Abell, Edward C., Jr.

English

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Louisiana Law ReviewVolume 22 | Number 3April 1962Criminal Procedure - Right to Bill of ParticularsAfter ArraignmentEdward C. Abell Jr.This Note is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusionin Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact kreed25@lsu.edu.Repository CitationEdward C. Abell Jr., Criminal Procedure - Right to Bill of Particulars After Arraignment, 22 La. L. Rev. (1962)Available at: https://digitalcommons.law.lsu.edu/lalrev/vol22/iss3/12LOUISIANA LAW REVIEW [Vol. XXIIIn the writer's opinion the prospective effect of the instantcase should be limited strictly.'8 Since the majority relied uponan oral admission before it, a strict reading of the case does notauthorize the district judge to issue an order of seizure and saleupon evidence such as here presented to him; but the opinionindicates that where the order is issued it will be sustained ifthe mortgagor judicially admits the mortgagee's rights.Robert B. Butler IIICRIMINAL PROCEDURE- RIGHT TO BILL OF PARTICULARS AFTERARRAIGNMENTDefendant was indicted for theft under a short form indict-ment.' After the arraignment, at which his counsel was present,the defendant filed several motions, among them a motion for abill of particulars. The trial judge refused this motion for thesole reason that it came too late, having been filed after thearraignment and five days prior to the trial.2 The case pro-ceeded to trial and the defendant was convicted as charged. Onappeal to the Louisiana Supreme Court, held, reversed. Refusalto grant a motion for a bill of particulars by one indicted undera short form indictment was an abuse of discretion where theonly reason given for the refusal was that the motion was filedafter the arraignment and five days before trial. State v.Barnes, 242 La. 102, 134 So. 2d 890 (1961).on the question of authentic evidence to show ownership of a note for the pur-poses of executory process than was the Code of Practice. The comments indicatethe drafters' intention was that prior jurisprudence be followed where available.LA. CODE OF CIVIL PROCEDURE art. 2635 (1960) and comments thereunder.1. LA. R.S. 15:235 (1950) provides for the use of the short form indictmentsin the particular cases specified in the article.2. State v. Barnes, 242 La. 102, 134 So. 2d 890, 891 (1961). It appears fromthe district attorney's petition for rehearing that the motions of the defendant,including the motion for a bill of particulars, were filed for the purpose of delay-ing the trial again after one continuance had been granted. The petition forrehearing contains the following language: "Barnes was arraigned January 6,1961, entered a plea of not guilty and his case set for trial for February 9, 1961,and on February 9, 1961, was continued to February 20, 1961, and on Thursday,February 16, 1961, filed the Motion for Bill of Particulars; Motion for Continu-ance; A Demurrer; a Motion To Quash, knowing full well the case was set onMonday, February 20. The motions were taken up and overruled on Friday be-fore trial on Monday."The defendant, in his motion for a bill of particulars, requested the followinginformation: (1) whether the alleged theft was committed with the consent ofthe owner of the stolen property, or by means of fraudulent practices; (2) if itwas with the consent of the owner, the manner of the misappropriation; and (3)the name of the servant or employee of the'owner involved in the transaction.NOTESArticle 1, Section 10, of the Louisiana Constitution providesthat "In all criminal prosecutions, the accused shall be informedof the nature and cause of the accusation against him." When along form indictment is used, the indictment itself is usually suf-ficient to give the accused the necessary information to protecthis constitutional rights.3 However, when the provision for theuse of short form indictments was introduced into Louisianacriminal procedure by Article 235 of the 1928 Louisiana Code ofCriminal Procedure,4 the revisors were apparently aware thatthe short forms themselves might not be sufficient to inform theaccused of the nature and cause of the accusation against him.5For this reason, the original Article 235 contained a proviso tothe effect that the judge could order the district attorney to fur-nish particulars of the offense to the defendant if they were re-quested prior to the arraignment.6Though the bill of particulars is designed to give the accusedinformation necessary for his defense, it cannot be used to forcethe state to choose between alternate methods of charging thesame offense, 7 or to force the state to disclose its evidence. 