State v. Guillot

• Decision Date: 27 April 1942
• Docket Number: 36631.
• Court: Louisiana Supreme Court
• Parties: STATE v. GUILLOT.

9 So.2d 235

200 La. 935

STATE v. GUILLOT.

No. 36631.

Supreme Court of Louisiana

April 27, 1942

Dissenting Opinion May 22, 1942.

Rehearing Denied June 29, 1942. [Copyrighted Material Omitted]

Eugene Stanley, Atty. Gen., Niels F. Hertz, Asst Atty. Gen., and Earl Edwards, Dist. Atty., of Marksville, for the State.

Philo Coco and S. Allen Bordelon, both of Marksville, for defendant-appellant.

ROGERS Justice.

Teska Guillot, Jr., was convicted of the crime of burglary as defined by Section 854 of the Revised Statutes, as amended and reenacted by Section 1 of Act 20 of 1926. His motion for a new trial was overruled, and after sentence was imposed, he appealed to this court.

The information was filed on February 26, 1941, and charged that the crime was committed on or about February 27, 1940.

Defendant's complaints, three in number, are embodied in the bill of exception reserved to the refusal of the trial judge to grant his motion for a new trial.

The first complaint urged by defendant in the motion for a new trial was, and in this court now is, that under the provisions of Article 8 of the Code of Criminal Pro cedure the offense charged in the bill of information was prescribed.

Defendant argues with considerable force that the information, which shows on its face that the crime charged was committed 'on or about February 27, 1940,' was not filed until February 26, 1941, and that the crime could not have been committed within one year thereafter, as shown by the testimony adduced on the trial of the case which is set forth in the stipulation of counsel submitted with the hearing on the motion for a new trial. The bill of information does not negative prescription.

At the outset of the trial defendant, through his counsel, 'announced he would exact that the State restrict its proof upon the trial to February 27, 1940, or afterwards, since time was of the essence in this case, the charge having been made on the last day before the expiration of the year.'

Defendant did not file a plea of prescription nor ask the trial judge to pass upon such a plea in limine. He went no further than to make the announcement to which we have referred. Defendant thus submitted the question to the jury. The jury evidently believed that the offense charged was committed to February 27, 1940, and therefore was not prescribed; otherwise, they would not have convicted defendant.

It has been held that a plea of prescription may be properly left to the jury. But where the plea has been submitted and disposed of in limine by the trial judge, the accused may not thereafter have the plea re-submitted to the jury. State v. Gendusa, 193 La. 59, 190 So. 332. Conversely, where the plea has been submitted to the jury, the accused has no right to have the plea withdrawn and referred to the trial judge. State v. Posey, 157 La. 55, 101 So. 869. It also has been held that the failure of an accused to file a plea of prescription before trial and to insist upon a ruling thereon is equivalent to a waiver of the right to urge the plea. State v. Brown, 185 La. 1023, 171 So. 433. On the other hand, it has been held that notwithstanding negation of prescription in the indictment, the accused may plead and show, even after conviction, that the offense charged was prescribed when the indictment was returned. State v. Block, 179 La. 426, 154 So. 46; State v. Oliver, 193 La. 1084, 192 So. 725. The holding in the Block and Oliver cases is predicated on the fact that Article 8 of the Code of Criminal Procedure not only provides that no person shall be prosecuted or tried for a prescribed offense, but also that no person shall be punished for such an offense. The court observed in its decision in the Block case [179 La. 426, 154 So. 47] that: 'The sole way to give effect to the word 'punished,' is to permit the defendant, notwithstanding the negation of prescription in the indictment to plead and show, even after conviction, that the offense was prescribed, when the bill was returned.'

The procedure in the instant case apparently followed the procedure indicated as correct in the Block and Oliver cases. The trial judge heard all the evidence the defendant had to offer in submitting his motion for a new trial. The evidence did not differ from the evidence presented to the jury, and the trial judge, in refusing a new trial, held that the evidence was not sufficient to justify him in setting aside the verdict.

