State v. Gendusa

• Court: Louisiana Supreme Court
• Writing for the Court: LAND, Justice.
• Citation: State v. Gendusa, 193 La. 59, 190 So. 332 (La. 1939)
• Decision Date: 29 May 1939
• Docket Number: 35270.
• Parties: STATE v. GENDUSA.

190 So. 332

193 La. 59

STATE v. GENDUSA.

No. 35270.

Supreme Court of Louisiana.

May 29, 1939

Rehearing Denied June 26, 1939.

Appeal from Criminal District Court, Parish of Orleans; Fred W Oser, judge.

Peter Gendusa was convicted of breaking and entering a house in the nighttime with intent to rob, steal and murder, armed with dangerous weapon, and committing an assault in such house and he appeals.

Affirmed.

Chandler C. Luzenberg, Sr., and David A. Neuhauser both of New Orleans, for appellant.

David W. Ellison, Atty. Gen., James O'Connor, 1st Asst. Atty. Gen., and Chas. A. Byrne, Dist. Atty., and Conrad Meyer, Jr., and George J. Gulotta, Asst. Dist. Attys., all of New Orleans, for the State.

LAND Justice.

Section 850 of the Revised Statutes of Louisiana was amended and re-enacted by Act No. 21 of 1926 so as to read as follows:

‘ Section 850. Whoever, with intent to kill, rob, steal, commit rape, or any other crime, shall, in the night time, break and enter, or having with such intent, entered in the night time, break a dwelling house, dwelling tent, or any other place used as a dwelling, any person being lawfully therein, and such offender being, at the time of such breaking or entering, armed with a dangerous weapon, or arming himself in such house or tent, or other place used as a dwelling, with a dangerous weapon, or committing actual assault upon any person lawfully being in such house or tent or other place used as a dwelling, any person present, aiding, assisting or consenting in such burglary, or accessory thereto before the fact, by counseling, hiring or procuring such burglary to be committed, on conviction, shall suffer * * death.’

On September 6, 1938, the Grand Jury returned in the Criminal District Court for the Parish of Orleans an indictment against the defendant, Peter Gendusa, charging him with the violation, in that Parish, on the 17th day of July 1937, of Section 850 of the Revised Statutes of Louisiana, as amended by Act No. 21 of 1926, a capital offense.

The defendant had been previously indicted, convicted and sentenced to death under an indictment drawn under Section 850, as amended, but had succeeded, in an appeal to his court, in having the verdict of the jury set aside, the sentence annulled, and the case remanded to the Criminal District Court for the Parish of Orleans ‘ for further proceedings consistent with the views herein expressed.’ State v. Gendusa, 190 La. 422, 182 So. 559, 561.

(1) On the second trial of the case, defendant filed a motion to quash, based on the ground that the offense charged in the new indictment is prescribed. The trial judge overruled defendant's plea of prescription, and defendant reserved to this ruling Bill of Exception No. 1.

The new indictment in this case contains two counts. In the first count it is charged:

‘ That one Peter Gendusa and one John Beecham, each, late of the Parish of Orleans, on the seventeenth day of July, in the year of our Lord, one thousand nine hundred thirty seven with force and arms in the Parish of Orleans aforesaid, and within the jurisdiction of the Criminal District Court for the Parish of Orleans did each feloniously, wilfully and unlawfully, in the night time, break and enter number eleven hundred thirty five (1135) Marais Street, in the Parish of Orleans, State of Louisiana, the dwelling house of Thomas Dupont and Miss Jennie Dupont, with intent to rob, steal and murder, armed with dangerous weapons, and did each commit actual assault upon Thomas Dupont and Miss Jennie Dupont, two persons lawfully being in the said dwelling house, contrary to the form of the Statute of the State of Louisiana in such cases made and provided and against the peace and dignity of the same.’

The second count of the indictment negatives prescription in the following language:

‘ And your Grand Jurors of the State of Louisiana duly empaneled and sworn in and for the body of the Parish of Orleans, in the name and by the authority of the said State, upon their oath do further present that although more than one year has elapsed since the commission of the aforesaid offense, in manner and form aforesaid, yet, heretofore, to wit: On the Fourth day of August, 1937, a bill of indictment was returned by the Grand Jury of the Parish of Orleans, State of Louisiana, the said indictment then returned being predicated on the same facts which form the basis of the present indictment, which said bill of indictment was annulled and set aside by judgment of the Supreme Court of the State of Louisiana on the thirieth day of May, 1938, and more than one year has not elapsed since the entry of the said judgment, contrary to the form of the Statute of the State of Louisiana in such cases made and provided and against the peace and dignity of the same.’

