State v. Montgomery

Decision Date09 November 1970
Docket NumberNo. 50316,50316
Citation242 So.2d 818,257 La. 461
PartiesSTATE of Louisiana v. Henry MONTGOMERY.
CourtLouisiana Supreme Court

Johnnie A. Jones, Murphy W. Bell, Baton Rouge, for defendant-appellant.

Jack P. F. Gremillion, Atty. Gen., William P. Schuler, Asst. Atty. Gen., Sargent Pitcher, Jr., Dist. Atty., Ralph L. Roy, Asst. Dist. Atty., for plaintiff-appellee.

HAMITER, Chief Justice.

On November 18, 1963 Henry Montgomery was indicted for murder. He was tried, convicted and sentenced to death. On January 17, 1966 this court, on an appeal by the accused, reversed the conviction and sentence, and it ordered a new trial. 248 La. 713, 181 So.2d 756.

On October 8, 1966 (after the new trial was granted) the defendant, along with other inmates, escaped from the parish jail. (There is some disagreement between the state and the defendant as to the length of time the latter was at large. However, it is clear that he did leave the prison compound, and the rearresting officer's testimony was that he was apprehended about two hours after the break out. His testimony was corroborated by that of another officer who participated in the search and the rearrest of the escapees. The defendant offered no counteravailing evidence.)

A new trial was commenced on February 6, 1969, at the conclusion of which the jury returned a verdict of guilty without capital punishment; and the defendant was given a life sentence in the state penitentiary.

On this appeal from such conviction and sentence he relies on one bill of exceptions, it having been reserved to the court's overruling of his motion to quash the indictment based on a plea of prescription.

In order to determine whether prescription has tolled in the instant prosecution we must examine the appropriate, hereinafter quoted, articles of the Louisiana Code of Criminal Procedure.

Article 578, insofar as it is pertinent here, states: 'Except as otherwise provided in this Chapter, no trial shall be commenced:

'(1) In capital cases after three years from the date of institution of the prosecution;'. (Italics ours)

One clear exception to that rule is contained in Article 579 which provides: 'The period of limitation established by Article 578 shall be interrupted if:

'(1) The defendant at any time, with the purpose to avoid detection, apprehension, or prosecution, flees from the state, is outside the state, Or is absent from his usual place of abode within the state; or

'(2) The defendant cannot be tried because of insanity or because his presence for trial cannot be obtained by legal process, or for any other cause beyond the control of the state.

'The periods of limitation established by Article 578 shall commence to run anew from the date the cause of interruption no longer exists.'

Also, Article 582 recites: 'When a defendant obtains a new trial or there is a mistrial, the state must commence the second trial within one year from the date the new trial is granted, or the mistrial is ordered, Or within the period established by Article 578, whichever is longer.' (Italics ours)

The defendant contends that Article 582, when read in connection with Article 579(2), is controlling. He observes that it is conceded that his escape, because of its short duration, did not prevent or delay the state's bringing him to trial. And he argues that the three year prescription provided by the Article 578 was, therefore, not interrupted and has expired (as has its extended one year period beyond the date of the ordering of the new trial), with the result that he is now immune from prosecution on the original charge.

In our opinion the contention is without merit. The effect of the actions of the defendant, as urged by the state, is not governed by Article 579(2), but rather by the provisions of Article 579(1) which unequivocally provide for the effect of the circumstance Of an accused absenting himself from his usual place of abode with the intent to avoid detection, apprehension or (as in this case) prosecution.--in other words when, as here, the defendant has absconded and become a fugitive.

The language of the present Article 579(1) specifically states that when an accused flees the state, is outside the state, or Is absent from his usual place of abode within the state for the purpose of avoiding detection, etc. such act will Interrupt prescription. Nothing else is required. That is, such act need not necessarily result in delay or prevention of trial in order for the interruption to occur.

