No. 44058 Precedential Affirmed Processed

State v. Durbin

Louisiana Supreme Court · Filed November 10, 1958 · 106 So. 2d 443

Cited by

State v. Lee 52 So. 3d 210 La. Ct. App. 1st Cir. 2010
State v. Clark 288 So. 2d 612 La. 1974
State v. Edwards 287 So. 2d 518 La. 1973
State v. Thomas 257 So. 2d 406 La. 1972
State v. Rockeymore 216 So. 2d 828 La. 1968
State v. Brown 201 So. 2d 277 La. 1967
State v. Marston 181 So. 2d 756 La. 1966
State v. Sanford 181 So. 2d 50 La. 1965
State v. Bowen 180 So. 2d 700 La. 1965
State v. Bertrand 170 So. 2d 386 La. 1964
State v. Barksdale 170 So. 2d 374 La. 1964
State v. Viator 167 So. 2d 374 La. 1964

all 14 citing documents »

Authorities cited

Identified automatically; this list may not be exhaustive.

State v. Robinson 143 La. 543
State v. Pinsonat 188 La. 334
State v. Scott 223 La. 769
State v. England 148 La. 178

Opinion text

McCALEB, Justice. Calvin Durbin is appealing from his conviction of simple robbery, complaining solely of the overruling of his motion in arrest of judgment in which he claims that the bill of information filed against him is fatally defective. The bill sets forth that Calvin Durbin and others “ * * * did wilfully maliciously and feloniously rob Amos Gwin”. Appellant asserts that this charge does not comply with the short form provided for simple robbery in R.S. 15:235, and that the information is not otherwise sufficient to apprise him of the nature of the accusation as it does not contain all of the essentials of a valid charge of robbery as defined at common law. 1 We think the judge correctly overruled the motion in arrest. It is clear that the charge, that appellant did wilfully, etc., rob Amos Gwin, was intended to be drawn under the short form for simple robbery provided in R.S. 15:235, which is “A. B. robbed C. D.”. The only variation between the charge as alleged and the short form is that the bill of information uses the words “wilfully maliciously and feloni-ously”, which are to be considered as sur-plusage, 2 and employs the auxiliary verb “did” in connection with the verb “rob” to indicate past tense, whereas the form uses the past tense of the verb by adding the suffix “bed”. This difference in verbiage is of no importance at all as “did rob” is identical in meaning with “robbed”. While it is true that this court has said, in State v. Robinson, 143 La. 543 , 78 So. 933 ; State v. Pinsonat, 188 La. 334 , 177 So. 67 ; State v. Scott, 223 La. 769, 66 So.2d 802 and other cases, that it is essential for the prosecution, when using the short form, to adhere strictly thereto, this rule does not require a literal tracking of the language of the short form. It suffices that the words used by the pleader unmistakably convey the same meaning as those contained in the short form. *445 In any case, even though a technical defect in the information were apparent, it would be one of form, of which appellant was required to make complaint in limine (see R.S. IS :284); a defect of form does not afford good ground for arresting judgment. R.S. 15:518. The conviction and sentence are affirmed. . For those elements see State v. England, 148 La. 178 , 86 So. 728 . . See State v. Scott, 223 La. 769 , 66 So. 2d 802 and authorities there cited.