State v. Latil, 42777

• Decision Date: 07 May 1956
• Docket Number: No. 42777,42777
• Citation: 92 So.2d 63,231 La. 551
• Parties: STATE of Louisiana v. Herbert LATIL.
• Court: Louisiana Supreme Court

Page 63

92 So.2d 63

231 La. 551

STATE of Louisiana v. Herbert LATIL.

No. 42777.

Supreme Court of Louisiana.

May 7, 1956.

On Rehearing Dec. 10, 1956.

Jack P. F. Gremillion, Atty. Gen., M. E. Gulligan, Asst. Atty. Gen., J. St. Clair Favrot, Dist. Atty., Fred S. LeBlanc, Baton Rouge, for appellant.

C. Ory Dupont, Plaquemine, James D. Womack, Baton Rouge, Charles O. Dupont, Plaquemine, for defendant-appellee.

HAMITER, Justice.

On April 7, 1955 the district attorney of East Baton Rouge Parish filed a bill of information (No. 24,051 on the criminal docket of the court of that parish) charging that the defendant, Herbert Latil, on the 8th day of October, 1953 '* * * feloniously did violate Title 40, Section 962 et seq., Revised Statutes of Louisiana, in that he unlawfully had in his possession certain quantities of narcotic drugs.

'Second Count: The District Attorney hereby informs the Court that although more than one year has elapsed from the date of the offense stated herein and the filing of this bill, the prescription of one year does not apply and is hereby negated, for the reason that the accused was charged with the same offense in No. 22,407 on the Criminal Docket of this Court, filed on April 2, 1954; that the accused was arraigned on said bill on April 2, 1954 and said bill was thereafter nolle prossed on February 23, 1955 for the reason that the original thereof was misplaced or lost, and therefore the prescription of one year as provided by Article 8 of the Louisiana Criminal Code does not apply and is hereby negatived, contrary to the form of the Statutes of the State of Louisiana, * * *.'

Pursuant to a motion by defense counsel the state furnished a bill of particulars with reference to the kind, quantity and location of the narcotics allegedly possessed.

Thereafter, the defendant tendered a motion to quash bill No. 24,051, in reading in part as follows:

'The Bill of Information Number 23,777 charging the same identical offense, was held prescribed by this Honorable Court on the 4th day of March, 1955, and that your mover can not be tried further therefor.

'Wherefore, mover prays that this motion to quash filed herein be sustained and that said Bill of Information No. 24,051, be adjudged null and void and that he be discharged.'

Following a hearing on such pleading the district court rendered and signed a judgment decreeing '* * * that the motion to quash and the plea of prescription be and they are hereby sustained and the accused is ordered discharged.'

The state is appealing from that judgment.

The record discloses proceedings in the district court as hereafter set forth.

For the narcotic possession offense allegedly occurring on October 8, 1953, the accused was originally charged on April 2, 1954 (within a year from the date of the occurrence), in bill of information No. 22,407. A nolle prosequi was entered as to such bill on February 23, 1955, or more than a year after the commission of the alleged crime, because the original thereof had been misplaced (it was later found).

In place of the dismissed charge, and on the last mentioned date, bill No. 23,777 was filed. It followed the language of the first bill and failed to negative the prescription of one year, i.e., by reciting the prior timely charging of the accused. To this second bill defendant tendered what was styled a plea of prescription; and on a hearing of it the court denied a request by the state to be permitted to amend the bill, so as to negative prescription, and sustained the plea.

Thereafter onApril 7, 1955, the state filed bill No. 24,051, first above quoted, which recited the offense originally charged and properly negatived prescription. The defendant, as afore shown, then moved to quash this third bill on the ground that the second bill which charged the identical crime, had been decreed prescribed. Thereupon the court rendered the judgment, sustaining the motion to quash and ordering the defendant discharged, from which the instant appeal was taken by the state.

The sustained motion to quash does not and could not properly present a plea of former jeopardy or autrefois acquit, because the defendant has never been brought to trial. LSA-R.S. 15:277 and 279. Evidently by it, in view of the allegation therein contained that bill No. 23,777 was held prescribed, res judicata was intended to be pleaded.

