210 La. 609

#### STATE v. PETTIFIELD.

No. 38147.

Supreme Court of Louisiana.

June 14, 1946.

Rehearing Denied July 3, 1946.

Bass, Patin & Brame, of Lake Charles, for relator.-

Fred S. LeBlanc, Atty. Gen., M. E. Cul-ligan, Asst. Atty. Gen., and Griffin T. Hawkins, Dist. Atty., and Preston L. Savoy and Alan H. McLane, Asst. Dist. Attys., all of Lake Charles, for respondent.

FOURNET, Justice.

The relator, George Pettifield, having been tried and convicted on a bill of information charging him with having violated the compulsory attendance sc.k<K>.' law, Act No. 239 of 1944, and being v-?th-out right of appeal because he was sentenced to pay a fine of $50 and costs and to serve 30 days in jail, the jail sentence being suspended (Section 10 of Article VII of the Constitution of 1921), applied to this court for and was granted a writ of certiorari to the end that these .proceedings might be reviewed and their validity ascertained. Pending our decision, in the matter, all proceedings against him were ordered stayed and suspended.

Counsel for the relator contend that (1) “prosecutions under Act No. 239 of 1944 can be maintained only if it is administered and enforced by the parish school board in the manner prescribed therein”; (2) “the state must show that the subject child was not exempted from the provisions of the law, and that such was found to be so, in the first instance, by the parish school board,” the mere showing of the absence of the child not being sufficient; (3) the defendant was convicted on improper evidence, and (4) the bill of information is fatally defective on its face.

*425On the other hand it is the contention of the prosecuting attorney that if a parent, guardian, or other person having control of a child or children of compulsory school age does not send the child to school, such person is subject to prosecution and this prosecution can be instituted at the instance of any individual, the provisions for the appointment of visiting teachers and their investment with specific functions and duties in Act No. 239 of 1944 being nothing more than the machinery set up by the legislature to insure the administration of the act; too, that while the exemptions named in the act may be urged as a defense, it is not necessary that the indictment or information affirmatively show the same. It is the prosecuting attorney’s further contention that the bill of information when read together with the information voluntarily, furnished in answer to the bill of particulars filed on behalf of the relator sufficiently informed him as to what the state intended to prove against him and placed him on his guard in this respect. He denies the defendant was convicted on improper evidence and contends that even if some of the trial judge’s rulings were improper the relator is not entitled to' a reversal unless he can show that he was prejudiced by such ruling, under Article 557 of the Code of Criminal Procedure.

The pertinent provisions of Act No. 239 of 1944 are as follows:

Section 1 provides “That every parent, guardian, or other person residing within the State of Louisiana, having control or charge of any child or children between the ages of seven and fifteen years, both inclusive (i. e., from the seventh to the sixteenth birthday), shall send such child or children to a public or private day school under such penalty for noncompliance herewith as is hereafter provided.”

The minimum session of attendance is fixed in Section 2 at 180 days, “or for the full session of the public school which the child would normally attend.”

Under Section 3 children who (a) are mentally or physically incapacitated to perform school duties, (b) live beyond certain distances of cities or schools where transportation is not furnished, and (c) are temporarily excused “under rules and regulations promulgated by the State Board of Education,” are exempt from the provisions of the act, *“the parish school hoard to be sole judge in all such cases.”*(Italics ours.)

In order that the provisions of this act may be enforced, Section 4 makes it the mandatory duty of the Superintendent of Education to appoint and designate a member of his ■ department to serve as State Supervisor of Attendance with general supervision over visiting teachers, his duties to be prescribed in rules and regulations made by the State Superintendent of Education.

Section 5 makes it the mandatory duty of each parish school board within the state *“to administer this Act and to secure its enforcement”*and to that end each parish school board is authorized to employ at least one competent and qualified full-time visiting teacher whose duty it shall be to enforce the compulsory attendance laws of the State. (Italics ours.)

The pewers and duties of such visiting teachers are declared, in Section 7, to be those theretofore vested, or which may hereafter be vested, in attendance or truant officers' by the compulsory attendance laws of the state, and they are required “to make monthly and annual reports on attendance and other problems of child-. school adjustments, in their parishes to the parish superintendents of education and to the State Supervisor of Attendance; and to comply with the rules and regulations of the parish school boards and the State Board of Education,” and also *"to serve such writs and process in law relating to comptdsory school attendance as may he necessary for the enforcement of’ the*act. (Italics ours.)

