State v. Gehlbach

• Decision Date: 08 November 1943
• Docket Number: 37138.
• Citation: 205 La. 340,17 So.2d 349
• Court: Louisiana Supreme Court
• Parties: STATE v. GEHLBACH.

17 So.2d 349

205 La. 340

STATE v. GEHLBACH.

No. 37138.

Supreme Court of Louisiana

November 8, 1943

Rehearing Denied March 13, 1944.

Edward Rightor, Warren O. Coleman, and Clarence Dowling, all of New Orleans, for relator.

Eugene Stanley, Atty. Gen., Niels F. Hertz, Asst. Atty. Gen., and J Bernard Cocke, Dist. Atty., of New Orleans, for respondents.

HAMITER Justice.

In two counts of a bill of information filed on July 10, 1941, the District Attorney for the Parish of Orleans charges defendant with having embezzled during the year 1936, certain funds entrusted to his care and keeping while employed by the Department of Conservation of the State of Louisiana. Another, or the third, count of the information purposes to negative the accruing of prescription, and it recites that the District Attorney 'does further give the said court here to understand and be informed that although more than one year has elapsed since the commission of the aforesaid offenses, in manner and form as aforesaid, yet more than one year has not elapsed since the commission of the aforesaid offenses was made known to the Judge, District Attorney, or Grand Jury having jurisdiction thereof'.

Defendant attacked the information through a written motion urging that it shows on its face that the crime alleged has prescribed. This plea of prescription was overruled; and thereafter defendant successfully invoked the supervisory jurisdiction of this court, thus bringing the case before us for review.

It is provided in Article 8 of our Code of Criminal Procedure that 'no person shall be prosecuted, tried or punished for any offense, murder, aggravated rape, aggravated kidnapping, aggravated arson, burglary in the nighttime, burglary in the daytime, armed robbery, and treason excepted, unless the indictment, information, or affidavit for the same be found or filed within one year after the offense shall have been made known to the judge, district attorney or grand jury having jurisdiction, * * *.'

And, according to the well established jurisprudence of this state, an information or indictment, in cases where the crime charged has been committed more than a year before the bill's filing, is an absolute nullity if it does not contain an allegation negativing prescription. See State v. Oliver, 193 La. 1084, 192 So. 725, and cases therein cited.

In the instant case, as the record shows, several years elapsed between the dates of relator's (defendant's) alleged commission of the embezzlement acts and the time when the formal charge was placed against him; and, therefore, it was essential that the prescription of one year be properly negatived in the information. Relator insists that this legal requirement has not been met.

First, relator contends that the district attorney, in count three, 'has negatived knowledge on the part of the district attorney, the judge and the grand jury but has failed to negative knowledge on the part of the attorney general who is 'an officer having the power to direct a public prosecution' and that, therefore, the district attorney has failed to negative the existence of facts necessary to a suspension of prescription.'

Under this first contention he directs attention to Section 986 of the Revised Statutes of 1870, as last amended by Act 67 of 1926, which reads:

'No person shall be prosecuted, tried or punished for any offense, wilful murder, arson, rape, robbery, forgery and counterfeiting excepted, unless the indictment or presentment for the same be found or exhibited within one (1) year next after the offense shall have been made known to a public officer having the power to direct a public prosecution. * * *' Then he says that the attorney general is a 'public officer having the power to direct a public prosecution', and that the quoted section of the Revised Statutes was not changed or repealed by Article 8 of the Code of Criminal Procedure which relates specifically to knowledge on the part of the judge, district attorney or grand jury having jurisdiction.

This court had occasion to consider both of those provisions in State v. Bussa, 176 La. 87, 145 So. 276, 281. Therein we observed that the Code of Criminal Procedure in no manner changed the prescriptive period of one year established by Section 986 of the Revised Statutes, as amended; and, after quoting from each, the following comment is given:

'Therefore, the only change made in the Code as to prescription is in regard to what allegations the bill must contain to negative prescription.