Other circumstances may take place, however, which are beyond the control of the state, but which are not necessarily intentional acts on the part of the accused to avoid prosecution but which nevertheless, prevent or delay trial (such as insanity or when the accused is incarcerated in another jurisdiction wherein the processes of Louisiana will not be honored. They are dealt with in Article 579(2). Clearly, defendant's conduct did not fall within this category.

We conclude, therefore, that it matters not how long the conduct specified in Article 579(1) persists, or whether it has any effect on the progress of the trial. The simple fact of its occurrence results in, at that time, an interruption. (The length of time such conduct endures will, of course, be taken into account in determining when the prescription commences to run anew.)

Although not presented to the court by this accused, we have also considered the question of whether his escape Constituted an absence from his 'usual place of abode' and whether it was with the intent to avoid prosecution, and have concluded that it did. The circumstances of the escape--the overpowering of one of the guards, the threatening of the personal safety of another officer in order to effect escape, and the attempt thereafter to avoid detection--All clearly indicate an intention to leave for the purpose of avoiding prosecution.

The jail house in which the accused had been incarcerated for a number of years was his 'usual place of abode', as aforestated, within the language of the statute (Article 579(1)). To hold otherwise would be for us to charge the Legislature with the manifest inconsistency of providing an interruption of prescription when an accused flees or absconds or hides out From his home, but Not resulting in an interruption when he does the same thing by escaping from prison.

Moreover, in our opinion the use of the general term 'usual place of abode', instead of other specific terms having more definite connotations such as 'home', 'residence', or 'domicile' indicate an intent to include any place of habitation where the accused was then staying, and where the state might expect to find him for service of process; and that it Did include the parish jail under the circumstances of which this defendant was then living.

During oral argument it was suggested by a member of this court that, inasmuch as when the new trial was granted...

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9 cases
  • Montgomery v. Louisiana
    • United States
    • United States Supreme Court
    • 25 Enero 2016
    ...762 (1966).Montgomery was retried. The jury returned a verdict of "guilty without capital punishment." 136 S.Ct. 726State v. Montgomery, 257 La. 461, 242 So.2d 818 (1970). Under Louisiana law, this verdict required the trial court to impose a sentence of life without parole. The sentence wa......
  • Montgomery v. Louisiana
    • United States
    • United States Supreme Court
    • 25 Enero 2016
    ...181 So.2d 756, 762 (1966).Montgomery was retried. The jury returned a verdict of "guilty without capital punishment." State v. Montgomery, 257 La. 461, 242 So.2d 818 (1970). Under Louisiana law, this verdict required the trial court to impose a sentence of life without parole. The sentence ......
  • Garcia v. Condarco
    • United States
    • U.S. District Court — District of New Mexico
    • 26 Septiembre 2000
    ...... argue the Hobbs City Jail is not a "dwelling" as defined in the FHA and therefore Plaintiffs FHA count should be dismissed for failure to state a claim. II. DISCUSSION. A. Legal Standard.         Under Federal Rule of Civil Procedure 12(b)(6), dismissal is appropriate when, "accepting ...For purposes of service of process, however, the courts have distinguished a jail from a residence. See State v. Montgomery, 257 La. 461, 242 So.2d 818, 820 (1970); Leidy v. Edwards, 24 N.J. Misc. 116, 46 A.2d 723 (Dist.Ct.1946). Initially, then, the Court must consider ......
  • State v. Howard
    • United States
    • Supreme Court of Louisiana
    • 19 Enero 1976
    ...... State v. Holmes, 263 La. 685, 269 So.2d 207 (1972). However, the three-year period of limitation established by the article was interrupted and commenced to run anew from the end of each period of escape. La.Cr.P. art. 579. State v. Montgomery, 257 La. 461, 242 So.2d 818 (1970). Thus, regardless of whether the prosecution is considered to have been instituted in 1971 or in 1972, the case was brought to trial within the limitation set by statutory law, due to the interruptions of the period caused by defendant's escapes. ......
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