State v. Kavanaugh

13 So. 2d 366, 203 La. 1, 1943 La. LEXIS 952

• Court: Supreme Court of Louisiana
• Decided: March 8, 1943
• Docket: No. 36836.
• Status: Published

Opinions

HIGGINS, Justice.

The accused was charged in an indictment by the Grand Jury of Lincoln Parish, Louisiana, on April 2, 1936, with having swindled and defrauded, on February 7, 1935, a widowed and inexperienced old lady (now deceased), who was living in a rural section of the parish, out of certain shares of stock valued at $13,000, which had been acquired by her through inheritance.

The defendant, on May 4, 1936, filed an exception on the ground that the venue of the crime was not within the territorial jurisdiction of the court. He also pleaded prescription, and filed a motion to quash, based upon the ground that the court did not have the right to try the case. On May 8, 1936, the court overruled these pleas. The defendant then applied to this court for writs of certiorari, prohibition and mandamus, which were refused on June 5, 1936. State v. Kavanaugh, No. 33,955 of the docket of this court.

Due to the illness of the defendant, the death of the former district attorney, and other circumstances, the trial of the case was delayed until the present district attorney, who was elected on February 1, 1939, filed a motion, on March 30, 1939, to have the case set for hearing on June 13, 1939. The case was subsequently continued from time to time but was tried on the merits before the judge, without a jury, on January 24, 1942, the defendant, with advice of counsel, having waived trial by jury. The matter was finally argued before the judge on February 27, 1942, and the defendant, was found guilty, as charged. The defendant was called for sentence on March 14, 1942, at which time his counsel filed a motion for a new trial, alleging that the minutes of the court did not show that the accused was present in open court when his counsel waived trial by jury, at the time he was arraigned, and therefore, the defendant should have been tried by a jury, as he had not personally consented to having the case tried by the judge. The present district attorney who prosecuted the case acquiesced in the motion for a new trial and the judge granted it. The district attorney then moved that the accused be arraigned. Upon his arraignment on March 14, 1942, the defendant pleaded not guilty. The court thereupon inquired if the accused desired to be tried before a jury or by the court. Defendant’s counsel requested a recess, in order to discuss the matter with his client and later, in open court, informed the judge that the defendant desired to be tried by the court, waiving trial by jury. The district attorney then asked the defendant if he so elected, whereupon, the accused, in proper person, reiterated the statement of his attorney that he waived trial by jury. The case was fixed for trial on March 27, 1942, and on March 24, 1942, the defendant filed a motion to quash the indictment on the ground that it did not set forth any offense under the law. The trial was set for April 28, 1942, at which time the defendant filed motions to recuse the judge, and to be' permitted to withdraw his waiver of trial by jury. The judge recused himself and appointed a special judge to try the case, and referred the motion of the defendant, to withdraw his election to be tried before the court, to the special judge, who, after hearing, refused it. The defendant then ‘filed a motion to have the court order the district attorney to nolle prosequi the charge and dismiss the case, and in the alternative, prayed that the district attorney be recused. The district attorney acquiesced in the motion of recusation and the trial judge sustained it, and appointed a special district attorney, but overruled the motion demanding that the district attorney nolle prosequi the case. The matter was then tried before the special judge with the special district attorney prosecuting, on June 24, 1942, and the defendant was found guilty as charged. He filed motions for a new trial and in arrest of judgment, both of which were overruled. On June 30, 1942, the accused was sentenced to a period of not less than one year nor more than three years in the State Penitentiary.

The defendant has appealed and relies upon seventeen bills of exception for a reversal of the judgment of conviction and sentence.

Bills of exceptions 1, 2, 3 and 4 were taken when the defendant’s pleas to the jurisdiction of the court for lack of venue and of prescription were overruled.

The indictment alleges that the shares of stock in question were obtained from the old lady in Lincoln Parish, and the evidence shows that part of it was received from her at her home in a rural section of the parish and the balance thereof at the Bank of Ruston, Lincoln Parish. The jurisprudence is clear that the venue of the alleged crime in a case like the present one is at the place where the money or property was obtained. State v. Matheny, 194 La. 198, 193 So. 587; State v. Simone, 149 La. 287, 88 So. 823; and State v. Roy, 155 La. 238, 99 So. 205. Therefore, the Third Judicial District Court,’ Lincoln Parish, Louisiana, had jurisdiction of the case.