Although the plea of prescription presented in a criminal case is a question of fact, it is not a question of fact relating to the guilt or innocence of the accused. The decision of the trial judge as to whether the offense charged is prescribed is reviewable by this court on the same facts upon which the decision was based. State v. Gendusa, 193 La. 59, 190 So. 332.

According to the agreement of counsel submitted at the hearing on the motion for a new trial, only three of the State's witnesses testified as to the time defendant committed the offense charged in the information. Irvin Ducote, the manager of the People's Gin Company, testified on the trial of the case that he was unable to state whether the stolen articles were removed from the building owned by the company on February 27, 1940, the date on which he discovered they had been stolen. Ducote further stated that it was possible the articles could have been removed one day after December 20, 1939, which was the last time he had visited the gin prior to February 27, 1940.

Albert Harris, a junk dealer of Bunkie in whose possession some of the stolen articles were found, testified that he purchased the articles from the defendant, but that the purchase was made prior to February 27, 1940, the date on which they were found in his possession.

Roosevelt Washington testified that he saw the defendant leaving the building of the People's Gin Company through an open window on the morning of February 27, 1940, but that 'he did not see any articles, property or equipment in his possession when he was coming out of said window.'

Article 8 of the Code of Criminal Procedure provides that: 'No person shall be prosecuted, tried or punished for any offense [certain felonies excepted], unless the indictment, presentment or information for the same be found, exhibited or filed * * * within one year after the offense shall have been made known to the judge, district attorney or Grand Jury having jurisdiction. * * *' Burglary is not one of the excepted offenses.

The current of prescription created by the article begins to run only from the time the offense shall have been made known to the judge, district attorney, or grand jury having jurisdiction. An accused who pleads prescription bears the burden of proving that the offense with which he is charged was made known to a responsible officer more than one year previous to the return of the indictment or the filing of the information. State v. Oliver, 193 La. 1084, 192 So. 725. Defendant failed to discharge the burden of proof. None of the witnesses relied on by him supported his claim that the offense with which he was charged was prescribed.

The jury found the defendant guilty as charged,--that is to say, of the offense alleged in the indictment--and this Court has no jurisdiction to review the verdict on the ground that the averments of fact contained in the indictment were not supported by the evidence. State v. Le Blanc, 125 La. 967, 52 So. 114. But this court may, on its own motion, notice an error patent on the face of the record such as the following matters: That the statute under which the accused was convicted has been repealed, State v. O'Conner, 13 La.Ann. 486; State v. Henderson, 13 La.Ann. 489; that the sentence imposed is not legal, State v. Deleo, 156 La. 672, 101 So. 17; State v. Carlander, 158 La. 244, 103 So. 755; that the verdict is fatally defective, State v. Bankston, 159 La. 429, 105 So. 420; that the indictment charges no offense, State v. Jordy, 161 La. 104, 108 So. 229; State v. Melson, 161 La. 423, 108 So. 794. One of the cases cited in the Melson case is State v. Forrest, 23 La.Ann. 433. In that case it was held that where, on the face of an indictment, a crime is prescribed, the accused may call the attention of the Supreme Court to the error. In such a case, the Supreme Court will decide whether, on its face, the prosecution is prescribed.

We therefore shall pass to the consideration of defendant's contention that on its face the bill of information filed in this case shows that the offense charged therein is prescribed.

Defendant argues that an examination of the bill of information 'suggests that time is of the essence of the alleged commission of the offense in view of the statutory limitation for the prosecution of an offense of this nature.' Defendant further argues that, while under ordinary circumstances where time is not of the essence in charging the commission of an offense, the words 'on or about' could be regarded as sufficient in this case the information was not filed until the day ending one year after the alleged commission of the offense so that the use of the words 'on or about' of itself indicates that the offense was barred by the statute of limitations, and the failure of the district attorney to negative the prescription makes the information fatally defective.

'At common law, since it was held necessary to allege the offense to have been committed on a day certain, an allegation that an offense was committed 'on or about' a certain day was regarded as insufficient. But under the statutes now generally prevalent rendering a statement of the precise time of the offense immaterial, save where the time is an ingredient of the offense, together with the statutes providing that the indictment shall...