8Under Article 2351 of the Louisiana Code of Criminal Proce-dure, the defendant has a right to file a motion for a bill of par-ticulars prior to the arraignment, and the trial judge has discre-tion to grant or refuse the motion. The Supreme Court hasstated many times that the ruling of the trial judge on a bill ofparticulars will be upheld unless there is a clear abuse of dis-3. LA. R.S. 15:227 (1950) : "The indictment must state every fact and cir-cumstance necessary to constitute the offense, but it need do no more, and it isimmaterial whether the language of the statute creating the offense, or wordsunequivocally conveying the meaning of the statute, be used."4. Id. 15:235.5. In State v. Brooks, 173 La. 9, 15, 136 So. 71, 73 (1931) the court notedthat the short form indictment for embezzlement provided in Article 235 of theCode of Criminal Procedure was "A.B. embezzled (describe property embezzledand state value of property)." The court said: "It is clear that this form ofindictment does not state either the ownership of the property embezzled nor thefiduciary relation of the party charged to the owner." Other short forms providedby Article 235 are, e.g.: Murder: "A.B. murdered C.D." Aggravated rape: "A.B.committed aggravated rape upon C.D." Manslaughter: "A.B. unlawfully killedC.D."6. The portion of Article 235 pertinent here reads as follows: "Providedfurther that the district attorney, if requested by the accused prior to arraign-ment, may be required by the judge to furnish a bill of particulars setting upmore specifically the nature of the offense charged."7. State v. Williams, 230 La. 1059, 89 So. 2d 898 (1956) ; State v. Poe, 214La. 606, 38 So. 2d 359 (1948).08. State v. Amiss, 230 La. 1003, 89 So. 2d 877 (1956) ; State v. Iseringhausen,204 La. 593, 16 So. 2d 65 (1943).9. LA. R.S. i5:235 (1950).19621LOUISIANA LAW REVIEW [Vol. XXIIcretion.10 Although there is no direct statutory authorizationfor granting a bill of particulars requested after the arraign-ment, the jurisprudence has established that a judge has discre-tion to do so." After the trial has started, the judge cannotentertain a motion for a bill of particulars.12The Louisiana Supreme Court has often stressed the impor-tance of the bill of particulars as a device for protecting the con-stitutional rights of the accused.1 8 The court has lent particularemphasis to its position on this matter in the case of short formindictments by reversing every case in which a defendant whohad requested a bill of particulars was forced to go to trial undera short form indictment without the requested particulars.' 4 Thestrongest case in this category prior to the instant case, however,involved a bill of particulars that was requested prior to the ar-10. State v. Copling, 135 So. 2d 271 (La. 1961) ; State v. Williams, 230 La.1059, 89 So. 2d 898 (1956) ; State v. Amiss, 230 La. 1003, 89 So. 2d 877 (1956) ;State v. Butler, 229 La. 788, 86 So. 2d 906 (1956) ; State v. Mills, 229 La. 758,86 So. 2d 895 (1956) ; State v. Poe, 214 La. 606, 38 So. 2d 359 (1948) ; State v.Chanet, 209 La. 410, 24 So. 2d 670 (1946) ; State v. Iseringhausen, 204 La. 593,16 So. 2d 65 (1943) ; State v. Ezell, 189 La. 151, 179 So. 64 (1938).11. Sthte v. Barnes, 242 La. 102, 134 So. 2d 890 (1961) ; State v. Brooks,173 La. 9, 136 So. 71 (1931).12. LA. R.S. 15:288 (1950): "Defects in indictments can be urged beforeverdict only by demurrer or a motion to quash, and the accused is not entitled toany bill of particulars as to the subject-matter charged in the indictment, but thetrial judge may, in his discretion, require the district attorney to file in the casesuch data as, in the opinion of the judge, may be sufficient."13. State v. Nichols, 216 La. 622, 44 So. 2d 318 (1950) ; State v. Chanet, 209La. 410, 24 So. 2d 670 (1946) ; State v. Ward, 208 La. 56, 22 So. 2d 740 (1945) ;State v. Pete, 206 La. 1078, 20 So. 2d 368 (1944) ; State v. Brooks, 173 La. 9,136 So. 71 (1931) ; State v. Miller, 170 La. 51, 127 So. 361 (1930).14. State v. Barnes, 242 La. 102, 134 So. 2d 890 (1961); State v. Holmes,223 La. 397, 65 So. 2d 890 (1953); State v. Brooks, 173 La. 9, 136 So. 71(1931). It appears that the defendant must make a request for information be-fore the court will consider the matter of whether he has been sufficiently in-formed. In State v. Coleman, 236 La. 629, 634, 108 So. 2d 534, 536 (1959), thedefendant was convicted of negligent homicide under a short form indictment. Thedefendant did not move for a bill of particulars, but moved to quash the indict-ment on the ground that it did not sufficiently inform him of the nature and causeof the accusation against him. The court upheld the indictment and said: "Ifappellant desired additional information as to the details of the charge for prep-aration of his defense, he was entitled as a matter of right to be furnished witha bill of particulars." In State v. Brooks, supra, the