The indictment contains a statement that the crime or offense was not made known to any judge, district attorney, or grand jury until during March, 1936. The accused was indicted on April 2, 1936. It was shown that in 1934 the old lady, Mrs. Viva Hancock, inherited from her brother, Scott Hamilton, certain stock and bonds in excess of $20,000. Thereafter, the defendant made repeated visits to her home and prevailed upon her to sign a contract authorizing an exchange, dated February 7, 1935, whereby he obtained certain shares of stock from her, upon the representation that he was the owner and holder, or would become such owner and holder, within fifteen days from the date thereof, of 120 shares of Louisiana Power & Light Company preferred stock. He was granted thirty days' within which to either deliver to her the Louisiana Power & Light Company stock, or return to her the shares of stock of the American Gas & Power Company, which she delivered to him. On March 5, 1935, he wrote her a letter from Shreveport, stating that “ * * * everything is coming along fine * * *. Have the majority of your stock now, and think that by the latter part of next week will have the balance. Have been a little slow in getting it but some times it is just a little hard to get a big block at one time. Will be over to see you the latter part of next week or the first part of the following week.” On November 11, 1935, he wrote her again, stating: “I know that you have’ been anxious to hear something from me regarding your bonds * * * I give you my word of honor that your bonds will be returned to you as per contract * * *. I am very sorry for the delay and worry to which you have been put, and feel sure that within.a very short time the bonds will be in your hands. Thanking you for your consideration, and again assuring you that your faith in- me has not been’misplaced ■* * • *_» (Italics ours.) As a result of his repeated assurances that he would deliver to her the Louisiana Power & Light Company stock, or return her own stock,, she did not file charges against him until March, 1936. It was shown that this was the first time the matter had been brought to the attention of a judge, a district attorney, or a grand jury. The plea of prescription was, therefore, properly overruled.

Bill No. 5 was reserved when the motion to quash the indictment was overruled by the trial judge. The motion is predicated on the theory that the indictment was not properly drawn and did not charge a crime under the laws of this State and that it shows merely civil liability. The indictment reads, as follows:

“State of Louisiana

Parish of Lincoln, Third Judicial District Court:

“The Grand Jurors, of the State of Louisiana, good and lawful men of the parish of Lincoln, duly empaneled, sworn and charged to enquire for the body of said Parish, acting in the name and by the authority of the State of Louisiana, on their oath do present: A. J. Kavanaugh in the Third Judicial District of the State of Louisiana, on the 7th day of the month of February, in the year of Our, Lord, 1935, in the Parish, District and State aforesaid, did wilfully, feloniously and maliciously and unlawftdly, while doing business under the trade name of -United Securities Company, obtain from Mrs. Viva E. Hancock, 7 M (7,000) shares of American Gas & Power Company 5% stock, maturity of 1953, and-6"'M (6;000) shares of American Gas & Power Company 6% stock, maturity of 1939, of a total value of Thirteen Thousand ($13,000) Dollars, with the felonious intent to defraud the said Mrs. Viva E. Hancock, by means and use of the confidence game; that is, the said A. J. Kavanaugh obtained said stock from said Mrs. Hancock by promising that he would, within thirty days, exchange said stock for one hundred and twenty shares of 6% preferred stock of the Louisiana Power & Light Company, or deliver back to said Mrs. Hancock the aforesaid shares of American Gas & Power Company stock; and that the said Mrs. Hancock, believing the representations so made by said A. J. Kavanaugh, and relying upon them, endorsed and delivered said American Gas & Power Company stock to said A. J. Kavanaugh, but that the said A. J. Kavanaugh, doing business as aforesaid, has failed and refused to deliver to said Mrs. Hancock the Louisiana Power & Light Company stock, as above stated, within the time limit provided, notwithstanding demand that he do so, and has likewise failed and refused to deliver back to said Mrs. Hancock, shares of American Gas & Power Company obtained from said Mrs. Hancock, or its .equivalent, notzvithstanding amicable demand that he do so, and has failed and refused to deliver back to said Mrs. Hancock the said American Gas & Power Company stock, or its equivalent, or said number of shares of Louisiana Power & Light Company stock, as aforesaid, notwithstanding demand that he do so, but instead has converted said American Gas & Pozver Company stock to the use and benefit of the said A. J. Kavanaugh, all of which was done or occasioned by the said'fraudulent scheme of the said A. J. Kavanaugh to deprive said Mrs. Hancock of her said stock.

“And your Grand Jurors, as aforesaid, give the court to further understand that the said crime and offense was not made known to any judge, district 'attorney or grand jury having jurisdiction until the month of March, 1936, contrary to the form of the Statutes of the'State of Louisiana, in such cases made and provided, in contempt of the authority of the State of Louisiana and against the peace and dignity of the same.” (Italics ours.)

