State v. Raby

253 So. 2d 370, 259 La. 909, 1971 La. LEXIS 3989

• Court: Supreme Court of Louisiana
• Decided: October 8, 1971
• Docket: 51055
• Status: Published

Opinions

McCALEB, Chief Justice.

Appellant, Sebeal Raby, was charged in a bill. of information with aggravated arson. Following his plea of not guilty the case was consolidated for trial with another criminal charge then pending against appellant for conspiracy to commit armed robbery. On the trial of these consolidated cases before a jury of twelve, a verdict of guilty in each case was returned on September 24, 1969. Thereafter, on October 28, 1969, on a hearing of appellant’s mofions in each case for a new trial and in arrest of judgment, the judge granted the motion for new trial in the criminal conspiracy to commit armed robbery case but denied the motions in the aggravated arson case, and appellant was sentenced to serve twelve years in the Louisiana State Pepiteniary.¹ Appellant has prosecuted this, appeal from his conviction and sentence in that case, relying on fifteen bills of exceptions for a reversal.

In our examination of the pleadings and proceedings below, following the submission of the case to us for decision, we have found that the bill of information charging aggravated arson is couched in the same language and contains substantially the same allegations as the bill of information which was held to be fatally defective in State v. Leon Harold Butler, No. 51,026 of our Docket, decided by this Court on June 28, 1971, in which a rehearing was refused on August 12, 1971. See 259 La. 560, 250 So.2d 740.

The bill of information in the instant proceeding recites that Lloyd Jones, Sebeal Raby and James Thomas feloniously did violate R.S. 14:51 “* * * in that they intentionally damaged a dwelling located at 167 South 15th Street, Baton Rouge, Louisiana, by setting fire to said dwelling, whereby human life was endangered * * This charge, in. which the prosecutor elected not to use the short form, is identical with, the bill of information in the Butler case except for the statement that the building set fire in this matter is alleged to be a dwelling, whereas it was alleged -that it was a structure which was burned in the Butler case. In holding that the bill of information in the Butler case did not adequately charge the offense denounced by R.S. 14:51, we based our conclusion upon the failure of the prosecutor to allege that the offender intentionally set fire to the building or structure when it was foreseeable that human life might be endangered. Absent such a recital, when the short form is not used, renders the information violative of the accused’s fundamental right to be “ * * * informed of the nature and cause of the accusation against him * * * ” as specified by Section 10 of Article I of the Louisiana Constitution. Since foreseeability (or anticipation, see R.S. 14:2) that human life might be endangered is the gravamen of aggravated arson, it must be alleged in order to state the offense — for, although an indictment need not be phrased in the language of the statute, it must state every essential fact constituting the crime. Article 464 C.Cr.P.; State v. Bonfanti, 254 La. 877, 227 So.2d 916 (1969) ; and State v. Butler, supra.

In a supplemental brief filed in compliance with a request by this Court, the District Attorney concedes that the Butler case is indistinguishable but takes the position that that authority should be overruled. This we will not do. Albeit decided by a closely divided vote, the Butler case was fully reconsidered on the State’s application for a rehearing, and the original opinion was sustained by the majority.

Additionally, the prosecutor contends that this Court is without right to nullify the defective bill of information'because the bill has never been assailed by defense counsel; that it is not a matter within the scope of our appellate review as defined by Article 920 C.Cr.P. and that, in any case, appellant may, if the judgment is affirmed, pursue the post-conviction remedy of habeas corpus under Article 362(9) C.Cr.P.

There is no merit in these contentions. Article 920(2) of the Code of Criminal Procedure specifically recognizes the right of appellate review of any error “ * * * that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.” It has long been our procedural law, statutory (R.S. 15:503, 15:558 and 15:560) and jurisprudential, that this Court may notice, on appeal, ex proprio motu, errors patent on the face of the record, such as fatally defective pleadings, even though no objection thereto has been raised below or by assignment of error here. See Article 920(2) C. Cr.P., Official Revision Comment (a).

For the reasons assigned the conviction and sentence are reversed and appellant is ordered discharged.

1 . In'view of the fact that the jury verdict' in the conspiracy to commit armed robbery prosecution was set aside by the granting of a new trial, that matter is not before us for review. However, we observe that the joinder for trial of sepa- , rate .and distinct crimes in one proceeding is highly irregular and unauthorized by the law of this State, save under special conditions or circumstances. Article 706 of the Code of Criminal Procedure, while permitting consolidation for ■ trial of separate offenses, provides that consolidation may only bo ordered “Upon motion of a defendant, or of all defendants if there are more than one * * * if the offenses and the defendants, if there are more than one, could have been joined in a single indictment.” Cf. Fed.Rule 13. It would not have been permissible to charge the different offenses . here consolidated in one indictment or information (see Article 493 of the Code of Criminal Procedure) and, hence, consolidation • was improper under Article 706 C.Cr.P.