defendant moved to quashthe indictment on the day of the trial, or to have it amended so as to show afiduciary relationship between him and the owner of the property he allegedlyembezzled. The trial judge refused the motion because he felt that it came toolate and was filed for purposes of delay. The Supreme Court reversed this ruling,and apparently assumed that the defendant could have moved for a bill of partic-ulars here, as it said: "[D]efendant was unquestionably entitled to the amend-ments sought, as a bill of particulars, if nothing more, since this information wasnecessary to enable defendant to defend himself intelligently."Though the defendant here did not move for a bill of particulars as such, thelanguage of the court concerning the bill of particulars is too strong to be dis-counted as dictum.NOTESraignment,15 and it appears well-settled in such cases that thedefendant has a right to the particulars necessary to inform himof the nature and cause of the accusation against him. 16The instant case seems to be the first case in which the issueof the trial court's discretion to refuse a bill of particulars re-quested after arraignment was squarely posed. The court foundstatutory authorization for ordering a bill of particulars request-ed after the arraignment by relying on Article 265,17 which al-lows the trial court to consent at any time to withdrawal of aplea of not guilty in order to set up some other plea, demur, ormove to quash the indictment. The court reasoned that Article26518 could be construed to allow the trial judge discretion toorder a bill of particulars requested after arraignment.19 Anexamination of Article 26520 casts some doubt on the validity ofthis construction because the article specifies only a change ofplea, a demurrer, and a motion to quash, and it is apparently notconcerned with the bill of particulars. However, the courtseemed to feel that protection of the defendant's constitutionalrights required that his request for a bill of particulars afterarraignment should be granted, and that Article 26521 providedthe only appropriate statutory vehicle.In evaluating the trial judge's exercise of his discretion togrant a motion for a bill of particulars requested after arraign-ment, the court concluded that refusal merely because the re-quest came "too late" was arbitrary, even though the defendanthad received a continuance, and was apparently seeking furtherto postpone the date of the trial.22 The court noted that although15. State v. Holmes, 223 La. 397, 65 So. 2d 890 (1953).16. State v. Coleman, 236 La. 629, 108 So. 2d 534 (1959); State v. Picou,236 La. 421, 107 So. 2d 691 (1958) ; State v. Holmes, 223 La. 397, 65 So. 2d 890(1953) ; State v. Leming, 217 La. 257, 46 So. 2d 262 (1950) ; State v. Masino,214 La. 744, 38 So. 2d 622 (1949) ; State v. Bessar, 213 La. 299, 34 So. 2d 785(1948).17. LA. R.S. 15:265 (1950).18. Ibid.19. State v. Barnes, 242 La. 102, 134 So. 2d 890, 893 (1961). The court said:"The provisions of L.R.S. 15:235 must be read in connection with L.R.S. 15:265which specifically declares that 'the defendant may at any time, with the consentof the court, withdraw his plea of not guilty and then set up some other plea ordemur . . . , ' and while the accused is not entitled to a bill of particulars as amatter of right under these articles, his rights thereunder must be consonant withthe rights guaranteed to him under the Constitution that 'in all criminal prosecu-tions, the accused shall be informed of the nature and cause of the accusationagainst him.'"20. LA. R.S. 15:265 (1950).21. Ibid.22. The fact of the continuance having been previously granted does not appearfrom the opinion of the Supreme Court, and it apparently was not included in the1062]LOUISIANA LAW REVIEWa defendant has no absolute right to a bill of particulars, he doeshave a right to be informed of the nature and cause of the ac-cusation against him.It is possible to construe the instant case to mean that theSupreme Court Will reverse any case in which the defendant is,forced to go to trial under a short form indictment without thebenefit of a bill of particulars if requested by the defendant.28However, the court did not commit itself to this extreme posi-tion.24' Obviously, the court was faced with a difficult problem- to secure to the defendant his constitutional rights withoutpermitting him to assert them solely for dilatory purposes.Perhaps a proposal of the Louisiana State Law Institute inits tentative Code of Criminal Procedure revision project mayprovide a solution to this problem. Article 24 of Title XIII, In-dictment and Information, 25 provides in part:"A motion for a bill of particulars may be filed of rightbefore trial or within ten days after arraignment, whicheveris earlier. After expiration of the ten day