
    (95 South. 264)
    No. 25633.
    STATE v. ROLLINS.
    (Dec. 29, 1922.)
    
      (Syllabus by Editorial Staff.)
    
    1. Intoxicating liquors c&wkey; 131— Possession unaccompanied by purpose to' sell is an offense.
    Under Act No. 39 of Extra Session of 1921, §§ 1 and 3,' the possession of intoxicating liquor for beverage purposes, though unaccompanied by a purpose to sell, is an offense, though not declared a misdemeanor, the purpose of the Legislature being merely to distinguish between manufacture or possession for sale, and other violations, by requiring jail sentences for manufacturing or possession for sale.
    2. Criminal law <&wkey; 13 — Sufficient to declare act unlawful and prescribe penalty, without declaring it a misdemeanor.
    The lawmaking body is not required to denounce a given act in any particular form, and it is sufficient that the act be declared unlawful, and a penalty prescribed without in terms declaring it to be a misdemeanor.
    3. Indictment and! information &wkey;>l2l(2) — Defendant entitled to bill of particulars stating time and place of claimed possession of liquor and kind and! quantity of liquor.
    On a trial for possessing intoxicating liquor for beverage purposes, the defendant on motion before he pleaded was entitled to a bill of particulars stating the time and place of the claimed possession, and the kind and quantity of the liquor, especially in view of Act No. 39 of Extra Session of 1921, § 4, excepting possession under certain circumstances, and in view of. the possibility of liquor being planted on one’s premises for revenge.
    
      4. Indictment and information <&wkey;l2l (2) — Defendant not entitled to bill of particulars stating whether possession of liquor actual or constructive.
    One charged with possessing intoxicating liquors for beverage purposes is not entitled to a bill of particulars stating whether the possession charged was actual or constructive, as this is merely a conclusion of law, and accused is only entitled to know the facts.
    Land, J., dissenting.
    Appeal from Thirteenth. Judicial District Court, Parish of Rapides; Leven L. Hooe, Judge.
    Ike Rollins was convicted of possessing intoxicating liquors for beverage purposes, and he appeals.
    Conviction and sentence set aside, and case remanded.
    Hakenyos, Hunter & Scott, of Alexandria, for appellant.
    A. V. Coco, Atty. (Sen., Cleveland Dear, Dist. Atty., of Alexandria (T. S. Walmsley, of New Orleans, of counsel), for the State.
   By the WHOLE COURT.

DAWKINS, J.

Defendant appeals from a conviction and sentence for possessing intoxicating liquor for beverage purposes in violation of the Hood Bill. He relies for reversal upon three bills of exception, which we shall discuss in consecutive order, as follows:

Bill No. 1.

The first was to the overruling of a motion to quash which alleged that the bill of information did not set forth an offense under the laws of the state, and particularly Act 39 of 1921 (Extra Sess.). This motion involves the same contention as was made in the case of State v. Brackins, 152 La. 445, 93 South. 582. Counsel admits that there are other features of the act, embraced in section 1, such as the transportation, etc., of intoxicants, which may be punished or sentenced under the latter part of section 3, as quoted in the Brackins Case; but contends, that, inasmuch as the first part of said section 3, deals with manufacture and possession, it was intended to punish only such manufacture and possession when accompanied by a purpose to sell. It is argued that, although section 1 denounces as unlawful any kind of possession, manufacture, transporting, etc., except upon proper permit, the possession other than for sale is not, in terms, declared to be a misdemeanor, and hence the Legislature did not intend to punish it. We know of nothing which requires that the lawmaking body shall denounce in any particular form any given act. It is sufficient that such act be declared unlawful and a penalty prescribed therefor.

As said in the Brackins Case, we think 'it .was clearly the purpose of, the Legislature to make a distinction between manufacture and possessing fox sale and all other violations, by requiring a necessary jail sentence for the two former offenses. This seems clearly indicated by the title of the act, which is—

“To prohibit the manufacture, sale, transportation, delivery, possession, advertisement, exportation and importation of intoxicating liquors for beverage purposes, and for non-beverage purposes, except where authorized by permit from proper federal authorities, and to provide penalties for the violation of this Act,” etc.

Bill No. 2.

The second bill was reserved to the denial of a motion for a bill of particulars. The motion asked that the state be required to state:

“First. The time when, and the place where, the alleged liquor is > charged to have been in possession of defendant.
“Second. The kind and quantity of liquor.
“Third. The nature of the possession set forth in the said indictment, that is to say whether the possession charged was an actual possession or a constructive possession.”

Defendant was entitled to know with reasonable definiteness the time and place where the liquor was possessed; that is, whether in Ms home, or at some other place, so that his attention might reasonably be directed to the circumstances relied upon. This is especially true, since possession of intoxicants, even for beverage purposes, under the circumstances detailed in section 4, is excepted from the operation of the act.

It could hardly be conceived that any court would convict an accused because intoxicating liquor was found in some remote spot upon his premises, unless the evidence showed that it had found its way there at his hands or by his direction. It is not at ¿11 impossible, and we might say, not unlikely, that some one with a grudge against another, might “plant” or place intoxicants upon one’s premises, without his knowledge, and bring about its discovery by the'law enforcement agencies for purposes of revenge. Hence, if mere presence alone, and without any circumstance connecting the owner of the property with it, were sufficient, no one would be safe from a designing enemy.

We believe, therefore, that having asked for a bill of particulars before pleading, the accused was entitled to have the information called for by the first specification of his motion.

He was also entitled to know the kind and quantity of liquor he was charged with possessing. We so held before the coming of national prohibition, and the wisdom and necessity of such a ruling is thoroughly illustrated by the great number and varying composition of the concoctions with which the country is now afflicted.

The third specification merely calls for a conclusion of law. Accused was only entitled to know the facts to be relied upon, and it would then become the duty of the court to determine the legal consequences of the facts so alleged or proven, as the case might be.

Having concluded to set aside the conviction and to remand the case for a new trial,, it becomes unnecessary to consider the tMrd bill.

For the reasons assigned, the conviction and sentence are set aside, and this case is remanded for further proceedings according to law, not inconsistent herewith.

LAND, J.

(dissenting). The motion for a bill of particulars in this case requires the district attorney to state “the nature of the possession set forth in the said indictment; that is to say whether the possession charged was an actual or a constructive possession.”

There is no contention in this case that defendant' had the liquor in his home, or that he had possession of it under a lawful permit. The liquor was found buried on his premises, and the trial judge was satisfied from the evidence that defendant was guilty of concealing his liquor in his own property.

It is therefore very evident that a bill of particulars in this case, even if the same had been granted, would not have aided defendant in the general defense of not guilty made. The refusal, therefore, by the trial judge to grant the motion for a bill of particulars has ■worked no injury to the accused, and for this reason the judgment should not be reversed.

It does not require a bill of particulars to enable an accused person to prove that he was in the lawful possession of the liquor at his home or by virtue of federal permit, as these are facts witMn his own peculiar knowledge.

In what way a bill of particulars charging a defendant with the constructive possession of liquor “planted” on his premises would enable him to ferret out the unknown enemy who had planted it there, I am at a loss to understand. Moreover, this is the second time defendant has been convicted for a similar offense.

Cases of malicious prosecution are so extremely rare in liquor and other cases, that the mere possibility of such an occurrence is not a sound reason for requiring bills of particulars in criminal cases. There would be no limit to such bills in every criminal case, if the right to demand them is to be based upon a mere conjecture that an enemy might prefer a criminal charge of some kind against some person.

I therefore respectfully dissent from the opinion of the majority in this case.  