Under Section 9 the heads of all of the schools are required to furnish the visiting teachers with a list of all of the pupils registered in the school within 30 days following the opening of the school term showing their names, ages, and residences, and they are required to, keep daily reports of attendance, verified by the teacher making such report, and these are to be open for the visiting teacher’s inspection at all' *426reasonable times. In' this section is also contained the further provision that “Any person violating any provision of this Section, or of the rules and- regulations of the State Board of Education previously published one time in the official journal of the State shall be deemed guilty of- a misdemeanor, and , shall be punished in accordance with the provisions of Section 10 of- this Act.”

• Section 10 makes it a misdemeanor for any parent, guardian, or other person having control of a child or children to violate the provisions of the act, subject to a fine of $10 or 10 days, or both, at the discretion of the court, *.for each unjustifiable absence.*This same section follows with the provision that “Visiting teachers, or other persons authorized- to serve instead of visiting teachers as provided in Section 5. hereof, *with*the_ *approval of the parish superintendent of education,*shall have au; tbority and it shall. be their duty to file proceedings in court to enforce the provisions of this Act.” (Italics ours.)

Obviously it was the legislature’s object in enacting this legislation to obtain the compulsory attendance of all children between the ages of 7 and 15, both inclusive, except those specifically declared to be exempt, at school for a full session of 180 days, or the normal public school session of 9 months of 20 days each, and to designate the parish school boards the sole judges of just what children in this age group came within those exemptions, including those temporarily excused from attendance. In order to insure the equitable and judicious administration and enforcement of the act, the legislature directed the Superintendent of Education to appoint or designate a member of his department to serve ás State Supervisor of Attendance and to prescribe the duties of such supervisor. It authorized the State Board of Education to make the rules and regulations necessary to promote the purposes of the act and the parish school boards to appoint competent' and qualified full-time visiting teachers recommended and approved by the parish superintendent of education from a list furnished by the State Superintendent of Education, the duties of such visiting teachers being the enforcement of the compulsory attendance law of the'state in compliance with the rules and regulations promulgated by the State Board of Education and made by the school boards of the respective parishes. To facilitate the enforcement of the act the legislature required the schools to keep daily attendance records for the inspection of- the visiting teacher and to furnish the visiting teacher with a list of all of the pupils registered in the school. Finally, to coerce the parent, guardian, or other person having control of a child or children of compulsory, school age to cooperate in the enforcement of the act, the lawmakers authorized the visiting teacher, with the approval of the parish superintendent of education, to file proceedings in court against such parent or. guardian for any unjustifiable absence.

It was never the intention of the legislators that the act be administered and enforced in any other manner than as therein provided. To hold otherwise might, in our opinion, not only lead to frequent unjust accusations and abuses and result in gross injustices, but would also tend to create bitterness among neighbors ¿nd other citizens of the community who might undertake to enforce the act, for, although such individuals might be ever so sincere in their desire to see that the children of the community obtain a proper education, they are uninformed as to whether an absent child has been legally exempt- from attendance by reason -of an excuse issued by the proper authorities, some physical defect, or residence outside the school limits, with the result that instead of coercing the good-will cooperation of parents in the enforcement of the act and a better relationship between the parents and the school authorities it would bring about a condition of revengeful disunity and the creation of unnecessary hardship.

'We think some of the facts of this case speak more eloquently than we can of the laudable and beneficent purposes of this law and the wisdom -shown by the legislators in enacting it.

The relator is a man of limited education and earning capacity and is away from home during the school hours throughout *427the entire‘week working as a bus driver at 70$S an hour in order that he may support his wife and thirteen children. So far as the record discloses, he sends all of his children between 7 and 15 to school and they attend regularly, with the exception of the subject child Charles, who, also according to the record, has been absent frequently, for what reason the record is not quite clear although it strongly indicates he is an incorrigible and' delinquent child. Of necessity it is impossible for the relator to personally supervise his errant son's attendance at school. As was very aptly pointed out by Miss Harrington, principal of the school Charles attends, in answer to the district attorney’s query as to whether or not she asked the relator himself the reason for this child’s absence from school: “You asked if I had taken up the matter with Mr. Pettifield. Mr. Pettifield never has time to come to the school. Mrs. Pettifield sometimes does and she takes care of the affairs of the family in so far as the children are concerned.'’