This court has said that the 'doctrine of res judicata does not apply to criminal prosecution.' Town of St. Martinville v. Dugas, 158 La. 262, 103 So. 761, 763. However, numerous courts of other jurisdictions, to quote from 147 A.L.R. 992, have held: 'The doctrine of res judicata, by which a fact or matter distinctly put in issue and directly determined by a court of competent jurisdiction cannot afterwards be disputed between the same parties, is applicable to judgments in criminal prosecutions.'

Nevertheless, even under the holdings of such other courts we are of the opinion that the ruling relied on by defendant herein, and on which his plea of res judicata is based, did not foreclose the right of the state to file the third bill of information as the trial court decreed in the judgment appealed from.

According to LSA-R.S. 15:8 the filing of a bill of information before an offense has prescribed by one year has the effect of interrupting prescription; and if such information be quashed or otherwise dismissed the prescriptive period shall begin to run against another information based on the same facts 'only from the time that said original * * * information * * * was quashed, set aside, annulled or nolle prosequied.' Thus, the matter of interruption is important in deciding whether or not an offense has actually prescribed. However, in the instant cause that matter was not distinctly placed at issue by defendant's so called plea of prescription and, hence, was not directly determined by the judgment sustaining such plea and on which the res judicata contention is predicated.

Defendant's plea, which according to the court minutes was considered on argument of counsel and without the taking of any evidence on question of interruption, unquestionably was directed at the insufficiency of the second bill of information; and the court sustained it obviously because such bill, disclosing the elapse of more than a year since the crime's commission, did not negative prescription. The attack, in other words, was leveled merely at the defective second bill of information and the plea was in effect a motion to quash or a demurrer.

Therefore, the court's ruling in sustaining defendant's plea was not a holding that the alleged offense had in fact and in law prescribed; it amounted to nothing more than the quashing or setting aside of the defective second bill. And it did not serve to prevent the state's filing of the third bill which properly negatived prescription and, in accordance with LSA-R.S. 15:8, was timely presented.

Our attention is directed by defense counsel to the failure of the state, in prosecuting this appeal, to furnish any perfected bills of exceptions. We are of the opinion that in making our determination herein none was needed, for the error noted above appears to be one patent on the face of the record. However, if because of a lack of bills of exceptions we should not examine the several proceedings to which reference is above made, and thus we are restricted to a consideration of the third bill of information and the motion to quash it, nevertheless the judgment sustaining that motion must be reversed. The third bill, insofar as prescription is concerned, is sufficient on its face and was timely filed.

For the reasons assigned the judgment appealed from is reversed and set aside, the motion to quash is overruled, and the case is remanded for further proceedings according to law. On Rehearing

FOURNET, Chief Justice.

This is an appeal by the State of Louisiana from the ruling of the judge of Division 'A' of the Nineteenth Judicial District Court dated December 16, 1955, dismissing the prosecution of the accused for illegal possession of narcotics under Bill of Information No. 23,051 on his motion to quash, which is based on the ground that the judgment of Division 'B' rendered on March 4, 1955, upholding the defendant's plea of prescription, was a bar to any further prosecution for this same offense.

The record shows the defendant was arrested on October 8, 1953, for possession of marijuana and was formally charged on April 2, 1954, by Bill of Information No. 22,407, with having violated 'Title 40, Section 962 et seq., Revised Statutes of Louisiana, in that he Unlawfully had in his possession certain quantities of narcotic drugs * * *' on October 8, 1953. After the district attorney had been permitted to amend this bill by inserting the underscored word 'unlawfully,' the bill was, on February 23, 1955 (the date set for trial), nolle prossed at the district attorney's request.¹

On the same day--February 23, 1955--the district attorney filed Bill of Information No. 23,777, charging the defendant with the same offense. On March 4, 1955, the accused, availing himself of the provisions of Article 8 of the Code of Criminal Procedure,² filed a plea of prescription in bar of his prosecution on the information. This plea was based on the fact the information had been returned on February 23, 1955, more than one year after the offense was alleged to have been committed, i.e., on October 8, 1953. Following argument on this plea, the state requested permission to amend the information so as to negative prescription. This permission was denied by the trial judge, who thereupon sustained the plea of prescription. The state neither reserved bills to the rulings refusing permission to amend and sustaining the plea of prescription; nor did the state appeal.

On April 7, 1955, a third information, bearing No. 24,051, was filed. Therein the accused was charged for the third time with the identical...