'Before the adoption of the Code of Criminal Procedure the required allegation was that the offense charged was not known to a public officer having the power to direct a public prosecution, and since its adoption the necessary allegation is that the offense charged was not known 'to the judge, district attorney or Grand Jury having jurisdiction.''

Relator, however, points out that the Bussa case was decided in 1932, at which time Article 17 of the Code of Criminal Procedure stated:

'Subject to the supervision of the Attorney-General, as hereinafter provided, the District Attorney shall have entire charge and control of every criminal prosecution instituted or pending in any parish wherein he is district attorney, and shall determine whom, when, and how he shall prosecute; provided, that every district attorney shall have the right to employ or to accept the assistance in the conduct of any criminal case of such counsel as to him may seem fit. * * *'

Further he shows that at such time Article 156 of the Code of Criminal Procedure provided:

'Whenever any district judge or district attorney shall be informed that a crime has been committed in his district, and that no complaint or declaration thereof has been made before any committing magistrate, he shall inquire into the fact by causing all persons he shall suppose to have some knowledge of the fact to be summoned before a court of competent jurisdiction, in order that their depositions may be taken.'

Then the argument is advanced that in as much as those laws made it the exclusive province of the district attorney to determine whom, when and how he should prosecute, and they required such official and also the district judge to make inquiry into crimes about which formal complaint had not been made, 'the negativing of prescription against the judge, the district attorney and the grand jury constituted the negativing of prescription against every public officer having the power to direct a public prosecution.' But in 1934, he further argues, the Legislature, by Act 24 of the First Extra-ordinary Session of that year, amended Articles 17 and 156 of the Code of Criminal Procedure so as to permit the attorney general to relieve, supplant and supersede the district attorney in any criminal proceeding, with full power to institute and prosecute criminal proceedings, thus constituting the attorney general the chief public officer having the power to direct prosecutions; and he being such, and having the power of interrupting the running of prescription by the filing of an information, the negativing of prescription as to him, the attorney general, has since been and is now required.

If it can be said that Act No. 24 of the First Extra-ordinary Session of 1934 was intended by the Legislature to change the law as relator contends, regarding which intent we express no opinion, no such change was actually effected. That statute in the recent case of Kemp, Jr., District Attorney, v. Stanley, Attorney General, 204 La. 110, 15 So.2d 1, was held to be unconstitutional. Therefore, the law now requires, the same as when the Bussa case was decided, the making of an allegation in the information that the offense charged was not known to the judge, district attorney or grand jury having jurisdiction. The attorney general need not be named therein.

The second ground for relator's insistence that the information fails to negative the running of prescription is that count three thereof uses the clause 'yet more than one year has not elapsed since the commission of the aforesaid offenses was made known to the judge, district attorney * * *,' instead of alleging in the language of the statute that the information is filed 'within one year after the offenses shall have been made known * * *.' And, with reference to this complaint, relator says:

'* * * The proper language to use in the information is 'that said offense had not been made known to the District Attorney within one year from the filing of this information.' The District Attorney has chosen to use language other than the language of the statute. If such language is equivalent to the words of the statute, the information is good. If the language used in the information is not equivalent to the language of the statute, then the information is not good. It is beyond dispute that the negativing of prescription in the information is sacramental.' (Italics ours.)

There can be no question, as relator states and as we have shown above, that an information charging a crime committed more than one year before its filing must appropriately negative the one year prescriptive period. This is sacramental; a failure so to do renders the information fatally defective.

Also the law indisputably is that a criminal statute must be strictly construed and all ambiguities therein are to be interpreted favorably to the accused. That legal principle is firmly imbedded in the jurisprudence of our state; but it has no application to the question presently before us. The statutory provision now being considered--'within one year'--is unambiguous, and we are merely required to determine, as relator points out, whether the language used in the information is equivalent to it. In other...