Obviously, therefore, the visiting teacher, pursuant to the rules and regulations promulgated by the State Board of Education and those adopted by the parish school board, and under the guidance of the parish superintendent of education, is in a better position than anyone else to determine whether a parent or guardian or other person having control of a child should be prosecuted under the law or whether the child should be reported “to the Juvenile Court of the parish as a delinquent child, there to be dealt with in such manner as the judge of said court may determine, either by placing said delinquent [child] in a home, public or private institution, where school may be provided for such child, or otherwise,” as provided in Section 11 of the act.

While we do not think an information or indictment under the act need affirmatively show the parish school board has set up the required procedure to administer and enforce the act, it is our opinion that the state must, on the trial of the case, show the prosecution was initiated through the proper authority with the approval of the parish superintendent of education, and an accusation, to be valid, must show that the. defendant unjustifiably failed to send the subject child to school, giving his or her name and age and the dates of such absences. These allegations, we think, are sacramental and necessary for a valid accusation.

The information in the instant case is fatally defective in that in charging the defendant with having “unlawfully failed to send his child to school, in .violation of Act No. 239 of 1944,” it merely states a conclusion of law without detailing the facts and circumstances upon which such conclusion is based, contrary to the mandatory provisions of the law and the constitution of Louisiana. Article 227 of the Code of Criminal Procedure and Section 10 of Article I of the constitution.

The information voluntarily furnished by the district attorney in response to the bill of particulars previously filed by counsel for the relator merely giving the name and age of the child and the dates on which he failed to attend school cannot cure a fatally defective indictment for, *“A bill of particulars cannot** * * *in any way aid an indictment or information fundamentally bad.”*State v. Bienvenu, 207 La. 859, 22 So.2d 196, 198. The author of the opinion in that case very aptly pointed out that *“The sole office of a bill of particulars is to give■ the adverse party information which the pleadings by reason of their generality do not give and to compel the State to observe certain limitations in offering evidence.”*See, also, 31 C.J. 752, Section 310; 42 C.J.S., Indictments and Informations § 156; and 27 Am.Jur. 672, Section 112. And the observation by the court in the Bienvenu case that the *"defendant is not being Prosecuted on tfie bills of particulars, but solely on the informations,”*is also applicable here. (Italics ours.)

It is our opinion, therefore, that the motion in arrest of judgment, based on the defective information, should have been maintained.

For the reasons assigned the conviction of the relator and his sentence thereunder *428are annulled and set aside, the *motion in*arrest of judgment is maintained, and the relator is ordered discharged.

O’NIELL, C. J.,. and HAMITER, J., concur in the decree.

HAWTHORNE and KENNON, JJ., dissent.

HAMITER, Justice

(concurring).

The bill of information in the instant case is defective, in my opinion, in that it fails to recite an unjustifiable absence from school on the part of the subject child, an essential element of the offense with which defendant is charged.

Of course, according to certain decisions of this court, a defective bill of information can be cured in some instances by an answer to a motion for a bill of particulars, the latter serving to amplify the former. State v. Miller, 170 La. 51, 127 So. 361; State v. Brooks, 173 La. 9, 136 So. 71; State v. Davis, 208 La. 954, 23 So.2d 801. The defect in the present one, however, has not been remedied by the district attorney’s answer to defendant’s motion for a bill of particulars; the answer does not supply the necessary recital.

I, therefore, respectfully - concur in the decree.

HAWTHORNE, Justice

(dissenting).

I am of the opinion that a specific averment in the information that the defendant’s failure to send his child to school was *unjustified*is not necessary to constitute a valid information in a prosecution under the provisions of Act No. 239 of 1944. The statute in a distinct clause exempts certain classes of children between the ages •of seven and fifteen, both inclusive, from the provisions of the act, and, if defendant’s child came within any of these exemptions or exceptions, that fact should have been urged by way of defense and need not have been negatived by the State in the bill of information. Article 228 of the Code of Criminal Procedure provides:

> “It is no objection to an indictment that it does not aver, that accused was not embraced within the terms of the proviso of the statute creating the offense; for what comes by way of a proviso or exception in a statute must be urged by way of defense.”