The endorsements on the reverse side of the bill of indictment are as follows:

‘ No. 93,482

‘ State of Louisiana

v.

Peter Gendusa and John Beecham

Section C

(No. Bail)

C. C. Luzenberg, Esq.

D. A. Neuhauser, Esq.

Attys.

‘ Indictment for Violating R. S. 850 as amended by Act 21 of 1926.

‘ A True Bill

‘ Signed: Abe Horowitz, Foreman of Grand Jury

‘ New Orleans, Sept. 6, 1938.’

In other words, the judgment reversing the conviction and sentence of defendant, Peter Gendusa, was rendered May 30 1938, and the present or new indictment against defendant was returned in open court by the Grand Jury for the Parish of Orleans on September 6, 1938, or within less than four months after the indictment in Gendusa case had been declared invalied by this court and the case remanded for a new trial.

The indictment first returned against defendant charged that the offense was committed by him on the 17th day of July, 1937. It is not contended, and could not be contended, by the defense in this case that the offense had been prescribed before the filing of the first indictment, which was on the 4th day of August 1937, but defendant's contention is that more than one year has elapsed since the commission of the crime on the 17th day of July 1937.

As shown by the per curiam to Bill of Exceptions No. 1, the reasons of the trial judge for overruling the plea of prescription are predicated on Article 8 of the Code of Criminal Procedure, as amended by Act No. 21 of 1935, 2d Ex.Sess., which reads as follows: ‘ * * * Provided, that in all criminal prosecutions an indictment or presentment found or exhibited, or an information filed, or an affidavit filed where prosecution may be by affidavit, before the above prescription has accrued, shall have the effect of interrupting such prescription; and if any such indictment, presentment, information or affidavit be quashed, annulled or set aside, or a nolle prosequi be entered, prescription of one year and six months, respectively as above provided, shall begin to run against another indictment, information or affidavit based on the same facts, only from the time said original indictment, presentment, information or affidavit was quashed, set aside, annulled or nolle prosequied.’

The offense is charged in the original indictment to have been committed by defendant on July 17, 1937. The return of that indictment on August 4, 1937, interrupted prescription, under Article 8 of the Code of Criminal Procedure.

The original indictment was declared to be invalid by this court in the Gendusa case on May 30, 1938, and the present, or new indictment was returned on September 6, 1938. As the prescription began to run against the present or new indictment only from the time the original indictment was declared invalid by this court in the Gendusa case, May 30, 1938, and the new indictment was returned September 6, 1938, it is clear that the plea of prescription tendered by defendant is without merit and was properly overruled by the trial judge, under the provisions of Article 8 of the Code of Criminal Procedure.

(2) The defendant, Peter Gendusa, objected to the indictment, being read to the jury and to the opening statement of the prosecuting officer being made, and to any witness testifying in the case, on the ground that the indictment shows by the allegations set forth in the first and second count, and by the date of the endorsement and the return, that the offense charged in the first count is prescribed.

The objections were overruled and Bill of Exceptions No. 3 was reserved by defendant. Bills of Exceptions Nos. 1 and 3 both relate to the same subject matter of prescription, but bill No. 3 presents some issues that are not involved in Bill of Exceptions No. 1.

Defendant had the right to submit his special plea of prescription to the trial judge, in limine, for decision, instead of referring the plea to the jury. Defendant submitted his special plea to the trial judge, who held that, under the evidence adduced by the State, the offense charged against defendant was not prescribed, as an interruption of prescription, under Article 8 of the Code of Criminal Procedure, had been shown by the prosecution. The special plea of prescription, for this reason, was overruled by the trial judge, in limine, before trial by the jury.

In State v. Brown, 185 La. 1023, at page 1030 et seq. 171 So. 433, 435, it is said in the opinion: ‘ When a defendant files a plea of prescription before going to trial the judge must hear testimony in support of the plea if the defendant insists upon it, and must dispose of the plea. State v. Hayes, 162 La. 917, 111 So. 327. The reason is that article 8 of the Code of Criminal Procedure provides that no person shall be prosecuted, tried, or punished for an offense unless the indictment or information is presented within the time therein prescribed. If the crime is prescribed the defendant cannot be tried, and...