclose to federal authority is concerned, the venue is the place where the report should have *763
been made. Rumely v. McCarthy,
The district attorney in his brief quotes from the opinion in United States v. Angeline Lombardo,
"It may be that where there is a general duty it may be considered as insistent both where the `actor' is and the `subject' is, to borrow the government's apt designations, as in the case of the duty of a father to support his children; and if the duty have criminal sanction, it may be enforced in either place. The principle is not applicable where there is a place explicitly designated by law, as in § 6." [This reference to § 6 means section 6 of the "white slave traffic act", 36 Stat. at L. 826, chap. 395, 18 U.S.C.A. § 402, requiring the filing of certain statements with the Commissioner General of Immigration, whose office is by law established at Washington, D.C.]
Apropos the illustration, "as in the case of the duty of a father to support his children", the venue for a prosecution for a violation of Act No. 34 of 1902 by neglect of a husband to support his wife, or by neglect of a father to support his child, is at the *764
domicile of the husband or father, as the case may be, even though the wife or child may be elsewhere, the reason for the rule being that it is at the domicile of the husband or father that he owes the duty of supporting his wife and child. State v. Baurens,
The venue for the prosecution for any crime that consists of a failure to perform a duty imposed by law is in the place where the duty should be performed, unless there is a statute fixing the venue elsewhere. In a case of embezzlement of property received in trust in the parish in which it is to be returned, but disposed of in another parish, the venue is in the parish in which the property was to be returned. State v. Reonnals, 14 La.Ann. 278; State v. Sullivan, 49 La.Ann. 197, 21 So. 688, 62 Am.St. 644.
And so, in a case of misprision of felony, the place where the person having knowledge of the commission of the felony is obliged to "disclose it to some committing magistrate or district attorney" is in the parish where the felony was committed, because in that parish only may the felon be prosecuted.
The judgment appealed from is affirmed. *765