In State v. Coco, 152 La. 241, 253, 92 So. 883, 887, this court said:

> “When a statute contains provisions and exceptions in distinct clauses, it is not necessary to state in the accusation that the defendant does not come within the exception, or to negative the proviso it contains. 1 Bishop, Crim. Pro., p. 381.”

To the same effect are the following authorities : State v. Kimball et al., 162 La. 242, 110 So. 336; State v. Ramey, 173 La. 478, 137 So. 859; State v. Bonner, 193 La. 402, 190 So. *626;*State v. White et al., 195 La. 1028, 197 So. 745.

I am of the further opinion that the bill of information as amplified by the bill of particulars, giving the name and age of the child and the dates on which he failed to attend school, was sufficient to inform the accused of the nature and cause of the accusation against him as required by the statute and the Constitution of this state.

The majority opinion, in support of its holding that the bill of information in this case was fatally defective and was not cured by the information voluntarily furnished by the district attorney in response to the bill of particulars, and that the motion in arrest of judgment should have been sustained, cites the case of State v. Bienvenue, 207 La. 859, 22 So.2d 196.

In the Bienvenu case, the bills of exception which were considered by this court were based on the proposition that the in-formations were filed, and the defendant was prosecuted, under the provisions of Act No. 70 of 1908, which had been expressly repealed by Article 142 of Act No. 43 of 1942, the Louisiana Criminal Code. The State contended that the information furnished in the answers to the motions for bills of particulars should have been read into the bills of information, and that as thus amended the bills of information definitely charged the defendant with the crime of gambling as denounced by Article 90 of the Criminal Code. This court refused to accept the State’s contention, say*429ing at page 867 of 207 La., at page 199 of 22 So.2d:

> “Our conclusion is that the trial judge erred in refusing to sustain defendant’s motion in arrest of judgment in which it is alleged that defendant’s conviction and sentence should be arrested and held for naught for the reason that defendant was prosecuted for an offense denounced by a repealed statute and, consequently, there is no existing statute in this State denouncing the offense for which defendant was convicted and sentenced.”

The writer subscribed to the majority opinion in the Bienvenu case but in State v. Varnado et al., 208 La. 319, 384, 23 So. 2d 106, 128, in a concurring opinion said:

> “I cannot, however, subscribe to the view expressed in the majority opinion to the effect that a bill of particulars cannot create or cure a defect in the indictment or information in any case.

> “In State of Louisiana v. Larry Bienvenu, Jr., [207 La. 859] 22 So.2d 196, this court found that the prosecutions were instituted under Section 1 of Act 70 of 1908, and that this act was expressly repealed by Section 2 of Article 142 of Act 43 of 1942, the Criminal Code. We held that the bills of particulars filed therein could not be read into the bills of information so as to charge the defendants with the crime of gambling as denounced by Article 90 of the Criminal Code — or, as I understand the holding, that a bill of particulars could never take a criminal prosecution out of the statute on which the indictment or information is based and place it under some other statute; or, still further, that a bill of particulars could not breathe life into an indictment or information based on a statute which has been repealed, so as to place it under some other legal and existing criminal statute.

> “For these reasons I subscribed to the majority opinion in the Bienvenu case. I do not consider the holding therein to be inconsistent with the view herein expressed.”

In State v. Davis, 208 La. 954, 23 So.2d 801, 803, the decision in which became final less than eight months ago, the defendant was charged with the crime of gambling as denounced by Article 90 of the Louisiana Criminal Code, Act No. 43 of 1942, the information charging the offense in the following language: “* * * did commit the crime of gambling as defined by Article 90 of the Louisiana Criminal Code.” The offense charged, that is, gambling, was not one of the specific crimes for which a form of indictment was provided in Article 235 of the Code of Criminal Procedure, as amended by Act No. 223 of 1944. To the information in that case defendant through counsel filed a motion for a bill of particulars, the answer to which showed “That the defendant is charged with committing the crime of Gambling as defined by Article 90 of the Louisiana Criminal Code, in' that he did intentionally conduct and directly assist in conducting, as a business, a game, contest, lottery and contrivance wherein money, bets and wagers on the results of horse races were unlawfully accepted and made by the defendant herein, outside of the race tracks and enclosures, and whereby persons risked the loss of something of value, namely: money, in order to realize a profit in money”. In this court it was contended that the bill of information as filed failed sufficiently to charge any crime and, further, denied the defendant the constitutional right to be informed of the nature and cause of the accusation. In reply to this contention we said:

