State v. Truett , 230 La. 955 ( 1955 )

MOISE, Justice.

This is an appeal by the State of Louisiana from a judgment of the Criminal District Court for the Parish of Orleans, Section “B”, which sustained defendant’s plea of prescription to a bill of information charging him with possession of narcotics, a crime denounced by LSA-Revised Statutes, 40:962.

The pertinent chronological facts of the case are as follows:

July 20,1951 —An affidavit was filed.

July 24, 1951 — A bond was furnished by defendant.

August 9, 1951 — A bill of information was filed.

Sept. 5, 1951 —Arraignment was continued on motion of the State.

Sept. 17, 1951 —Arraignment was continued on motion of the defense.

April 30, 1952 —Defendant was arraigned and pleaded “Not Guilty”.

May 19, 1952 —On application of the defense, the court ordered that the plea of “Not Guilty” be set aside for the purpose of permitting the defense to file applications for a bill of particulars, motion for a preliminary hearing, and a motion for a plea to the jurisdiction.

April 6, 1955 —The plea of prescription was filed by defendant.

April 25,1955 —The State filed its answer to the preliminary pleas made by the defendant, and the trial court sustained the plea of prescription.

To the facts we must apply the law. 'There are two statutes on the subject— 15:8 and 15:9. A careful reading will show that the former is discretionary and that the latter is mandatory.

LSA-Revised Statutes, 15:8 reads:

“In felony cases when three years elapse from the date of finding an indictment, or filing an information, and in all other cases when two years elapse from the date of finding an indictment, or filing an information or affidavit, it shall be the duty of the district attorney to enter a nolle prosequi if the accused has not been tried, and if the district attorney fail or neglect to do so, the court may on motion of the defendant or his attorney cause such nolle prosequi to be entered the same as if entered by the district attorney.

“Nothing in this article shall apply or extend to an accused person who has absconded, or who is a fugitive from justice or who has escaped trial through dilatory pleas, or continuances obtained by him or in his behalf.”

LSA-Revised Statutes, 15:9 reads:

“Whenever it shall have been established to the satisfaction of any court in which any criminal prosecution shall be pending that the prescriptive periods as herein provided have elapsed since the last date upon which any steps shall have been taken by the state in such prosecution, and that the district attorney has not entered his nolle prosequi, the court shall order ths dismissal of said prosecution, and the same shall not thereafter be revived; provided, that unless the defendant had posted requisite appearance bond, the prescription established in Art. 8 hereof shall be interrupted by the absence of the defendant from the jurisdiction of said court without the written consent of the court first obtained and entered upon the minutes, or filed in the records of the cause; provided, further, that the burden of proving the accruing of the prescription herein established shall in all cases rest upon the person alleging the same.”

Article 15 :8 is discretionary by its very terms. Here we must first determine whether the trial judge abused his discretion. It is the State’s contention that under Article 15:8, the defendant interrupted prescription on May 19, 1952 by filing an application for a bill of particulars, a motion for a preliminary hearing and a plea to the jurisdiction. We do not believe that the filing of a motion for a bill of particulars interrupted prescription. This is particularly true in view of our recent pronouncement in the case of State v. Bradford, 219 La. 1090, 55 So.2d 255, 256:

“The lower court, irrespective of its finding that the delay was caused by the fault of the prosecution, overruled the plea of prescription on the ground that the motion for a bill of particulars interrupted prescription. Our opinion, remanding the case, was evidently misunderstood. If we had thought that the pendency of the motion was sufficient to interrupt prescription, there would have been no occasion to remand the case to determine the cause of delay or why the motion had not been timely disposed of.”

The motion for a preliminary hearing and the plea to the jurisdiction, levelled at the constitutionality of the statute under which the defendant was charged, are preliminary pleas and are not such as were contemplated by LSA-Revised Statutes, 15:8. They were not taken by the defendant for the purpose of escaping trial and thus did not have the effect of interrupting prescription. To be exact, the State never set this case for trial. These pleas remained on the docket from the date of their filing, May 19, 1952, until April 25, 1955 before any notice was taken of them.