Sections 1 and 2 of Act No. 43 of 1912, generally referred to as the Confidence Game Statute, under which the defendant was charged, provides:

“Section 1. Be it enacted by the General Assembly of the State of Louisiana,

"That every person who shall obtain or attempt to obtain from any other person, or persons any money or property, by means or by use of any false or bogus checks, or by any other means, instrument or device, commonly called the confidence game, shall be imprisoned with or without hard labor for not less than three months nor more than five years. [Italics ours.]

“Section 2. Be it further enacted, etc.,

“That in every affidavit, information or indictment under the preceding section it shall be deemed and held a sufficient description of the offense to charge that the accused did, on etc., unlawfully and feloniously obtain, or attempt to obtain, (as the case may be,) from A. B. (here insert the name of the person ór persons defrauded or attempted to be defrauded and the mariner in which he was defrauded, or the attempt to defraud was made,) his money (or property, in case it be not money,) by means and use of the confidence game.” (Italics ours.)

In the case of State v. Courreges, 201 La. 62, 9 So.2d 453, the defendant was convicted under the above statute, the information charging that he had fraudulently issued four checks aggregating $547 on a bank account in which he had only $2.20. The defendant’s attorney argued that his client might be guilty of violating Act No. 209 of 1914, which makes it an offense to issue checks against a bank account with insufficient funds to cover them, but that he had not violated Act No. 43 of 1912, because the holder of the checks in question merely trusted him and on several occasions had agreed to hold similar checks when its representatives knew that there were insufficient funds on deposit in the bank to pay them. In analyzing the above-quoted provisions of the Act, the court, on page 455 of 9 So.2d, stated:

“The essence of the offense is the swindling and defrauding of the victim after gaining his confidence. A confidence game is defined in State v. Theriot, 139 La. 741, 72 So. 191, 192, L.R.A.1916F, 683, as ‘any swindling operation, in which advantage is taken of the confidence reposed by the victim in the swindler.’ The means that may be used are different and varied. No more certain definition could be given than that method of swindling called the ‘Confidence Game.’ State Echeverría, 163 La. [13] 14, 111 So. 474. v.

“ ‘The “confidence game” defined by Cr. Code, div. 1, § 98, Smith-Hurd Stats, c. 38, § 256, consists in gaining possession of money or property by some trick or device, or any swindling operation by which advantage is taken of the trust or confidence which the victim has reposed in the swindler. People v. Rosenbaum, 312 Ill. 330, 143 N.E. 859, 860.’ 8 Words and Phrases, Perm.Ed., p. 544, Confidence Game.

“Act No. 43 of 1912 is broad and comprehensive in its terms and is designed to cover any swindling operation whereby a victim is defrauded of his money or property by the taking advantage of the trust or confidence which he has reposed in the swindler. Each case arising under this statute largely depends on its own peculiar facts and circumstances. The mere fact that the defendant, in this case, had a small account of $2.20 with the bank" when the checks were drawn is of no particular importance. It would only be relevant to show intent.”

The conviction and sentence were affirmed.

The indictment in this case alleges that the defendant, with the felonious intent of defrauding Mrs. Hancock by means and use of a confidence game, made certain representations to her and, believing in them, she entrusted and delivered the stock in question valued at $13,000 to him, and he failed and refused to return it to her, notwithstanding amicable demand,' and instead converted it to his own use and benefit. The indictment sets forth facts covering the representations made, by the defendant through which he gained the confidence of Mrs. Hancock and that she believed- and relied on them, and that in and through them he obtained the stock from her. In short, that after gaining her confidence and trust lie betrayed her and defrauded her out of the stock. It also alleges the manner in which he is said to have intended to and did defraud her and that all of this was done or occasioned in furtherance of his fraudulent scheme to deprive her of her stock. It, therefore, cannot be said that the indictment does not charge the defendant with having acted in bad faith and that the transaction was merely a civil one. It is only by separating certain allegations of fact from the other alleged facts and parts of the indictment that defendant’s attorney arrives at the conclusion it was. a civil matter. Even in a case where the indictment or information contains repugnant allegations or is uncertain, the defendant is not entitled to have it quashed, the unnecessary allegations being treated as surplusage and the court having the discretion to order the indictment to be made clearer. Code of Criminal Procedure, Articles 240 and 252. We agree with the trial judge that the allegations of the indictment sufficiently track the provisions of Act No. 43 of 1912 to inform the defendant of the manner in which the alleged offense was committed and that the indictment does set forth a violation of the provisions of the Confidence Game Statute.