> “The question of whether or not the short form so used herein satisfies the constitutional guaranty that an accused shall be informed of the nature and cause of the ac-cusátion against him need not be determined. If the information as originally drafted be defective in that respect, the defect was cured by the answer filed by the district attorney pursuant to the defendant’s motion for a bill of particulars. * * * ”

In State v. McCranie 192 La. 163, 187 So. 278, 281, a motion in arrest of judgment was filed on the ground that the information set forth no crime or offense against the laws of the State of Louisiana. The language of the information followed that of Article 833 of the Revised Statutes, under which it was drawn, and this court held that the information “in connection with the answer to the bill of particulars, amply in*430forms the defendant of ‘the nature and cause of the accusation against him.’ ”

The defendant in State v. Smith, 179 La. 614, 154 So. 625, 627, reserved a hill to the overruling of a motion to quash. The indictment charged that the crime was committed on April 10, 1933, but the bill of particulars set forth that the crime was committed on April 28, 1933. This court said that ‘.‘The effect of the bill of particulars was to amend the indictment so as to fix April 28, 1933, as the exact date on which the crime was committed, thereby restricting the proof to that date.”

In State v. Lemoine, 178 La. 1070, 152 So. 907, 908, defendant was indicted for having set fire to, and burned, a certain unoccupied dwelling house. Before pleading to the indictment, defendant filed a motion for a bill of particulars requesting, among other things, the information as to whether the building which he was accused of burning was complete or not. The district attorney answered that the building was partially completed, that is, the sides were walled in and it was floored, but there were no doors, no windows in place, no chimney, and no roof. A motion to quash and a motion in arrest of judgment, based substantially upon the same ground,, were overruled by the lower court. This court sustained the motion to quash and set aside the verdict of the jury and the sentence of the court, saying with reference to the bill of particulars:

> “The particulars, thus furnished, are deemed, in law, to constitute a part of the bill of indictment, and accordingly defendant filed a motion to quash the indictment * * *.

> “A building to constitute a dwelling house, within the intendment of the statute, must be complete, and not one, which, though designed for such a house, is in process of construction, and which, as a consequence, has not yet been occupied. The building in this case, which is alleged to be a dwelling house, being in course of construction at the time of its destruction, was obviously not such a house, and the indictment is therefore fatally defective. * * * ”

In State v. Miller, 170 La. 51, 127 So. 361, 362, the defendant was charged, in the form prescribed by Article 235 of the Code of Criminal Procedure, with the crime of larceny of $600.00 in money. Defendant filed a motion for a bill of particulars, and the information requested was furnished by the district attorney. Before the case was taken up, defendant filed a motion to quash the indictment, which was sustained by the district court, and the State appealed. On appeal the judgment was set aside, the motion to- quash was overruled, and the case was remanded to the court below. We said:

> “The ruling of- the [lower] court was based solely on the ground that the indictment did not give the name of the owner of the money charged to have been stolen, which omission, in the opinion of the court, was an essential allegation in an indictment for larceny, and was not a mere matter of defect of form which could be cured by amendment.

> ******

> “In the instant case, however, the defendant called for the name of the owner of the money alleged to have been stolen and it was furnished to him.

> “If, therefore, there was any defect in the indictment as originally returned and filed, that defect was cured at the request of the defendant himself.

> “The indictment as amplified by the answer to the motior} for a bill of particulars fully complied with the constitutional requirement that the accused shall have the right to be informed of the nature and cause of the accusation against him.”

Conceding that the majority opinion is correct in finding that the information in this case was defective, I cannot subscribe to the view that it was fatally defective. In my opinion, under the authorities here-inabove cited and discussed, any defect therein was cured by the answers to the motion for the bill of particulars.

It may be necessary, as pointed out in the majority opinion, that the State “must, on the trial of the case, show the prosecution was initiated through the proper authority with the approval of the parish superintendent of education.” However, it is not necessary for this court to decide that point in this case, as, in my opinion, it is not an *431issue herein and was not raised or urged in the motion in arrest of judgment filed by the defendant, which motion, in the opinion of the majority, should have been sustained.

For the reasons given above, I respectfully dissent