Therefore, under LSA-Revised Statutes, 15 :8, we do not think that the trial judge abused his discretion in sustaining the plea. Three years had elapsed between September 17, 1951 (the date of the continuance of the arraignment secured by the defense) and April 6, 1955 (the date the plea of prescription was filed). More than three years had elapsed since the filing of the bill of information.

The State further contends that under LSA-Revised Statutes, 15:9 the prescriptive period of' three years in felony cases runs from the date of the last prosecutive step taken by the State; that in the instant case the defendant Was arraigned on April 30, 1952, less than three years from the date of the filing of the plea of prescription.

This contention of the State is without merit, for the reason that the Court ordered the withdrawal of the plea of “Not Guilty” on May 19, 1952. It was ordered, not for the purpose of in any way retarding the trial, but for the purpose of allowing the defendant to file pleas which he had a right to assert, when permission of the Court is given. There was no abuse of discretion by the trial judge in permitting the withdrawal. See, State v. Shropulas, 164 La. 940, 114 So. 844; LSA-R.S. 15:265; State v. Iseringhausen, 204 La. 593, 16 So.2d 65.

The arraignment having been vacated, it became the duty of the State to answer the pleas with dispatch instead of remaining inactive until April 25, 1955. Since three years elapsed between September 5, 1951 (the date of the continuance of the arraignment by the State) and April 6, 1955 (the date the plea of prescription was filed), it was the mandatory duty of the trial judge, under LSA-Revised Statutes, 15:9, to order the nolle prosequi.

In the case of State v. Bradley, 227 La. 421, 79 So.2d 561, 563, which is conclusive as to the issue here, we said:

"It is clear that' under' Article' 9 the ‘court has', ño 'discretion', for this article uses'thé mañdatory' shall rather than' the-permissive may of'Article 8: Moreover, under 'the provisions of Article 9j if thrée' years elapse after the State takes 'a prosecutive step in • a felony case, and if during those three years the defendant has not been brought to trial and has not interrupted prescription, the charge' pending against the defendant must be dismissed by the court and can never be revived, provided the district attorney has not entered a nolle prosequi.” which was continued on one occasion by the State and on another occasion by the defense, the defense continuance being occasioned by his attorney’s absence from the city. A subsequent arraignment date where the defendant entered a plea of not guilty. Finally, the filing of certain pleadings by the counsel for the defendant. Surely, none of these steps indicate an intent or can be described by the State as a prosecutive step.

We quote, with approval, from a memorandum of defendant’s counsel in support of the plea of prescription:

“It seems clear from the Court’s decisión in the Bradford and Bradley cases [219 La. 1090, 55 So.2d 255; 227 La. 421, 79 So.2d 561] that the State must show a prosecutive step. We submit to the Court that the Truett case on its face shows no such prosecutive step. The matter has never been set for trial; the defendant has never been notified for trial; and in fact, at this time has not received a notice that the case has been set for trial.

“On the contrary, the only steps which have been taken in this particular prosecution is an arraignment

“On the contrary, the defendant has been prosecuted actively, vigorously and with dispatch in 'Section ‘F’ of the Criminal District Court. This prosecution was in effect' for the same crime which the defendant is called upon to answer for in this section of Court. (Defendant was acquitted in Division “F” by a jury trial.) That the only reason the District Attorney has not vigorously prosecuted Truett in this particular case is because he made his election to try Truett upon the facts of the Section ‘F’ case which he felt to be the stronger and the better of the two prosecutions.

“We submit to the Court that the record on its face is prescribed and defendant should be released without bond, it being clear that the State has taken no prosecutive steps.”

For the reasons assigned, the judgment of the trial court ordering the nolle prosequi of the bill of information filed against John Truett for a violation of LSA-Revised Statutes, 40:962 is affirmed.

HAMITER, J., dissents.