period, the courtmay permit the filing of such a motion until the commence-ment of trial."This article gives the defendant a right to request a bill ofparticulars for a reasonable time after the arraignment. It alsoprovides that the judge shall have discretion to grant a requestfor a bill of particulars until the commencement of the trial, thuscodifying part of the rule of the instant case. By providing areasonable time during which the defendant has a right to re-quest a bill of particulars, it may be that the court will be moredisposed to honor the ruling of a trial judge who refuses a mo-tion filed after the ten-day period has elapsed, especially if itappears that the motion is being used as a dilatory tactic. How:opinion of the trial judge. However, in its application for rehearing, the statecontended that the defendant had used delaying tactics in the trial court. Seenote 2 supra.23. See the language of the court quoted in note 19 supra.24. The court restricted its holding to the instant case by saying: "Clearly,under the facts of this case, the judge should have instructed counsel for the Stateto give the defendant the information showing every fact and circumstance neces-sary to constitute the offense with which he was charged in order that he mightproperly and intelligently prepare his defense, and, in our opinion, by refusingdefendant's motion the trial judge committed reversible error." (Emphasis added.)State v. Barnes, 242 La. 102, 134 So. 2d 890, 893 (1961).Though this is emphatic language, it is possible that the court felt that the dis-trict attorney could have furnished the requested particulars before the trial, andcould. have thus protected the defendant without 'causing further delay.25. Expose des Motifs No. 12 (March 16, 1962).[Vol. XXII,NOTESever, a trial judge should not deny a motion for a bill of partic-ulars unless he has strong reasons for doing so and articulatesthem clearly.Edward C. Abell, Jr.DONATIONS - REVOCATION FOR NON-FULFILLMENT OFCONDITIONBy a single authentic act, one Manson sold certain propertyto the City of New Orleans and purportedly donated two addi-tional lots "to be used for public school purposes."' The cityoperated a school on the two lots for over twenty years, afterwhich the building at times remained vacant and at times wasrented, the rental proceeds being applied to the general operatingexpenses of the School Board.2 The building was demolished anumber of years prior to institution of the present suit. Uponlearning that the School Board had advertised the lots for sale,defendants, who had been placed in possession of Manson's suc-cession, demanded revocation on the ground of non-fulfillmentof the donation's condition. The School Board then filed suit tohave its title declared merchantable, and defendants reconvenedfor revocation of the donation. The court of appeal held that theSchool Board had no right to sell or rent the lots; failure to conktinue operation of a school, however, had not resulted in for-feiture of the lots, which the Board could still use for any "schoolpurpose."3 On certiorari to the Supreme Court of Louisiana,held, reversed. 4 The transfer of the two lots was an onerous do-'l.- The pertinent part reads: "And the said James J. Manson did further de-clare that, in consideration of the purchase by the City of New Orleans of theabove described property for the price and sum mentioned therein, he does, bythese presents, cede, donate, abandon, set over and deliver, without any cost what-soever to the City of New Orleans, to be used for public school purposes, thefollowing . . . property, to-wit . . . " Orleans Parish School Board v. Manson,132 So.2d 885, 887 (La. 1961)." 2. The School Board acquired title to the property from the city in 1955 byvirtue of the provisions of LA. CONST. art. IV, § 12, as amended.* 3. Orleans Parish School Board v. Manson, 126 So. 2d 82 (La. App. 4th Cir.:1960). The court said: "Whether it must actually conduct classes, or may useitas a school playground, athletic field, library or school warehouse, is not beforeusin this proceeding. All we are called upon to decide here is whether the School:Board can part with title and use the proceeds generally for the public schools."Id: at 89.-4. Justice Hamlin dissented, primarily on the ground that the transfer of thelots sold and that of those purportedly donated "are so enmeshed that the entireat is one! of sale." Orleans Parish School Board v. Manson, 132 So. 2d 885,' 890(La. 1961). He was of the further opinion that the donor did not intend the1962]

Criminal Procedure - Right to Bill of Particulars After Arraignment

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Criminal Procedure - Right to Bill of Particulars After Arraignment

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