Counsel for the defendant relies upon the case of State v. Ratcliff, 183 La. 1081, 165 So. 305, where the defendant moved to quash the indictment which charged him with having fraudulently uttered and published as true a certain forged mortgage note. The court found from other allegations of fact in the indictment that it described a genuine instrument and, therefore, did not charge a crime. The alleged offense having been committed on February 24, 1925, the case was considered under the common law and not under Articles 240 and 252 of the Code of Criminal Procedure, which went into effect in 1928.

Defendant’s counsel also cites State v. Glaser et al., 182 La. 787, 162 So. 622, where the indictment charged the defendant with, violating Act No. 43 of 1912 and obtaining money by false and bogus instruments through forging the name of E. B. Settoon. From the allegations in the indictment, the court concluded that Settoon had authorized his signature and in the absence of other allegations of bad faith and misrepresentation, the indictment failed to set forth sufficient facts to bring the alleged transaction within the provisions of the statute.

From the foregoing, it is clear that both of the above cases are not in point.

Bills Nos. 6, 7, 9 and 10 were based on the rulings of the trial court in refusing to permit the defendant to withdraw his waiver of trial by a jury.

Article 259 of the Code of Criminal Procedure reads: “In all felony cases, not capital, or necessarily punishable with imprisonment at hard labor, the defendant shall at the time of arraignment be informed by the court that he may waive trial by jury and elect to be tried by the judge alone. If he so elect the judge shall fix and try the case without a jury according to the prescribed rules of the court.”

In the recent case of State v. Williams, 202 La. 374, 11 So.2d 701, decided December 30, 1942, the defendant was charged in a bill of information with stealing four automobile tires valued at $58. He appeared for arraignment on October 1, 1942, without counsel, and the judge explained that he had a right to elect whethér to be tried by the judge or by a jury, and he chose to be tried by the judge, and told the judge that.Mr. Cyril F. Dumaine would be his lawyer.- -The case was set for trial on October 8th and the accused and his attorney (Mr. Dumaine) were served with notice thereof on October 5th and 6th, respectively. When the case was called for hearing, the defendant’s attorney requested a continuance and also moved to withdraw the waiver of trial by jury. The court overruled the motion and the accused was tried, convicted, and sentenced. In annulling the judgment below, we pointed out that the constitutional right of trial by jury in criminal prosecutions was jealously guarded and that the accused could not be deprived of that right, except on his voluntary election. We quoted with approval from the case of State v. Touchet, 33 La.Ann. 1154, as follows: “His waiver of jury as to the first trial may be presumed to continue as to the new trial, un less timely application be made to revoke the same; but he cannot be deprived of this right of revocation on timely application. The only limitation on his right would be that his application should be timely — that is, made in such season as not substantially to delay or impede the course of justice. In the present case, the trial might have proceeded before a jury on the day when it was tried before the judge, and the application, made ' prior thereto, was entirely seasonable, and should have been granted.”

The alleged theft took place on August 23, 1942 and the information was filed on September 10th. He was arraigned on October 1st, and the case set for hearing on October 8th. There had been no previous continuance or delay. We' concluded that the trial judge erred in refusing to permit the defendant to withdraw his waiver of trial by jury, annulled the conviction and sentence, and remanded the case for a new trial.

In the instant case, the defendant, in the first trial, with the benefit of counsel, waived trial by jury and was convicted by the judge who granted him a new trial when the district attorney acquiesced in his motion therefor. When the defendant was arraigned the second time, the court recessed in order to permit him to confer with his attorney to determine whether or not he wished to be tried before the jury or the judge, and he chose the latter. In open court both defendant’s counsel and the defendant personally made it clear that they had so decided. In the judge’s per curiam, he pointed out that there had been previous continuances; that there were two criminal terms of court — six months apart — one in March and the other in September; that the arraignment took place on March 14, 1942, and the defendant, at that time, elected to be tried by the judge and waived trial by jury; that the case was set for hearing on March 27, 1942, and on March 24, 1942, the defendant filed a motion to quash, which was fixed to be heard on April 28, 1942; and that on this date, he filed a motion to recuse the judge, and subsequently, 'a motion to recuse the district attorney, resulting in the appointment of a special judge and a special prosecutor, so that, when he went to trial on June 24, 1942, if his motion to withdraw the waiver of trial by jury had been granted, the case would have had to have been continued until the September jury term.

The special judge states, in substance, that the defendant, when confronted with the fact in March, that he would be tried before a jury, elected to be tried before the judge, and then when faced with the fact that he was about to be tried before the judge, he wanted to revoke his previous waiver of jury trial, and that this was done for the purpose of delaying the trial until the next jury term in September, and that to allow the defendant to thus proceed could delay the trial indefinitely. In other words, the defendant was simply trying to further delay the trial of the case.

Under these facts and circumstances, as well as those set forth in the beginning of this opinion, we do not consider that the application to withdraw the waiver was timely made, because the granting of it would result in a substantial delay in the trial of the case and “would impede the course of justice”. Such was not the case in State v. Williams, supra.

The defendant also complains that the special judge was not the one before whom he had elected to be tried. He does not say that the special judge was biased or prejudiced against him or treated him unfairly. It must be remembered that it was on the defendant’s own motion that the regular judge, who found the defendant guilty on the first trial, recused himself. As it appears that the purpose of defendant’s motion was to gain further delay, we find no error in the trial judge’s ruling.

Bill No. 8 was reserved when the trial court refused the defendant’s motion to order the district attorney to nolle prosequi the case, or that the court do so on its own motion. This request was clearly without merit, because the district attorney has the sound discretion in exercising the right to enter a nolle prosequi, without obtaining the consent or permission of the court. Article 329, Code of Criminal Procedure.

Bill of exception No. 11 was reserved when the trial judge refused the defendant’s request to order the special district attorney not to confer with the regular district attorney outside of the courtroom, while the regular district attorney was a witness for the State and had been excluded .from the courtroom under the ruling of the court. The discussions between them were held out of the courtroom and the presence of the jury. The district attorney was a material witness and testified in the case and the special district attorney had a right to interview the State’s witness out of the presence of the jury and the court. In any event, the defendant fails to show in what way he suffered any prejudice or harm as a result thereof. . '

Bills Nos. 12 and 13 were reserved when the trial judge refused to admit two letters written by the recused district attorney, in evidence, for the purpose of showing that the recused district attorney had treated the matter as a civil case and not as a criminal one. The evidence was excluded on the ground that it was irrelevant and immaterial, under Revised Statutes, § 985, Dart’s Criminal Statutes, Article 601, which provides: “In all criminal cases where injury to the person or property has been sustained, the party injured or damaged shall have his civil action for damages, notwithstanding the conviction.”

Counsel for the’defendant, while refer-, ring to these two bills of exceptions, has not developed them in his brief. These bills were reserved while the recused district attorney was testifying under cross-examination, having been called for that purpose by the defendant. The record shows that the district attorney; some two years before his election, was employed, by Mrs. Hancock to represent her to recover the shares of stock or their value. The defendant, represented at that time by other counsel, admitted his liability and repeatedly promised to pay the default civil judgment of $13,000 rendered against him in Caddo Parish, where he resided. He was granted every consideration and indulgence, upon •professing his good faith, but repeatedly broke his promises to pay, notwithstanding the fact that he was fully apprised of the ill health and indigent circumstances of the old lady, who subsequently died in 1942. He did pay $650 on account under the strongest urgings and warnings that the civil and criminal cases would be pressed. The attorney for Mrs. Hancock, both before and after the indictment was returned, leniently and liberally indulged the defendant and even after he was district attorney, was very patient with the accused. The recused district attorney acquiesced in the defendant’s motion to recuse himself and the special district attorney at no time, in any way, handled or interested himself in the civil matter. The excluded letters do not contain any information that was not given to the judge by the recused district attorney while testifying under cross-examination, because he frankly states that in order to help the old lady in her dire •distress and poverty, if the defendant had only reimbursed her to the extent of $1,800, he would not have been disposed to press the case against him. The $650 which was paid by the defendant went to the old lady for the purpose of buying food, medicines, and securing medical attention for her.

Under the express provisions of Article .557 of the Code of Criminal Procedure,'the improper rejection of evidence is not a ground for granting a new trial, unless it appears, after an examination of the record, that the error complained of probably resulted in a miscarriage of justice or was prejudicial to the substantial rights of thé accused. Learned i counsel for the defendant has failed to make such showing and as the matter was fully brought out before the jury on cross-examination of the recused district attorney, we fail to see how the defendant’s rights, even conceding there was error in the rejection of the letters, were prejudiced or adversely affected.

Bill No. 14 was reserved when the court permitted the State to correct the minutes to show that the bill of indictment was actually returned in open court by the Grand Jury. The recused district judge and the foreman of the Grand Jury both testified that the indictment was returned in open court by the Grand Jury and the court permitted the minutes to be corrected to conform with the facts. This ruling was eminently correct.

Bills Nos. 15, 16 and 17 were reserved when the trial judge overruled the motions in arrest of judgment and for a new trial. These motions cover the matters that we have already discussed in the previous bills of exceptions and present nothing new for our consideration.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment of conviction and the sentence of the court ■are affirmed.

ODOM, J., absent.